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Tuesday, December 31, 2013

Ind. Courts - Court of Appeals' Caseload Continues Decline in 2013

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

Updating this December 20 entry, the Court of Appeals issued 71 opinions in the final five days of 2013.

Indiana Court of Appeals Opinions Issued in the Final Five Business Days of the Year
Year Final Day Day 2 Day 3 Day 4 Day 5 Total Opinions
FP / NFP FP / NFP FP / NFP FP / NFP FP / NFP FP / NFP - Total
2013 5 / 30 0 / 5 2 / 13 0 / 7 3 / 6 10 / 61 - 71
2012 3 / 21 3 / 13 3 / 5 0 / 13 2 / 4 11 / 56 - 67
2011 8 / 24 5 / 17 2 / 17 0 / 9 1 / 19 16 / 86 - 102
2010 7 / 18 6 / 11 2 / 5 2 / 15 5 / 14 22 / 63 -- 85
2009 7 / 17 6 / 17 7 / 15 0 / 9 1 / 4 21 / 62 - 83
2008 7 / 16 5 / 12 5 / 8 1 / 7 5 / 9 23 / 52 - 75
2007 9 / 19 13 / 21 5 / 12 4 / 15 4 / 5 35 / 72 - 107

The total for the year appears to be 2103, which would be the lowest in several years and a continuation of the steady decline shown in a May 10th post highlighting the Court of Appeals’ 2012 Report. Here is that table updated with the 2013 total (breakdowns are not yet available):

Indiana Court of Appeals Majority Opinions, 2008 - 2013
Year Criminal/PCR Civil Expedited/Other Total
2013 NA NA NA 2103
2012 1271 594 278 2143
2011 1408 654 335 2397
2010 1411 610 583 2375
2009 1613 583 373 2569
2008 1700 716 323 2739

The Court of Appeals' annual report will provide the official numbers and a variety of other important statistics and information. I suspect the number of filings has continued to decline, and the Court had maintained its quickest-in-the-nation reputation for deciding cases. The Winston Wood v. State opinion, issued today nearly nine months after its arrival at the Court, is an exception to Indiana's one-month average.

Posted by Marcia Oddi on Tuesday, December 31, 2013
Posted to Ind. App.Ct. Decisions | Indiana Decisions | Schumm - Commentary

Ind. Decisions - Tax Court issues two today

Both with the same name:

In Vern R. Grabbe v. Carroll County Assessor, Neda K. Duff (49T10-1206-TA-35 ), a 6-page opinion, Judge Wentworth writes:

This case concerns whether the Indiana Board of Tax Review erred in applying Vern R. Grabbe’s 2009 agricultural property assessment to the 2010 tax year. The Court finds it did not. * * *

For the above-stated reasons, the Indiana Board correctly applied Grabbe’s 2009 agricultural property assessment to the 2010 tax year. Accordingly, the Indiana Board’s final determination is AFFIRMED.

In Vern R. Grabbe v. Carroll County Assessor, Neda K. Duff (49T10-1108-TA-51 ), a 12-page opinion, Judge Wentworth writes:
This case concerns whether the Indiana Board of Tax Review erred in upholding the 2009 assessment of Vern R. Grabbe’s agricultural property. The Court finds it did not. * * *

For the above-stated reasons, the Court finds that the Indiana Board’s determination upholding the 2009 assessment of Grabbe’s agricultural property is supported by substantial and reliable evidence and is not contrary to law. Accordingly, the Indiana Board’s final determination is AFFIRMED.

Posted by Marcia Oddi on Tuesday, December 31, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - "Lawyer Has Triable Tort Claim Against Client That Allegedly Got Her Kicked Out as Partner"

The Court of Appeals' Dec. 11th opinion in Carol Sparks Drake v. Thomas A. Dickey, Craig Anderson, Charles E. Podell, and Duke Realty Corporation (ILB summary here) is the subject of a lengthy article today by Joan C. Rogers in Bloomberg BNA. A few quotes:

Carol Sparks Drake was a partner in the law firm of Parr Richey Obremskey & Morton when one of the firm's clients, Duke Realty Corp., announced plans to develop land adjacent to a farm Drake owned.

When Drake refused to sell the farm to Duke Realty, Parr Richey stopped representing the company in regard to the project; however, after Drake and Duke Realty entered into a land use agreement that limited how the company could develop the property, Parr Richey resumed the representation.

Drake and Duke Realty had numerous disagreements after executing the land use agreement. Shortly after Drake sent Duke Realty a letter outlining the company's alleged breaches of the agreement, Duke Realty representatives met with Parr Richey partners and informed them that if Drake protested or filed a complaint on the land use agreement, Parr Richey's attorney-client relationship with Duke Realty would be terminated.

A Parr Richey partner then told Drake that “this could be your job … if you don't sell your farm to Duke Realty.” Two other partners told her she would be terminated from the partnership unless she sold the farm to Duke Realty. When Drake still refused to sell, the Parr Richey partners held a meeting and removed her as a partner.

Drake sued Duke Realty for tortious interference with her partnership agreement with Parr Richey. The trial court granted Duke Realty's motion for summary judgment, and Drake appealed.

The appeals court concluded that Drake is entitled to a trial on her tortious interference claim.

Posted by Marcia Oddi on Tuesday, December 31, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 30 NFP)

For publication opinions today (5):

In Paul Gillock and Kathy Gillock v. City of New Castle, Indiana , an 8-page opinion, Judge Crone writes:

Paul and Kathy Gillock brought a negligence claim against the City of New Castle, Indiana (“the City”). After almost nine months, the City moved to dismiss the case for failure to prosecute and failure to obey an order to compel discovery. On the day that the hearing on the City’s motion to dismiss was to be held, the Gillocks filed a motion to dismiss with prejudice, which the trial court granted. The City then moved for attorney’s fees, asserting that the Gillocks’ lawsuit was frivolous, unreasonable, and groundless, and litigated in bad faith. The trial court granted the City’s motion for attorney’s fees.

The Gillocks appeal the award of attorney’s fees, arguing that it is contrary to law because their complaint was not frivolous, unreasonable, groundless, or made in bad faith. We conclude that the Gillocks’ complete failure to take any action for almost a year in furtherance of their lawsuit, including their failures to respond to discovery requests and obey the trial court’s order without any reasonable explanation, supports the trial court’s implicit legal conclusion that their claim was unreasonable and groundless. Therefore, we affirm the award of attorney’s fees. The City argues that it is entitled to reasonable attorney’s fees and costs incurred in this appeal. We conclude that the Gillocks’ appeal was not utterly devoid of all plausibility, and therefore deny the City’s request for appellate attorney’s fees and costs.

In Brad Haskin v. City of Madison, Indiana , a 12-page opinion, Judge Brown writes:
[Haskin ruptured his Achilles tendon when he stepped into a a trough which was part of the design of the curb while walking between the curb and the parked vehicle in a crowd at the Madison Regatta.] On June 22, 2009, Haskin filed a complaint for damages against the City which alleged in part that he stepped into a storm sewer drain that had a partial iron grate covering the center of the drain with large openings on either side. The complaint alleged that the City was negligent in designing, constructing, and maintaining the sewer drain, in failing to properly illuminate the drain and provide proper signage warning pedestrians of the condition around it, in the planning and coordination of the special event, and by failing to properly coordinate pedestrian pathways that were free of dangerous conditions. The complaint also alleged that the City knew or should have known that pedestrians would be walking in the streets due to the large crowds and had in fact closed off the streets from vehicular traffic for just this purpose, and that as a direct and proximate result Haskin ruptured his Achilles tendon. * * *

With respect to Haskin’s claim that the City was negligent in the design, construction or maintenance of the curb or sewer drain, we conclude that the designated evidence demonstrates that the City is immune from liability. With respect to Haskin’s other negligence claims, the designated evidence demonstrates that the City did not owe a duty to Haskin as it did not possess or control the condition of Jefferson Street at the time of his injury nor did it manage the pedestrian traffic or other aspects of the Regatta. For the foregoing reasons, we affirm the trial court’s order granting the City’s motion for summary judgment.

Winston K. Wood v. State of Indiana , a 28-page, 2-1 opinion, Judge May writes:
[A boat collision occurred on Lake Monroe, resulting from the inattention of both operators. People were killed and injured in the Collier boat, no one with the Wood boat, which went over the top, was injured] Wood dove into the water and swam toward Susan Collier, but she was a “mangled person” with a “torn up face,” and Wood “realized it was way beyond anything [he] could do.” Wood quickly returned to his boat and joined his friends, who had already climbed back onto Wood’s boat.

Wood then drove his boat at top speed to the Fourwinds Marina, which was about two-and-a-half miles away from the scene of the accident. When asked later, Wood said he thought his boat was sinking because there was water in his boat following the accident. During the trip to the Marina, Wood used Marietta’s cell phone to call his father. When Wood could not get through, he gave the cell phone to Marietta, who called 911 about six minutes after the accident. * * *

Wood, Marietta, and Holmberg stayed at the Fourwinds Marina, as instructed by the 911 operator, and waited one-and-a-half hours for the authorities to arrive. * * *

Because of the lack of communication between the 911 operators, most of the investigators, including the one who interviewed Wood after the accident, did not know Wood and his companions had called 911 or that they had waited at the marina for one-and-a-half hours.

About a month later, on August 3, 2010, the State charged Wood with Count I, leaving the scene of a boating accident resulting in Susan’s death; Count II, leaving the scene of a boating accident resulting in Gage’s death; and Count III, leaving the scene of a boating accident resulting in serious bodily injury to Collier. * * *

Following a five-day jury trial, Wood was convicted of two counts of Class C felony leaving the scene of a boating accident resulting in death and one count of Class D felony leaving the scene of a boating accident resulting in serious bodily injury. The trial court fined Wood $1,000 and sentenced him to six years6 for each Class C felony, to be served concurrently. For the Class D felony, the trial court fined Wood $1,000 and sentenced him to three years7 to be served concurrently with the sentences for the Class C felonies. * * *

[1. Criminal Rule 4(C)] Wood filed a motion for discharge pursuant to Rule 4(C), which the trial court denied. * * *

The trial court did not err in denying Wood’s motion for discharge.

[2. Sufficiency of Evidence] * * * The Indiana General Assembly has made it a criminal offense for the operator of a boat involved in an accident to leave the scene of the accident before exchanging information and providing reasonable assistance to the injured. [The Court discusses the requirements is IC 4-15-4.] * * *

Wood contends his “decision to get help by going to the marina while calling 911, when considered in the totality of the emergency, satisfied his duties as a boater in an accident.” Our legislature did not include consideration of the “totality of the emergency” in the definition of this offense or as a defense to the specific statutory obligations it imposed. Thus, we must reject Wood’s suggestion that we consider the evidence within that framework, and we must decline Wood’s invitation to reweigh the evidence or to consider evidence other than that most favorable to the judgment. * * *

We acknowledge Wood and his passengers complied with the instructions of the 911 dispatcher and waited at the Fourwinds for an hour and a half before the authorities arrived, but there was no evidence Wood satisfied the statutory requirements to remain at the scene and give to “the operator of each other boat and each person injured,” Ind. Code § 14-15-4-1, the information required to identify himself, the boat, and the boat’s owner. There was sufficient evidence presented at trial to permit Wood’s convictions.

[3. Double Jeopardy] * * * Even though two people died and another was injured, Wood’s act of leaving the scene of the boating accident can support only one conviction under Indiana Code section 14-15-4-1. We therefore remand for the trial court to dismiss one Class C felony conviction and one Class D felony conviction and to accordingly resentence Wood and reimburse the fines it imposed for those additional convictions.

[4. Problems with Indiana Code chapter 14-15-4] The evidence, when viewed in a light most favorable to the judgment, requires us to uphold Wood’s conviction. However, this prosecution has brought to light serious concerns about the statute that criminalizes Wood’s behavior. * * * In the course of Wood’s trial and this appeal, four judges have examined the facts of the case and the statute defining the charged crimes. While those judges have reached differing conclusions about the proper way to resolve the issues that arise in this case, all have agreed that the statute is problematic.

Observing the requirements of Ind. Code section 14-15-4-1 will, in many emergency situations, require behavior that defies logic, and engaging in innocent, and even advisable, behavior can leave one in violation of the statute. This statute permits no consideration of what is reasonable in any given emergency situation; nor does it permit citizens to engage in any balancing of considerations that arise in typical emergencies and are likely required by other statutes. * * *

While we do not find the statute unconstitutionally vague, the facts in the case before us highlight the problems that can arise under the section 14-15-4-1 definition of actions that are criminal when someone subject to the statute is faced with an emergency. * * *

In most other states, the operator of the vessel is obliged to provide assistance only “so far as he can without serious danger to his own vessel, crew, passengers, and guests” and “must render to other persons affected by the collision, accident, or other casualty assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty.” E.g., 625 Ill. Comp. Stat. Ann. 45/6-1. These guidelines enable the boat operator to appropriately balance his conflicting duties. More importantly, this language allows a jury to consider emergency conditions as an element of the crime, and not merely as a defense. The Indiana statute does not permit that balancing and those considerations, and Wood’s conviction must therefore be affirmed.

CONCLUSION. Denial of Wood’s motion for discharge pursuant to Indiana Criminal Rule 4(C) was not error. There was sufficient evidence Wood violated Indiana Code section 14-15-4-1, but Wood’s three convictions, arising as they did from one incident of leaving the scene, subjected him to double jeopardy. We accordingly vacate two of his convictions, one of the Class C felonies and the Class D felony, and remand to the trial court with instructions to refund, the fines imposed for the vacated convictions. Affirmed in part, reversed in part, and remanded.

BAKER, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins at p.26 and which concludes] I believe that our legislature intended the language in the statute to be applied logically and not to bring about an unjust or absurd result. It is unquestioned that Wood claimed that he and his passengers were subject to significant peril and that he acted reasonably in moving his boat and its passengers to the marina. The statute did not give Wood fair notice that it was forbidden conduct to leave the scene of the accident even if Wood feared for his safety or that of his passengers and that necessity demanded that he leave the immediate accident scene. As our appellate courts have repeatedly said, “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” [cites omitted] As a result of such omission, Indiana Code section 14-15-4-1 is unconstitutional as applied.

In Dayron Bell v. State of Indiana, a 7-page opinion, Judge Najam writes:
Dayron Bell appeals the trial court’s order finding him in contempt. Bell raises four issues for our review, but we consider only the following dispositive issue: whether this appeal is moot because Bell has served his sentence and none of Bell’s issues on appeal justify our review under the public interest exception. We dismiss. * * *

In essence, Bell’s argument for applying the public interest exception conflates an exception reserved for “questions of great public importance” with mere error review. See id. That is not the purpose of this limited exception, and we will not deviate from our general rule of not deciding moot cases based on these facts. Accordingly, we decline Bell’s invitation to apply the public interest exception to this appeal, and we dismiss Bell’s appeal as moot. Dismissed.

In Freddie L. McKnight, III v. State of Indiana, a 21-page opinion, Judge Crone writes:
Freddie L. McKnight, III, pro se, appeals the denial of his petition for post-conviction relief. On appeal, McKnight contends that the post-conviction court erred when it concluded that he was not denied the effective assistance of trial and appellate counsel. He also claims that he was denied a procedurally fair post-conviction hearing because his appointed public defender withdrew his appearance prior to the hearing and McKnight proceeded pro se. In addition, McKnight alleges that he is entitled to a new trial because the State withheld favorable evidence in violation of his due process rights. Finding that the post-conviction court did not clearly err when it denied McKnight’s petition, we affirm.
NFP civil opinions today (7):

Marigold Overshiner and Earl Overshiner, Individually and as Parents and Guardians of their Minor Daughter, Kaitlyn Overshiner et al v. Anonymous Health Care Corp et al (NFP)

Sophia Tompkins v. Kindred Nursing Centers, LLP, d/b/a Southwood Health and Rehabilitation Center (NFP)

James R. Belcher, Sr. v. Sandra G. Belcher (NFP)

Herman & Kittle Properties, Inc. v. G & G Construction Company of Indiana (NFP)

Lightning Rod Mutual Insurance Company v. Todd A. Messner, an Incapacitated Adult, by his Permanent Co-Guardians and Next Friends, James A. Messner and Judith M. Messner (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: K.W., Minor Child, C.C., Mother v. Indiana Department of Child Services (NFP)

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

NFP criminal opinions today (23):

Shawn L. Keesling v. State of Indiana (NFP)

James Galloway v. State of Indiana (NFP)

James Kucholick v. State of Indiana (NFP)

David R. McClure v. State of Indiana (NFP)

Jerry Johnson v. State of Indiana (NFP)

Willie Norman v. State of Indiana (NFP)

Tyler Burton v. State of Indiana (NFP)

Micha Seymour v. State of Indiana (NFP)

Walter Rowley v. State of Indiana (NFP)

Richard Wilson v. State of Indiana (NFP)

Edward L. Humes v. State of Indiana (NFP)

James Pigg v. State of Indiana (NFP)

Jacob Stidham v. State of Indiana (NFP)

Richard Kozecar v. State of Indiana (NFP)

Anthony Eugene Fields v. State of Indiana (NFP)

Carolyn Bostick v. State of Indiana (NFP)

Megan Pierce v. State of Indiana (NFP)

Tonya Williams v. State of Indiana (NFP)

Tyson A. Hudson v. State of Indiana (NFP)

Billye D. Gaulden v. State of Indiana (NFP)

Marteques L. Black v. State of Indiana (NFP)

Harold Evans, Jr. v. State of Indiana (NFP)

Paul L. Mishler, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 31, 2013
Posted to Ind. App.Ct. Decisions

Environment - 2013 Edition of Indiana Environmental Statutes now available!

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

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

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

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

Posted by Marcia Oddi on Tuesday, December 31, 2013
Posted to Environment

Ind. Decisions - "Judge stalls contraception insurance mandate for diocese" [Updated]

Updating this Dec. 23rd ILB entry, headed "Judge [Simon] rules against Notre Dame in health care suit" (which includes a link to the opinion), a reader sent this note yesterday:

Marcia: Didn’t know if you saw but Ind. Northern District Judge Jon Deguilio granted the Diocese of Fort Wayne-South Bend’s TRO petition where the arguments were essentially the same as the Notre Dame case (wherein Chief Judge Simon denied the TRO to Notre Dame). Judge Deguilio even noted Judge Simon’s decision.
The reader also points out that the same Jones Day attorney "represented both Plaintiffs (and got two bites at the apple)". Here is the 39-page ND Ind. opinion in Diocese of Fort Wayne v. Sebelius. See p. 20 for the mention of the Notre Dame opinion in footnote 8.

Here is Brian Francisco's story today in the Fort Wayne Journal Gazette. It begins:

A federal judge has issued a temporary injunction preventing the Catholic Diocese of Fort Wayne-South Bend from having to provide to its workers medical insurance that pays for contraception and sterilization services.

The ruling is at least a short-term victory for the church, which is resisting a provision of the Patient Protection and Affordable Care Act that takes effect Wednesday.

The injunction was granted Friday by Judge Jon DeGuilio in the U.S. District Court for Northern Indiana in South Bend.

"Long game to play. It's a good first step. We'll wait to see what the final ruling is," Sean McBride, diocese communications director, said in a telephone interview.

"But we are pleased to get the injunctive relief, you bet," he said.

McBride said he believes the injunction will last until the court rules on the diocese's 2012 lawsuit against the U.S. Department of Health and Human Services and other federal government agencies that administer the health care law.

[More] Madeline Buckley of the South Bend Tribune also has a story today; it addresses the conflict head-on:

A federal judge has granted the Diocese of Fort Wayne-South Bend and a number of other Catholic organizations relief from parts of the Affordable Care Act, writing that the religious liberty arguments at play in the lawsuit have some likelihood of success.

U.S. District Judge Jon DeGuilio granted a preliminary injunction Friday to "prevent the possibility of any unjust enforcement" until the courts can rule on the argument regarding religious freedom.

A judge ruled against the University of Notre Dame in a similar request for relief earlier this month. The university filed an appeal of the judge's decision.

Like Notre Dame and other religiously-affiliated institutions, the diocese filed a lawsuit last year that challenges the constitutionality of portions of the federal health care law, arguing that it violates the right to religious freedom in its provisions regarding coverage for contraceptives.

But the diocese and other organizations in the suit were successful where Notre Dame was not in receiving an injunction from enforcement of the law when new health care plans will take affect in January.

At issue in both requests for an injunction was an option the Obama administration put forth that allows religious institutions to opt out of paying for the contraceptives, which would shift the payment elsewhere.

DeGuilio reasoned that the diocese’s case has possible merit to succeed.

“It’s the facilitation of the objectionable services, not the related cost, that offends their religious beliefs,” DeGuilio wrote.

In Notre Dame’s case, though, U.S. District Judge Philip P. Simon wrote that Notre Dame was unlikely to succeed in its ultimate argument.

“Notre Dame is free to opt out of providing coverage itself, but it can’t stop anyone else from providing it,” Simon wrote.

Posted by Marcia Oddi on Tuesday, December 31, 2013
Posted to Ind Fed D.Ct. Decisions

Monday, December 30, 2013

Ind. Decisions - "Court rules against Long Beach lakefront property owners"

Supplementing this ILB entry from Dec. 28th, and this one from this morning, which includes a copy of the 6-page trial court opinion, Stan Maddux of the NWI Times reports this evening:

LAPORTE | Some disgruntled lakefront property owners in Long Beach must continue to deal with members of the general public enjoying the water's edge on land they argue belongs to them.

LaPorte Circuit Court Judge Tom Alevizos has ruled in favor of a resolution adopted in 2012 by the town designating public use between the water's edge and the "ordinary high water mark" of Lake Michigan.

The lawsuit was filed by the Long Beach Homeowners Assocation and two private lakefront property owners, Margaret West and Don Gunderson.

In her written arguments to the court, West states she and her adult children have been "harrassed" by the police for doing things like having dogs and drinking beer from bottles on what she contends is her property.

Dogs and glass are not allowed on the public beaches there.

The plaintiffs argued the deeds to their properties specify ownership of the land extends to the water's edge "without any public rights boundary."

They also alleged the town carried out a land grab by granting public use of the area between the edge of the water and the ordinary high water mark.

In his ruling, though, Alevizos cited several prior court rulings dating back to the late 1800s and as recently as the 1970s that designate the state as owners of the land on Lake Michigan between the ordinary high water mark and edge of the water.

Alevizos also ruled the town did not take or steal anyone's property.

He said the resolution just reflected the policy of the Indiana Department of Natural Resources that its jurisdiction runs from the water to the ordinary high water mark.

Posted by Marcia Oddi on Monday, December 30, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, and it is worth reading

The case is ZACHARY MEDLOCK v. TRUSTEES OF INDIANA UNIVERSITY, et al. (SD Ind., Pratt), an 11-page opinion, written by Judge Posner. It begins:

This is an eye‐opening case, but not because of any legal profundities or political reverberations— rather because of the glimpse it affords into contemporary student and administrative cultures of American universities.

Zachary Medlock was in the spring of 2011 a sophomore at Indiana University’s main campus, in Bloomington, living by choice in a university dormitory. As a condition of being allowed to live there he was required to agree to comply with a long list of rules, one of which was that he allow health and safety inspections of his dorm room by “resident leadership specialists” (we’ll call them “student inspectors”). They are graduate students employed part‐time by the university to assist in dormitory management. Their duties include conducting the inspections. The students whose rooms are to be inspected must be given written notification of the inspection at least 24 hours in advance; Medlock had been given a week’s notice by email and in addition the inspection of the dorm rooms on his floor was announced over the building’s intercom on the day of the inspection. (His failure to use the abundant warning time to clean up his act is one of the mysteries of this case.) The inspectors inspect for violations of prohibitions in the code of conduct for dormitory residents. Those prohibitions are numerous—“from candles to cats” as one of the student inspectors testified—and of course include (illegal) drugs. Medlock does not question that he was subject to these prohibitions as a condition of being allowed to live in a university dormitory, and was subject to being penalized for violating them. Suspension and expulsion are among the authorized penalties.

At about 4 p.m. on the day scheduled for the inspection, one of the student inspectors entered Medlock’s room (Medlock wasn’t there) to inspect it, and upon entering noticed a clear plastic tube lying on the desk. Drawing on the training the university had given him to enable him to conduct a competent inspection, he surmised that the tube contained marijuana. Another student inspector, whom the first one asked to join him in Medlock’s room, concurred. * * *

An Indiana University police officer (defendant Christopher King), summoned by one of the two student inspectors, arrived in Medlock’s room, looked at the tube of marijuana, smelled raw marijuana, and left with the tube. The student inspectors remained, continuing their inspection and noticing burned candles, an ashtray containing ashes, and a rolled‐up blanket at the bottom of the door to the bathroom, presumably intended to keep smoke from wafting into the bathroom (which Medlock shared with another student) while he smoked marijuana in his bedroom. Smoking of any kind is forbidden in the dormitory, as is possessing “open flame materials,” such as candles.

One of the student inspectors noticed that the door to Medlock’s closet was ajar, and peering through the opening he saw what he thought was a large marijuana plant. He summoned officer King, who looked in the closet and found himself face to face with a six‐foot‐high marijuana plant. He left to get a warrant to search the room for drugs and drug paraphernalia but posted another police officer in the room to make sure no one moved or destroyed anything that might be contraband. * * *

The suit is based on 42 U.S.C. § 1983, which authorizes suits against state or local officials who violate federally protected civil rights. The complaint names the university’s trustees as defendants along with the dean of students, the university provost, the two student inspectors who searched Medlock’s room, and officer King. It seeks a mandatory injunction ordering destruction of the record of his expulsion, and damages from the two student inspectors and King. * * *

Indiana University is a public university, owned by the State of Indiana, and the student inspectors and university police are university employees and therefore state actors. (We can’t understand the defendants’ argument, accepted by the district judge, that they were not state actors.) And so they can be sued under section 1983 for violating the Fourth Amendment, held protected against state action by interpretation of the due process clause of the Fourteenth Amendment. But the exclusionary rule—the rule that renders evidence obtained in violation of the Fourth Amendment inadmissible in (some) judicial proceedings—is applicable only to criminal proceedings. * * *

So the marijuana and drug paraphernalia seized from Medlock’s room were admissible in the suspension proceeding (which was of course noncriminal)—and for the additional reason that Medlock didn’t object to their admission in that proceeding. The seized items provided compelling evidence of serious violations of the code of conduct. His giant marijuana plant (a small tree, really) was providing him with dealer‐quantity marijuana. And while the criminal charges against him were dropped, this could not have been for lack of evidence. The university’s provost testified that the quantity of marijuana and marijuana paraphernalia found in Medlock’s room made her suspect that he was distributing marijuana to other students. * * *

Although as we noted earlier the fruits of the search were admissible for disciplinary purposes even if obtained in violation of the Fourth Amendment, the violation of the amendment (if there was a violation) would entitle him to damages. * * * But there was no violation. Medlock had consented in advance, as a condition of being allowed to live in the dormitory, to have his room searched for contraband and other evidence of violation of the health and safety code. * * *

[This is much more, and then the conclusion]

In short, the case is near frivolous, the decision to sue the two student inspectors offensive, and the most surprising feature of the entire episode is the exceptional lenity with which a state university (in a state that does not allow medicinal, let alone recreational, use of marijuana) treated a brazen violator of its rules of conduct and of the criminal law. But as we noted some years ago, “the danger that without the procedural safeguards deemed appropriate in civil and criminal litigation public universities will engage in an orgy of expulsions is slight. The relation of students to universities is, after all, essentially that of customer to seller.” Osteen v. Henley, supra, 13 F.3d at 226. And if we may judge from the happy ending of the marijuana bust for Medlock, the customer is indeed always right. AFFIRMED.

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

Ind. Decisions - "Tax Court nixes time limit on property tax error claims"

Updating this ILB post from Sunday, which I headed "The Court is well aware that this decision has the potential to open the floodgates for petition to correct error appeals by finding, as it must, that no statutory or regulatory time limitation exists after April 1, 2000", Dan Carden of the NWI Times has just posted a story titled "Tax Court nixes time limit on property tax error claims." Some quotes:

INDIANAPOLIS | Hoosiers who believe they overpaid their property taxes or were improperly denied a tax credit -- in any year since 2000 -- now can ask their county auditor to correct the error.

In a decision that Indiana Tax Court Judge Martha Blood Wentworth acknowledged "has the potential to open the floodgates" of error appeals, she ruled late Friday that the long-assumed three-year limit on taxpayer petitions to correct property tax errors has not been in effect this century.

Wentworth determined in her review of a Hamilton County tax appeal, where the county failed to apply a properly requested homestead credit from 2004-7, that the 1989 state regulation imposing a three-year limit on error correction petitions was repealed in 2000 and not replaced.

As a result, any petition to correct a post-2000 error in property tax payments, credits or deductions must be considered timely filed, she said. * * *

Wentworth is the only judge of the Indiana Tax Court, an appellate-level court created in 1986 that primarily reviews contested final tax determinations made by state agencies.

Her decisions can be appealed to the Indiana Supreme Court.

Posted by Marcia Oddi on Monday, December 30, 2013
Posted to Ind. Tax Ct. Decisions

Ind. Courts - The Indiana Judicial Disciplinary Process - More on: Understanding the Role of "the Commission" and "the Panel"

Updating this ILB post from yesterday, Dec. 29th, the Judicial Qualifications Commission has a webpage listing opinions and orders in judicial disciplinary cases going back to 1986. Access it here.

The ILB has not reviewed all of these Supreme Court opinions, but has selected three which resulted in the removal of the judge to see how this might impact the ability of a removed judge to subsequently practice law in Indiana [ILB emphasis via bold in quotes below]:

In the disciplinary actions listed above, each of the judges was removed from judicial office. In Kouros, the Court declared that respondent would not lose her license to practice law. In McClain, the Court came to the conclusion that respondent should be suspended from practice for two years, without automatic reinstatement. In Edwards, the respondent was both disbarred and fined.

The Court in Kouros cites Admission and Discipline Rule 25(III)(C), which currently provides:

A judicial officer involuntarily retired by the Supreme Court shall be considered to have retired voluntarily. A judicial officer removed from office by the Supreme Court under an order of discipline, excluding retirement or disability, shall be ineligible for judicial office and, pending further order of the Supreme Court, shall be suspended from the practice of law in the State of Indiana.
The Court in McClain writes:
The Indiana Constitution requires that a "judge so removed by the Supreme Court is ineligible for judicial office and pending further order of the Court he is suspended from practicing law in this State." Ind. Const. art. 7, § 11.
However, the ILB believes this citation of authority is incorrect. The "judges" referenced in Art. 7, Sec. 11 are appellate judges. Sec. 11 deals with "Tenure of Justices of Supreme Court and Judges of the Court of Appeals."

The Court in Edwards does not cite authority.

Posted by Marcia Oddi on Monday, December 30, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of D.M. (Minor Child) and D.D. (Father) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (4):

In State of Indiana v. Tammy Sue Harper (NFP), a 7-page opinion, Judge Mathias writes:

The State of Indiana appeals the order of the Tippecanoe Circuit Court modifying the sentence of Tammy Sue Harper (“Harper”). On appeal, the State claims that the trial court was without authority to modify Harper’s sentence because more than 365 days had passed since Harper was sentenced and the county prosecutor did not approve of the modification. We agree and reverse. * * *

Here, the deputy prosecuting attorney who appeared at the hearing did not seem to have much of an objection to the trial court’s desire to modify the sentence. Indeed, the prosecuting attorney said very little during the hearing. Nevertheless, the fact remains that the prosecuting attorney, through the deputy prosecuting attorney or otherwise, never actually approved of the sentence modification. Without such approval, the trial court lacked the statutory authority to modify Harper’s sentence.

This is not to say that we are not unsympathetic to the trial court’s position. The court specifically told the deputy prosecuting attorney that it would not modify Harper’s sentence if the State objected. The trial court also directed the prosecuting attorney to inform the trial court of whether it approved of or objected to the sentence modification. When no such objection or approval was forthcoming, and with what it considered to be a worthy defendant languishing behind bars, the trial court went ahead and modified Harper’s sentence. Only then did the State forcefully object.

We are not at liberty to ignore the clear language of the statute, which requires the approval of the prosecuting attorney to sentence modification that occurs outside the 365- day time limit. Here, the prosecuting attorney failed to give such approval, and the trial court was without authority to modify Harper’s sentence.

Rico Nathaniel Morst v. State of Indiana (NFP)

Jeremiah Joseph Skirvin v. State of Indiana (NFP)

George Williams v. State of Indiana (NFP)

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

About the ILB - Final 2013 plea, please read! And then, please act!

2013 is drawing to a close, and a new year is soon to begin. In March of 2014, the ILB will have completed its 11th year.

I believe the ILB has made a significant impact in its nearly 11 years of existence.

The ILB operates on a shoestring, and needs more supporters, including major (front page) supporters (who would likely be organizations, bar sections, law firms, or those who do business with law firms).

You are able to read the ILB because of, and thanks to, these major supporters:

Plus these individuals/firms who also help assure the continuation of the ILB: Plus those who generously send occasional gifts to the ILB.

Plus me. As is obvious if you are a reader, I contribute the major part of each day to the ILB.

As I am semi-retired and not independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.

Posted by Marcia Oddi on Monday, December 30, 2013
Posted to About the Indiana Law Blog

Ind. Decisions - Even more on "Long Beach court case could set precedent in lakefront property rights"

Updating this post from Saturday, the ILB has now obtained a copy of LaPorte County Circuit court Judge Thomas J. Alevizos' opinion in LBLHA, LLC, Margaret West and Don Gunderson v. Town of Long Beach, where the question presented was: Who owns the Lake Michigan beach front? Access the 6-page ruling here.

Posted by Marcia Oddi on Monday, December 30, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending December 27, 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 December 20, 2013 list.]

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

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

Ind. Gov't. - "Indiana pension board stands by annuity privatization plan"

Updating a number of earlier ILB entries, the most recent being this one from Oct. 26th, Dan Carden reports today in the NWI Times in a story that begins:

INDIANAPOLIS | State pension officials have rejected a legislative recommendation that they reconsider privatizing retirement annuity payments for state and local government employees, including teachers.

The trustees of the Indiana Public Retirement System voted 7-0 earlier this month to tell legislators that INPRS will continue taking steps in 2014 to transfer the annuity program to an outside provider, unless the Legislature passes a law prohibiting the move.

"The board has a fiduciary obligation to prudently manage the plan in a manner that ensures assets are available to pay promised benefits," the board said in a letter to lawmakers. "If kept in-house, there is a chance of creating unfunded liabilities."

There is much more to the story, which also links to a copy of the trustees letter to state lawmakers.

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

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

You missed a number of significant stories ...

From Sunday, December 29, 2013:

From Saturday, December 28, 2013:

From late Friday afternoon, December 27, 2013:

Posted by Marcia Oddi on Monday, December 30, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/30/13):

Next week's oral arguments before the Supreme Court (week of 1/6/14):

Thursday, January 9

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/30/13):

Next week's oral arguments before the Court of Appeals (week of 1/6/14):

Tuesday, January 7

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, December 30, 2013
Posted to Upcoming Oral Arguments

Sunday, December 29, 2013

Ind. Courts - The Indiana Judicial Disciplinary Process - Understanding the Role of "the Commission" and "the Panel"

The ILB has seen a brief AP story in a number of papers this weekend. Headlined "Panel calls for judge’s ouster" the story itself reports:

INDIANAPOLIS – A state judicial commission is recommending the Indiana Supreme Court remove from the bench an embattled judge who faces misconduct charges. [No mention of the "panel" in the story.]
Both the headline and the story are correct separately, but they are not correct together. Instead, this appears to be the case of a new headline on an old story.

Explanation of the judicial disciplinary process can be found clearly set out here on the webpages of the Commission on Judicial Qualifications. This page describes the initiation of a disciplinary process, the inquiry, and the investigation, all conducted by the 7-member Commission and staff. Then, if, after the investigation:

... the Commission finds probable cause that the judge has committed ethical misconduct, the Commission may vote that formal, public charges are warranted.

If the Commission files formal charges, the proceeding is public, and the [7-member] Commission no longer may informally resolve the case.

After charges have been filed and the judge has answered, the Supreme Court appoints Masters, three active or retired judges, who preside in the event the case proceeds to a hearing.

At the hearing, the judge has the right to counsel, the right to call and examine witnesses, and the right to compel the production of documents. The Indiana Rules of Evidence generally apply. The proceedings are open to the public and are reported verbatim.

[ILB: The Commission's counsel, Adrienne Meiring, served as prosecutor in the Judge Brown hearing.

At the conclusion of the hearing, each side was provided the opportunity to submit their proposed findings. "The Commission", in the person of Ms. Meiring, submitted proposed findings of facts and conclusions of law (114-pages) on Nov. 27th (docketed Dec. 2nd), including a recommendation that Judge Brown be removed from office. (Here is the Brown docket).

Judge Brown did not submit findings, but rather on Dec. 11th filed an offer to submit to discipline.

The Commission filed an "Opposition to Respondent's Submission to Discipline in Lieu of Submission of Findings" on Dec. 19th. See this Dec. 21st ILB post.]

At the conclusion of the hearing, the Masters prepare and transmit to the Court a report with their recommended findings of fact and conclusions of law. If the Masters find that the Commission has proved its charges by clear and convincing evidence, they may recommend a sanction.

[The Panel of Masters filed their findings of fact, conclusions of law, and recommended sanction on Dec. 27th. See this Dec. 27th ILB post, including a link to the 107-page document.]

If the Supreme Court concludes that the judge committed ethical misconduct, it determines the appropriate sanction. The Court is not bound by the Masters' report, but gives it deference. The Court may issue a Private Reprimand, a Public Reprimand or greater sanctions, from a suspension from office without pay to removal from office. In the most serious cases, sanctions against the judge as an attorney, including suspension or disbarment are possible. Typically, the judge is ordered to pay the costs of the proceeding.

Here is a long list of ILB entries on the Judge Brown disciplinary action.

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

Courts - "Abortion clinic buffer zones’ fate in hands of high court"

Milton J. Valencia of the Boston Globe has this lengthy story today (h/t How Appealing). A sample:

[Mass. has a 2007 "buffer zone" keeping protesters] 35 feet from the entrance to the Boston clinic and other abortion providers — a “buffer zone” meant to shield patients and staff from harassment while allowing the protesters to communicate their message.

But in a case closely watched by First Amendment scholars, the Supreme Court is set to hear a challenge to the law in January, the deepest scrutiny of an abortion clinic buffer zone in more than a decade.

And legal analysts say the court will have a specific task in reviewing the Massachusetts law: It will have to weigh free speech rights against the state’s ability to enact what it considers a public safety regulation, citing years of intimidation and harassment by protesters. Since the court agreed in June to hear the case, more than 30 groups have filed briefs for or against the law.

“Someone should be able to go to a health care clinic, without being yelled at, screamed at, without being harassed,” said Attorney General Martha Coakley, whose office has defended the law in the courts.

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

Law - "Can Ghosts Increase the Value of Your House?"

Interesting post in The Volokh Conspiracy by Ilya Somin.

The ILB had a long post on July 2, 2007 on stigmatized property, defined as "psychologically affected property" in IC 32-21-6. There is no mention of ghosts.

Posted by Marcia Oddi on Sunday, December 29, 2013
Posted to General Law Related

Ind. Courts - "Plans to renovate Washington Superior Court move forward"

Marcia Walker reported Friday in the Salem Leader - the story begins:

When criminal court takes place in Washington Superior Court on Friday mornings or Monday afternoons, as many as 60 people are jammed into the courtroom. Of those 60, as many as 15 may be prisoners, standing almost elbow to elbow with the public.

Whenever a jury trial is scheduled, the numbers may increase even more. As many as 90 potential jurors may be called before the field is narrowed to 12 jurors and two alternates. Add the parties involved, their attorneys, members of the public and media, and the number squeezed into the courtroom increases even more.

"Our most significant issue is security," said Superior Judge Frank Newkirk. "When we have criminal court here ... we sometimes have 60 or more people in the courtroom and 15 at a time may be prisoners. For one jailer to try to maintain security over that, prisoners mixed in with members of the public, it's not a safe situation at all."

Security is not the only issue; storage is another problem. What once had been a conference room is now used for nothing but storage. Old records have been moved to an off-site location but current files as well as evidence have to be stored on site. Record keeping is a big part of operations at the court.

"That's just the nature of what we do," Newkirk said. "We have to not only keep those things, we have to maintain security over them, protect that information."

But relief may be on the horizon.

During the Tuesday, Dec. 17, meeting of the Washington County Commissioners, the board agreed to spend up to $32,500 to have RQAW draw up specifications and drawings for an addition on the northeast side of the building and renovating the present courtroom area.

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

Ind. Courts - "It's official, Indiana courts grant doll adoptions"

That is the headline to this Dec. 28th story in the Louisville Courier Journal, reported by Jenna Esarey. Some quotes:

Makenzie Steed stood before the bench Saturday in Clark Circuit Court No. 4 as Judge Vicki Carmichael granted her petition to adopt Phoebe.

But this was no ordinary adoption. Makenzie is 8, and Phoebe is a doll.

“Will you love her for always?” Carmichael asked.

Makenzie solemnly pledged to do so, hugging Phoebe tightly to her chest.

Makenzie was just one of the children who made the trip to the seventh annual Adopt A Doll event in Clark County Circuit Court No. 4 in Jeffersonville Saturday. * * *

Carmichael and her staff of four court recorders donate their time to open up the court for the adoptions.

“We do it as a community service,” Carmichael said. “We can show kids that courtrooms aren’t scary places.”

Clark County Circuit Court No. 4 handles a variety of cases on a daily basis, ranging from major felonies to actual adoptions.

Some of her least favorite cases involve abused children.

“It’s heart breaking to have to terminate parental rights,” she said. “Then we do adoptions. Those are always the fun ones.”

Each year at least one child comes through the Adopt A Doll event who has been adopted. “They seem to really understand the significance,” Carmichael said.

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

Ind. Gov't. - Statehouse reporters look back at 2013 and forward at upcoming session

Today Lesley Weidenbener's Sunday column in the Louisville Courier Journal reviews the big Indiana political stories of 2013, while Niki Kelly of the Fort Wayne Journal Gazette looks at the upcoming legislative session.

Posted by Marcia Oddi on Sunday, December 29, 2013
Posted to Indiana Government

Ind. Decisions - "The Court is well aware that this decision has the potential to open the floodgates for petition to correct error appeals by finding, as it must, that no statutory or regulatory time limitation exists after April 1, 2000."

In Joseph & Jeanne Hutcherson v. Robin L. Ward, Hamilton County Assessor, a 12-page opinion filed Dec. 27th, Judge Wentworth writes:

The Hutchersons appeal the Indiana Board of Tax Review’s final determination denying them the homestead standard deduction on their Hamilton County property for the tax years 2004 through 2007. The Assessor has filed a Motion to Dismiss for lack of subject matter jurisdiction or alternatively, for failure to state a claim upon which relief can be granted. The Court denies the Assessor’s Motion. * * *

The Assessor first contends that the Hutchersons failed to state a claim upon which the court can grant relief because the Petition to Correct Error Statute requires a taxpayer to file a petition to correct error within three years after the taxes were first due. (See Resp’t Mot. Dismiss at 2-4.) Conspicuously absent from the Petition to Correct Error Statute, however, is an express time limitation within which a taxpayer must file the petition. See generally IND. CODE § 6-1.1-15-12 (2013). Moreover, no statutory language limiting the time in which to file a petition to correct error exists anywhere in Chapter 15. See IND. CODE 6-1.1-15 (2013). * * *

The Assessor further contends that the Hutchersons’ claim is time barred by the Refund Statute * * * The Refund Statute expressly imposes a three year limitation period for filing a claim for a refund. I.C. § 6-1.1-26-1(2). The Assessor asserts that the statute of limitations contained in the Refund Statute applies to the Hutchersons’ petitions to correct error because the remedy they seek, although unspecified other than by the word “correct,” can be only a refund or a credit. * * * The Assessor’s reasoning is incorrect.

First, as mentioned above, the Petition to Correct Error Statute contains no express limitation period. See I.C. § 6-1.1-15-12. Accordingly, without a specific reference to the provisions of the Refund Statute in the Petition to Correct Error Statute, the Court cannot presume that the Legislature intended to incorporate provisions of the Refund Statute into the Petition to Correct Error Statute. * * *

Second, disparate requirements contained in the Refund Statute and Petition to Correct Error suggest their independence. * * *

Finally, even if the word “correct” falls within Gundersen’s broad definition of the word “refund,” and thus operates to incorporate the requirements of the Refund Statute into the Petition to Correct Error Statute, the result would be an absurdity. The Court cannot select one provision from a statute for incorporation into another statute without the express direction of a statute or other authority. * * *

The Court is well aware that this decision has the potential to open the floodgates for petition to correct error appeals by finding, as it must, that no statutory or regulatory time limitation exists after April 1, 2000. Moreover, the Court strongly supports the important public policy favoring limitations of claims. * * * Nonetheless, the Court declines to invade the domain of the Legislature and write in a limitations period where none exists. * * * It is the role of our elected Legislature, not of the Judiciary, to determine public policy. * * * The Court ardently urges the Legislature or the Department of Local Government Finance to act with all haste to provide security against stale claims arising under Indiana Code § 6-1.1-15-12.

For all the reasons stated above, the Court DENIES the Assessor’s Motion to Dismiss the Hutchersons’ claims for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Moreover, the Tax Court REVERSES the Indiana Board’s final determination that the Hutchersons’ petitions to correct error for 2004 through 2007 were untimely, and REMANDS for action consistent with this opinion.

Posted by Marcia Oddi on Sunday, December 29, 2013
Posted to Ind. Tax Ct. Decisions

Saturday, December 28, 2013

Ind. Decisions - Still more on "Long Beach court case could set precedent in lakefront property rights"

Updatng this ILB post from Oct. 17th, followed by this one from Oct. 18th, John Robbins of the Gary Post-Tribune reports today:

A LaPorte County judge on Thursday denied a claim by a group of Long Beach property owners that the town violated their property rights by passing a resolution that restricted town police from enforcing private property ordinances, such as trespassing, on lakefront beach property.

LaPorte County Circuit court Judge Thomas J. Alevizos rendered the verdict Dec. 26. The case was heard in October.

The Long Beach Lakefront Homeowners Association, Margaret West and Don Gunderson sued the town of Long Beach seeking to overturn the resolution. Their claim was that the action by the town resulted in an unconstitutional taking of their property. Plaintiffs sought from the court a declaratory judgment finding, as stated in the complaint, “the Town is unlawfully and unconstitutionally claiming and asserting rights on the Lakefront which are not part of the public trust.”

Alevizos found otherwise in denying the motion for summary judgment. Alevizos concluded that, “there was no taking by the Town of Long Beach,” and denied the plaintiff’s motion for summary judgment. * * *

“Obviously I’m happy with the court’s finding. It’s what I argued,” said Chuck Lukmann, attorney for the town of Long Beach. “This is a very important issue. People need to know when they’re walking on the beach whether they have a right to.”

Lukmann expects that beach property rights may ultimately need to be decided by the Indiana Supreme Court.

The question of ownership, “is more properly dealt with by the Indiana Legislature and/or an appellate court in a matter where the State of Indiana is a party,” said Alevizos in his verdict.

Lukmann agreed with this assessment.

“Part of the problem was not making the state a party to the case,” he said. “The plaintiffs should have sued the State of Indiana.”

For now, while a verdict in the case has been reached, the question of who owns the beach remains unsettled, as Alevizos ruled on the very narrow matter that the actions of the town did not constitute an unjust taking of plaintiff’s property.

The homeowners association contends the private property of the lakefront homeowners extends from their lot lines along Lake Shore Drive all the way north to the water’s edge, regardless of where the water happens to be. Intervening defendants Alliance for the Great Lakes, Save the Dunes and the Long Beach Community Alliance argued that private property rights only extend to what is known as the “ordinary high water mark” of Lake Michigan.

The land beyond that point, to the water’s edge, is state-owned public property, they contend.

“It’s an issue that needs to be resolved,” said Lukmann, “it is really an important and complicated issue.” [emphasis by ILB]

The ILB hopes to obtain a copy of the opinion for posting.

Posted by Marcia Oddi on Saturday, December 28, 2013
Posted to Ind. Trial Ct. Decisions

Friday, December 27, 2013

Ind. Courts - Masters who presided over Judge Brown disciplinary hearing have submitted their report to the Supreme Court [Updated ]

Updating earlier ILB entries (the most recent being from Dec. 21st), a check of the docket shows that the masters have today filed their "findings of fact, conclusions of law, and recommended sanction."

Monday the 30th was the deadline set by the Supreme Court.

[Updated at 6:54 PM] The ILB has now obtained a copy of the masters' findings of fact, conclusions of law, and recommended sanction. The document is 107-pages long, it is dated Dec. 22nd, it is file stamped Dec. 27th at 2:30 PM, and it concludes: "The Masters recommend to the Supreme Court that Judge Kimberly Brown by removed from judicial office."

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

Ind. Law - SBT editorial on sentencing reform

Here are quotes from the South Bend Tribune's editorial last Sunday, headed "Seeking a good verdict on sentencing reform."

Last year when the General Assembly passed Indiana's first criminal sentencing reform in more than three decades, lawmakers delayed its implementation to better gauge the impact on local communities and the state's prison system.

The first of two independent studies aimed at answering the remaining questions was released this month. Georgia-based Applied Research Services concluded that the law's new mandate that inmates serve at least 75 percent of their sentences, as opposed to the half or less currently required, would likely add to the rising tide in the prison population. * * *

A second study, being performed by an Indiana University criminal-justice researcher, is looking at the recidivism outcomes and costs associated with assistance for offenders diverted from the Department of Correction back to their local communities. * * *

State Sen. Michael Young, chairman of the state's Criminal Law and Sentencing Policy Study Committee, recently said he expects lawmakers in the upcoming General Assembly will introduce bills to alter several of the reform's provisions, including the suspended sentence elements.

Let's hope legislators preserve the worthy goal of reserving prison for the most serious offenders, providing more effective rehabilitation and ensuring that punishment better fits offenders' crimes altogether.

State Sen. Brent Steele, R-Bedford, who authored last session's reform bill, remains optimistic both that reducing the prison population can be accomplished and that local units will get the resources they need to tailor rehabilitative efforts to their own communities.

The General Assembly, however, may have put the cart before the horse on this issue, says St. Joseph County Sheriff Mike Grzegorek.

He largely agrees with the philosophy of serving more low-level offenders in the community. But, he says, currently, the substance abuse, mental health and educational rehabilitation to do the job aren't in place. Any significant number of prisoners returned to South Bend now would overwhelm authorities' ability to serve them.

The debate has been enough to open the door to suggestions of all sorts of revision. For example, the Indiana Prosecuting Attorney's Council has raised concerns that the law's range for drug sentences is too low and that it gives judges too much discretion in suspending sentences. But, police and prosecutors will always err on the side of keeping offenders locked up and legislators shouldn't let that derail reforms, as happened in 2011.

There's a lot of science behind good criminal justice policy and lawmakers must keep that the focus.

Remember how we got here: Indiana lawmakers in their "get-tough" spree of the '90s, passing law after law that defined new crimes and increased penalties for crimes already in the books. The result is a $700 million-a-year prison operation that's made very little improvement in the crime rate.

Even if the DOC simply keeps going the way it has, experts say, Indiana will soon need to invest another $1.2 billion in prison building. The state can't afford this kind of investment with the promise of so little return.

Criminal sentencing reform may be far more challenging than the General Assembly concluded last session, but legislators need to find the means to go forward.

Posted by Marcia Oddi on Friday, December 27, 2013
Posted to Indiana Law

Ind. Decisions - More on: "22 years later, suspended Indiana attorney gains reinstatement"

Updating yesterday's ILB post re the Supreme Court's Dec. 19th disciplinary opinion in In the Matter of William Drozda, today Dan Carden of the NWI Times has a story headed "Former Gary legislator gets law license back." Some quotes:

The 1995 Supreme Court order suspending Drozda for not less than three years awarded credit time dating back to his initial 1991 suspension, meaning Drozda could immediately have sought reinstatement nearly two decades ago.

However, court records indicate he filed for reinstatement Sept. 13. Attempts to reach Drozda to find out why he waited so long were unsuccessful.

Drozda became a lawyer in 1977. He represented Gary in the Indiana House from 1976 to 1982 and later worked as a Gary code enforcement prosecutor prior to entering private practice.

ILB: Actually the docket shows Mr. Drozda did apply for reinstatement in 1996, and the application was denied by the Supreme Court in 2002. He filed again for reinstatement on Sept. 13, 2012.

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

Ind. Decisions - 7th Circuit decides one Indiana case today, re bankruptcy, and it is a reversal

In DAWN MARIE ADAMS, Creditor‐Appellant v. JAMES GREGORY ADAMS, Debtor‐Appellee (SD Ind., Lawrence), an 11-page opinion, Judge Hamilton writes:

In this bankruptcy appeal, creditor Dawn Marie Adams appeals from the bankruptcy court’s denial of her claim against the estate of debtor James Gregory Adams, her former husband and business partner. (Since the parties have the same last name, we refer to them here as Dawn and Greg.) The state courts of Georgia decided three times in three final judgments that Greg still owed money to Dawn after they divorced and unwound their “monster truck” business. The bankruptcy court heard evidence on the merits of Dawn’s claim, though, and denied it as inequitable. The district court affirmed, and Dawn appeals.

Because the decisions of the bankruptcy court and the district court were final orders as to Dawn’s claim, we have jurisdiction over her appeal pursuant to 28 U.S.C. §158(d). We find that the issues concerning the validity of Dawn’s claim were previously adjudicated in the state courts and that the doctrine of issue preclusion prevented the bankruptcy court from rehearing those issues. Accordingly, we reverse and remand for further proceedings. * * *

In sum, though Greg Adams had the opportunity to appeal the Georgia state court judgments, he did not avail himself of that opportunity. Instead, he filed for bankruptcy, but that is not a substitute for timely appeals of the state court judgments. The doctrine of issue preclusion (collateral estoppel) bars him from using the bankruptcy system to have his defenses reheard despite the state courts’ rejection of those defenses.

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

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In In the Matter of M.S. (A Child Alleged in Need of Services), and K.S., (Mother) v. The Indiana Department of Child Services, a 12-page opinion, Chief Judge Robb writes:

K.S. (“Mother”) appeals the trial court’s dismissal of the Child in Need of Services (“CHINS”) case regarding her son M.S. Mother raises two issues for our review: (1) whether the trial court’s out-of-state placement of M.S. with his father (“Father”) was error; and (2) whether the Indiana Department of Child Services’ (“DCS”) request for dismissal of the CHINS proceedings violated Indiana Code section 31-34-21-5.5 by failing to make reasonable efforts to preserve a family. Concluding the trial court’s placement of M.S. was not error and that Indiana Code section 31-34-21-5.5 was not violated, we affirm. * * *

BARNES, J., concurs.
BROWN, J., concurs with separate opinion. [which begins, at p. 10] The majority observes that the court did not have independent knowledge of the condition of Father’s home at the time of M.S.’s placement, noting that the inspection was not conducted until after M.S. began living with Father in Washington, and states that “[a] more cautious approach would be preferable when placing a child out-of-state in this scenario.” Slip op. at 8. Although I concur with the majority, I write separately to note that not only do I agree it would have been prudent to perform the home inspection prior to placing M.S., but I am also concerned about the subsequent lack of supervision provided by the trial court prior to dismissing the CHINS proceedings.

In State of Indiana v. Frank Greene , a 12-page opinion, Judge Riley writes:
Appellant-Respondent, the State of Indiana (State), appeals the post-conviction court’s grant of Appellee-Petitioner’s, Frank Greene (Greene), petition for post-conviction relief.
We affirm and remand.

The State raises one issue on appeal, which we restate as: Whether the post-conviction court erred when it found that Greene’s trial and appellate counsel were ineffective for failing to adequately challenge the sufficiency of the evidence for criminal confinement as a Class B felony based on counsels’ omission to cite Long v. State. * * *

We find both Long and Redman to be on point with the facts of the case before us. * * *

Therefore, by failing to adequately research and bring a meritorious issue to the attention of the court, both trial and appellate counsels’ representation was inadequate and ineffective. See Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002); Bieghler v. State, 690 N.E.2d 188, 193-96 (Ind. 1997). Both counsels’ failure prejudiced Greene as the application of Long and Redman indicate that he should not have been convicted of criminal confinement as a Class B felony. Thus, we affirm the post-conviction court, reduce Greene’s conviction in Count I to a conviction for criminal confinement as a Class D felony, and remand to the trial court for resentencing. * * *

KIRSCH, J. concurs
ROBB, C. J. concurs in result with separate opinion [which concludes] Because the statute itself precludes the enhancement to a Class B felony, and because neither Greene’s trial nor his appellate counsel raised this issue irrespective of Long, I concur with the majority that the post-conviction court properly granted post-conviction relief.

NFP civil opinions today (5):

In Re the Matter of R.K.: A Child Alleged to be a Child in Need of Services, A.K. v. The Indiana Department of Child Services (NFP)

Clarian Health Partners, Inc., d/b/a Methodist Hospital v. Jessica Sprunger, as next best friend of James Daniel Sprunger, Minor (NFP)

Virginia Davis v. Indiana State Board of Nursing (NFP)

In Re the Estate of Ruby Shuler Blankenbaker Botkins, Deceased, Mark Allen Shuler and David Lee Shuler v. Estate of George Botkins by Larry Botkins (NFP)

Bonnie Shipley v. Anonymous Doctor A and Anonymous Hospital C (NFP)

NFP criminal opinions today (8):

DeWayne Nalls v. State of Indiana (NFP)

Cleverly Lockhart v. State of Indiana (NFP)

Jamar Perkins v. State of Indiana (NFP)

John D. May v. State of Indiana (NFP)

Darrell McNary v. State of Indiana (NFP)

Brandon White v. State of Indiana (NFP)

James E. Britt, Jr. v. State of Indiana (NFP)

Ron Rose v. State of Indiana (NFP)

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

Ind. Decisions - "Supreme Court limits right of defendants to confront witnesses"

The Supreme Court's Dec. 19th opinion in Scott Speers v. State of Indiana (ILB summary here) was the subject of a story yesterday by Dan Carden of the NWI Times. Some quotes:

INDIANAPOLIS | A criminal defendant is not entitled to question in court every person who has handled the evidence used against the defendant, the Indiana Supreme Court has ruled.

Adopting a narrow reading of the Sixth Amendment right to confront witnesses, the state's high court said a crime lab technician who transferred blood evidence from police-delivered broken glass onto a swab for DNA testing -- but did not conduct the DNA test -- does not have to testify to satisfy constitutional fair trial requirements. * * *

Speers argued in his appeal that his right of confrontation was violated because the state failed to present the lab technician for cross-examination. He said transferring the blood from the broken display case glass to a testing swab was a "crucial step" in the evidence-gathering process.

The Supreme Court rejected his claim in its 5-0 ruling.

Justice Robert Rucker, a Gary native, said Speers properly got to cross-examine the forensic DNA analyst who tested the crime scene blood and matched it with Speers' DNA record, in accordance with a 2011 U.S. Supreme Court ruling requiring crime lab analysts, and not surrogates, to testify about their findings.

But Rucker said the U.S. Supreme Court also has ruled that requirement does not extend to every person in the chain of custody, and it's up to the prosecution to decide which steps in the evidence chain require testimony.

He said the significance of any gap caused by the absence of testimony is a matter for the jury to weigh but is not a violation of the confrontation clause.

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

Environment - "Indiana residents fight back against imported manure"

Updating a long list of earlier ILB entries on manure spreading and the plight of Grand Lake St. Mary in western Ohio, WTHR13 Indianapolis had a long story last night, reported by Bob Segall, on a new manure storage site being completed in Wayne County.

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

Ind. Courts - More on: "California porn firm makes money off lawsuits " Fifty-six lawsuits filed in ND Ind.

Updating this ILB entry from Nov. 17th, the ILB has just run across this earlier, but related story on the Electoric Frontier Foundation website, dated Sept. 17th, and headed Wisconsin federal "Judge Fines Copyright Troll Lawyer for Harassing Tactic Used Nationwide."

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

Thursday, December 26, 2013

Courts - "Utah holdouts now issuing gay marriage licenses"

The AP is reporting this evening that:

The last of the Utah counties that were holding out on issuing marriage licenses to same-sex couples reversed course Thursday and decided to hand out licenses to all eligible applicants. * * *

The state plans to take its fight against gay marriage to the U.S. Supreme Court as early as Friday while it prepares an appeal of Shelby's ruling to the Denver-based 10th U.S. Circuit Court of Appeals, said Ryan Bruckman, a spokesman for the Utah attorney general's office.

Bruckman has said counties could be held in contempt of federal court if they refused to comply.

The holdouts said they decided to obey Shelby's ruling despite reservations and questions about their legal liability. Utah makes it a misdemeanor for county clerks to sanction a same-sex marriage.

San Juan County Clerk Norman Johnson said "what finalized it for me" was Gov. Gary Herbert's order to state agencies to comply with Shelby's decision and change procedures for the delivery of state services. To that end, the Utah Department of Workforce Services is recognizing gay couples for food stamp and welfare benefits.

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

Ind. Decisions - Trial judge denies Charlie White's petition for post conviction relief [Updated]

The most recent post the ILB has on the Charlie While post-conviction-relief hearing is from Oct. 15, when the hearing before Hamilton Superior Court Judge Daniel Pfleging concluded.

Today there is word of a 26-page ruling, filed Dec. 23rd, from Judge Pfleging, denying all of Mr. White's claims, and ordering White to begin execution of his sentence or on before January 10, 2014.

The ILB will be posting a copy of the opinion shortly.

[Update at 1:14] Here is the opinion.

Here is an early IndyStar story by Jill Disis, headed "Judge denies Charlie White’s request for new trial." It begins:

Former Secretary of State Charlie White’s request for a new voter fraud trial has been denied by a Hamilton Superior Court judge, court documents say.

The embattled former state official was convicted in 2012 on felony convictions of theft and voter fraud and given a one-year, home-detention sentence. He will now have to serve that sentence.

This fall, White tried challenging that sentence through post-conviction relief, a legal process different from a direct appeal in which a person can challenge a criminal conviction. White and his new attorney, Andrea Ciobanu, argued that White’s former defense attorney, Carl Brizzi, was incompetent during White’s original trial.

Posted by Marcia Oddi on Thursday, December 26, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

Donyel Perry v. Tracy Perry (NFP)

NFP criminal opinions today (0):

Terry Donald Rutledge v. State of Indiana (NFP)

Terry Berry v. State of Indiana (NFP)

Donald Leehy v. State of Indiana (NFP)

Esteban Gonzalez v. State of Indiana (NFP)

Vincent Thornburg v. State of Indiana (NFP)

Michael Baldwin v. State of Indiana (NFP)

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

Ind. Gov't. - "If you believe in marriage amendment, then own it" [Updated]

[Update at 7:12 PM - I've just run across another copy of this "story", it is in the Lafayette Journal Courier, identified as an opinion piece by political commentator Brian Howey.]

That is the headline to this long unsigned story in today's Greensburg Daily News. (Although it reads like an editorial or column or letter, it appears to be categorized as a regular news story.)

Some quotes:

“Let the people decide.”

We have heard this cry from Gov. Mike Pence and a number of Republican members of the Indiana General Assembly when it comes to House Joint Resolution 6 - the Constitutional marriage amendment. * * *

At this writing, unless House Speaker Brian Bosma and Senate President David Long - both Republicans and both lawyers - convince their respective caucuses that [although?] not only is this amendment vague, but that the second sentence will almost certainly collide with the 14th Amendment of the U.S. Constitution, which clearly states that no American can be denied “equal protection of the laws,” it will likely go before voters via a referendum in November 2014.

Gov. Pence is straddling the dynamic here. The echoes of his own past career of public service include his oft stated self-description: “I’m a Christian, a conservative and a Republican in that order.” Yet his emergence into the gubernatorial sphere finds Pence at odds with his own historic mission. He has sought separation during his 2012 campaign and his first year in office, persistently saying his priorities are jobs and education.

Yet, he is set to watch his state enter perhaps the most divisive chapter in its modern history. The wink and a nod opt-in by Gov. Pence and his social conservative allies in the Indiana Senate and House is to “let the people decide.”

Now, what is wrong with the notion of letting the people decide?

We are only a year past the 2012 U.S. Senate race which cost $51 million. It ignores the lesson where Dick Lugar, Richard Mourdock and Joe Donnelly essentially lost control of their campaigns and messaging, as more than $30 million of national money spilled into the state from an array of special interest groups.

While job creation is largely agreed upon as the most emphatic mission at hand, the nation and world will get a front row seat to division and policy that half the population supports, and the other half finds regressive. HJR-6 will be debated in the Indiana General Assembly between January and March during a period of which a political lull across the nation will mean America’s eyes will be affixed to the Hoosier state.

The second aspect of “let the people decide” is that the people don’t always get it right.

Imagine in 1953 the General Assembly attempting to write the Supreme Court decision Plessy vs. Ferguson into law. This was the 1896 ruling that affirmed the notion of separate but equal schools for blacks and whites. In that era of our history, a black legislator from The Region or South Bend couldn’t even find an Indiana restaurant to eat in on the way to the Statehouse.

There probably would have been ample support for a separate but equal amendment to our Constitution a year before the high court’s Brown vs. Board of Education overturned the notion and set in motion the American civil rights movement.

Howard County Republican Chairman Craig Dunn writes of anti-miscegenation laws, which outlawed marriage between the races. A national poll in 1958 found 98 percent of the American people to be against interracial marriage. The Indiana General Assembly wouldn’t abolish those laws until 1965, two years in advance of a Supreme Court ruling that did the same. * * *

Times change. Morals and ethics evolve. Intolerance gives way to tolerance.

So in the first months of 2014, as Gov. Pence watches passively, the General Assembly will decide whether to amend our Constitution on marriage. Long and Bosma tell us that HJR-6 isn’t even the most important issue facing our state with a persistent high jobless rate, over-populated jails and prisons, potentially 2,000 meth lab busts this year, where 40 percent of our high school graduates need to take college remediation courses, and our overall health rates as one of the worst in the 50 states.

Yet they appear willing to let a third-rate issue be amended to our Constitution.

If Gov. Pence and legislative Republicans really think HJR-6 is worth the division, the outside money, and a national audience, they ught to call for the elimination of that second sentence in the resolution that lawyer Bosma has flagged as a problem and would advocate its removal, pass it this year and next, and then run with the referendum on the 2016 ballot.

If you believe it, defend it. Advocate for it.

Own it.

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

Ind. Decisions - 22 years later, suspended Indiana attorney gains reinstatement

In In the Matter of William Drozda, filed Dec. 19th, The Supreme Court unanimously grants the petition for reinstatement of an attorney initially temporarily suspended Dec. 11, 1991:

On June 16, 1995, the Court imposed suspension for not less than three years, with credit for time already suspended. See Matter of Drozda, 653 N.E.2d 991 (Ind. 1995). Petitioner filed a petition for reinstatement on September 13, 2012. On November 12, 2013, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana. * * *

This Court, being duly advised, finds that the recommendation of the Commission should be accepted. The Court therefore GRANTS the petition for reinstatement and REINSTATES Petitioner as a member of the Indiana bar as of the date of this order. Petitioner shall pay any costs owing under Admis. Disc. R. 23(18)(d).

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

Environment - "Gaps in State Law Allow Rural Indiana Couple to Suffer from Neighbors’ Outdoor Wood Boiler Use"

The ILB has a long list of entries, dating back to 2005, on the need to regulate outdoor wood-fired boilers in Indiana. The most recent ILB entry is from May 14, 2011, and is headed "New IDEM rule forbids summer use of some outdoor wood boilers (OWB)."

Earlier this month the Hoosier Environmental Council issued a news release about a lawsuit it has filed on behalf of a Rush County couple, saying that rule is not adequate. Some quotes:

The Hoosier Environmental Council has filed a lawsuit in Rush County Superior Court against Christopher and Shelley Nicholson, who have been operating an Outdoor Wood Boiler (OWB) within literally feet of their elderly neighbors’ property, resulting in excessive and noxious smoke that has negatively impacted the health of those neighbors.

Mable and Gary Bowling are elderly neighbors suffering considerably from the smoke that is emitted from the Nicholsons’ OWB, located just 10 feet from the Bowlings’ property line and 30 feet from the Bowlings’ home. Mable Bowling, according to her physician, has developed chronic bronchitis due to the Nicholsons’ OWB use. She’s been hospitalized due to the bronchitis, and receives ongoing medical treatment for asthma, a pre-existing condition her doctor states is greatly exacerbated from exposure to the harmful smoke that comes from her neighbors’ OWB. In addition to ongoing health impacts, Gary and Mable are unable to go outside, sleep comfortably, have company or enjoy family gatherings, and are fearful and despondent due to the constant invasion of noxious smoke and fumes from the Nicholsons’ OWB.

The Bowlings have asked repeatedly for the Nicholsons to stop using their OWB, asked the Nicolsons to move the OWB to another, less impactful location on the Nicolsons’ four-acre property, and called upon numerous local and state government agencies and law enforcement to intervene -- agencies including the Rush County Prosecutor’s Office, the Rush County Plan Commission, the Indiana Department of Environmental Management, the State Department of Health, and the Indiana Attorney General’s office, to name a few. All have declined to take action pointing to Indiana’s existing OWB regulation. The OWB regulation, however, does not prohibit use of the oldest, most polluting OWBs, like the Nicholsons’ OWB, and the OWB regulation does not prohibit nuisances caused by OWBs. Without regulatory protection, the problem has not been resolved, leaving the Bowlings -- represented by the Hoosier Environmental Council -- with no choice but to pursue legal action. * * *

While other states, cities and towns across the country have moratoriums on OWBs, or have banned them altogether, the state of Indiana enacted inadequate safeguards from OWBs in 2011.

According to Ferraro, a preliminary injunction ordering the Nicholsons to stop using the OWB while the case is being litigated, has been also been filed with the Rush County Superior Court.

Here is the complaint, filed Oct. 29th in Rush County. A motion for a temporary restraining order was filed Nov. 15th in the same court.

Posted by Marcia Oddi on Thursday, December 26, 2013
Posted to Environment

Ind. Courts - "Special prosecutor named in LaPorte case [against LaPorte prosecutor]"

Updating this ILB post from July 5, 2012, Stan Maddux of reported Dec. 23rd for the South Bend Tribune in a story that begins:

A special prosecutor will examine whether the LaPorte County prosecutor committed a crime by forging the signature of his ex-wife and a notary public on divorce-related documents.

The outside prosecutor, Michael Dvorak of St. Joseph County, was appointed Friday by a judge in Lake County to determine if there was any criminal intent on the part of LaPorte County Prosecutor Bob Szilagyi.

Last year Szilagyi served a 60-day suspension of his legal license ordered by the Indiana Supreme Court, which did not cite any criminal wrongdoing. In its ruling, the Supreme Court stated his ''misconduct'' stemmed from a desire to avoid an unpleasant conversation with his former wife about the need for her assistance.

The court also ruled Szilagyi should have known the importance of authentic legal documents and how his actions could damage the reputation of lawyers and the integrity of the legal system.

Szilagyi said what he did was wrong but there was no criminal intent because the divorce settlement that included transfer of the marital home to him had already been agreed to.

He said he was only trying to clean up refinancing documents that his ex-wife, Susan, mistakenly signed using her new last name, Weinkauff, instead of her married name as required.

Szilagyi said the wrong name on the title wasn't discovered until just before the refinancing was set for closing. In a hurry, he noted, he made a poor decision and signed the marital name of his ex-wife and the name of his secretary as notary on the deed without his secretary's permission.
"It was stupid on my part,” he said. “It was a bad judgment call.”

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

Ind. Decisions - "Student’s battle with IHSAA drags on for 22 years"

Indiana High School Athletic Association, Inc. v. Gregory S. Schafer and Shane Schafer b/n/f Gregory S. Schafer, decided by a Court of Appeals panel on Dec. 17th (ILB summary here) was the subject of this long story Dec. 23rd in the Indianapolis Star, reported by Tim Evans. A quote:

Timothy S. Schafer [Shane's attorney and uncle] said the family always believed the IHSAA was more intent on punishing Schafer and his family for challenging its authority — and in sending an ominous warning to others — than it was in fostering fair play.

“They wanted to make it clear,” he said, “that if you challenge the almighty IHSAA, you will pay the price.”

In an order issued more than 15 years after the family first filed its lawsuit, the Court of Appeals seemed to agree.

“We share the trial court’s concern that the IHSAA may have been motivated to run up fees and expenses during the course of this litigation ... to send a message to parents and student athletes in Indiana about the great risk and expense involved in challenging a ruling, and thus discouraging them from appealing a denial of eligibility,” the the court said.

See also the Dec. 18th story by Dan Carden of the NWI Times.

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

Wednesday, December 25, 2013

Ind. Decisions - ILB's transfer list search database has been updated

The ILB's transfer list collection goes back to February 2, 2004. The database has been updated and the transfer lists through December 20, 2013 are now searchable.

Posted by Marcia Oddi on Wednesday, December 25, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - "Appeals court rules in gender identity case"

The Dec. 20th Court of appeals opinion in In re the marriage of Melanie Davis and Angela Summers, summarized here by the ILB, is the subject of an AP story, here today in the Fort Wayne Journal Gazette, that does a good job of setting out the facts of the case.

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

Ind. Gov't. - "Indiana Finds It’s Not So Easy to Buck Gay Marriage Trend"

That is the headline to this front-page (but below the fold) story in today's Dec. 25th issue of the NY Times. Monica Davey reports the long story, dateline Indianapolis. Some quotes:

INDIANAPOLIS — Dominated by Republicans and steeped in traditional values, Indiana seemed among the least likely places to become a battleground in the nation’s debate over same-sex marriage when the legislature overwhelmingly chose in 2011 to push forward a state constitutional amendment barring gay couples from marrying.

But in the two years since, the landscape has shifted as voters, lawmakers and courts began recognizing same-sex marriage in places like Maryland, Minnesota, New Jersey and New Mexico and as the United States Supreme Court declared parts of the federal Defense of Marriage Act unconstitutional. In just the past few days, a federal judge struck down a ban on same-sex marriage in Utah, home of the Mormon Church, and a federal appeals court rejected a request to halt the marriages on Tuesday. A federal judge in Ohio found that same-sex marriages should be recognized on death certificates.

So suddenly Indiana, where lawmakers in the coming weeks are expected to call for the second vote needed to put a ban before voters in the fall elections, is now in a far more tense, unpredictable and closely watched spot than anyone here had imagined — a test case in whether a state will impose new limits on same-sex marriage in this fast-moving political and legal environment. * * *

As lawmakers prepare to return for a new legislative session in January, it is an especially awkward spot for Republicans, who dominate both chambers of the General Assembly. With an election year ahead and the risk of primaries in May, the issue is pitting socially conservative groups, who are urging a constitutional ban, against sometime allies in the state’s business community, who say a ban could cause Indiana economic harm.

Few Republicans now seem eager to talk about the issue, and some legislative aides said it was not entirely certain who would formally file the legislation in January. * * *

To hear some Democrats tell it, many Republicans here would just as soon see the issue fade away, as they ponder navigating between socially conservative primary voters and a broader array of voters in a general election.

“The tables have turned on this issue, and the Republican members are at a loss about what to do about it,” said Representative Scott Pelath, the House minority leader. “They’re quaking in their boots about what will happen if they don’t pass this thing. But they’re fearful about what will happen down the road if they do.”

Indiana might well have answered this question years ago if not for complications in its process for amending the State Constitution and for shifting partisan control in the legislature. By state statute, Indiana has long barred same-sex couples from marrying. But a decade of efforts to add the measure to the Constitution were slowed by the process required here — two votes by separately elected legislatures, then a decision by voters statewide — and by roadblocks from Democrats who held a majority in the Indiana House for a stretch before 2011.

With firm Republican control of both chambers in 2011, the ban advanced with wide margins. Elections in 2012 further strengthened Republican control, giving supporters of the amendment added reason to expect easy passage a second time.

This year, Republican leaders said they would wait for the United States Supreme Court to weigh in on related issues. In June, the Supreme Court did not rule on whether such state amendments are inherently unconstitutional, though that question is now being tested in courtrooms elsewhere, in places like Utah. The question may ultimately be answered in the Supreme Court, experts said, but probably not in the matter of months Indiana lawmakers have left to decide the issue, leaving them on shifting legal ground. * * *

Complicating matters is the language of the proposed amendment itself, which opponents say goes beyond banning marriage to threatening all legal arrangements allowing rights to same-sex couples. In addition to defining marriage as between a man and a woman, Indiana’s amendment says, “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Some lawmakers have suggested that the amendment might now be changed to drop that sentence. But there is debate over how that would affect the process. Some say a language change would essentially require starting the legislative process over, delaying a statewide vote by years. * * *

Supporters of a ban say they fully expect a successful vote by the legislature, then a decision by Indiana residents. “If the legislature doesn’t take it up, there will be many, many disappointed people,” said Curt Smith, president of the Indiana Family Institute. “Our message is, let the people decide.” * * *

“I do believe opinions are changing,” Mr. Smith said. “But they’ve not changed as much in Indiana.”

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

Courts - 10th Circuit "Appeals Court Refuses to Halt Same-Sex Marriages in Utah" [Updated]

So reported Jack Healy late yesterday for the NY Times. Some quotes:

DENVER — A federal appeals court cleared the way on Tuesday for same-sex marriages to continue across Utah, denying an emergency request from state officials to halt a flood of unions that began after a lower-court judge declared the state’s ban on same-sex marriage to be unconstitutional. * * *

“This is one of the most conservative Republican states in the country,” said Clifford J. Rosky, a law professor at the University of Utah who served as a minister to wed same-sex couples on Monday. * * *

When [Judge Robert J. Shelby of Federal District Court] denied Utah’s request [for a stay], the state took its case to the appeals court in Denver, but the judges rejected Utah’s request. Mr. Rosky said the ruling suggested that the judges did not believe Utah was likely to succeed in its appeal defending the marriage ban, and that they saw no irreparable harm in allowing same-sex couples to wed.

[Upadated at 10 AM] Lyle Denniston is reporting at SCOTUSblog that:
The U.S. Court of Appeals for the Tenth Circuit, finding that the state of Utah has not made its case for delaying same-sex marriages, refused on Tuesday night to block a federal judge’s order striking down a voter-approved ban on those marriages. State officials then told news organizations in the state that they would now ask the Supreme Court to issue a delay, with a filing there likely on Thursday.

In a two-page order, a two-judge motions panel of the Tenth Circuit found that a stay was not warranted, expressing some uncertainty that the state’s position against same-sex marriage would ultimately prevail in court. The judges set the case (Kitchen v. Herbert (Circuit docket 13-4178)) for expedited review, with a briefing schedule to be issued shortly.

A request to the Supreme Court for a delay of the ruling by U.S. District Judge Robert J. Shelby of Salt Lake City would go first to Justice Sonia Sotomayor, who is the Circuit Justice for the geographic area that includes Utah. She would have the option to act alone or to refer the issue to her colleagues.

Here is the brief 10th Circuit order denying the stay. A quote:
A stay pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. * * * The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively. * * *

Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted.

Posted by Marcia Oddi on Wednesday, December 25, 2013
Posted to Courts in general

Tuesday, December 24, 2013

Ind. Courts - More on: Class Action Suit Filed Against Angie's List, Inc.

Updating an ILB post from early this morning, Tony Cook of the IndyStar is now reporting in a story that begins:

Top executives at Angie’s List made millions of dollars by misleading shareholders and selling off stock at artificially inflated prices, according to a lawsuit filed Monday in U.S. District Court in Indianapolis.

The lawsuit, filed by the same New York firm that recovered $7.3 billion for victims of energy giant Enron, seeks class-action status for potentially hundreds of Angie’s List stockholders.

The 28-page complaint alleges that five top Angie’s List officials, including co-founders William Oesterle and Angela Hicks Bowman, misled investors about the company’s condition from February to October.

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

Courts - "Judge fines Kentucky cabinet $756,000 for making 'mockery' of state Open Records Act "

This dispute in Kentucky between the courts and newspapers on one side, and the Kentucky Cabinet for Health and Family Services, on the other, has been going on for several years now. Here are a number of earlier ILB posts. This post, from August 1, for example, is headed "Kentucky officials justify withholding details of child-abuse cases."

Some quotes from a story yesterday by John Cheves at Kentucky.com:

A judge on Monday hit the Kentucky Cabinet for Health and Family Services with a $756,000 fine for making "a mockery" of the state's Open Records Act and repeatedly withholding information in its files about abused and neglected children.

It was the latest in a series of rulings by Franklin Circuit Judge Phillip Shepherd in favor of the Lexington Herald-Leader and The Courier-Journal of Louisville.

The newspapers sued the cabinet in 2011 for access to about 180 files involving social workers' interactions with children who died or suffered near-fatal injuries. The cabinet released the files, but it redacted far more information than Shepherd allowed, including names of victims and alleged abusers, photographs and criminal charges, and it did not cite its legal authority for the redactions, as the Open Records Act requires.

On Monday, Shepherd ordered the cabinet to pay a $756,000 penalty for its continued refusal to obey the law, plus it must pay the newspapers' attorneys fees and court costs, which will be determined in coming weeks. He also ordered the cabinet to release the files in uncensored form, with the few exceptions allowed by law, such as the names of underage siblings of victims if they are mentioned only because they are siblings.

"The entrenched habits of a government bureaucracy die hard," Shepherd wrote in his decision. "The cabinet has intentionally continued to employ a wholesale blanket approach to withholding public records, despite such approach being prohibited by the Open Records Act and contrary to this court's repeated orders to support any and all redactions by case-by-case analysis."

He added: "This rule of public disclosure in this narrow class of cases involving child fatalities and near-fatalities has been enacted not to assign blame, not to satisfy some unhealthy curiosity, not to sensationalize and not to gratuitously invade the privacy of mourning families. It has been enacted for a single, overriding purpose: to ensure both the cabinet and the public do everything possible to prevent the repeat of such tragedies in the future. There can be no effective prevention when there is no public examination of the underlying facts."

An editorial Dec. 18th in the Kokomo Tribune also talked about enforcing public records laws. Some quotes:
Two years ago, the Indiana General Assembly passed legislation that allows judges to fine public officials who deliberately flaunt public-access laws.

We remind our area’s public officials to give the law serious consideration before the new year.

The law allows a judge to levy a fine of up to $100 for a first offense and up to $500 for a repeat offender.

Indiana is actually late to the party. More than half the states allow civil or criminal penalties for public officials who intentionally violate their open-meetings and open-records laws. In some states, a violation can mean removal from office.

Indiana’s law allows only a fine, but the public official would at least be required to pay the fine out of his or her own pocket.

The law is intended to put some teeth into provisions giving the public and media the right to be notified of public meetings and to access public documents. Under the old law, someone denied access to a public document or government meeting had no recourse other than to take the case to court. This new measure gives public agencies greater incentive to resolve a dispute before seeing a judge.

The new law is not aimed at punishing people. It’s aimed at delivering a simple but critical message: This is the public’s business, and it should be conducted in public view.

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

Courts - "An Eventful Day in Court for Same-Sex Marriage "

That is the heading of this article in the WSJ Law Blog (which I think is again freely available), written by Jacob Gershman. Some quotes:

From Ohio to Utah, it was busy day in court on the gay marriage front. Here’s a roundup of the latest developments: [the story talks about the developments in Utah and Ohio, plus a new development in Oklahoma, then ends with a ruling from the previous week]

Meanwhile, a state appeals court in Indiana on Friday ruled that a marriage between a man and a woman wasn’t voided after the husband, who was diagnosed with gender identity disorder, legally changed his gender to female. Reversing a lower-court ruling, the Indiana Court of Appeals said the marriage wasn’t dissolved even though Indiana prohibits same-sex couples from getting married.

“[A] marriage between a man and a woman that was valid when it was entered into does not automatically become void when one of the parties has his or her birth certificate amended to indicate a change of gender,” the court said. “The statute prohibiting same-sex marriages does not apply to the particular set of circumstances in this case because the parties did not enter into a same-sex marriage in Indiana or into a same-sex marriage that was solemnized in another state.”

Today's LA Times has a story (with a great photo) reported by Matt Pearce, headed "Supreme Court's same-sex marriage ruling ripples through lower courts: Gay marriage activists are winning more cases in lower courts since the Supreme Court struck down part of the Defense of Marriage Act." The stroy begins:
Same-sex marriage is picking up steam in the courts. A federal judge ordered Ohio on Monday to recognize gay marriages on death certificates, but used broad language that could be cited to mount a broader challenge to the law barring such unions.

It was the third judicial decision in the last week favoring same-sex marriage rights. In Utah, a federal judge struck down a gay marriage ban Friday and refused to suspend his decision Monday. A federal appellate court also rejected Utah's plea to put his ruling on hold.

And on Thursday, the New Mexico Supreme Court formally recognized same-sex marriage, which is now legal in 17 states and the District of Columbia.

The scenarios must have sounded all too familiar to U.S. Supreme Court Justice Antonin Scalia. In June, when the court issued a landmark decision ordering the federal government to recognize same-sex marriages performed in states where they were legal, Scalia warned of what could come next.

"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," Scalia wrote in a scathing dissent in United States vs. Windsor, which struck down part of the federal Defense of Marriage Act but left state laws intact. "No one should be fooled; it is just a matter of listening and waiting for the other shoe" to drop.

Now, for opponents of same-sex marriage, the other shoe is dropping.

The NY Times today has a story, with the same great photo, headed "Same-Sex-Marriage Supporters Applaud Ohio and Utah Rulings ."

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

Indiana Law - More on: Indiana one of states featured in NYT article today on guns and the mentally ill

Following on this ILB post from Sunday referencing a NYT Sunday story, the Fort Wayne Journal Gazette has an editorial today suggesting one way to strengthen the Indiana law re seizing guns of the mentally ill:

But the Times found what it called “a significant loophole” in Indiana’s law enabling police to seize handguns from people who are deemed dangerously mentally ill: “There is nothing preventing them from going out and buying new guns.” Officials from the Indiana Supreme Court told the Times records from gun-confiscation cases are not entered into the FBI’s National Instant Criminal Background Check System, which gun dealers must check before selling a firearm.

Former Fort Wayne Mayor Paul Helmke, who for five years headed the Brady Campaign to Prevent Gun Violence, said it appears there is nothing in the Indiana law that would preclude the state from reporting such cases to NICS.

When guns are seized, Helmke said, the law provides for a court hearing within 14 days. If the court determines a person is dangerous and upholds the seizure of weapons, Helmke said, there appears to be nothing that bars the state from adding the person’s name to the federal don’t-sell list. “If you have enough to take (someone’s) guns away, you ought to be able to send the records.”

Most mentally ill people are not dangerous, and even dealing with the few who are will not, of course, end the gun-violence problems. As Helmke noted, as many as 40 percent of all gun sales are through gun shows or other “private” transactions, allowing a potentially dangerous person to buy a gun even if his or her name is on the NICS list.

But why leave a loophole like this unsealed? If indeed those records aren’t being sent in, the Indiana Supreme Court or, if need be, the legislature could remedy that quickly.

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

Ind. Gov't. - "Bloomington ordinance requiring hard-wired smoke detectors subject of court battle"

A story this morning in the $$ Bloomingdale Herald-Times, reported by Lindsey Erdody, begins:

The city continues to battle with property owners who are legally challenging a new Bloomington requirement that rental units have hard-wired smoke detectors.

City of Bloomington assistant attorneys Greg Small and Patty Mulvihill responded to the property owners’ request for summary judgment in the case with a similar request, asking for a summary judgment in the city’s favor. They argue that the city’s rental inspection code doesn’t conflict with state code, because the provision regarding smoke detectors allows city law to be more stringent.

The Bloomington City Council passed the ordinance in November 2012 that requires rental property owners to install hard-wired smoke detectors by Dec. 31, 2018.

State law requires all smoke detectors to be battery-operated or hard-wired. It allows for city regulations to be more stringent or detailed, but they cannot conflict with state code.

“State law says smoke detectors can be either battery-operated or hard-wired. The city, in the interest of public safety, chose to pursue the more stringent requirement of hard-wired systems,” Small and Mulvihill wrote.

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

Ind. Decisions - More on: Spierers' lawsuit survives motion to dismiss hurdle

Updating this ILB post from yesterday, which includes a copy of the ruling, USA TODAY today has a story headed "Portion of missing coed wrongful death suit advances," reported by Michael Boren of the IndyStar.

Posted by Marcia Oddi on Tuesday, December 24, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Class Action Suit Filed Against Angie's List, Inc.

A nationally-know plaintiffs' securities firm, Robbins Geller, yesterday announced that a class action has been commenced in the USDC for the Southern District of Indiana on behalf of purchasers of Angie's List, Inc. common stock during the period between February 14, 2013 and October 23, 2013. From the law firm's news release in the WSJ:

The complaint alleges that during the Class Period, Angie's List issued materially false and misleading statements regarding the strength of the Company's business model and its financial performance and future prospects and failed to disclose the following adverse facts: (i) Angie's List had increased its reliance on providing free memberships in order to artificially boost its subscriber figures; (ii) that contrary to Angie's List's repeated Class Period statements that the online reviews were unbiased because Angie's List did not permit service providers to buy ratings on its website ("You can't pay to be on Angie's List"), the Company was consistently deriving more than half of its revenues from the service provider side of its business -- where it relied heavily on collecting fees for listing paid service providers more prominently; (iii) that because Angie's List sometimes charged service providers hundreds of dollars for "hot leads," those costs were being passed along to Angie's List subscribers, increasing the prices consumers were paying and decreasing the benefit to them of using the website; (iv) that the legitimacy of the service provider side of Angie's List's business model was called into question by Angie's List's practice of forcing service providers to pay high fees to be listed as highly rated service providers, knowing that if they did not, they would not get customer referrals from Angie's List; (v) that because Angie's List did not vet the service providers listed and recommended on its website, either for qualifications or for safety, many consumers were questioning the value of its recommendations, making them unwilling to continue paying outsized membership fees; and (vi) as a result of the foregoing, defendants lacked a reasonable basis for their positive statements about the strength of Angie's List's business model and its business and financial prospects during the Class Period.

The complaint alleges that through a series of disclosures between September 30, 2013 and October 24, 2013, investors learned that: (i) Angie's List's Chief Technology Officer had been terminated -- without explanation or naming a replacement; (ii) Angie's List had slashed membership prices by roughly 75% in several key markets, in a bid to attract new members; (iii) the Company's third quarter 2013 financial results were much weaker than defendants had led the market to expect, and the same declining business metrics had forced Angie's List to issue weaker fourth quarter 2013 financial guidance; and (iv) certain analysts were questioning the Company's ability to meet its future financial obligations. On this news, the price of Angie's List common stock declined precipitously, erasing millions of dollars in market capitalization.

Plaintiff seeks to recover damages on behalf of all purchasers of Angie's List common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud.

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

Monday, December 23, 2013

Ind. Decisions - "Judge rules against Notre Dame in health care suit"

Madeline Buckley of the South Bend Tribune reports this afternoon in a story, complete with a copy of the ND Ind. opinion, that begins:

SOUTH BEND — A federal judge has denied Notre Dame’s request for relief from parts of the Affordable Care Act regarding contraceptive coverage, writing that the university wants to "eat its cake and have it still."

The university filed a second lawsuit earlier this month that challenged the constitutionality of portions of the federal health care law, arguing that it violates Notre Dame's right to religious freedom in its provisions regarding coverage for contraceptives.

It asked a judge for an injunction that would exempt them from law when the new health care plans take effect at the start of 2014.

But U.S. District Judge Philip P. Simon wrote in an order filed Friday that as the law reads now, the university is free to opt out of paying for the coverage itself but can't stop anyone else from providing it.

Posted by Marcia Oddi on Monday, December 23, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Spierers' lawsuit survives motion to dismiss hurdle

In a 24-page order today, federal Judge Tanya Walton Pratt has denied a motion to dismiss, concluding:

A motion to dismiss pursuant to Rule 12(b)(6) does not test whether the plaintiff will prevail on the merits but instead whether the claimant has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). For the foregoing reasons, the Court finds the Spierers’ claims of negligence per se and Dram Shop liability have survived the initial hurdle of a motion to dismiss. Whether or not these claims can survive summary judgment is a matter for another day. Accordingly, the Court GRANTS Rossman’s and Rosenbaum’s motions to dismiss Count I of the Spierers’ Complaint for common law negligence brought under the Child Wrongful Death Statute and for common law loss of a child’s service. The Court DENIES Rossman’s and Rosenbaum’s motions to dismiss on Counts II and III of the Spierers’ Complaint for negligence per se and Dram Shop liability.
As described in the introduction to the opinion:
In the early morning hours of June 3, 2011, Lauren Elizabeth Spierer (“Lauren”) disappeared from the streets of downtown Bloomington Indiana. Her parents, Robert Evan Spierer and Mary Charlene Spierer (“the Spierers”) brought this action alleging the negligent actions and omissions of the Defendants caused Lauren’s disappearance, injury and death. The Defendants Corey E. Rossman (“Rossman”), Jason Isaac Rosenbaum (“Rosenbaum”) and Michael B. Beth (“Beth”) each filed Motions to Dismiss (Dkts. 20, 22 and 24). All three motions were the subject of a hearing and oral argument held on Monday, December 2, 2013. Following oral argument, the Court issued a ruling from the bench granting the Motion to Dismiss filed by Beth, and took the motions filed by Rossman and Rosenbaum under advisement (Dkt. 36). The Court, having considered the parties’ arguments, now GRANTS in part and DENIES in part Rossman’s and Rosenbaum’s motions to dismiss.

Posted by Marcia Oddi on Monday, December 23, 2013
Posted to Ind Fed D.Ct. Decisions

Courts - Gay marriage in Utah not stayed; Ohio federal judge says that state's ban is unconstitutional

Lyle Denniston of SCOTUSblog has the latest word, as of 5:05 PM, on the Utah case. The State of Utah has been trying to postpone implementation of the federal district court opinion, but the judge in that case has refused the delay. Next step for the State is the 10th Circuit.

Here is a NYT story on the same, headed "Judge Allows Same-Sex Weddings to Continue in Utah."

Meanwhile, today an Ohio federal district court judge has, according to this long, just-updated AP story by Amanda Lee Myers:

... ordered Ohio authorities to recognize gay marriages on death certificates, saying the state's ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don't like homosexuality.

Although Judge Timothy Black's ruling applies only to death certificates, his statements about Ohio's gay-marriage ban are sweeping, unequivocal, and are expected to incite further litigation challenging the law. Ohio's attorney general said the state will appeal.

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

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

[ILB: The Indiana Courts opinions site continues on and off to be frustrating to use, whether using a Chrome or Firefox browser.]

For publication opinions today (3):

In Michael W. Peters, M.D. and Deaconess Hospital, Inc. v. Cynthia S. Kendall and Michael J. Kendall , a 12-page opinion, Judge Riley writes:

Appellants-Defendants, Dr. Michael W. Peters and Deaconess Hospital, Inc., appeal the trial court’s denial of their motion for partial summary judgment in the medical malpractice suit brought by Cynthia S. and Michael J. Kendall. * * *

We find one of the cross-appeal issues is dispositive and restate it as the following: Whether the Proof of Claim filed by the Kendalls in the liquidation proceedings of Dr. Peters’ insurer constitutes a binding contract. * * *

Based on the foregoing, we conclude that the trial court appropriately denied the Medical Group’s partial summary judgment motion because the Kendalls did not release the Medical Group from liability by filing a Proof of Claim in the PHICO liquidation. Affirmed.

In Town of Newburgh v. Town of Chandler, a 12-page opinion, Sr. Judge Shepard writes:
The legislature has authorized municipalities to provide sewer service up to four miles from their corporate boundaries, and to regulate or even prohibit other entities from doing so. When two towns each assert exclusive right to provide service in a zone where their authority overlaps, how should their conflicting claims be resolved? * * *

Resolution of disputes like the one before us by a commission in the executive branch could likely produce more effective and efficient results. The creation of such mechanisms, however, is in the domain of the legislature and not the courts. The statutes as they exist authorized Newburgh’s ordinance prohibiting others from providing new sewer services to customers within four miles of its corporate boundaries.

We therefore affirm the trial court’s denial of summary judgment to Chandler, reverse its denial of summary judgment to Newburgh, and remand with instructions to enter summary judgment for Newburgh.

In Duane Jadrich v. State of Indiana, a 15-page opinion, Judge Bradford writes:
Hendricks County Sherriff’s Deputy Robert Butterfield, who was attempting to serve a protective order, knocked on the front door of a residence on State Road 267. When he received no response, Deputy Butterfield walked to the rear of the house, passing by signs indicating that visitors were only to use the front door and through the closed gate of a chain-link fence. Deputy Butterfield knocked on the back door and again received no response but, when he took two steps off of the back patio, he noticed a “grow” inside a circle of firewood and brush. Deputy Butterfield approached and observed what he believed to marijuana in the circle and called Sherriff’s Sergeant Brett Clark.

Sergeant Clark arrived with Sherriff’s Detectives Henry Sadler and Matthew Wing. Detective Sadler knocked on the front door, received no response, but noticed an open window on the front of the house. When Detective Sadler knocked on the window, an individual inside asked who it was. Appellant-Defendant Duane Jadrich and his wife opened the front door, and Detective Sadler advised Jadrich that he wanted to speak with him about the marijuana plants in the back yard. Eventually, Jadrich consented to a search of his residence, which uncovered a smoking pipe containing marijuana residue. Six plants recovered from the back yard tested positive for marijuana.

The State charged Jadrich with Class D felony marijuana possession and Class A misdemeanor paraphernalia possession. Jadrich filed a motion to suppress the evidence found at his residence. After trial on only a stipulation of facts with Appellee-Plaintiff the State of Indiana, the trial court found Jadrich guilty as charged, entered judgment of conviction for Class A misdemeanor marijuana possession and Class A misdemeanor paraphernalia possession, and sentenced Jadrich to 365 days of incarceration with 363 days suspended to probation. Jadrich contends that Deputy Butterfield conducted an unconstitutional warrantless search of his property; that his consent to the search of his home was invalid; and that police improperly sought his consent to search his home without advising him that he had the right to consult with counsel, pursuant to Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). Concluding that Deputy Butterfield’s search violated the Fourth Amendment to the United States Constitution, we reverse and remand with instructions.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Rel. of: J.S. (Minor Child), and K.G. (Father) v. The Indiana Department of Child Services (NFP)

In the Matter of the Civil Commitment of: N.F. v. Wishard Health Services, Midtown Community Mental Health Center (NFP)

Stardust Development, LLC v. Randy Cassady (NFP)

NFP criminal opinions today (3):

Djomon N. Tito v. State of Indiana (NFP)

Shamberley Jones v. State of Indiana (NFP)

Ethan Sizemore v State of Indiana (NFP)

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

Ind. Decisions - Transfer list for week ending December 20, 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 only through the April 12, 2013 list, but will be updated this week.]

Here is the Clerk's transfer list for the week ending Friday, December 20, 2013. It is one page (and 18 cases) long.

One transfer was granted last week, Scott Speers v. State of Indiana, which was granted with opinion. See the ILB summary here from Dec. 19th.

Posted by Marcia Oddi on Monday, December 23, 2013
Posted to Indiana Transfer Lists

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

From Sunday, December 22, 2013:

From Saturday, December 21, 2013:

From late Friday afternoon, December 20, 2013:

Posted by Marcia Oddi on Monday, December 23, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/23/13):

Next week's oral arguments before the Supreme Court (week of 12/30/13):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/23/13):

Next week's oral arguments before the Court of Appeals (week of 12/30/13):

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

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


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

Posted by Marcia Oddi on Monday, December 23, 2013
Posted to Upcoming Oral Arguments

Sunday, December 22, 2013

Indiana Law - Indiana one of states featured in NYT article today on guns and the mentally ill

The lengthy Sunday NY Times front-page, lead story today continues on to fill two full interior pages. Reported by Michael Luo and Mike McIntire, the story is headed "When the Right to Bear Arms Includes the Mentally Ill." The story examines:

... the uncertain legal territory at the intersection of guns and mental illness. Examining it is difficult, because of privacy laws governing mental health and the limited availability of information on firearm ownership. But The New York Times obtained court and police records from more than 1,000 cases around the country in which guns were seized in mental-health-related episodes.

A systematic review of these cases — from cities and counties in California, Colorado, Connecticut, Florida, Indiana, Ohio and Tennessee — underscores how easy it is for people with serious mental health problems to have guns.

The ILB has pulled out the parts of the story relating to Indiana:
Even in Indiana, one of the few states that have expanded the power of law enforcement to hold on to guns seized from people who are mentally ill, the examination revealed a significant loophole: there is nothing preventing them from going out and buying new guns.

The state’s seizure law does not address the question, and as a result, records from gun confiscation cases are not entered into the federal background check database that dealers must consult when making sales, according to officials from the Indiana Supreme Court. * * *

It was the shock of a potentially avoidable tragedy that pushed Indiana lawmakers to act. Reports of gunfire brought Officer Timothy Laird to Indianapolis’s south side one night in August 2004. Kenneth C. Anderson, a schizophrenic man who the police later learned had just killed his mother in her home, was stalking the block with an SKS assault rifle and two handguns. As Officer Laird stepped from his patrol car, he was fatally shot. Four other officers were wounded before one of them shot and killed Mr. Anderson.

At the beginning of that year, the police had seized nine guns from Mr. Anderson after being called to his home by paramedics because he was being combative. Deemed delusional and dangerous, he was taken to a hospital for a mental health evaluation. He was not, however, committed, and when he sought the return of his guns, police officials concluded that they had no legal grounds to keep them.

Several months after Officer Laird’s death, the Indiana legislature passed its seizure bill, giving the police explicit authority to search for and confiscate guns from people who are considered dangerous or who are mentally ill and off their medication. The police can keep the guns, upon court approval, for five years. * * *

It is impossible to know just how many gun owners have serious mental health issues. But an examination of gun seizure records in Connecticut and Indiana, where the police have been granted greater leeway to confiscate firearms, offers perhaps the best sense of just how frequently gun ownership and mental instability mix. Officials with the Connecticut court system have collected records on more than 700 gun seizure cases since the law was enacted in 1999. That probably represents a partial count at best, however, because court officials did not make a concerted effort to ensure that all cases were reported to them until this year, after the Newtown shooting.

The Times analyzed this year’s cases in Connecticut and found that slightly more than half involved threats of suicide; 34 percent involved drugs or alcohol; and 42 percent clearly involved psychosis or some other serious mental health issue, such as bipolar disorder, schizophrenia or clinical depression. Just under 30 percent of the mental health cases also involved drugs or alcohol.

The results were similar in Marion County, Ind., which includes Indianapolis. In 2012, the police seized 67 guns from 30 people, according to court records. Documents in 40 percent of the cases mentioned some sort of mental illness; a quarter of those cases also involved substance abuse.

In one case in April, residents of Carlyle Place in Indianapolis flagged down a police cruiser because one of their neighbors, Michael Fishburn, 54, was screaming at cars and had pointed a handgun at a woman, according to a court affidavit. The day before, he had been strutting around his yard making rooster noises, they said. The police took Mr. Fishburn to the hospital and learned that he had been receiving mental health treatment there for the previous 10 years. They also discovered that he had a lifetime permit to carry a handgun. A judge ordered the police to retain Mr. Fishburn’s pistol, as well as a shotgun, for five years.

ILB: An Indiana case that the NYT story does not mention is that of Robert Redington. As Abby Tonsing reported in the Aug. 7th Bloomington Herald-Times:
The Indiana Court of Appeals has affirmed a Monroe County court order that will allow Bloomington police to keep the 51 shotguns, rifles and pistols they confiscated from an Indianapolis man last fall.

In a split 2-1 decision Tuesday, two judges determined Robert Redington to be dangerous as defined by state law and that police can retain his guns.

Police encountered Redington peering through a range finder to watch people and activity at Kilroy’s Sports Bar from the third floor of a parking garage across the street the night of Aug. 4, 2012. Redington told police he had been traveling from Indianapolis to Bloomington on weekends and had been in search of missing Indiana University student Lauren Spierer, who spent time at Kilroy’s Sports Bar in the hours before her June 3, 2011, disappearance. Redington also said he wanted to avenge Spierer.

In the appeal, Redington v. State, Redington challenged the constitutionality of IC 35-47-14-1 as applied to him. The Court of Appeals panel affirmed the trial court by a vote of 2-1. Redington petitioned the Supreme Court for transfer, but the Court denied the petition, by a vote of 5-0, on Nov. 7th.

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

Environmental - Revisitng the massive 2008 coal ash spill and what has happened since

Here is a long list of ILB entries on coal ash, most related to the massive TVA coal ash spill that occurred Dec. 24, 2008, in Kingston, Tennessee.

James Bruggers had a very lengthy story Dec. 20th in the Louisville Courier-Journal, headed "EPA fails to deliver coal ash rules 5 years after catastrophic spill: Cleanup and recovery efforts continue at site of largest coal ash spill in US history." A few quotes:

KINGSTON, Tenn. Witnesses still recall with horror the sights, sounds and smells of the Tennessee Valley Authority’s power plant disaster here five years ago, when a mountain of toxic coal ash broke loose in the middle of a frozen night to bury hundreds of acres and devastate a community.

“It was not a spill,” said Roane County resident Steve Scarborough. “It was a geologic event. People that lived right there looked out their windows and saw a forest moving by.” * * *

The catastrophic slide also sparked a national debate that’s still unresolved over how to manage one of the nation’s largest sources of industrial waste — which contains arsenic, lead, mercury and other metals that can contaminate groundwater, lakes and rivers, and cause cancer and other health and environmental problems.

After the Kingston disaster, a newly appointed EPA administrator Lisa Jackson, who has since left her post, promised the nation’s first federal regulations to ensure environmentally safe and structurally sound coal-burning waste storage.

But, so far, the EPA has failed to enact a single one — even as the agency has documented an increasing number of ash sites that have polluted the environment.

In 2000, the EPA had counted 50 sites where groundwater or surface water had been contaminated by coal ash. The most current number of these so-called “damage cases” is now more than 130.

Two are in Indiana, including Duke’s Gibson plant near Princeton, where ponds contaminated a wildlife sanctuary for endangered birds and the drinking water of a neighboring community.

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

Ind. Decisions - "The 49-page 7th Circuit brief contained only 5 original sentences"

This was a brief in a Dec. 11th immigration appeal, Chen v. Holder, decided by Judge Posner. (h/t to Louisiana Civil Appeals.) Some quotes from Posner's opinion:

The Board’s opinion, and to a lesser extent that of the immigration judge, are flawed. But the inadequacy of the brief that her lawyer has filed in this court precludes our vacating the denial of asylum. The brief consists almost entirely of verbatim quotations either from the administrative record or from previous decisions of this court. The statement of facts consists almost entirely of quotations from the record, and the summary of argument consists entirely (not “almost entirely”) of an extended quotation from one of our previous decisions. The argument section of the brief consists of nothing but quotations from the record and from previous decisions, until the last few pages, which deal with the plaintiff’s alternative (and clearly meritless) claim for relief— withholding of removal. Most of the material in that section as well is quoted rather than original material, but there is a bit of interstitial material that appears to be original— though none elsewhere in the brief, excluding the table of contents and other purely formal matter. All in all, in a 49‐ page brief, if one excludes purely formal matter, there are only five original sentences. A brief so composed is not helpful to either the reviewing court or the client.

An inadequate brief often signals a desperately weak case. This is not a desperately weak case, but we cannot write a party’s brief, pronounce ourselves convinced by it, and so rule in the party’s favor. That’s not how an adversarial system of adjudication works. * * *

The petition to review the Board’s denial of asylum is DENIED.

Posted by Marcia Oddi on Sunday, December 22, 2013
Posted to Ind. (7th Cir.) Decisions

Law - "How one publisher is stopping academics from sharing their research"

Andrea Peterson of the Washington Post reported Dec. 19th in a long article that begins:

One of the world's largest academic publishers has launched a wide-ranging takedown spree, demanding that several different universities take down their own scholars' research.

Elsevier is a commercial firm that publishes some of the leading journals in many academic fields. In recent weeks, it has sent takedown notices to the academic social media network Academia.edu, as well as to the University of Calgary, the University of California-Irvine, and Harvard University.

In these cases, Elsevier is within its legal rights to demand the material be taken down. The firm often requires researchers to surrender their copyrights in a paper as a condition of publishing it. But the takedown campaign goes against a long-standing industry practice in which journal publishers look the other way when academics post their own work.

Elsevier's new hard-line posture is likely to intensify a debate over the future of academic publishing. Thanks to the Internet, academics no longer need traditional academic publishers to distribute their research to the world in paper form. And a growing number of researchers are beginning to wonder if legacy publishers are becoming more of an obstacle than an aid to distributing their work. Outrage over Elsevier's takedown spree could intensify their search for alternative models that allow academics to share their work directly—without companies like Elsevier taking such a big cut.

The comments are also worth reading.

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

Ind. Law - Expungement: "Second chance law offers a fresh start "

This Dec. 21st story in the Gary Post-Tribune, reported by Michael Gonzalez, is unique in those the ILB has read, in that it doesn't identify the individuals whose records have been expunged. (The ILB has noted previously that such publicity is self-defeating.) Some quotes

CROWN POINT — The Gary woman barely contained her excitement when she learned her adult son may get a second chance to clean up old mistakes.

“Hallelujah! Hallelujah! Thank you Jesus,” the woman from Gary said Friday. “This shows there’s always another chance for a new beginning.”

The woman, who asked not to be identified to protect her family’s privacy, learned her son’s criminal record has been expunged through Indiana’s new Second Chance law, enacted six months ago.

The law allows anyone with misdemeanors, as well as Class D felonies and even some Class C felonies, to apply to have their records cleared and get a fresh start, said Renee Hatcher, a staff attorney with the Chicago Lawyers’ Committee for Civil Rights Under Law, which also does pro bono legal work in Northwest Indiana.

Hatcher and Valparaiso Law School student and committee intern Crystal Johnson have been operating a Second Chance Help Desk every other Friday in the Lake County Clerk’s office. * * *

Anyone can visit the help desk to learn more about filing a petition seeking to have their criminal records expunged, but the committee will represent only people who meet low-income and moderate-income guidelines, Hatcher said.

Everyone else can file a petition with Lake Superior Court and serve notice to the Lake County Prosecutor’s office. That office will notify anyone deemed a victim of the offenders’ actions. If neither the prosecutor nor the notified victim object, the offender will get the expungement, Hatcher said.

Otherwise, the petition will go before a magistrate for a ruling.

The catch is getting the records actually removed from state and federal databases, Hatcher said. The new Indiana law does not lay out a timeframe for removing those records.

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

Courts - "Lights, camera, Supreme Court: It's about time "

Maureen O'Connor, chief justice of the Supreme Court of Ohio, had this excellent op-ed in the Dec. 20th LA Times. A sample:

Every state Supreme Court allows cameras. And in November, Britain — whose legal establishment is so conservative that some judges and attorneys still wear powdered wigs — lifted its 88-year-old ban on cameras in its Court of Appeal. And its highest court began televising cases in 2009.

The U.S. Supreme Court is now one of the last major institutions of Western civilization that has not entered the 21st century technologically. I join with those in a growing movement calling on the justices to change that.

When Justice David H. Souter uttered his now-infamous declaration in 1996 that cameras would roll into the Supreme Court over his dead body, the Internet was relatively new and Facebook, YouTube, Twitter and the iPhone were as real as Capt. Kirk's communicator. Today, there are few facets of daily life that are not available instantly online, including many criminal trials, which you can even watch on your mobile device at 30,000 feet.

What this has done is create an expectation by the public that if something is truly important, it can be witnessed firsthand. Nearly every institution of democratic government has responded. Online access — and particularly video — is routine, whether for local town hall meetings or presidential announcements.

The Supreme Court's oral arguments stand as the lone exception. The court views itself as truly exceptional, fundamentally unique from all other institutions in a way that cameras would somehow spoil.

The problem with this view is that after three decades of other courts using cameras, we don't have to speculate about the effects. In Ohio, we have been broadcasting our cases live on television and the Internet for almost 10 years. The evidence shows that cameras in the courtrooms are a positive experience.

Posted by Marcia Oddi on Sunday, December 22, 2013
Posted to Courts in general

Ind. Courts - "New judge sworn in, another moves on in Lake County"

From Ruth Ann Krause's long Dec. 20th story in the Gary Post-Tribune:

[Governor] Pence appointed [Samuel L.] Cappas in October to fill the vacancy created by the transfer of Judge Thomas Stefaniak Jr., from the criminal division to the juvenile division. The previous juvenile judge, Mary Beth Bonaventura, was named director of the Indiana Department of Child Services.

Posted by Marcia Oddi on Sunday, December 22, 2013
Posted to Indiana Courts

Law - Administrative Conference of the United States (ACUS) adopts policy re use of social media in rulemaking

First, what is the Administrative Conference of the United States (ACUS)? Per its website, it is:

an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures. Its membership is composed of innovative federal officials and experts with diverse views and backgrounds from both the private sector and academia.

The Administrative Conference is committed to promoting improved government procedures including fair and effective dispute resolution and wide public participation and efficiency in the rulemaking process by leveraging interactive technologies and encouraging open communication with the public. In addition the Administrative Conference’s mandate includes fostering improvements to the regulatory process by reducing unnecessary litigation, and improving the use of science and the effectiveness of applicable laws.

Here, from the Dec. 17, 2013 Federal Register [ILB emphasis], are the new recommendations. Some quotes:
The appended recommendations address the use of social media to support agency rulemaking activities, provide guidance to courts and agencies in connection with the judicial remedy of remanding an agency action without vacating that action, and offer best practices to facilitate cross-agency collaboration under the Government Performance and Results Act (GPRA) Modernization Act of 2010. * * *

In the last decade, the notice-and-comment rulemaking process has changed from a paper process to an electronic one. Many anticipated that this transition to ‘‘e- Rulemaking’’ 1 would precipitate a ‘‘revolution,’’ making rulemaking not just more efficient, but also more broadly participatory, democratic, and dialogic. But these grand hopes have not yet been realized. Although notice-and-comment rulemaking is now conducted electronically, the process remains otherwise recognizable and has undergone no fundamental transformation.

At the same time, the Internet has continued to evolve, moving from static, textbased Web sites to dynamic multi-media platforms that facilitate more participatory, dialogic activities and support large amounts of user-generated content. These ‘‘social media’’ broadly include any online tool that facilitates two-way communication, collaboration, interaction, or sharing between agencies and the public. Examples of social media tools currently in widespread use include Facebook, Twitter, Ideascale, blogs, and various crowdsourcing platforms. But technology evolves quickly, continuously, and unpredictably. It is a near certainty that the tools so familiar to us today will evolve or fade into obsolescence, while new tools emerge.

The accessible, dynamic, and dialogic character of social media makes it a promising set of tools to fulfill the promise of e-Rulemaking. Thus, for example, the e- Rulemaking Program Management Office, which operates the federal government’s primary online rulemaking portal, Regulations.gov, has urged agencies to ‘‘[e]xplore the use of the latest technologies, to the extent feasible and permitted by law, to engage the public in improving federal decision-making and help illustrate the impact of emerging Internet technologies on the federal regulatory process.’’ The Conference has similarly, albeit more modestly, recommended that ‘‘[a]gencies should consider, in appropriate rulemakings, using social media tools to raise the visibility of rulemakings.’’ * * *

In particular, agencies are uncertain whether public contributions to a blog or Facebook discussion are ‘‘comments’’ for purposes of the APA, thus triggering the agencies’ obligations to review and respond to the contributions and include them in the rulemaking record. * * *

Apart from legal concerns are doubts as to whether, when, and how social media will benefit rulemaking. These doubts arise with respect to two distinct issues that often overlap. First, can social media be used to generate more useful public input in rulemaking? Second, is increased lay participation in rulemaking likely to be valuable? Experience suggests that both the quality of comments and the level of participation in social media discussions are often much lower than one might hope. * * *

This recommendation provides guidance to agencies on whether, how, and when social media might be used both lawfully and effectively to support rulemaking activities. It seeks to identify broad principles susceptible of application to any social media tool that is now available or may be developed in the future. It is intended to encourage innovation and facilitate the experimentation necessary to develop the most effective techniques for leveraging the strengths of social media to achieve the promises of e-Rulemaking.The lengthy, multi-part recommendation follows the intorduction, beginning at the bottom of p. 76270.

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

Courts - More on: Utah federal district court judge declares Utah's constitutional and statutory prohibitions against same sex marriage unconstitutional

Updating this ILB post from Friday, a NY Times story this weekend by Jack Healy, headed "Gay Couples in Utah, Surprised but Glad, Rush to Marry After Ruling Permits It," begins:

SALT LAKE CITY — They arrived with children in strollers and with bouquets of flowers, with co-workers and with friends — dozens of gay couples pouring into a government building just a few miles from the headquarters of the Mormon Church to do what many said they thought would never be possible: get a Utah marriage license.

A federal judge’s ruling on Friday afternoon striking down Utah’s ban on same-sex marriages touched off what Mayor Ralph Becker called a “thrilling pandemonium.” Hundreds of people filled the hallways and spilled out onto the sidewalks on Friday, hoping to marry before the county clerk’s offices closed for the weekend — and before an appeals court could stay the decision that made Utah, at least for the moment, the 18th state to allow same-sex marriages.

For gay couples, it was a seismic change in a state where 66 percent of voters approved a ban on same-sex marriage in 2004. The Mormon Church also played a pivotal role in supporting a 2008 measure that banned same-sex marriage in California. * * *

Salt Lake County officials issued more than 100 marriage licenses by the end of the day. But in legal documents filed late Friday, the state said those marriages might now fall under a “cloud of uncertainty” as it fights the decision by Judge Robert J. Shelby. Utah has asked that the judge’s decision be put on hold as it appeals. As of Saturday morning, no court had granted a stay.

Posted by Marcia Oddi on Sunday, December 22, 2013
Posted to Courts in general

Saturday, December 21, 2013

Ind. Decisions - More on: Court of Appeals issues major family law decision today

The Volokh Conspiracy has a post today on Friday's COA opinion in In re the marriage of Melanie Davis and Angela Summers, and includes an unattributed link to the ILB.

Posted by Marcia Oddi on Saturday, December 21, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Commission: Judge’s apology 'too little, too late'”

Updating this ILB post from Dec. 19th, headed "New activity reported in the Judge Brown disciplinary hearing docket," Tim Evans of the Indianapolis Star has late this morning posted a story about the Commission on Judicial Qualifications' response to Judge Brown's Dec. 11th filing. Some quotes:

An apology by Marion Superior Judge Kimberly Brown, who is facing 47 counts of professional misconduct, is “too little, too late” and should not be considered in pending disciplinary proceedings, the Indiana Commission on Judicial Qualifications argues in a new filing with the Supreme Court.

Brown issued her apology and an offer to accept a 60-day suspension on Dec. 11. It came the same day Indianapolis attorney Karl Mulvaney notified the Supreme Court that he is taking over Brown’s defense from her previous attorney, Aaron Haith. * * *

In the response filed Dec. 19 to Brown’s apology, the commission contends the judge’s effort to skirt a disciplinary ruling “is contrary to the rules, is untimely, presents additional evidence outside of the (trial) record, does not adequately address all matters tried, and proposes an inadequate sanction to resolve this case.”

The commission also asked the court to reject an affidavit submitted by former Supreme Court Justice Frank Sullivan Jr., who offered a character reference for Brown and suggested he could serve as a mentor to the judge during a probationary period.

Commission attorney Adrienne L. Meiring, who is acting as the prosecutor in the case against Brown, wrote in a 24-page response to Brown’s filing that the apology and offer to accept a suspension came eight days after the court-established deadline for her response in the case.

Meiring also said it appears the judge is attempting “to forgo a disciplinary finding” by making a “settlement offer to the court directly,” which is inconsistent with disciplinary procedures. * * *

Brown’s alleged misconduct was the subject a trial last month before a three-judge “masters” panel appointed by the Supreme Court. The masters — retired Monroe County Judge Viola Taliaferro, Boone Superior Court Judge Rebecca McClure and Lake Superior Court Judge Sheila Moss — have until Dec. 30 to submit their findings and a disciplinary recommendation to the Supreme Court.

The Supreme Court will make the final decision on any discipline for Brown and does not have to follow the recommendation of the masters.

ILB: This Dec. 11th ILB post links to the Dec. 11th Judge Brown filings, including former-Justice Sullivan's vouching letter.

Here is Prof. Schumm's Dec. 13th commentary.

And here is 25-page, Dec. 19th document, headed "Commission's Opposition to Respondent's Submission to Discipline in Lieu of Submission of Findings," which is the subject of today's Star story.

Posted by Marcia Oddi on Saturday, December 21, 2013
Posted to Indiana Courts

Friday, December 20, 2013

Courts - Utah federal district court judge declares Utah's constitutional and statutory prohibitions against same sex marriage unconstitutional

Here are some quotes from today's 53-page opinion by United States District Judge Robert J. Shelby [case via LegalTimes.com]:

The court agrees with Utah that regulation of marriage has traditionally been the province of the states, and remains so today. But any regulation adopted by a state, whether related to marriage or any other interest, must comply with the Constitution of the United States. The issue the court must address in this case is therefore not who should define marriage, but the narrow question of whether Utah’s current definition of marriage is permissible under the Constitution.

Few questions are as politically charged in the current climate. This observation is especially true where, as here, the state electorate has taken democratic action to participate in a popular referendum on this issue. It is only under exceptional circumstances that a court interferes with such action. But the legal issues presented in this lawsuit do not depend on whether Utah’s laws were the result of its legislature or a referendum, or whether the laws passed by the widest or smallest of margins. The question presented here depends instead on the Constitution itself, and on the interpretation of that document contained in binding precedent from the Supreme Court and the Tenth Circuit Court of Appeals.

Applying the law as it is required to do, the court holds that Utah’s prohibition on samesex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional. * * *

The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. The court hereby enjoins the State from enforcing Sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution to the extent these laws prohibit a person from marrying another person of the same sex.

See this story from Mark Joseph Stern of Slate.

Lyle Denniston of SCOTUSblog has a good analysis here. It begins:

Directly applying the Supreme Court’s decision striking down the federal Defense of Marriage Act to a state’s ban on same-sex marriage, a federal judge in Salt Lake City ruled Friday that Utah’s voter-approved state constitutional amendment violates the federal Constitution.

“The Constitution protects the choice of one’s partner for all citizens, regardless of their sexual identity,” U.S. District Judge Richard J. Shelby ruled in a fifty-three-page opinion. He was the second federal judge to nullify a ban imposed by a state’s voters at the ballot box; the first such ruling nullified California’s “Proposition 8″ — a ruling that the Supreme Court left intact in June but without a direct ruling on it.

If Judge Shelby’s ruling withstands an appeal, it would make Utah the eighteenth state where same-sex marriages are allowed, and the seventh in which equal marriage rights were established by a court ruling.

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

Ind. Courts - ‘Tis the Season: Will the Court of Appeals Issue a Slew of Opinions in the Final Five Opinion Days of 2013?

Clients (and lawyers) often wonder when they might expect an opinion from the Court of Appeals. The court’s annual report includes the average length of pending cases at year’s end, which was an impressive 1.0 month in 2012, down from only 1.2 months in 2011. The Court’s general desire to move cases quickly, coupled with its reporting on a calendar year basis, have generally meant that many opinions are issued near the end of the year.

Indiana Court of Appeals Opinions Issued in the Final Five Business Days of the Year
Year Final Day Day 2 Day 3 Day 4 Day 5 Total Opinions
FP / NFP FP / NFP FP / NFP FP / NFP FP / NFP FP / NFP -- Total
2012 3 / 21 3 / 13 3 / 5 0 / 13 2 / 4 11 / 56 -- 67
2011 8 / 24 5 / 17 2 / 17 0 / 9 1 / 19 16 / 86 -- 102
2010 7 / 18 6 / 11 2 / 5 2 / 15 5 / 14 22 / 63 -- 85
2009 7 / 17 6 / 17 7 / 15 0 / 9 1 / 4 21 / 62 -- 83
2008 7 / 16 5 / 12 5 / 8 1 / 7 5 / 9 23 / 52 -- 75
2007 9 / 19 13 / 21 5 / 12 4 / 15 4 / 5 35 / 72 -- 107

Five opinion days remain in 2013 (December 23, 26, 27, 30, and 31). Because the Court of Appeals’ caseload has been steadily declining over the past five years, I wouldn’t expect 100 or more opinions. But do expect more than the average of about nine each day.

I also anticipate opinions in some long-pending cases, such as Winston Wood v. State, which involves the duty of a boat operator after a fatal accident. The case was transmitted to the Court of Appeals on April 2 and argued at Hoosier Boys State in Angola on June 18.

Posted by Marcia Oddi on Friday, December 20, 2013
Posted to Schumm - Commentary

Ind. Decisions - "Judge grants new trial for felon, says U.S. attorney’s office failed to disclose evidence"

Here is Jill Disis' long story in the Indianapolis Star. Some quotes:

A U.S. District Court judge has ordered a new trial for a western Indiana man convicted on federal gun possession charges who argued in his appeal that the U.S. attorney’s office failed to disclose evidence in his earlier trial.

Donald Bickel, Jasonville, filed his appeal soon after he was convicted last month on one count of possession of a firearm by a felon and one count of possession of ammunition by a felon. He said federal prosecutors withheld key evidence, including statements from a witness claiming he, not Bickel, was the one who owned the weapons.

In his appeal, Bickel characterized the actions as a form of “prosecutorial misconduct.”

Here is the SD Ind. Judge Lawrence's 5-page, Dec. 18th ruling on Bickel's motion for a new trial. And here is the docket.

Posted by Marcia Oddi on Friday, December 20, 2013
Posted to Ind Fed D.Ct. Decisions

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

In GARCIA v. CAROLYN W. COLVIN, Acting Commissioner of Social Security (ND Ind., Rodovich, Magistrate Judge), a 9-page opinion, Judge Posner concludes:

We can’t figure out what the administrative law judge was thinking when he found that Garcia could do construction work as late as 2010. His recitation of the boilerplate cart‐before‐the‐horse credibility formula that we have been ridiculing since well before the opinion in the present case, Bjornson v. Astrue, supra, 671 F.3d at 645–46; see also Parker v. Astrue, 597 F.3d 920, 921–22 (7th Cir. 2010), only deepens our puzzlement.

At the disability hearing the administrative law judge asked the vocational expert about other limitations on ability to work full time that the evidence indicated that Garcia might have, including psychological problems that would preclude his exercising judgment more than occasionally. The vocational expert replied that even simple jobs require a more than occasional exercise of judgment. But having placed such emphasis on Garcia’s ability to stand up, walk in a straight line, etc., the administrative law judge concluded that he was fully capable of doing sedentary work as long as it was simple and repetitive. No evidence supports this conclusion. No physician testified—no medical records revealed—that Garcia has the residual functional capacity ascribed to him by the administrative law judge, who had acknowledged at the disability hearing that a person with the limits described in the medical assessment form that Garcia’s physician had filled out would be unable to perform any paid work on a full‐time basis, let alone work actually available in the economy.

Garcia is one of the most seriously disabled applicants for social security disability benefits whom we’ve encountered in many years of adjudicating appeals from benefits denials. We are surprised that the Justice Department would defend such a denial.

The judgment of the district court is reversed and the case returned to the Social Security Administration for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, December 20, 2013
Posted to Ind. (7th Cir.) Decisions

Environment - More on: President Obama Announces More Key Administration Posts

The same press release as cited here a few minutes ago announces the appointment of another Indianapolis resident, in this case:

Dr. Eric Dannenmaier, Appointee for Member, Joint Public Advisory Committee of the Commission for Environmental Cooperation

Dr. Eric Dannenmaier is a Professor of Law at the Indiana University Robert H. McKinney School of Law, where he has been a member of the faculty since 2007. Dr. Dannenmaier was a visiting Associate Professor of Law at Tulane University from 2006 to 2007 and served as Director of Tulane’s Institute for Environmental Law and Policy from 2001 to 2005. In 2001, Dr. Dannenmaier was a Visiting Chair of Natural Resources Law at the University of Calgary. From 2000 to 2001, he served as an adjunct associate professor and from 1996 to 1999, he was a Professorial Lecturer at American University Washington College of Law. Concurrently, from 1996 to 2001, Dr. Dannenmaier served as the Director of the Environmental Law Program of the U.S. Agency for International Development. He was an environmental attorney at Bryan, Cave, LLP from 1990 to 1995; a Litigation Attorney at McDermott, Will & Emery from 1985 to 1990; and an Associate Attorney at Herrick & Smith from 1984 to 1985. Dr. Dannenmaier received a B.A. from Drury University, a J.D. from Boston University School of Law, an M.St. from Oxford University, and an L.L.M and J.S.D. from Columbia Law School.

Posted by Marcia Oddi on Friday, December 20, 2013
Posted to Environment

Environment - President Obama Announces More Key Administration Posts [Updated]

From a White House press release dated Dec. 19th:

WASHINGTON – Today, President Barack Obama announced his intent to nominate the following individuals to key Administration posts: * * *

Janet McCabe – Assistant Administrator for Air and Radiation, Environmental Protection Agency * * *

Janet McCabe is the Principal Deputy Assistant Administrator for the Office of Air and Radiation at the Environmental Protection Agency, a position she has held since 2009. Previously, Ms. McCabe was Executive Director of Improving Kids’ Environment, Inc. and an adjunct faculty member in the Department of Health at the Indiana University School of Medicine from 2005 to 2009. Ms. McCabe worked as Assistant Commissioner in the Office of Air Quality at the Indiana Department of Environmental Management from 1998 to 2005 and previously served as Branch Chief from 1993 to 1998. Ms. McCabe served as Assistant Attorney General for Environmental Protection for the Commonwealth of Massachusetts from 1984 to 1989 and as Assistant Secretary for Environmental Impact Review from 1989 to 1993. From 1983 to 1984, Ms. McCabe was a law clerk for Justice Neil L. Lynch in the Massachusetts Supreme Judicial Court. Ms. McCabe received an A.B. from Harvard College, and a J.D. from Harvard Law School.

[Updated Dec. 22, 2013] The Hill had a story Dec. 20th by Laura Barron-Lopez headed "Janet McCabe to get top EPA pollution regulator nod." Some quotes:
Obama intends to nominate McCabe as assistant administrator for the agency's Office of Air and Radiation, a post she has been occupying in the acting capacity.

McCabe has not been popular among House Republicans this year.

In November, she testified before the House Energy and Commerce Committee, where she was met with a flurry of hostile questions from GOP lawmakers about the administration's proposed climate rules for new power plants.

Many green groups support McCabe, who has been with the EPA since 2009, and the work she has done as EPA's top air pollution regulator. * * *

McCabe will be responsible for helping move forward the controversial regulations proposed by the administration on coal-fired power plants and possible methane emission rules in 2014.

Posted by Marcia Oddi on Friday, December 20, 2013
Posted to Environment

Courts - "First electronic case filings made in Frankfort"

A brief AP story yesterday in the Louisville Courier Journal begins:

Kentucky's courts are taking a step toward making electronic case filing a reality statewide.

The first electronic filings were accepted this week in Franklin County Circuit Clerk Sally Jump's office in Frankfort, the project's test site. Limited functions are being tested before the full eFiling program enters the pilot phase.

Administrative Office of the Courts Director Laurie K. Dudgeon said eFiling should be in place in every Kentucky county by the end of 2015.

ILB: For more, see this Dec. 18th news release and pages 54 and 55 of this document.

Unfortunately, nowhere does the ILB find a definition of what exactly is encompassed by the references to "eFiling" and "real-time, online access to Kentucky civil and criminal cases." Does this mean docket information, as in Indiana, or actual access to the documents, as in PACER?

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

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

[Note: except for the Melanie Davis opinion, which the ILB has uploaded to its own server, all of today's opinions are sporadically loading slowly, if at all. Other state sites also may be affected, continuing the problem from yesterday. I've seen no announcement from state administration that they are aware of the problem or working on it.]

For publication opinions today (5):

In Re the Marriage of Melanie Davis and Angela Summers - see ILB summary from earlier today

In Richard E. Simmons v. State of Indiana , an 18-page opinion, Judge May writes:

Richard Simmons was convicted of four counts of Class A felony attempted murder, two counts of Class D felony criminal recklessness while armed with a deadly weapon, and one count each of Class D felony unlawful use of body armor and Class A misdemeanor possession of marijuana after he shot at police officers who were trying to serve an arrest warrant on him. He argues he was entitled to a directed verdict on the attempted murder counts because there was no evidence he knew police officers were behind the wall at which he fired shots. Simmons also argues the jury was not properly instructed on the presumption of innocence and his sentence was inappropriate. We affirm. * * *

[1. Directed Verdicts] As there was ample evidence from which the jury could infer Simmons knew there were at least four officers behind the wall he shot at, there was sufficient evidence to convict Simmons of four counts of attempted murder. * * *

[2. Jury Instructions] Simmons’ trial court did not abuse its discretion by declining Simmons’ tendered instruction on the presumption of innocence. * * *

The court again instructed the jury in its final instructions about the presumption of innocence, but the final instructions did not include the specific language that the presumption of innocence continues throughout the trial.

It was not an abuse of discretion to so instruct the jury only in the preliminary instructions and not again in the final instructions, as other final instructions adequately conveyed to the jury the concept that the presumption of innocence continues throughout the trial. * * *

[3. Sentence] In light of Simmons’ multiple victims, the order that his sentences would be served consecutively did not render his total sentence inappropriate. * * *

PYLE, J., conurs.
SHEPARD, Sr. J., concurring with separate opinion. [that begins on p. 15 and concludes] This case largely fits the scenario envisioned in Lee. Final instructions covered the presumption and told the jury to “fit the evidence,” but did not tell them the presumption “prevails throughout.” This was error, of course, under Farley and Robey, but I would say not reversible, particularly in light of the fact that the full three-part instruction was given during preliminary instructions. I therefore join in affirming the convictions.

In Stephen Brakie v. State of Indiana, a 17-page opinion, Judge Brown writes:
Stephen Brakie appeals his conviction for child molesting as a class A felony, raising three issues which we consolidate and restate as: I. Whether the trial court abused its discretion by rejecting Brakie’s proposed instruction regarding the presumption of innocence; and II. Whether the evidence is sufficient to sustain his conviction for child molesting as a class A felony. We affirm.
In Ronald Gaines v. State of Indiana, a 10-page opinion, Judge Barnes writes:
A variance between the charging information and proof at trial does not necessarily require reversal. * * * There is no indication that Gaines was misled by the alleged variance here. In fact, the difference between an ex parte protective order and a protective order was never mentioned during the trial. * * *

Gaines argues that State’s Exhibit 1, which was a certified copy of the ex parte protective order, should not have been admitted because it violated his rights under the Confrontation Clause of the Sixth Amendment. Specifically, Gaines takes issue with the admission of the last page of the exhibit, which was a Marion County Sheriff’s Department Return of Service that indicated Gaines was personally served with a copy of the order on May 17, 2012. Gaines complains that he was not able to cross-examine the Sheriff’s deputy regarding the service. * * *

The primary purpose of the return of service is administrative—ensuring that the defendant received notice of the protective order. See I.C. § 34-26-5-9(e) (“The sheriff of each county shall provide expedited service for an order for protection.”). Although the return of service may be used later in a criminal prosecution, the return of service was not created solely for use in a pending or future criminal prosecution. See Melendez–Diaz, 557 U.S. at 323-24, 129 S. Ct. at 2539–2540. As such, we conclude that the return of service was not testimonial, and its admission did not violate Gaines’s rights under the Confrontation Clause.

In Michael E. Zanussi v. State of Indiana, a 9-page opinion, Judge May concludes:
The trial court did not abuse its discretion when it denied Zanussi’s motion to continue because Zanussi did not demonstrate the denial prejudiced him. Admission of letters Zanussi wrote to Effinger was not fundamental error because Zanussi did not demonstrate their admission denied him a fair trial. Finally, the State presented sufficient evidence Zanussi committed Class A misdemeanor criminal recklessness. Accordingly, we affirm.
NFP civil opinions today (4):

Shubham Chopra v. Shena Pendyala (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: S.T., Minor Child, T.T., Father v. Indiana Department of Child Services (NFP)

Eugene L. Small v. Brandi L. Foster (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: Q.M. and E.M., Minor Children, B.M., Father v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

James Mira v. State of Indiana (NFP)

Marcus R. Carter v. State of Indiana (NFP)

Usman Alim Khan v. State of Indiana (NFP)

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

Hervey Clanton v. State of Indiana (NFP)

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

Ind. Gov't. - "Gay marriage supporters see hope in deep-red Indiana"

That is the headline to this long look at the status of the proposed constitutional ban in Indiana, reported by Tom LoBianco of the AP. A few quotes:

INDIANAPOLIS (AP) — In one of the most conservative states in the nation, supporters of gay marriage are pondering the unthinkable: a victory, or at least not a loss. * * *

Indiana is one of just four states that ban gay marriage in statute only; 29 others have constitutional bans. But none of the other states with statutory bans — Pennsylvania, West Virginia and Wyoming — face the pressure in place in Indiana, where lawmakers must approve a proposed ban and send it to voters in November unless they want to restart the process from scratch. * * *

"Everyone else in the country is moving toward more equality. Indiana is kind of the last stand of folks that are trying to put something like this into their constitution," said Megan Robertson, a veteran Indiana Republican operative tapped to manage Freedom Indiana, a bipartisan coalition working to block the ban. * * *

The pressure Indiana Republicans feel makes sense, given that they likely face the most peril in how the issue plays out. If the amendment fails in the Legislature, incumbent Republicans could face the wrath of conservatives in the May primaries. And if the issue makes it to the ballot, it has the potential to rev up the Democratic base in November's general election in a way that could ripple up and down the ticket.

Posted by Marcia Oddi on Friday, December 20, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues major family law decision today

The ILB has obtained a copy of the filed and to-be-posted-today Court of Appeals opinion in the case of Davis v. Summers. I'm told this is the first known appellate decision in any state to hold that a gender transition during marriage does not make a marriage void under a state mini-DOMA that outlaws same-sex marriage.

In In re the marriage of Melanie Davis and Angela Summers, a 9-page opinion, Judge Mathias writes:

Melanie Davis f/k/a David Paul Summers (“Davis”) appeals the order of the Monroe Circuit Court dismissing Davis’s petition to dissolve her marriage with Angela Summers (“Summers”). On appeal, Davis claims that the trial court erred in concluding that Davis and Summers’s marriage was void under Indiana Code section 31-11-1-1, which generally prohibits same-sex marriages in Indiana. Concluding that the parties’ marriage was not automatically voided when the trial court granted Davis’s petition to change her name and be identified as a female instead of a male, we reverse and remand. * * *

In summary, under the specific facts and circumstances before us in this case, a marriage between a man and a woman that was valid when it was entered into does not automatically become void when one of the parties has his or her birth certificate amended to indicate a change of gender. The statute prohibiting same-sex marriages does not apply to the particular set of circumstances in this case because the parties did not enter into a same-sex marriage in Indiana or into a same-sex marriage that was solemnized in another state. In addition, a marriage such as the one at issue here is not listed among those marriages declared void ab initio under applicable Indiana statutes, and would be improper to interpret the statute otherwise. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BRADFORD, J., and PYLE, J., concur.

The ILB also has obtained a copy of the brief of appellant in this case (the appellee was nominal and not represented). Access it here.

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

Thursday, December 19, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

In In the Matter of the Estate of Stephen T. Hannebaum, Deceased, Renada Fay Hannebaum v. Mary Rebecca Hannebaum and Stephen T. Hannebaum, II, as Personal Representatives of Stephen T. Hannebaum, a 6-page opinion, Sr. Judge Shepard writes:

Under Indiana’s probate law, a spouse who has voluntarily left the marital residence and engaged in an adulterous relationship is barred from inheritance by intestacy. In this case, the issue is what evidence suffices to invoke this disqualification. * * *

The court held a hearing to determine heirship and in due course it issued an order finding that Renada had forfeited her right to inherit from Stephen’s estate.

Renada claims on appeal that the evidence did not establish either of the conditions necessary to exclude her as an heir to Stephen’s estate. * * *

The short of the matter for present purposes is that to deny a surviving spouse an inheritance, the estate must establish that the surviving spouse (1) was living in adultery at the time of the deceased’s death and (2) voluntarily abandoned the deceased spouse. * * *

Although the parties do contest the finding on adultery, their arguments focus primarily on abandonment. “Voluntary abandonment” in the context of Indiana Code section 29-1-2-14 means that the departing spouse intended a permanent separation rather than a temporary one, and that the deceased spouse neither agreed to the separation nor caused it. Although the parties do contest the finding on adultery, their arguments focus primarily on abandonment. “Voluntary abandonment” in the context of Indiana Code section 29-1-2-14 means that the departing spouse intended a permanent separation rather than a temporary one, and that the deceased spouse neither agreed to the separation nor caused it. See In re Estate of Patrick, 958 N.E.2d at 1160.

Renada asserts that she did not voluntarily abandon Stephen; rather, she maintains that she fled the marital home to escape domestic abuse. The trial court’s judgment, however, rests in substantial part on finding that the only identified instance of abuse occurred after Renada had already moved out of the marital residence. * * *

Based upon this evidence, the trial court properly found that Renada voluntarily abandoned Stephen. As for whether Renada left Stephen permanently rather than temporarily, we think that a court can find permanent departure where, as here, a spouse leaves the marital residence, files for dissolution, and remains away for roughly four years, notwithstanding the fact that a final decree of dissolution had not been issued.

We therefore affirm the trial court’s judgment.

MATHIAS, J., concurs.
ROBB, C.J., concurs in result.

In Dana Companies, LLC v. Chaffee Rentals, a/k/a, Chaffee Rentals and Storage, BRC Rubber Group, Inc., Charles V. Chaffee, Karen J. Chaffee and Clifford Chaffee, a 20-page opinion, Judge Pyle writes:
Dana Companies, LLC, (“Dana”) appeals their damages awarded in their lawsuit against Chaffee Rentals, Charles V. Chaffee, Karen J. Chaffee, Clifford Chaffee, and BRC Rubber Group, Inc., (collectively, “BRC”). On cross-appeal, BRC claims that the trial court’s findings do not support its judgment and that Dana should not recover any damages. We affirm in part, reverse in part, and remand.

ISSUES
1. Whether the trial court properly determined that the fortuity principle did not apply to Dana’s claim.
2. Whether Dana is entitled to recover any damages from BRC in light of their negotiated settlement agreement.
3. Whether Dana is entitled to prejudgment interest. * * *

Dana spent a total of $640,579.30 in performing the required work. * * *

[Trial court]
7. Based upon these allocations, Dana is entitled to recover from BRC
$73,294.69 for investigation and remediation work performed at the
plant.
8. * * * Therefore, Dana is entitled to recover 17.73% of the administrative cost from BRC or $40,291.78. * * *

We find that the trial court erred by not confining its allocation of costs to the four corners of the settlement agreement. Accordingly, we affirm the trial court’s award of damages to Dana, but reverse the amount awarded. Dana is entitled to damages of $3,608.87 in investigative costs and administrative costs of $1,818.01, for a total damage award of $5,426.88. * * *

Accordingly, we affirm the trial court’s judgment in favor of Dana, but reverse and remand with instructions to award damages and prejudgment interest consistent with this opinion.

In Meridian Mutual Insurance Company, n/k/a State Automobile Mutual Insurance Company v. Majestic Block & Supply, Inc., n/k/a Tutewiler Corporation, a 17-page opinion, Judge May writes:
State Auto presents the following issues for our review:
1. Whether the “known loss” clause of the insurance contract bars Majestic’s recovery;
2. Whether Majestic’s recovery was barred by late notice to State Auto of Majestic’s environmental claim;
3. Whether Majestic received double recovery of its post-notice costs; and
4. Whether the trial court abused its discretion when it ordered State Auto to pay pre-judgment interest.
Majestic cross-appeals, arguing the trial court should have granted Majestic’s request for attorney fees. * * *

Majestic’s coverage was not barred by late notice or known loss, it did not benefit from a double recovery, and it was entitled to prejudgment interest. However, we cannot characterize State Auto’s arguments as so frivolous, unreasonable, or groundless as to require an award of attorney fees to Majestic. We accordingly affirm the trial court.

In Brittney Watson v. State of Indiana, a 7-page opinion, Judge Bailey writes:
Brittney Watson appeals her conviction for Murder, a felony, presenting the sole issue of whether sufficient evidence supports the conviction. We affirm. * * *

From the foregoing, the jury could have determined beyond a reasonable doubt that Watson either knew or intended that Miller would be killed and acted in concert with Steven and Stephon to accomplish the deed. The evidence is sufficient to support her conviction for Murder.

In William Hinesley, III v. State of Indiana, a 22-page opinion, Judge Crone writes:
Following a bench trial, William Hinesley, III, was convicted of class A felony child molesting. After this Court affirmed his conviction on direct appeal, Hinesley filed a petition for post-conviction relief claiming that he was denied the effective assistance of trial counsel due to his counsel’s deliberate strategic choice to permit the trier of fact to consider as substantive evidence hearsay statements attributed to the State’s primary witnesses. Hinesley also claimed ineffective assistance due to his counsel’s failure to object to improper vouching and uncharged misconduct testimony, and his counsel’s failure to introduce a medical report into evidence at trial. In addition, Hinesley raised a freestanding claim of fundamental error due to alleged prosecutorial misconduct based upon the prosecutor’s knowing introduction of the alleged inadmissible hearsay, vouching, and uncharged misconduct evidence. The post-conviction court denied relief, and Hinesley now appeals. Concluding that the post-conviction court properly determined that Hinesley failed to demonstrate that his counsel’s performance was deficient or prejudicial, and further concluding that his claim of prosecutorial misconduct is unavailable, we affirm.
_______
[6] Hinesley concedes that freestanding claims of fundamental error are unavailable on post-conviction relief, but invites us to address the following question: When a post-conviction petitioner was represented by the same lawyer on direct appeal as at trial, and where that lawyer could not assert his own ineffectiveness at trial or assert fundamental error because of counsel’s failure to object to prosecutorial misconduct, may a post-conviction petitioner raise prosecutorial misconduct as a freestanding issue? * * * While Hinesley points out an interesting quandary, absent specific direction from our supreme court, we decline his invitation to recognize an exception to the established precedent.
NFP civil opinions today (4):

Jeffrey O. Gilstrap v. Michael D. Mount (NFP)

T. Kyle Buehner v. Evansville Teachers Federal Credit Union (NFP)

In the Matter of: J.C. and A.M.C. (Minor Children), Children in Need of Services, and A.K.C. (Mother) v. Indiana Department of Child Services (NFP)

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

NFP criminal opinions today (3):

Raphael Miles v. State of Indiana (NFP)

Edwin Rwoti v. State of Indiana (NFP)

Maxwell Swisher v. State of Indiana (NFP)

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

Ind. Decisions - Two today from the Supreme Court

[My Firefox browser is still not able to access the Indiana Courts site, but the Chrome browser is now able to, albeit slowly.]

In Scott Speers v. State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:

In this case we examine whether a laboratory technician involved in the chain of custody of DNA evidence must testify at trial in order to satisfy the demands of a defendant’s Sixth Amendment right of confrontation. We conclude the Constitution does not so require. * * *

Speers seeks transfer which we now grant to address his Sixth Amendment argument. In all other respects we summarily affirm the opinion of Court of Appeals. See Ind. Appellate Rule 58(A). And although we also affirm the judgment of the trial court, we do so on grounds slightly different from those of our colleagues. * * *

Essentially, there is no Confrontation Clause violation where the State introduces evidence and links in the chain of custody of that evidence are missing. Indeed, “the State need not establish a perfect chain of custody, and any gaps go to the weight of the evidence and not its admissibility.” Kennedy v. State, 578 N.E.2d 633, 639 (Ind. 1991). In this case Speers pointed out during cross-examination of James that she was “not the person who took the purported blood off the glass,” “that witness is not going to be testifying here today,” and “if that person screwed it up, no matter what you did after the fact, all you would get would be an erroneous result.” See Tr. at 220, 21. The significance of any gap created by the absence of Stickle’s testimony was a matter for the jury to weigh. The trial court did not err by admitting the DNA evidence over Speers’ Confrontation Clause objection.

In Tyrice J. Halliburton v. State of Indiana, an 18-page, 5-0 opinion, "On Direct Appeal Pursuant to Indiana Appellate Rule 4(A)(1)(a)", Justice Rucker writes:
The State charged Tyrice J. Halliburton with murder and alleged he was a habitual offender. The State also sought life imprisonment without parole. After a trial by jury Halliburton was found guilty as charged and the jury recommended life imprisonment. Following this recommendation, the trial court sentenced Halliburton accordingly. He now appeals contending the trial court erred in admitting certain evidence and gave the jury an erroneous limiting instruction. We affirm the judgment of the trial court. * * *

[I. Admission of Evidence] * * * The law in Indiana is well settled that “a defendant may not argue one ground for objection at trial and then raise new grounds on appeal.” Turner, 953 N.E.2d at 1058 (quoting Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000)). As above recited, at trial Halliburton objected to testimony concerning the prior burglary on grounds that its probative value was outweighed by its prejudicial impact. Essentially Halliburton’s objection was based not on Rule 404 but Rule 403 which declares in pertinent part: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” Halliburton made no claim at trial that evidence of the burglary did not fit any of the 404(b) exceptions; nor did he contend at trial that evidence of the burglary was bad character evidence prohibited by Rule 404(b). Accordingly Halliburton has waived this claim of error for appellate review.7 See Gill, 730 N.E.2d at 711.

[II. Limiting Instructions] * * * Here the instruction did not imply that the trial court had formed an opinion on the credibility of a witness or the weight the jury was to give the witness’ testimony. However, the instruction nonetheless advised the jury that the trial court had made a preliminary determination that the testimony the jury was about to hear is “relevant” and that the trial court had made a preliminary determination that the probative value of such testimony “outweighs any prejudice there may be.” Tr. at 559. Although appropriate as an evidentiary ruling, the highlighted portion of the limiting instruction should not have been read to the jury in that it had no role in the matter. “The court and not the jury determines the admissibility of evidence, and the foundation for the admission of secondary evidence is a matter alone for the court and not for the jury.” Sprague v. State, 181 N.E. 507, 512 (Ind. 1932); Pritchard v. State, 230 N.E.2d 416, 417 (1967) (“This being a criminal case, the determination of the admissibility of the evidence is a function alone of the trial court . . . .” (citations omitted)).

In the end we conclude the limiting instruction was given in error. However, Halliburton makes no claim the error was fundamental. And we find no such error to have occurred.

Conclusion. We affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, December 19, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Justices reveal blind spot on potential conflicts of interest"

That is the headline to this editorial today in the Fort Wayne Journal Gazette. It refers back to the earlier Journal Gazette story headed "State gets F in judge disclosure: Group’s claim shrugged off." Some quotes from the editorial:

Sen. Sue Glick, a LaGrange Republican and an attorney, told Kelly the Judiciary Committee hasn’t heard any calls for stricter reporting standards. “If they have a conflict, you have to believe they will step away and recuse themselves,” she said. “I am confident they will.” * * *

But the center’s study [Center for Public Integrity] found that state justices don’t always recuse themselves or reveal their conflicts.

“Last December,” the center reported, “the California Supreme Court declined to hear an appeal filed by a couple who had accused financial giant Wells Fargo & Co. of predatory lending.

“One justice, who owned stock in the bank, recused himself from the case. But Justice Kathryn Werdegar, who owned as much as $1 million of Wells Fargo stock, participated – and shouldn’t have.” * * *

In August, we expressed concern about Justice Mark Massa’s refusal to recuse himself from hearing a case involving the proposed Rockport gasification plant, a major initiative of the Mitch Daniels administration, despite glaringly obvious conflicts of interest. Massa was chief counsel to Gov. Daniels when the controversial plant deal was negotiated by the governor’s office and related, Daniels-backed legislation was approved, and he is a personal friend of the project’s director, Mark Lubbers.

The case involved a challenge to an agreement with the plant’s developer, Indiana Gasification, that would leave Hoosier heating customers holding the bag for up to $1.1 billion if the plant fails to turn a profit. On Tuesday, Massa voted with the other four justices to approve the deal. Though Massa has no financial interest in the development, the state’s judicial code requires that judges disqualify themselves from any proceeding in which their impartiality “might reasonably be questioned.”

Massa’s failure to recuse himself demonstrates that justices are not always the best self-judges when it comes to potentially compromising situations. And the center’s report shows clearly that justices in some other states have, intentionally or not, stepped over the commonly accepted lines of conflict. Why shouldn’t the very highest members of our judicial system be asked to meet the highest levels of disclosure?

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

Ind. Gov't. - Still more on: "Indiana State Police tracking cellphones — but won’t say how or why"

Updating this ILB entry from Dec. 10th, Ryan Sabalow and Tony Cook of the Indianapolis Star report today in a story headed "Gov. Pence supports limited use of cellphone surveillance device" that:

Calling them a vital law enforcement tool that saves lives, Gov. Mike Pence today said he supports Indiana State Police using devices that allow officers to obtain cellphone data from potentially hundreds of people at a time.

But he wouldn’t address questions about whether police obtain search warrants before turning on the devices.

Speaking with reporters, Pence said he met with police officials last Thursday for a briefing after an Indianapolis Star report revealed the agency had acquired a “Stingray” device for $373,995.

“I believe this technology is in the interest of public safety, and I believe it has enhanced our ability to both protect and save lives,” Pence told reporters. “I was informed that in the limited number of cases where this technology has been used that it has only been used with strict judicial oversight.”

But when pressed, Pence didn’t answer repeated questions about whether the agency obtains search warrants before turning on the devices. * * *

A group of Indiana state senators are drafting legislation that would require Indiana police officials to obtain search warrants. They are concerned the devices could be abused, violating Hoosiers’ rights to privacy from unlawful searches by government agencies.

The suitcase-sized devices can track the movements of anyone nearby with a cellphone. The equipment also captures the phone numbers of people’s incoming and outgoing calls and text messages. * * *

But the technology often is used with a simple court order, not a warrant that would require detectives and prosecutors to present to a judge why they believe a crime occurred.

Court orders generally require detectives to show only that the data collected would aid in an investigation, a standard that’s much easier to meet.

Posted by Marcia Oddi on Thursday, December 19, 2013
Posted to Indiana Government

Courts - New Mexico Supreme Court rules same sex marriage legal

From the AP:

SANTA FE, N.M. (AP) -- The New Mexico Supreme Court legalized same-sex marriage in the state Thursday, declaring in a ruling that it is unconstitutional to deny a marriage license to gay and lesbian couples.

New Mexico joins 16 states and the District of Columbia in allowing gay marriage.

Eight of the state's 33 counties started issuing marriage licenses to same-sex couples in August, when a county clerk in southern New Mexico independently decided to allow the unions. County officials asked the high court to clarify the law and establish a uniform state policy on gay marriage.

Thanks to How Appealing, here is a link to today's 31-page, 5-0 opinion from the Supreme Court of New Mexico.

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

Ind. Courts - New activity reported in the Judge Brown disciplinary hearing docket

Updating

a look at the docket today shows:

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

Ind. Decisions - Indiana Courts website down

The Indiana Courts website is down, they are working on finding out the problem. Until then, no opinions.

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

Ind. Decisions - More on "Lake Co. judge rules Indiana's right-to-work law unconstitutional "

Updating this Sept. 9th ILB entry, Dan Carden reports today in the NWI Times:

INDIANAPOLIS | The Indiana Supreme Court has begun receiving written arguments over whether Lake Superior Judge John Sedia correctly ruled the state's 2012 right-to-work law unconstitutional.

Sedia declared Sept. 5 that because federal law requires unions provide certain bargaining and grievance services to all employees at a unionized workplace, forcing unions to give nonmembers those services free — as mandated by the right-to-work law — violates the Indiana Constitution's guarantee of compensation for services.

On Friday, Republican Attorney General Greg Zoeller submitted a 61-page filing to the state's high court, claiming the right-to-work law should be restored because it's not the state compelling exclusive-agency unions to provide bargaining services to nonmembers. * * *

Sedia's order finding the right-to-work law unconstitutional is suspended while his decision is under appeal. The Indiana Supreme Court directly reviews all judicial declarations of unconstitutional laws.

Attorneys representing the plaintiff, the Merrillville-based International Union of Operating Engineers Local 150, must submit their response to Zoeller's filing by Feb. 12.

The Times' story includes links to both the AG's brief, and to the Lake County Superior Court ruling.

The Indianapolis Star also had a story today.

Posted by Marcia Oddi on Thursday, December 19, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Justice Rush praises pro bono efforts" and hands out annual awards

From the Lafayette Journal-Courier, some quotes from this story by Bill Engle:

Indiana Supreme Court Justice Loretta Hogan Rush ..., the second woman in Indiana history to be selected to the Indiana Supreme Court and a 1976 Richmond High School graduate, was featured speaker at the Whitewater Valley Pro Bono Commission’s 2013 awards luncheon at the Olde Richmond Inn. * * *

She said she has long been a proponent of pro bono work.

“Having been on both sides of the bench, seeing unrepresented litigants in court, especially in cases where children are involved, is heart-breaking,” she said.

She said pro bono continues to be vital statewide “in the face of an explosion of people appearing in court without representation.”

She said a recent statewide study indicated that 59 percent of those coming to court do so without a lawyer. She said two-thirds of those in small claims cases have no lawyer.

“Our system is based on justice for all but that becomes very challenging for those who cannot afford representation,” she said. “That’s why your volunteer work is so important. The path to truth and justice is often very difficult for people without means.” * * *

She handed out annual awards during the luncheon, including the Pro Bono Attorney of the Year to Bruce Metzger. Commission executive director Shane Edington said that Metzger was particularly valuable working several guardianship cases this year.

“His work for us was invaluable,” Edington said.

Metzger has volunteered for the commission for 10 years and served on its board of directors for three years.

“It’s something that’s very rewarding for me; to be able to help someone who really needs that help,” Metzger said.

Ray Ontko, president of Doxpop, was named Philanthropist of the Year.

“We’re delighted that we are able to do this,” Ontko said. “People deserve the best representation they can get and this organization ensures that that service is available to them.”

In the end, commission board president John Maley thanked Rush for her time and efforts.

“You inspire us and have made us so proud,” he said.

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

Wednesday, December 18, 2013

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

In UNITED STATES OF AMERICA v. ROGER LOUGHRY (SD Ind., Barker), a 9-page opinion, Judge Williams writes:

This is Roger Loughry’s second visit to the Seventh Circuit. In his first appeal, we reversed his convictions for various child pornography offenses because the district court erred in admitting certain “hard core” child pornography videos found on Loughry’s computer. United States v. Loughry (“Loughry I”), 660 F.3d 965, 973‐75 (7th Cir. 2011). Following our decision, the government re‐tried Loughry without introducing the unduly prejudicial videos at issue in Loughry I. At the conclusion of his second trial, Loughry was again convicted of sixteen child pornography offenses.

Loughry contends that his most recent convictions should be reversed because the district court sent to the jury room a binder containing properly admitted evidence of child pornography collected from his residence. According to Loughry, the evidence recovered from his home was simply too prejudicial for jurors to examine during their deliberations. While there may be some special circumstances in which a district court would abuse its discretion by failing to exclude properly admitted evidence from the jury room on this basis, Loughry’s case does not fit the bill. The challenged exhibit was not unfairly prejudicial because the images and videos from Loughry’s personal collection were highly probative of his identity as the internet user “Mayorroger” who advertised and distributed child pornography on a site called “the Cache.” The similarities between Loughry’s own child pornography and that found on the Cache made Loughry’s personal collection highly probative and justified the court’s decision to allow jurors to inspect it during deliberations. We affirm.

Posted by Marcia Oddi on Wednesday, December 18, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

In Ralph Stockton v. Falls Auctioneers and Realtors and Peggy Buck as Trustee of the Peggy Buck Trust, a 16-page opinion, Judge Brown concludes:

There are questions of fact regarding whether Stockton’s fall was caused in part by the length of the grass and whether Buck controlled the length of the grass. It cannot be said as a matter of law that Buck owed no duty to Stockton and Buck was not entitled to summary judgment on this basis.

For the foregoing reasons, we reverse the trial court’s order granting Buck’s motion for summary judgment and remand for further proceedings.

In Mark S. Weinberger, M.D. v. Estate of Phyllis R. Barnes, Deceased, By Peggy Hood as Personal Representative, Joe Clinkenbeard, P.A., et al., a 15-page opinion, Judge Friedlander writes:
In Indiana, Ind. Code Ann. § 34-51-3-6 (West, Westlaw current with all 2013 legislation) allocates the lion’s share of punitive damage payments to the State. In this case, we must decide whether the statute empowers the State to intervene in otherwise private litigation, ostensibly to protect its interest in a punitive damage award. Concluding that I.C. § 34-51-3-6 confers no such authority, and acknowledging that the only proper parties to this litigation have reached a post-trial settlement agreement, we dismiss. * * *

Intervention after the entry of judgment is disfavored, but permitted under extraordinary and unusual circumstances. * * *

We need not resolve the specific issue of whether intervention at the appellate level is permitted because we conclude that under I.C. § 35-51-3-6, the State is not permitted to intervene at any stage of the proceedings. The State was not involved in the underlying incident. It had no rights or duties that were implicated in the physician/patient relationship between Barnes and Weinberger. The State has an interest in this matter only to the extent the legislature says it does. Thus, the statute creating and conferring status upon the State in punitive-damages cases is the sole repository of authority governing the State’s participation in the litigation. * * *

In sum, I.C. § 34-51-3-6 does not permit the State to become a party to otherwise private litigation at any stage of the proceedings, and we therefore reverse this court’s prior order granting the State’s motion to intervene. Because the only proper parties to this appeal have amicably resolved their dispute, there is nothing left for us to decide; accordingly, we dismiss. Upon petition by the parties, the trial court shall vacate the damages judgment against Weinberger.

In Local 1963 of the United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW v. Madison County, Indiana, Madison County Assessor, and Madison County Recorder, an 18-page opinion, Judge Riley writes:
Issue. Whether the trial court erred in concluding, as a matter of law, that the Board of County Commissioners (Commissioners) and County Council (Council) had no authority to encroach upon the rights of the Assessor and Recorder to appoint and discharge deputies. * * *

Based on the foregoing, we conclude that the trial court properly issued summary judgment for the County Group because, as a matter of law, the Commissioners and Council had no authority to execute a CBA interfering with the independence of the Officials in appointing and discharging their deputies and employees.

George A. Nunley v. State of Indiana , a 4-page opinion, Chief Judge Robb writes:
The State has petitioned this court for rehearing of our decision dated October 2, 2013. In our opinion we held, in relevant part, that the trial court erred in allowing the State to amend the habitual offender allegation after the jury was empaneled. Nunley v. State, 995 N.E.2d 718, 726 (Ind. Ct. App. 2013). We concluded that the amendment was made after the commencement of trial and that it prejudiced Nunley’s substantial rights and therefore was not allowed under any subsection of Indiana Code section 35-34-1-5, which deals with amendments to an information. Accordingly, we reversed the habitual offender enhancement to Nunley’s sentence. Id. at 725. We write now to clarify our decision, and we affirm our opinion in all respects.
In Paul J. Coy v. State of Indiana, an 18-page opinion, Judge Vaidik writes:
Paul Coy and his friend Mike Ducheteau raced cars on a two-lane road in Anderson, Indiana. Coy drove as fast as 106 miles per hour before losing control of the car and crashing it into a group of trees on the side of the road, killing one passenger, Darian Hurn, and seriously injuring his other passengers, A.K. and Z.M. Coy now appeals his convictions for one count of Class C felony reckless homicide and two counts of Class D felony criminal recklessness. Finding that the trial court properly declined to give a lesser-included instruction, there was not a fatal variation in the charging information, the trial court did not abuse its discretion by considering aggravators and failing to consider or give proper weight to mitigators, and Coy’s sentence is appropriate in light of the nature of the offenses and his character, we affirm.
NFP civil opinions today (7):

In Re the Matter of the Paternity of T.L.T.: State of Indiana, as Child's Next Friend ex rel. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: E.B., K.B., T.B., and M.J., (Minor Children) and J.W., (Mother) v. The Indiana Department of Child Services (NFP)

Masoud Azimi on behalf of Amir Mansour Azimi, Deceased v. Clarian Health Partners d/b/a Methodist Hospital, Kyle Yancey, M.D., Steve S. Shin, M.D., David M. Kaehr, M.D., et al (NFP)

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

Lynda Rollins v. Graycor Construction Company, Inc., Graycor Industrial Constructors, Inc., Graycor Industrial Constructors, LLC, Graycor Construction Company, LLC, and Graycor, Inc. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of L.N.C. and L.G.C.; J.T. v. Indiana Department of Child Services (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: P.K. (Minor Child) and D.K. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (7):

Willie Gates v. State of Indiana (NFP)

Timothy J. Fugate v. State of Indiana (NFP)

Frederick M. Dial v. State of Indiana (NFP)

Thomas Dillman v. State of Indiana (NFP)

Guy Ivester v. State of Indiana (NFP)

Andre Moton v. State of Indiana (NFP)

Christopher L. Aders v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Purdue’s secrecy in Wartell dismissal dissatisfies COA judges"

Yesterday's oral agrument before a Court of Appeals panel in Purdue University v. Michael A. Wartell (you will be able to watch it here at some point) is the subject of a story today in the Fort Wayne Journal Gazette, reported by Niki Kelly. Some quotes:

INDIANAPOLIS – A panel of three appellate judges expressed skepticism that Purdue University can claim attorney-client privilege as a reason not to release a report on the dismissal of former IPFW Chancellor Michael Wartell.

The judges heard oral arguments in the case Tuesday and could rule in the coming weeks.

“He got sandbagged,” Judge Terry Crone said of the process used to investigate Wartell’s departure.

The issue is whether attorney John C. Trimble was acting as Purdue’s attorney, an independent investigator or both when he issued a report and recommendations to three members of the university’s board of trustees.

Wartell sought access to that report but was denied by Purdue’s claim of attorney-client privilege, which led to the lawsuit. He won an initial trial court ruling.

“How would you feel if you found out we were on Wartell’s payroll after the fact?” Crone asked Dina Cox, the attorney representing Purdue in the argument.

She acknowledged the concern that something “awry” or “icky” occurred in the case but said Wartell’s remedy is pursuing an ongoing federal lawsuit – not damaging attorney-client privilege rules in a public records request.

More from the story:
Wartell was forced out at IPFW in 2011 because Purdue requires university executives to retire at age 65. Requests from IPFW that he be allowed to stay were denied. * * *

Wartell filed a complaint against Purdue, claiming discrimination and harassment. Purdue hired Trimble as an independent investigator. The investigation was completed and the board found that no discrimination had taken place.

But nothing was ever released, to the public or to Wartell, who filed requests with Purdue officials and the state’s public access counselor to see the report.

He alleges that Trimble can’t be an independent third-party investigator and an attorney for Purdue at the same time – a view the judges referred to repeatedly.

Mark Ulmschneider, attorney for Wartell, said Purdue waived its privilege when agreeing that Trimble would act as an independent investigator. He said a baseball manager can’t also call balls and strikes because of an inherent conflict.

But the judges seemed uncomfortable with the idea that making the document available to Wartell would mean it was public. An agreement between Wartell and Purdue was silent on whether the report would be open to Wartell.

The judges also questioned whether Trimble had a professional responsibility to tell Wartell he was representing the university.

Cox, Purdue’s attorney, said even if that were true, it wouldn’t negate Purdue’s intent to hire an attorney and maintain privileged information.

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

Ind. Decisions - Round-up of stories today on the Supreme Court's Indiana Gasification/Rockport/Leucadia decision

Sadly, one of the best stories I've read on the opinion, and it was very early this morning, was written by the Evansville Courier & Press' new statehouse reporter (replacing Eric Bradner), Chelsea Schneider. The story, headed "Indiana Supreme Court clears way for Rockport plant," is now totally behind a paywall. It has been the C&P continued coverage of this story over that past few years that really brought it to the attention of the rest of the state. That likely won't happen in the future. (Here may be the first ILB report on the proposed plant, quoting a Bryan Corbin story in the Evansville C&P from March 6, 2009).

Lesley Weidenbener, executive editor of TheStatehouseFile, has this story, headed "Indiana Supreme Court hands Leucadia a win." Some quotes:

The Indiana Supreme Court has handed the developers of a controversial coal-to-gas plant planned for Rockport a decisive victory in a battle over whether a deal to build it complied with state law.

The 5-0 ruling eliminates a significant hurdle for Leucadia National, the plant's developer, which had all but given up the project after legislative action made it likely it would need a new review.

But the Supreme Court's decision essentially makes that moot.

"We won a complete and total victory," said Mark Lubbers, project manager for Leucadia. * * *

The $2.8 billion Indiana Gasification project is the result of a sort of public-private partnership brokered by the company with the administration of former Gov. Mitch Daniels, for whom Lubbers had once been a top adviser.

The state wouldn't take any ownership in the plant. Instead, under the deal signed by the Indiana Finance Authority, the state would purchase synthetic natural gas produced by the plant for 30 years at a fixed price and then resell it in the marketplace. The state would then pass the savings - or the losses - onto natural gas customers in the state.

Daniels argued that, over time, the cost of the synthetic fuel produced by the plant would be cheaper than natural gas. And meanwhile, the plant would use Indiana coal and provide jobs to Hoosiers.

But opponents - consumer groups and some utilities, including Evansville-based Vectren Energy - argued the state struck the deal before an explosion of shale gas extractions led the price of natural gas to plummet. The opponents say the deal is no longer a good one for Hoosiers.

At issue in the court case, though, was the wording of the state's contract with Leucadia. The Indiana Utility Regulatory Commission approved the deal in 2011 but the Indiana Court of Appeals reversed that decision the following year, saying the contract included a clause that violated state law.

The Indiana Finance Authority and the Rockport developers agreed to drop that language from the contract, but that raised questions about whether the revised document would need another round of regulatory review.

Then earlier this year, the General Assembly passed a law that required such a review - but only if the Indiana Supreme Court had agreed with the lower court ruling or found the contract invalid.

That seemed so likely that Leucadia pulled the plug on the plant shortly after the legislation passed, despite having invested some $27 million in development. "We have been disappointed by the state's breaking its commitment to the plant and the project," Leucadia spokesman Mike Murphy said in April. "They have changed the rules in the middle of the game."

But on Tuesday, the state's highest court upheld the authority of the Indiana Finance Authority and Leucaida to resolve what it called a "definitional issue" in the contract. "Thus the issue is moot," the court said.

That means the law requiring a second look at the contract won't kick in.

Still, Leucadia's path to building the plant is not totally open. The Indiana Finance Authority still has one final sign off on the project. And it's not clear how the Pence administration will approach that decision.

Also, Leucadia needs a loan guarantee from the U.S. Department of Energy to move forward.

The Indiana Supreme Court's decision came just about three months after it heard oral arguments in the case. The review had been controversial because one of the state's newest justices - Mark Massa - declined to recuse himself even though he had been Daniels' general counsel when the Rockport deal was under consideration. Massa is also friends with Lubbers.

It took a while to locate the Indianapolis Star story on the decision ... Headed "Supreme Court decision raises Rockport plant from the dead," the Star story by Tony Cook reports:
Just a few months ago, a planned $2.8 billion coal-gas plant in Rockport seemed all but dead.

But on Tuesday, the Indiana Supreme Court effectively raised it from the grave.

In a 5-0 decision, the state’s high court upheld an amended contract between the state and the plant’s developer, Indiana Gasification. * * *

The governor signed legislation passed earlier this year that would have required a new, more stringent review of the contract between the state and the developer if the Supreme Court had voided the deal. * * *

The legislation was passed during the final moments of the 2013 General Assembly, despite two attempts to water down the bill’s language by lawmakers with connections to the coal industry.

Concerns about possible conflicts of interest also arose when Supreme Court Justice Mark Massa declined to recuse himself from the case despite a close personal friendship with Lubbers and his previous role as chief legal counsel to Gov. Mitch Daniels, whose administration pushed for enabling legislation and signed the deal with Indiana Gasification.

ILB: Here is a very long list of ILB stories referencing Rockport.

The ILB has had several posts on the Justice Massa's refusal to recuse in this case, you can find them listed here.

The Sept. 5th oral argument in the case is available online, you can watch it here. Justice Massa asked only one question during the course of the oral argument. It was also the first question of the day, asked at 5:15 on the video:

Mr. Funk, hasn't that been effectively mooted by the subsequent action taken by the actual parties to the contract?
Mr. [Norman T.] Funk, arguing on behalf of the Appellant, began his response by saying, "if the Justice was referring to the reformation, the answer was no, we do not believe the reformation agreement was valid."

From yesterday 5-0 opinion, written by Chief Justice Dickson:

We hold that the contract, as amended, renders the definitional issue moot... .

Posted by Marcia Oddi on Wednesday, December 18, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Former Andrean student-athlete prevails in 23-year-old IHSAA fight"

This story today by Dan Carden in the NWI Times explains the background behind yesterday's Court of Appeals opinion (ILB summary here, 2nd case) in Indiana High School Athletic Association, Inc. v. Gregory S. Schafer and Shane Schafer b/n/f Gregory S. Schafer. Some quotes:

INDIANAPOLIS | In a case stretching back 23 years, the Indiana Court of Appeals has ruled that a former Andrean High School basketball player, whose eligibility to play repeatedly was blocked by the Indiana High School Athletic Association, can recoup his attorney fees from the association.

During the 1990-91 school year, Shane Schafer withdrew from his junior year of classes at the Merrillville high school due to a severe, chronic sinus infection that required several surgeries to correct. He repeated his junior year in 1991-92.

Schafer sought IHSAA permission to play his junior year of basketball during the 1991-92 season and was denied, even though the IHSAA admitted Schafer's medical condition caused his academic difficulties, according to court records.

A Lake County judge issued a restraining order permitting Schafer to play in 1991, but the IHSAA commissioner again barred Schafer citing a different eligibility rule.

The case was moved to Jasper County at the IHSAA's request. Special Judge Raymond Kickbush determined the IHSAA's eligibility rules were "arbitrary and capricious" as applied to Schafer and said Schafer could play.

The Court of Appeals affirmed that ruling in 1992, though while the final outcome was still pending the IHSAA denied Schafer's eligibility for the 1992-93 basketball season.

Judge Kickbush again overruled the IHSAA, and Schafer was allowed to play.

A decision on Schafer's request that the IHSAA pay his attorney fees was delayed until 2003 when he was awarded $86,231. Following a 2009 appeal, the attorney fee award was reissued.

In a 3-0 ruling, the Court of Appeals on Tuesday upheld the decision to award Schafer attorney fees.

Former Indiana Chief Justice Randall Shepard, writing for the appeals court, said the IHSAA's seven failed attempts to deny Schafer's eligibility met the "unreasonable" litigation standard required for a judge to award attorney fees.

Shepard said the three-judge appeals panel agreed with the lower court judges who said the IHSAA was improperly using this case to send a warning to parents of student-athletes not to challenge IHSAA eligibility decisions. * * *

IHSAA Commissioner Bobby Cox said the appeals court ruling was "disappointing." He said the association has not yet decided whether to ask the Indiana Supreme Court to review it.

Posted by Marcia Oddi on Wednesday, December 18, 2013
Posted to Ind. App.Ct. Decisions

Tuesday, December 17, 2013

Ind. Gov't. - "Porter Regional Hospital’s assessment is increased after appeal" from $34 million to $117 million

Amy Lavalley of the Gary Post-Tribune reports today in a story that begins:

VALPARAISO — When officials with Porter Regional Hospital appealed their assessment by Porter County, they probably didn’t expect their assessment to go up.

But it is, after the county’s Property Tax Board of Appeals ruled Monday that the assessment for the new hospital, at Ind. 49 and U.S. 6, should have been $117 million on March 1, 2012.

“They appealed (Assessor Jon Snyder’s) decision of 2012, of $34 million. They opened the door for the appeal,” said Joe Wszolek, president of the appeals board.

Officials from the hospital, who did not return a request for comment, tried to withdraw their appeal but missed their deadline, so the appeal proceeded. The hospital opened in late August 2012.

“The process here worked like it was supposed to, protecting taxpayers from an undervalued property,” Snyder said after the meeting.

Snyder presented a wide array of documents to support his point, including those signed by hospital chief executive officer Jonathan Nalli that placed the value of the building at $130 million. Those documents were prepared for the Porter County Council, which granted the hospital a 10-year tax abatement.

The new hospital was 90 percent complete in March 2012, appeals board member Vicki Urbanik said, so its assessed valuation should be $117 million.

Asking for an appeal can raise the specter of a petitioner getting a higher assessment instead of a lower one, though it is unusual, board members said. The hospital project was unusual as well.

“This is a pretty significant case for us,” Urbanik said, adding it was the largest construction project in the county since the establishment of the steel mills. “The assessor asked us to undo the entire assessment from the beginning, not just because of something omitted but because of the entire method.”

Posted by Marcia Oddi on Tuesday, December 17, 2013
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court decides Indiana Gas (Rockport) case

Updating this ILB post from this morning, the AP is now reporting:

The Indiana Supreme Court has cleared the way for construction of a coal-gasification plant in Rockport, Indiana.

The state’s high court ruled unanimously Tuesday that an alteration of the contract the plant’s developers signed with the Indiana Finance Authority did not constitute a significant change. Opponents of the project had argued the contract should be invalidated.

Under the contract, the state will buy the synthetic gas produced by the plant at fixed price for 30 years. The state would then resell the gas and consumers would either make or lose money. The state has not said how much it will pay for the gas.

Justice Mark Massa ruled in favor of the project after declining to recuse himself from the vote despite a close friendship with the project’s lead developer.

ILB: Whether or not the costly plant actually will be built is still not a sure thing, according to some observers. The energy picture in the U.S. has changed enormously since this project was conceived and promoted, half a dozen years ago.

[More] The ILB has just obtained a press release, the Indiana Citizens Groups Statement on Indiana Supreme Court’s Decision To Uphold Leucadia Tax on Indiana Ratepayers, that begins:

INDIANAPOLIS – Today, the Indiana Supreme Court issued a ruling that could force Indiana ratepayers to foot the bill for an expensive coal gasification plant in Spencer County by upholding the contract between the project’s developer and the state.

Posted by Marcia Oddi on Tuesday, December 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Indiana Restorative Dentistry, P.C. v. The Laven Insurance Agency, Inc., and Proassurance Indemnity Company, Inc. f/k/a The Medical Assurance Company, Inc, a 25-page opinion, Judge Riley writes:

Appellant-Plaintiff, Indiana Restorative Dentistry, P.C. (IRD), appeals the trial court’s denial of its motion to correct error following the trial court’s summary judgment in favor of Appellee-Defendant, ProAssurance Indemnity Co, Inc. f/k/a The Medical Assurance Co., Inc. (ProAssurance).

IRD raises three issues on appeal, which we restate as:
(1) Whether Appellee-Defendant, Laven Insurance Agency, Inc. (Laven), was under a special duty to advise IRD about its insurance coverage where Laven and IRD had a long-term relationship;
(2) Whether Laven had a duty to procure full coverage insurance based on its past dealings with IRD; and
(3) Whether ProAssurance is vicariously liable for Laven’s actions. * * *

Based on the foregoing, we hold that (1) Laven was under a special duty to advise IRD about its insurance coverage based on their long-term relationship; (2) Laven had a duty to procure full coverage insurance based on its past dealings with IRD; and (3) there is a genuine issue of material fact as to whether Laven is ProAssurance’s agent and therefore ProAssurance can be held vicariously liable for Laven’s actions. Consequently, we reverse the trial court’s summary judgment in favor of ProAssurance and grant summary judgment to IRD with respect to Laven’s duty to advise and duty to procure. Additionally, we reverse the trial court’s summary judgment with respect of ProAssurance’s vicarious liability and remand to the trial court for further proceedings.

Reversed and remanded for further proceedings.

In Indiana High School Athletic Association, Inc. v. Gregory S. Schafer and Shane Schafer b/n/f Gregory S. Schafer, a 15-page opinion, Sr. Judge Shepard writes:
A trial court may award attorney’s fees when a party continues to litigate the case after the party’s claims have become frivolous, unreasonable, or groundless. Here, the trial court ordered fees after finding that the litigation conduct by the Indiana High School Athletic Association in trying to prevent a student from playing for his school demonstrated all three of these.

We conclude that, at the least, the trial court was within its discretion to hold that the course of conduct by IHSAA was “unreasonable” and that it could consider the multiple rulings adverse to IHSAA in reaching that decision.

We thus affirm the imposition of fees. * * *

Finally, we are not the first appellate court to take notice of IHSAA’s arbitrary and capricious decision-making toward the Schafers. Such decision-making can result in substantial harm to the individual student-athletes the rules are intended to serve. The Schafer I court pointed out the absurdity resulting from IHSAA’s positions in this case as follows: [quote omitted] Similarly, the Schafer II panel stated its disapproval of IHSAA’s tactics, quoting a prior decision that turned on a fee award due to IHSAA litigation tactics: [quote omitted]* * *

We associate ourselves with these observations without adding to them. The trial court did not abuse its discretion by awarding attorney’s fees to the Schafers.

For the reasons stated above, we affirm the judgment of the trial court.

In Jason Young v. Hood's Gardens, Inc., a 13-page, 2-1 opinion, Judge Riley writes:
Young raises two issues on appeal, which we restate as the following:
(1) Whether the trial court abused its discretion by striking portions of Young’s designated affidavit; and
(2) Whether the trial court erred when it granted summary judgment in favor of Hood’s. * * *

Based on the foregoing, we conclude that the trial court did not abuse its discretion by striking Young’s affidavit, and the trial court properly granted Hood’s Motion for summary judgment Affirmed.

ROBB, C. J. concurs
KIRSCH, J. dissents with separate opinion:

I respectfully dissent.

This case illustrates once again the marked difference in summary judgment procedure in Indiana as compared to federal practice. Lacy-McKinney v. Taylor Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 865 (Ind. Ct. App. 2010) (citing Cole v. Gohmann, 727 N.E.2d 1111, 1113 (Ind. Ct. App. 2000)). Federal summary judgment procedure requires summary judgment to be granted against a party who fails to establish an essential element of that party’s case as to which that party bears the burden of proof at trial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In contrast, under Indiana’s summary judgment procedure, the party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists. Id. at 865-66 (citing Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d 118, 123 (Ind. 1994)). Only after the moving party has met this burden with a prima facie showing that no genuine issue of material fact exists does the burden then shift to the non-moving party to establish that a genuine issue of material fact does in fact exist. Id. at 866.

Here, the dispute between the parties centered on whether the value of the work provided by Mead exceeded $1,000. As the moving party, Hood’s had the burden of establishing the absence of any genuine issue of material fact that the actual value of the services provided by Mead to Hood’s, the $600 contract price plus the value of the wood Mead was allowed to keep, did not exceed $1,000. However, Hood’s failed to designate any evidence to show that the value of the wood Mead was allowed to keep did not exceed $400, which would make the value of the services provided over $1,000. Mead testified that the wood was more valuable to him than the $600 in cash he received and that he made sure to clarify with Hood’s that the contract was for $600 plus the wood. Hood’s did not establish that the value of the wood combined with the $600 caused the value of services provided to it by Mead to not exceed $1,000.

The trial court found that, although it was possible that the wood did have a fair market value of over $400, Hood’s did not acknowledge it and that no evidence was presented that Hood’s was aware or should have been aware that the value of the wood exceeded $400. Under Indiana’s summary judgment procedure, unlike the federal procedure, the burden was on Hood’s to come forth with evidence to show that no genuine issue of material fact existed as to the value of the contract not exceeding $1,000, which Hood’s failed to do. I, therefore, vote to reverse the grant of summary judgment in favor of Hood’s and would remand for further proceedings.

NFP civil opinions today (2):

In the Matter of the Commitment of T.G. (NFP)

Donald L. Deputy v. Connie S. Deputy (NFP)

NFP criminal opinions today (6):

Christopher D. Bunch v. State of Indiana (NFP)

Kelly S. Craig v. State of Indiana (NFP)

Carl E. Ascherman v. State of Indiana (NFP)

Ayanna Earls v. State of Indiana (NFP)

Christopher Turner v. State of Indiana (NFP)

Adam S. Fiers v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 17, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides Indiana Gas (Rockport) case

The 6-page, 5-0 opinion is Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al v. Indiana Finance Authority and Indiana Gasification, LLC. The opinion finds that the contract, as amended, is valid, meaning it does not have to go back to the IURC, and is thus a win for Indiana Gasification. From the opinion, written by Chief Justice Dickson:

This is an appeal from an order of the Indiana Utility Regulatory Commission ("the IURC") approving a contract for the purchase of substitute natural gas ("SNG") and directing the procedure for resolving future related disputes. After the Court of Appeals voided the contract because a definitional term deviated from the required statutory definition, the contracting parties amended the contract to correct the error. We hold that the contract, as amended, renders the definitional issue moot and summarily affirm the Court of Appeals as to all other claims. * * *

Finding the definition of REUC in the Amended Contract to be compatible with the SNG Act, we dismiss that issue as moot and affirm the IURC's Order approving the Contract. As to all other claims, we summarily affirm the decision of the Court of Appeals.

ILB: If this is confusing, see the last part of this ILB entry from Dec. 12th, quoting from an earlier John Russell story in the Star.

Posted by Marcia Oddi on Tuesday, December 17, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Update to: Following up on the federal suit against the way Marion County judges are selected

Updating this comprehensive ILB post from Nov. 12, 2013:

Posted by Marcia Oddi on Tuesday, December 17, 2013
Posted to Indiana Courts

About the ILB - Another plea, please read! And then, please act!

2013 is drawing to a close, and a new year is soon to begin. In March of 2014, the ILB will have completed its 11th year.

I believe the ILB has made a significant impact in its 10 years of existence.

The ILB operates on a shoestring, and needs more supporters, including major (front page) supporters (who would likely be organizations, bar sections, law firms, or those who do business with law firms).

You are able to read the ILB because of, and thanks to, these major supporters:

Plus these individuals/firms who also help assure the continuation of the ILB: Plus those who generously send occasional gifts to the ILB.

Plus me. As is obvious if you are a reader, I contribute the major part of each day to the ILB.

As I am semi-retired and not independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.

Posted by Marcia Oddi on Tuesday, December 17, 2013
Posted to About the Indiana Law Blog

Monday, December 16, 2013

Ind. Law - "Austen Parrish named dean of IU Maurer School of Law"

See the full news release, with photo, here. It begins:

BLOOMINGTON, Ind. -- Austen L. Parrish will be the next dean of the Indiana University Maurer School of Law, IU Bloomington Provost Lauren Robel has announced. Before his appointment, Parrish served as the interim dean and CEO of Southwestern Law School in Los Angeles.

He will become dean of the Maurer School of Law on Jan. 1, and he will also have the title James H. Rudy Professor of Law at the school. His appointment is subject to confirmation by the IU Board of Trustees.

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Law

Ind. Gov't. - More on: New Indiana General Assembly website

Really the only thing to see so far on the new General Assembly website is what has been done with the Indiana Code.

The Indiana Code, the codification of all the substantive laws of the State, is only available to the citizens of the State of Indiana online, it has not been published by the General Assembly in a usable book form, for many years.

The online version is an unofficial version, but the users' only other option is one of the $$$ legal publishers.

The ILB is not ready to do a review yet, but here are some initial reactions attorney readers have sent me so far:

The ILB's response to the last question was that if the ILB had any connections, they were not very effective, as I communicated with LSA and posted in February about concerns with the plan that included dropping HTML versions of the law and breaking all links. At that time I was not aware of an added problem, that the PDF would be dynamically generated - i.e. a virtual page.

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Government

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

For publication opinions today (1):

In Avon Trails Homeowners Association, Inc. v. Kellie Homeier, a 13-page opinion, Judge Brown writes:

Avon Trails Homeowners Association, Inc. (“Avon Trails”) appeals from the trial court’s Order After Hearing denying its request for a preliminary injunction in favor of Kellie Homeier.1 Avon Trails raises one issue, which we revise and restate as whether the trial court erred in its interpretation of a restrictive covenant, thereby denying Avon Trails’ request for a preliminary injunction. We reverse. * * *

We begin our discussion by noting the peculiar procedural posture of this case. As highlighted above, it appears that the parties have come to an agreement about disposing of this case as expressed in their Joint Motion, but the trial court on multiple occasions refused the parties’ overtures to enter an order on the Joint Motion. Instead of accepting the proposed settlement expressed in the Joint Motion to vacate its order, enter a permanent injunction, and end any proceedings at the appellate court level, the court in its CCS entries on May 3 and July 1, 2013, opted to leave in place its interpretation of the Covenant as expressed in its Order. * * *

[T]he parties have agreed to a settlement, and indeed Homeier has relied on such agreement by opting to not challenge Avon Trails’ arguments on appeal. Recognizing both this reliance by Homeier and our conclusion that the trial court’s interpretation of the Covenant was clearly erroneous, and that, accordingly, it was error for the court to refuse to accept the parties’ Joint Motion, we remand with instructions to the court to vacate its original order and enter an order substituting the applicable language of the Joint Motion, including that Homeier agrees that the Declaration is valid and enforceable as it applies to her, that she agrees to a permanent injunction against violating the Covenant so long as it is applicable to her, and that Avon Trails waives any claim it possesses to reimbursement of its court costs and legal fees pursuant to Article 10, Section 1 of the Declaration so long as the terms of the Joint Motion are faithfully adhered to by Homeier.

NFP civil opinions today (1):

David X. Finley and Diane M. Finley v. First Federal Savings Bank and Charleston Auctioneers, Inc. (NFP)

NFP criminal opinions today (1):

Michael S. McShurley v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - New Indiana General Assembly website

The Indiana General Assembly has updated its website. It appears that there is a little more work to do, but you can see much of it right now.

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Government

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

Updating this ILB post from Nov. 29th, Pam Tharp reports today in the Richmond Palladium-Item in a story that begins:

LIBERTY, IND. — Acting Union County Prosecutor Kathy Kolger may continue in her position until the office’s current term ends in 2014, according to the Indiana Secretary of State’s office.

Union County Republicans also could try again to fill the office, after failing to do so at a caucus in November, SOS spokesperson Valerie Kroeger said.

There is no time limit on the Republican caucus, nor is there a time limit for an acting prosecutor, Kroeger said.

“The Republican caucus still has the right to make an appointment to fill the position,” Kroeger said.

At a party caucus on Nov. 20, Republicans rejected Kolger, the only candidate to file for the appointment. Kolger was defeated on a 4-3 vote, caucus members said.

Union County Republican Party Chairman Alan Alcorn said Thursday he won’t call a caucus until the Indiana Attorney General’s Office issues an opinion on Republican Party rules.

More from the story:
Kolger, who has lived in Richmond, registered to vote in Union County and rented housing to establish her residence here. She’s served as chief deputy prosecutor here for 15 years and was named acting prosecutor following the retirement in October of former prosecutor Ronald Jordan.

Kolger could have stepped down from the job after the caucus, but she said she decided to continue because the citizens of the county deserve to have someone in the office.

Longtime Republican Party member Patricia Gentry, a former county chairwoman, said she was very disappointed in the caucus’ decision not to appoint Kolger for a year. Gentry said she’s heard nothing from the party about any future caucuses.

“It’s just been devastating. I’ve just been sick over it,” Gentry said. “We should just have appointed her to fill out the term and then let the voters decide. She knows the county. I just appreciate she came back and went to work. It puts the county and the party in a very bad light.”

Republican precinct committeewoman Cheryl Faber also was disappointed in the caucus’ decision.

“I felt we had no other option but to appoint Kathy,” Faber said. “We can’t leave an elected position vacant. It put the county in a bad position.”

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending December 13, 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, December 13, 2013. It is one page (and 15 cases) long.

One transfer was granted last week, with opinion. The opinion, Demetrius Walker v. State of Indiana, is summarized in this Dec. 12th ILB post.

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Transfer Lists

Ind. Courts - More on "Indiana earns ‘F’ for disclosure requirements for high court judges"

Updating this ILB post from Dec. 4th, Niki Kelly of the Fort Wayne Journal Gazette has a long story today based on the Center for Public Integrity’s disclosure review. The JG story is headed: "State gets F in judge disclosure: Group’s claim shrugged off." Some quotes from the story:

INDIANAPOLIS – Indiana earned an F in new rankings for state Supreme Court financial disclosures but was still 17th best in the nation.

That’s because 42 other states and the District of Columbia failed the Center for Public Integrity’s disclosure review. Its grading system was based on a slightly tougher version of disclosure requirements for federal judges.

The top state rank was a C for California.

“In many states, it’s practically impossible to glean any meaningful information from judges’ financial disclosures,” the study found.

Despite the lack of information in the public records though, the center’s investigation found nearly three dozen conflicts, questionable gifts and entanglements among top judges around the country.

None of those was in Indiana.

And Hoosiers within the system don’t seem too worried about the state’s grade, noting there have been no scandals or significant concerns raised here.

“The allegation that Indiana deserves an F took us by surprise. We believe that the rules and the code set forth a tone of openness,” said Kathryn Dolan, spokeswoman for the Indiana Supreme Court.

She noted that the grade is based on federal standards for judges with lifetime appointments. Hoosiers have the ability to retain or vote out Supreme Court judges.

“We think Indiana judges are extraordinarily responsible and forthcoming with personal data,” Dolan said.

A mix of Indiana law passed by legislators and rules passed by the judiciary govern disclosure in Indiana.

All full-time judges – not just those on the Supreme Court – must fill out an annual Statement of Economic Interests.

Among the things included on the form are any gifts received by the justice and their value; employment by the judge and spouse; direct involvement of the judge or spouse in any other businesses or corporations; any organization the judge or spouse serve on; companies the judge, spouse or adult children own at least $10,000 of stock in; any outside compensation. * * *

According to the Center study, one of Indiana’s strengths in disclosure is the reporting of all gifts.

In reviewing the most recent disclosures for the five sitting Supreme Court justices, most accepted tickets to the Indianapolis 500 worth hundreds of dollars.

The study found Indiana’s weakness is that it seeks little information about the financial investments and liabilities of its high court’s jurists. The state requires judges only to name the businesses in which they or their family members own $10,000 or more worth of stock, a high threshold. Judges don’t report household debt.

Both Trimble [Indianapolis Attorney John Trimble, who chairs the Judicial Improvements Committee for the Indiana State Bar Association] and Dolan said they didn’t believe it was necessary to lower the amount, indicating there have been no allegations or problems in Indiana.

But Trimble did concede that it is “theoretically true” that more issues would arise if the disclosure were wider. Right now a judge could own thousands of dollars of stock in a company and decide a case directly benefiting it without anyone knowing.

Here is the part that caught the eye of the ILB [emphasis added]:
Access is also an issue, though it isn’t mentioned in the report. The disclosure statements are kept in an obscure basement office at the government center complex. They are not online and Hoosiers generally have to pay to see them. Similar legislative statements are online in the Indiana House but not the Indiana Senate.

Sen. Sue Glick, R-LaGrange, serves on the Senate Judiciary Committee and doesn’t recall any movement toward stricter disclosure for judges.

“If they have a conflict you have to believe they will step away and recuse themselves,” she said. “I am comfortable they will.”

Glick is an attorney.

“It’s just not an issue here. If there are abuses we would see them.”

Here is the Indiana section of the report of the Center for Public Integrity. It links to the actual 2012 financial disclosure reports of the five Indiana justices:

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Courts

Ind. Gov't. - Indiana's ALEC legislative contingent has grown 40%

Updating this ILB post from Dec. 4th, headed "ALEC facing funding crisis from donor exodus in wake of Trayvon Martin row", this week's issue of Indiana Legislative Insight ($$$) includes this nugget:

Documents leaked from an American Legislative Exchange Council board meeting reveal that at least one-third of the members of the General Assembly are ALEC members. And while the organization has lost almost 400 lawmakers from its ranks over the past two years, Indiana is cited for having grown its ALEC legislative contingent by more than 40 percent.

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Government

Law - "What is noteworthy about these cases is that the social media aspect of them had no bearing on the courts' analyses"

That is a quote from a post yesterday on Mike Smith's Indiana Business Law blog. The post begins:

Consider these two relatively recent cases, one from Massachusetts and one from Indiana, both involving allegations of breach of contract through the use of social media
and later concludes:
Do these cases mean that one cannot violate a noncompete agreement or a nonsolicitation agreement by posting something on a social media site? Not at all. In fact, it seems entirely possible that the Massachusetts case would have gone the other way if Ms. Muller's LinkedIn profile had mentioned one fields of placement from which she was barred by her agreement with her former employer. Similarly, the Indiana case might have gone the other way if someone from Hypersonic had sent an email message specifically addressed to the ENS employee with a link to the LinkedIn job posting, particularly if the message encouraged him to apply.

Indeed, what is noteworthy about these cases is that the social media aspect of them had no bearing on the courts' analyses. The Massachusetts case would likely have turned out the same way had Ms. Muller sent out paper announcements saying the same thing her LinkedIn profile said, and the Indiana case would likely have turned out the same way had the job posting been a classified ad in a newspaper. The courts had to plow no new ground to deal with them.

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to General Law Related

Ind. Gov't. - "Meth labs take a huge toll on Indiana communities"

Maureen Hayden, CNHI, reported yesterday in the Goshen News:

INDIANAPOLIS — State Rep. Wendy McNamara knew methamphetamine was a scourge on her district in southwestern Indiana, but the damaging effects of the drug really hit her when she met a real estate appraiser who’d suffered lung damage after visiting a meth-contaminated house.

The appraiser had no idea the house was once the site of a clandestine drug lab. Gone were the containers of chemicals used to cook the meth, but left behind were the toxic contaminants that permeated the carpets, walls, drains and ventilation.

That appraiser now carries protective breathing gear when he’s on the job, but McNamara thinks he and others need more protection.

The Posey County Republican plans to introduce legislation to increase public disclosure requirements for properties contaminated by meth labs and to give local officials more authority to force quicker cleanup of those properties.

“We have to find a way to protect us from people who use meth and who don’t care about anybody else,” McNamara said.

Meth labs are a big problem throughout Indiana. The state came in a close third in the nation in 2012 for the number of meth lab busts, at nearly 1,700. State police say the state is on pace for nearly 1,900 meth lab busts this year.

The state doesn’t track how many of those labs are located in homes, but police say that’s where many are located. That’s because the vast majority of homemade meth is now concocted by mixing pseudoephedrine and other ingredients in a soda bottle — the so-called “one-pot” method — which makes it simple to manufacture on a kitchen counter or bathroom sink, police say.

McNamara is among a bipartisan group of legislators who want pseudoephedrine returned to its earlier status as a prescription drug. They face strong opposition from pharmaceutical companies and retailers, and their measure has gained little traction.

So now lawmakers are using what they call “reactive legislation” to address problems created by meth.

“We think of meth as a health issue, but it’s also an economic issues in our local communities,” said McNamara. “Think of the local resources that go into fighting meth and its consequences.”

Police are supposed to notify local health officials when a meth lab is found in a home. The health department is then supposed to post a notice ordering the house be evacuated and remain vacant until the dwelling is decontaminated by a state certified cleanup crew.

But the cost of decontamination can run into the thousands of dollars, leading property owners to delay or simply abandon the cleanup.

While the law forbids property owners from selling the house or letting anyone move back in until the health department declares the dwelling habitable, violating the law is a misdemeanor and rarely enforced.

And owners of properties where meth labs have been found are not required to disclose that when they sell or transfer the home.

“We just don’t know the number of homes out there that are contaminated,” said Scott Frosch, safety director for the state Department of Environmental Management. “People don’t really know what they’re buying or occupying.”

There is much more in the story.

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Indiana Government

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

From Sunday, Dec. 16, 2013:

From Saturday, Dec. 15, 2013:

From late Friday afternoon, Dec. 13, 2013:

Posted by Marcia Oddi on Monday, December 16, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/16/13):

Next week's oral arguments before the Supreme Court (week of 12/23/13):

This week's oral arguments before the Court of Appeals (week of 12/16/13):

Tuesday, December 17

Next week's oral arguments before the Court of Appeals (week of 12/23/13):

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, December 16, 2013
Posted to Upcoming Oral Arguments

Sunday, December 15, 2013

Ind. Law - "Lawmakers stand against social tide in promoting HJR 6"

The Sunday Fort Wayne Journal Gazette editorial section focuses on HJR 6. Some quotes from the lead editorial:

The elephant in the room as the General Assembly prepares to convene is one of its own creation. House Joint Resolution 6 lumbers into the Indiana Statehouse next month destined to create a distraction from the business the GOP-controlled legislature would prefer to have voters see in an election year.

In wading into the social issues battlefield their former party leader once warned against, GOP legislative leaders set the scene for a conflict they undoubtedly wish they had avoided. Moreover, what they do in the coming session ultimately will make no difference. Same-sex marriage is coming to Indiana. Look for its arrival by one of these routes:

The U.S. Supreme Court: The court in June overturned the federal Defense of Marriage Act, which prohibited recognition of same-sex marriage. While the justices declined to assert a constitutional right for two men or two women to marry, lawsuits working their way through courts across the nation could produce the precedent-setting case. It was a law banning interracial marriages that resulted in the 1967 Loving v. Virginia decision. * * *

A state lawsuit: In his dissent in the DOMA decision, Justice Antonin Scalia charged that the majority opinion purported to support states rights, but actually provided a road map for challenges to state bans. One such challenge could overturn Indiana's ban, which exists whether it is written into the constitution or not. * * *

Public opinion: Sixteen states and the District of Columbia now allow two men or two women to marry. Poll after poll shows growing support for gay marriage.

In Indiana, a recent survey by WISH-TV and Ball State University found 58 percent of respondents oppose HJR 6; 48 percent want to legalize same-sex marriage.

The editorial then retells the story of Minnesota:
If Indiana lawmakers stick to their plan to "let the electorate decide", they risk repeating the example of Minnesota, where a Republican-initiated push for a constitutional referendum backfired on its supporters. When the proposed amendment went before voters there last November, it drew Democratic voters out in force, defeating not only the referendum but also costing the GOP its majorities in both the House and Senate.

Energized by their success in defeating the constitutional amendment and electing Democratic majorities, same-sex marriage supporters pushed for legalization of gay marriage. The bill was approved and signed into law in May.

Indiana's GOP leaders are probably too smart to repeat the mistake of their Minnesota brethren. Concern for their own electoral success inevitably will overcome enthusiasm for banning same-sex marriage and they won't risk pulling young and liberal voters to the polls.

In time, however, those voters will seek to undo the current ban and join the growing list of states choosing to extend rights instead of restricting them.

In a separate editorial headed "A modest proposal to satisfy all," Karen Francisco, JG editorial page editor, suggests that GOP leaders can satisfy all sides:
... by shoving the resolution down the road. Lawmakers will approve a same-sex marriage measure, but not the same one they approved in 2011. Indiana law prescribes a constitutional amendment process in which identical language is approved in two separately elected sessions. By altering even a single word of HJR 6, lawmakers reset the clock. The revised resolution would have to be approved a second time in 2015 or 2016 to make it to ballots in November 2016.
ILB: Maybe. Maybe not.

I've just reread Art. 16, Sec. 1:

Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.
(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.
(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.
(History: As Amended November 3, 1998).
I don't see the word "identical". Moreover, I've just looked at our Supreme Court's 1972 opinion in Roeschlein v. Thomas (Feb. 24, 1972). The new Judicial Article had been challenged, and the Supreme Court in Roeschlein upheld it (granting transfer and adopting the COA opinion), despite challenges to the procedures followed by the House and Senate in passing it. The challengers' assertions included: "the House and the Senate in voting upon the proposed Judicial Amendment did not vote upon the same 'proposed amendment or amendments' as required by the language of Article 16, § 1." However, the Court said:
In view of the decision we reach, the character of the changes does not constitute a material issue of fact and therefore we do not need to determine whether the changes are substantial or unsubstantial.
The Court's reasoning was that the resolutions had been authenticated by the presiding officers of the House and Senate, and the Court, deferring to the separation of powers, would not look beyond this.

Thus my "maybe not."

My point is that adopting the language of HJR 6 this year without the contentious second sentence might not necessarily mean starting over. It would be up to the GOP leaders to decide whether the now truncated amendatory proposal was still to go to the voters in November, or whether it was instead to be considered a reset. If the choice was made to put it on the ballot, then, as with the Judicial Article in 1972, there likely would be a legal challenge.

Posted by Marcia Oddi on Sunday, December 15, 2013
Posted to Indiana Law

Ind. Law - "To hear the Indiana Prosecuting Attorneys Council tell it, the new criminal code needs more than minor tinkering"

That is a quote from near the beginning of a very long story by Douglas Walker in the Sunday Muncie Star-Press.

From "page" 5 of the story:

The Board of Managers of the Indiana Judges Association this month announced that it opposed any “substantive changes” to House Enrolled Act 1006, and “specifically (opposes) reducing or eliminating the discretion of judges to sentence criminal appropriately... including the exercise of discretion to suspend sentences when appropriate.”

The Indiana Public Defender Council has also been largely supportive of the new code, including reductions in penalties for drug-related crimes.

Posted by Marcia Oddi on Sunday, December 15, 2013
Posted to Indiana Law

Environment - "Producers should remember manure application rules"

A story in AgriNews Saturday began:

WEST LAFAYETTE, Ind. — The arrival of cold weather, snow and ice means Indiana’s livestock producers need to remember that applying manure to farm fields during the winter is regulated by the state.

Frozen ground during the winter months can make manure application a more risky endeavor, said Tamilee Nennich, Purdue Extension nutrient management specialist.

“There’s potentially an increased risk for nutrient runoff in winter,” she said. “Ideally, manure nutrients should be incorporated into the soil to ensure they make contact with the soil, which may not happen if manure is applied on frozen or snow-covered ground.”

Because of the runoff risk, the state of Indiana regulates when producers with permits for concentrated animal feeding operations and confined feeding operations can apply nutrients. Manure from CAFOs or CFOs cannot be applied to frozen or snow-covered ground.

The only exception is for emergency situations, such as extreme weather events. Producers facing an emergency must contact the Indiana Department of Environmental Management to seek a temporary exemption before applying manure.

“I want to remind producers that exceptions are only for emergency situations - not for standard operating purposes,” Nennich said.

Another important rule for livestock producers to be aware of is the Indiana Fertilizer Material Use rule, which went into effect in February 2013.

“This rule is very important because it applies to any producers applying manure during winter — not just large operations,” Nennich said.

Posted by Marcia Oddi on Sunday, December 15, 2013
Posted to Environment

Courts - "England and Wales Crack Down on Googling Jurors; U.S. Not So Much "

A few quotes from Joe Palazzolo's report Friday in the $$ WSJ Law Blog:

The Internet has made it downright easy for jurors to research the cases to which they are assigned, a breach of the rules that could lead to a phenomenon known as the “Google mistrial.”

In the U.S., examples of jurors snooping outside of court are legion. The punishment for such transgressions is typically minor — a small fine or, in the rare case, a few nights in the clink.

No so across the pond. * * *

[E]arlier this week, a government commission on legal reform in England and Wales recommended the creation of a new criminal offense targeting jurors who conduct independent research. It would be punishable by as many as two years in prison or a fine with no upper limit, or both.

Although California "passed a law in 2011 that made juror communication or research about a pending trial grounds for criminal contempt, which carries a maximum penalty of six months in prison," it is now being recommended that the criminal provisions be rolled back, the story continues.
Why? Because often the only person who can help the judge determine whether juror misconduct occurred is the juror herself. But if she faces the threat of criminal prosecution, she may assert her Fifth Amendment right against self-incrimination, thwarting the judge’s investigation and waylaying the trial.

The committees say civil contempt proceedings, which can only be initiated by the courts, are the proper venue for jurors who are accused of communicating or conducting research about a pending trial, because they offer judges more flexibility.

Posted by Marcia Oddi on Sunday, December 15, 2013
Posted to Courts in general

Friday, December 13, 2013

Ind. Courts - The Kimberly Brown Judicial Ethics Saga: Some Thoughts on Assessing Remorse and the Re-Election Process

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

Judge Brown’s change of counsel and Wednesday’s filing of “Submission to Discipline in Lieu of Submission Findings” and supporting affidavits raises a number of interesting questions. This post focuses on two: (1) its impact, specifically, the difficulty of the special masters’ crediting Judge Brown’s remorse based on the late-inning paper documents, and (2) Judge Brown’s re-election prospects and the effect of her candidacy on Marion County’s “unique” judicial election process.

Too Late for Remorse (if that’s what it was)?

I probably saw as much of the hearing as anyone other than those involved in the proceedings (the special masters, the lawyers, the court reporter, and Judge Brown) and Judge Taliaferro’s husband (who I believe attended all of the proceedings). The Commission did an excellent job proving its case, and the special masters appeared quite receptive. Judge Brown’s counsel was not effective (that is the kindest terminology I can use), and the special masters were seemingly underwhelmed (also a charitable term for witness testimony and arguments that struck me as devoid of a coherent theme or purpose).

If nothing was filed on Judge Brown’s behalf, I would have expected the special masters to find misconduct on all or nearly all of the 47 counts. I would have expected a recommendation for a lengthy suspension or possibly removal from the bench.

It is difficult to know whether Wednesday’s filings by a new (and very capable) lawyer—expressing contrition and admitting conduct prejudicial to the administration of justice—change things. Judge Brown had been offered and refused earlier opportunities to resolve the proceedings and to seek help from JLAP. This new approach, adopted well after a grueling seven-day hearing and weeks before the special masters issue their report, may be seen by some as analogous to a criminal defendant who finds religion or a newfound desire to support dependents days before sentencing. Trial judges generally give little weight to what may be viewed as a tactical conversion.

More fundamentally, though, how are the special masters to assess whether the remorse is genuine? Remorse usually comes in a live court proceeding where the finder of fact observes the expression of remorse in the context of a proceeding. Here, the masters have only a carefully crafted written affidavit that came weeks after a hearing at which there was very little contrition. I suspect the video excerpt of Judge Brown refusing the oath at a deposition and her inability to offer a rational explanation for this behavior is seared in the special masters’ minds. It may be difficult for the affidavits from Judge Brown and Justice/Professor Sullivan to overcome this.

Moreover, even if the masters believe the remorse is genuine, again criminal law offers a useful analog about the significance of timing. Criminal defendants are generally offered a plea agreement early in the process and sometimes the morning of trial. Plea agreements may even come mid-trial, especially if one side panics about how things are going. Although Wednesday’s pleading is not a bilateral agreement (it’s a unilateral, general admission of fault), it comes very late in the proceeding. If criminal defendants who plead guilty are entitled to no mitigation because their plea came mid-trial after the State had to expend resources investigating and trying the case, Judge Brown’s post-hearing expression of remorse would seemingly not be entitled to much weight either.

As a final guiding principle, the Indiana Supreme Court has made clear 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 . . . .” We should know relatively soon if the special masters and ultimately the justices believe Judge Brown is fit for judicial duty and what a sixty day suspension would do to instill public confidence in the judiciary.

The Re-Election Process

Judge Brown’s term expires in 2014, and Wednesday’s filings strongly suggest that Judge Brown wants to remain on the bench for more than just the next year. What are her prospects for re-election?

The qualifications to run for Marion County judge are simply (1) Marion County residency and (2) admission to the Indiana bar for at least five years. Ind. Code § 33-33-49-6(b). A judge who has been disciplined or one who is under suspension at the time of filing for the primary and even at the time of the election itself may seek and secure re-election.

Presumably any day now, the Indianapolis Bar Association will conduct its poll of 2014 judicial candidates. If Judge Brown is included, she is unlikely to fare well, especially on the question: “This person is ethical.” Wednesday’s pleadings are an admission of recent and serious judicial misconduct. The poll, though, is of limited significance in the slating and election process. Judge Pierson-Treacy’s 30.7% approval rating for re-election did not affect her ability to get slated, and she received the third highest number of Democratic primary votes of the twelve Democratic candidates in the primary.

Will Judge Brown go through the Marion County Democratic Party slating process? She won the Democratic primary in 2008 by running against the slate. Her sister, Judge Linda Brown, did the same in 2006, but then sought and secured a position through slating in 2010. For all the flaws of slating, I suspect Judge Kimberly Brown would lose at slating. The Democrats require candidates to run for a specific slot, and Judge Brown would surely draw an opponent, unlike the other incumbent judges. The few hundred people involved in slating would know of the judicial ethics proceeding, and I suspect nearly any opponent would prevail.

If she is not slated, though, Judge Brown may well prevail in the primary (assuming she is not removed from the bench or ordered not to seek re-election). Very few Marion County voters know the names, much less anything about, judicial candidates in a primary or general election. Judge Brown previously ran against the slate and prevailed. She would again be first on the ballot (alphabetically), has a common name, and is a woman—all of which cut in her favor in an election in which voters know nothing about the candidates. The Democrats could spend a lot of money touting their slated candidates and even attacking Judge Brown, but I would still give her decent odds of winning, especially if the discipline is still pending or a relatively short suspension is ordered. She could tell voters the Indiana Supreme Court considered the matter and decided she should be given a second chance.

Posted by Marcia Oddi on Friday, December 13, 2013
Posted to Schumm - Commentary

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

For publication opinions today (1):

In John Everitt Dickey v. State of Indiana, a 6-page opinion, Judge Mathias writes:

John Everitt Dickey (“Dickey”) was convicted in Clark Circuit Court of two counts of Class A felony child molesting and sentenced to an aggregate term of forty-five years, with five years suspended. Dickey appeals and presents one issue for our review: whether the trial court abused its discretion in admitting into evidence testimony that Dickey had been physically abusive both to the victim and to the victim’s mother. Because Dickey failed to preserve this issue for appeal, we affirm. * * *

Prior to trial, Dickey filed a motion in limine seeking to exclude the evidence of his prior bad acts. However, a trial court’s ruling on a motion in limine is not a final ruling on the admissibility of the evidence in question, and a motion in limine does not preserve the error for appeal. Id. Instead, in order to preserve error in the denial of a motion in limine, the party must also object to the admission of the evidence at the time it is offered. Id.

Here, when the State asked N.O. when Dickey’s relationship with N.O. and her mother began to change, Dickey did object, and the trial court overruled this objection. However, the State then continued to ask N.O. questions that elicited detailed testimony regarding Dickey’s past physical abuse of N.O. and her mother, all without further objection from Dickey. See Tr. pp. 73-79. Dickey’s “renewed” objection to the initial question is insufficient to preserve for appeal the question of error regarding the further questioning by the State. * * *

Of course, this is not to suggest that Dickey’s only alternative was to object to each question by the State. To the contrary, a proper request for a continuing objection, if granted by the trial court, is sufficient to preserve error. * * * Here, however, Dickey did not seek a continuing objection.[2] We therefore conclude that Dickey failed to preserve for appeal the sole issue he now presents to this court.[3]

Accordingly, we affirm the judgment of the trial court.

___________________
[2] We note that our Supreme Court has amended Indiana Evidence Rule 103(b), effective January 1, 2014, to provide: “Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” See Order Amending Rules of Evidence, No. 94S00-1301-MS-30 (Ind. Sept. 13, 2013), available at http://www.in.gov/judiciary/files/ order-rules-2013-0913-evidence.pdf. As this rule amendment was not in effect at the time of Dickey’s trial, it is inapplicable to the present case.
[3] We also note that Dickey makes no argument under the fundamental error exception to the contemporaneous objection requirement. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (observing that a claim that has been waived by the failure to contemporaneously object can be reviewed for fundamental error, an “extremely narrow” exception to the contemporaneous objection requirement available only in “egregious circumstances”).

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, December 13, 2013
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from Nov. 27th, WOWO 92.3FM reported Dec. 11th:

NEW HAVEN, Ind. (AP): The plug has been pulled on a proposal aimed at legalizing and regulating the use of golf carts on the streets of a Fort Wayne suburb.

The New Haven City Council voted unanimously Tuesday to kill the proposed ordinance after several contentious meetings on the issue.

Councilman Ron Steinman called the decision a sad one. He says golf carts will still be driven on city streets, but they will be unlicensed and without age limits, lights or safety standards.

Councilman Terry Werling says he proposed the golf cart ordinance because many elderly residents like to drive the carts around their neighborhoods and to attend events.
And now these residents may well be worse off than before they tried to get the use of golf carts legalized (golf carts use is legal in many other Indiana communities), according to this story today in the Fort Wayne Journal Gazette, reported by Vivian Sade, that begins:
New Haven’s police chief wants to remind the community that golf carts have always and continue to be illegal to use on city streets.

The police department issued a statement to that effect after the city council voted down a proposal Tuesday that would have legalized and regulated golf carts for street use.

“It remains illegal to operate a golf cart on city streets,” Police Chief Steve Poiry said Thursday.

It’s up to the officer’s discretion, but people who operate a golf cart on New Haven streets can be cited and the golf cart could be towed away at the owner’s expense, Poiry said.

Posted by Marcia Oddi on Friday, December 13, 2013
Posted to Indiana Government

Thursday, December 12, 2013

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

In KENNY A. JONES, Sr. v. CITY OF ELKHART, INDIANA, et al. (ND Ind., Springmann), a 19-page opinion, Judge Tinder writes:

Plaintiff‐Appellant Kenny A. Jones, Sr., alleges that Defendants‐Appellees violated his rights under the Fourth Amendment and Fourteenth Amendment. From the first, however, counsel for Jones stated his claims broadly and vaguely. He listed a series of irrelevant facts untethered to any legal claims, and asserted constitutional injury without specifying what provisions of the Constitution were violated and how. Defendants—the City of Elkhart, Indiana and individual officers in the Elkhart police department— and the district court were forced to guess at his arguments in order to address them. Unfortunately, on appeal, counsel fashioned his brief in a similar manner, asking us to reverse the district court’s entry of summary judgment for Defendants. The argument sections of Jones’s brief recite legal standards for the elements of the case but offer us no analysis on how to apply them to the facts at hand.

Once we reconstruct what we believe to be Jones’s arguments, as we were required to do under these circumstances, the completed structure shows that both of Jones’s substantive assertions hinge on one critical fact: whether the Elkhart police officers who stopped his car and arrested him did so without probable cause. Because the record supports the district court’s conclusion that the officers had probable cause and there is no evidence putting that conclusion in question, we affirm the district court’s entry of summary judgment and dismiss the appeal. We also find that the district court did not abuse its discretion with regard to the discovery orders or its ruling on Jones’s Fourteenth Amendment equal protection claim. * * *

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for the Defendants.

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - SC of IND posts second opinion today

In Demetrius Walker v. State of Indiana, a 9-page, 5-0 opinion, Justice David writes:

Just because an individual refuses to comply with a police officer’s order does not necessarily subject that individual to criminal liability under Indiana’s resisting law enforcement statute. The individual must “forcibly” resist the officer’s lawful execution of his or her duties. But in this case the defendant refused repeated orders to lay down on the ground and advanced aggressively, with his fists clenched, to within a few feet of the police officer issuing the orders before ultimately being tased. We find this conduct was sufficient to support his conviction for resisting law enforcement, and therefore affirm the trial court. * * *

Walker appealed, arguing that the evidence was insufficient to sustain his conviction for resisting law enforcement. The Court of Appeals affirmed, Walker v. State, 984 N.E.2d 642 (Ind. Ct. App. 2013), and Walker sought transfer to this Court. We heard oral argument on August 22, 2013, and now grant transfer [ILB emphasis], thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We likewise affirm. * * *

So in summary, not every passive—or even active—response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, a person “forcibly” resists, obstructs, or interferes with a police officer when he or she uses strong, powerful, violent means to impede an officer in the lawful execution of his or her duties. But this should not be understood as requiring an overwhelming or extreme level of force. The element may be satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact—whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer’s ability to lawfully execute his or her duties.

Still, these cases are necessarily fact-sensitive, and since Spangler appellate courts have attempted to place them along a spectrum of force, though often with the facts varying only by slight degrees. A side-effect of this approach can be a degree of unpredictability in outcome, for both the defendant and the State. * * *

[W]e still remain unconvinced that there needs to be any strict bright-line test for whether a defendant acts “forcibly”—at least, not one with any more definitiveness than the language already in use by our case law. * * *

Conclusion. We therefore affirm Walker’s conviction for resisting law enforcement.

Dickson, C.J., Massa, and Rush, J.J., concur.
Rucker, J., concurs in result.

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Governor Pence appoints nominating commission members for IURC"

Jesse Wilson of TheStatehouseFile.com had a story Dec. 10th reporting that:

Gov. Mike Pence selected new members for the nominating commission for the Indiana Utility Regulatory Commission. The members will serve a four-year terms that start immediately and runs through 2017.
Pence's selections are Gwendolyn Horth as chair, Eric Scroggins, and John Blevins. More from the story:
The nominating committee is made up of seven members, three of which are appointed by the governor, one that is selected by the speaker of the House of Representatives, one by the pro tempore of the Senate, one by the minority leader of the Senate, and one from the minority leader of the House.
Details on the IURC Nominating Commission are sparse, there does not appear to be a website. This Jan. 13, 2011 news release from Gov. Daniels stated in part:
When a vacancy occurs on the IURC, applications are solicited from the public and accepted by a seven member nominating committee. The committee, comprising four legislative and three gubernatorial appointments, screens the applications and conducts interviews that are open to the public. After conducting the public interviews, the nominating committee recommends three candidates to the governor who then names a new member to the commission.

Members of the nominating committee [in 2011] are committee chair William Stephan, Jennifer Messer, Greg Gibson, Mark Pope, Susan Sandberg, Larry Buell and June Lyle.

Here is the statute, IC 8-1-1.5, Utility Regulatory Commission Nominating Committee. The statute regarding the membership of the Commission itself is IC 8-1-1-2 and includes these requirement: "at least one (1) of whom shall be an attorney qualified to practice law before the supreme court of Indiana and not more than three (3) of whom belong to the same political party".

Here are the current five Indiana Utility Regulatory Commission members (Atterholt, Ch., Bennett, Landis, Mays, and Ziegner). Clicking on a photo brings up the date of appointment and when the term expires.

But, as Laura Arnold reported Nov. 10th in the blog, IndianaDG:

INDIANAPOLIS (11/08/13) – Commissioner Kari Bennett has announced her resignation from the Indiana Utility Regulatory Commission (IURC). Bennett was first appointed in January 2011 by Governor Mitch Daniels. * * *

Her term is scheduled to expire March 2014. Bennett replaced former chairman David Lott Hardy and is serving the remainder of a four-year term that ends on March 31, 2014. Former Governor Mitch Daniels fired Hardy.

This is the second Commissioner to announce their departure from the IURC in recent months. On 09/23/13, Commissioner Larry Landis announced his retirement. His term expires December 2015.

ILB: Among the issues the IURC may have to consider in coming months is the Rockport coal gasification plant (Indiana Gas) deal. The case was argued before the Supreme Court on Sept. 5th and a decision by the Court pending. As the Indianapolis Star's John Russell reported on the day of the oral argument:
A company that wants build a $2.8 billion plant in Rockport that would turn coal into synthetic gas urged the Indiana Supreme Court today to allow the deal to go ahead, saying legal problems with the contract have been fixed.

But opponents said the company has no right to amend the 30-year deal, which an appeals court struck down last month, without another review by state regulators.

The Supreme Court heard arguments for 45 minutes this morning in a case that could decide the outcome of the controversial plant. The proposed deal, years in the making, has pitted some of some powerful utilities and citizens groups against in the state against the developer and its supporters.

The Indiana Court of Appeals ruled last fall that the contract improperly would have forced a group of big industries to shoulder a portion of the plant’s costs or share in its benefits. That was not what lawmakers intended in 2009 when they authorized the Indiana Finance Authority to negotiate the deal, the appeals court ruled.

Attorneys for Indiana Gasification [Norman Funk] said the problems identified by the appeals court were small and have been fixed with an amended contract between the company and the Indiana Finance Authority.

The company asked the court to find the amended contract “perfectly fine,” and declare the Indiana law that held it up to be unconstitutional.

“Let the contract go forward with no impairment,” said Karl L. Mulvaney, an attorney for Indiana Gasification.

But Norman Funk, an attorney for Vectren Energy and other opponents of the deal, said the the parties must negotiate an “all-or-nothing contract,” and any changes need to go back to the regulatory commission for review.

He said that under the principle of separation of powers, the Supreme Court could not simply approve editing changes to the deal.

“This court cannot blue-line this kind of contract,” Funk said. “We believe that would be a usurpation of the executive branch.”

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Charity Lindquist v. Cory Lindquist, a 13-page opinion, Judge Baker writes:

We first acknowledge that the trial court was faced with an extremely difficult—and almost Solemnic—decision in this case. More particularly, we must determine whether the trial court properly entered an order restricting the custodial parent, appellant-petitioner, Charity Lindquist (Mother), from permitting her and former husband, appellee-respondent, Cory Lindquist’s (Father) (collectively, the parents), children to continue an unsupervised relationship with Mother’s boyfriend when Father is not otherwise entitled to be with them under the Indiana Parenting Time Guidelines (Guidelines). The trial court’s order noted that Mother’s relationship with her boyfriend was undermining and interfering with Father’s relationship with the children. As a result, Mother contends that her constitutional right to due process was violated along with her right of freedom of association.

After reviewing the evidence, we initially observe that the trial court’s determination that Mother was in contempt for denying Father his Christmas 2012 time must be affirmed. However, because there is no evidence that Mother is an unfit parent or that permitting the children to spend unsupervised time with Mother’s boyfriend violated the children’s best interests or that he posed a danger or detriment to the children, we must conclude that this portion of the order was too restrictive and, therefore, the trial court improperly determined that the children were not permitted to spend any “one on one” unsupervised time with Mother’s boyfriend. As a result, we affirm in part, reverse in part, and remand this case to the trial court with instructions that it craft an order that will not deny Father the opportunity to exercise additional parenting time in accordance with the Guidelines, but also to permit the children to interact with Mother’s boyfriend on an unsupervised basis should Mother so desire, so long as Father’s relationship with the children is not undermined or thwarted.

In Anthony Smith v. State of Indiana, a 10-page opinion, Sr. Judge Sullivan writes:
Anthony Smith was convicted by a jury of Class A misdemeanor invasion of privacy for knowingly violating a protective order. He now appeals, claiming the evidence is insufficient to sustain his conviction. We affirm.
NFP civil opinions today (2):

Paul D. Schoolman v. Tamzen L. Schoolman (NFP)

Jacquelyn S. Johnson-Taefi v. Review Board of the Indiana Department of Workforce Development and AME Cleaning Services, LLC (NFP)

NFP criminal opinions today (3):

Zachariah Brownie v. State of Indiana (NFP)

Joseph Rothell v. State of Indiana (NFP)

Jeffrey Allen Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - SC of IND posts one opinion today

In Richard Eric Johnson v. Gillian Wheeler Johnson, a 12-page, 5-0 opinion, Justice David writes:

The Indiana Child Support Guidelines provide both structure and flexibility for trial courts to set and modify child support obligations in ways tailored to the circumstances of the parties before them. The Guidelines obligate trial courts to follow certain processes and consider certain factors, but there remains a degree of latitude within which a court may fashion an order that best meets the needs of the child and also reflects the financial realities of the parents.

Here, the trial court modified a prior child support order in several respects and the noncustodial parent appealed. The Court of Appeals affirmed in part and reversed in part, including reversing the trial court’s determination of credits for the custodial parent’s health insurance costs and the noncustodial parent’s Social Security benefits. We grant transfer and affirm the trial court on those two issues, finding its approach to be appropriate in light of the flexibility afforded by our Guidelines, and summarily affirm the Court of Appeals in all other respects.

ILB: The Court of Appeals opinion was a 27-page Dec. 4, 2012 NFP opinion.

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Ind. Sup.Ct. Decisions

Environment - Three Indiana sites named to the National Priorities List

Updating this May 22nd ILB post, followed by this one from May 28th, both reporting on three Indiana sites that had been proposed for the Superfund list, Maureen Groppe of Gannett reported yesterday in a story headed "Hazardous waste sites added to national cleanup list" that began:

WASHINGTON — Three hazardous waste sites in Indiana — “ including one in Indianapolis” — have been added to the federal government’s priority list of severely contaminated sites that need federal intervention to be cleaned up, the Environmental Protection Agency announced Wednesday.

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Environment

Ind. Gov't. - "Ind. lawmakers face ambitious agenda"

This long, must-read story yesterday in the Logansport Pharos-Tribune, reported by Maureen Hayden, gives a good overview of the upcoming 30-day session. It begins:

INDIANAPOLIS — Lawmakers are crafting an aggressive agenda for the new year that includes a tax break for businesses, preschool funding for the poor, road spending and a divisive constitutional amendment — all packaged into a so-called “short session” of the Legislature.

A significant part of the workload has been cast by Republican Gov. Mike Pence, who’s entering his second year in office with ambitious plans for legislators facing an early deadline when the convene Jan. 6. The Legislature’s sessions in even-numbered years are limited to 30 days, by law, and must end by March 14.

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Indiana Government

Ind. Gov't. - "State asks for help protecting light-pole wiring from thieves "

From today's Gary Post-Tribine, a story that begins:

They may look like highway workers tending to light poles on the expressway, but it’s also possible they are thieves stealing copper wiring to sell for scrap, officials said Wednesday.

“We really need the public to help us,” Matt Deitchley, Indiana Department of Transportation Northwest District spokesman said Wednesday at a news conference.

“If you see anybody by these light poles, call 911,” he urged. “These thefts are on the rise. These thieves are doing just about anything they can to get these wires.”

The sale of scrap metal is big business, he added.

People wearing hard hats and reflective vests might appear to be working on Interstates 65 or 94, but if motorists see them, they should call police right away. Deitchley estimated the Northwest District has more than 4,000 poles along the highways.

Posted by Marcia Oddi on Thursday, December 12, 2013
Posted to Indiana Government

Wednesday, December 11, 2013

Ind. Courts - Judge Brown filings today show new attorney and offer to submit to discipline

The docket in the Judge Kimberly Brown disciplinary case shows activity today. And the ILB has obtained the referenced documents.

Tim Evans of the Indianapolis Star has filed this preliminary story, headed "Judge Brown offers to serve 60-day suspension."

Posted by Marcia Oddi on Wednesday, December 11, 2013
Posted to Indiana Courts

Ind. Decisions - "Sniadecki avoids jail in forgery case"

Updating a long list of earlier ILB entries on disbarred attorney Rod Sniadecki, Madeline Buckley reports today for the South Bend Tribune in a story that begins:

MISHAWAKA -- A disbarred attorney convicted of forging documents to keep his practice afloat during a suspension will not serve time in jail.

In a plea for a suspended sentence, Rod Sniadecki, 47, told the judge Wednesday morning that he and his family have suffered financially and emotionally.

St. Joseph Circuit Court Magistrate Larry Ambler sentenced Sniadecki to four years each for his three Class C felony forgery convictions, to be served concurrently.

But Ambler suspended the jail sentence, meaning he will only serve the time if he gets into further legal trouble. The judge also ordered that two of the four years be served on non-reporting probation.

Ambler did not impose a fine.

"You have gone from a lawyer to a cobbler," Ambler said.

St. Joseph County deputy prosecutor Micah Cox asked the judge to impose a jail sentence, arguing that as an attorney, Sniadecki had a crucial obligation to uphold the law.

Posted by Marcia Oddi on Wednesday, December 11, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Still more on: Criminal Law and Sentencing Policy Study Committee meets twice this month

Updating this post from earlier this morning, Rich Callahan of the AP also has a report on yesterday's meeting. Some quotes:

John Speir, the co-founder of the Atlanta-based consulting firm, told committee members the new law's requirement that inmates serve at least 75 percent of their sentences will offset changes lawmakers made in reclassifying offenses and setting new sentencing ranges.

Indiana's current law allows most inmates to be released after serving half or less of their sentences if they stay out of trouble while behind bars.

The sentencing overhaul approved by lawmakers in April was designed to reduce the need to build new prison space or release inmates early by placing low-level offenders in probation, work-release or addiction-treatment programs.

Speir's analysis projects that Indiana's prison population will increase under the new guidelines from about 30,000 in 2014 to more than 35,500 by 2024. In contrast, the analysis found that if the state's current sentencing provisions were to remain in place, Indiana's prison population would rise to just above 34,000 inmates by 2024.

Previous studies of the new law's impact conducted by the state's Department of Correction and the Legislative Services Agency had found that Indiana's prison population would remain flat or decrease in the years ahead.

Speir said his consulting firm tracks sentencing guideline changes either proposed or enacted in six states. He said the long-term effects of such changes are often unclear.

"It can take years for the impact to become apparent," he told members of the Criminal Law and Sentencing Policy Study committee.

Posted by Marcia Oddi on Wednesday, December 11, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Carol Sparks Drake v. Thomas A. Dickey, Craig Anderson, Charles E. Podell, and Duke Realty Corporation, a 21-page opinion, Judge Najam writes:

Carol Sparks Drake appeals the trial court’s entry of summary judgment for Thomas A. Dickey, Craig Anderson, Charles E. Podell, and Duke Realty Corporation (collectively, “Duke Realty”) on Drake’s claim that Duke Realty intentionally interfered with her partnership agreement with the law firm of Parr Richey Obremskey & Morton.[1] Drake and Duke Realty raise three issues for our review, which we consolidate and restate as follows:
1. Whether there is a genuine issue of material fact as to whether Duke Realty intentionally induced Parr Richey to terminate Drake’s partnership agreement.
2. Whether, if Duke Realty interfered with Drake’s partnership agreement, there is a genuine issue of material fact as to whether such interference was justified. * * *

In sum, it is for a jury to weigh the evidence and competing inferences and to determine Duke Realty’s intent, including whether Duke Realty intended to interfere with Drake’s partnership agreement, whether Duke Realty reasonably contemplated that its threat was certain or substantially certain to interfere with that agreement without regard to whether Duke Realty actually intended or desired that result, or whether Duke Realty’s threat to withdraw all of its business from Parr Richey was merely an expression of a client’s legitimate concern about a conflict of interest. Affirmed in part, reversed in part, and remanded for further proceedings.
________________
[1] On October 5, 2012, the trial court granted Duke Realty’s motion to “Prohibit Public Access to Confidential Information” and excluded from public access the parties’ filings in the trial court. Appellant’s App. at 117. On appeal, both parties requested that this court maintain the confidentiality of the proceedings pursuant to Indiana Administrative Rule 9(G)(1.2), and our motions panel granted that request. The writing panel may reconsider a ruling of the motions panel. We have endeavored to maintain confidentiality on appeal and, thus, have omitted the names of nonparties. But an appellate judicial opinion that both decides the case and articulates the law requires consideration of the underlying facts. Thus, we have included a number of facts derived from confidential records in this opinion because “we deem such information to be public as essential to the resolution of the litigation and appropriate to further the establishment of precedent and the development of the law.” Recker v. Review Bd. of Ind. Dep’t of Workforce Dev., 958 N.E.2d 1136, 1138 n.4 (Ind. 2011) (citing Ind. Administrative Rules 9(G)(3) and 9(G)(4)(d)).

In John Kader v. State of Indiana, Department of Correction, and The Geo Group, Inc., a 9-page opinion, Judge Bailey writes:
In a textbook example of the differences between the Indiana and federal summary judgment standards, John Kader (“Kader”), an inmate with the Indiana Department of Correction (“the Department”), appeals the trial court’s entry of summary judgment against him in his negligence suit against The GEO Group, Inc. (“GEO”), the State of Indiana (“the State”), the Department (collectively, “the Defendants”).

Kader raises two issues for our review, which we restate as:
I. Whether the trial court abused its discretion when it struck an affidavit Kader submitted in opposition to GEO’s motion for summary judgment; and
II. Whether the trial court erred when it entered summary judgment against Kader when it concluded that:
A. GEO’s duty of care to Kader was that of a landowner to an invitee, and to the extent GEO had not been notified of any defects with the floor grates, its duty toward Kader did not include remedying any such defects;
B. Kader was contributorily negligent because he did not use a wheelchair and was walking without assistance of a cane;
C. Kader failed to produce competent evidence that falling on the floor grates was the medical cause of the injuries of which he complains; and
D. GEO had no duty of care as to Kader’s medical treatment. * * *

The trial court abused its discretion when it struck the entirety of Holland’s affidavit, which Kader designated as evidentiary material in response to the motion for summary judgment. The trial court erred when it entered summary judgment against Kader regarding his claims against GEO, except as to Kader’s claim that GEO was negligent in its procurement and supervision of his follow-up medical care. The trial court also erred when it entered summary judgment against Kader on his claim of negligent medical treatment as it pertained to the State and the Department. Affirmed in part, reversed in part, and remanded with instructions.

NFP civil opinions today (3):

In Re the Paternity of: L.M.J. b/n/f, D.R.D. v C.A.J. (NFP)

Kelli Alvarez, f/k/a Kelli Galanos v. Horizon Bank, N.A. (NFP)

L.M. Zeller, individually, and d/b/a Zeller Elevator Company v. Indiana Fire Prevention and Building Safety Commission (NFP)

NFP criminal opinions today (7):

Willie Huguley v. State of Indiana (NFP)

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

Kenneth Morton v. State of Indiana (NFP)

James B. Studabaker, II v. State of Indiana (NFP)

Julie Marie King v. State of Indiana (NFP)

Douglas A. Smith v. State of Indiana (NFP)

Randy Winters v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 11, 2013
Posted to Ind. App.Ct. Decisions

Environment - 2013 Edition of Indiana Environmental Statutes now available!

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

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

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

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

Posted by Marcia Oddi on Wednesday, December 11, 2013
Posted to Environment

Ind. Gov't. - More on: Criminal Law and Sentencing Policy Study Committee meets twice this month

Updating this ILB post from Dec. 9th, Dan Carden of the NWI Times reports on yesterday's meeting of the Committee in a story today headed "Study finds new criminal code may fail to reduce prison population." Some quotes:

INDIANAPOLIS | Major changes to Indiana's criminal code, set to take effect July 1, will increase the state's prison population unless prosecutors and judges apply the new, often reduced, advisory sentences for felonies.

According to a study by legislative consultant John Speir, of Applied Research Services, if prosecutors and judges seek higher prison terms under the revised code to match the lengthier sentences now doled out, some 1,500 additional Hoosiers will be locked up by 2023 compared with estimates under current law.

On the other hand, if the plan to place low-level criminals in county jails, drug-treatment and community-corrections programs is embraced, the state's prison population will drop by some 2,000 felons in the next few years, the study found.

The General Assembly's criminal code study committee will learn next week how much money the state and counties may have to spend to make the new system reduce the state's near-capacity prison population.

The Times also links to the 16-page ARS Report.

Posted by Marcia Oddi on Wednesday, December 11, 2013
Posted to Indiana Government

Not Law - "Gannett to Add USA Today to Local Papers"

That is the headline to this story by Christine Haughney in the business section of today's NYTimes.

It seems that Indianapolis was one of four test markets where Gannett tried out the USA Today insert. From the story:

Beginning in January, Gannett will add 12 to 14 pages of USA Today content each day to 35 newspapers in its largest markets, including The Journal News in White Plains, N.Y., The Tennessean in Nashville and The Cincinnati Enquirer. That means readers, along with their local news, will get a broader mix of news from the USA Today content.

Gannett has been testing the program at four papers — in Indianapolis; Rochester; Fort Myers, Fla.; and Appleton, Wis. — since October and plans to add the new markets throughout the first quarter of 2014. Eventually it plans to extend the program to all of its 81 local newspaper markets.

And here is the most interesting part:
“The research we did gave us a very strong belief that customers see much higher value having these newspapers combined,” Mr. Kramer said. “We also think that advertisers want to reach that audience.”

Asked whether prices would rise for subscribers receiving the extra USA Today content, a Gannett spokesman, Jeremy Gaines, said, “As we introduce enhanced products, consumers tell us they are willing to pay for the added value we’re bringing them.”

Posted by Marcia Oddi on Wednesday, December 11, 2013
Posted to General News

Tuesday, December 10, 2013

Ind. Decisions - Tax Court decides one case today

In Roderick E. Kellam v. Fountain County Assessor, a 9-page opinion, Judge Wentworth writes:

Roderick E. Kellam appeals the Indiana Board’s final determination denying a homestead standard deduction on his Fountain County property for the 2010 tax year. The Court reverses. * * *

To demonstrate that he did not receive a homestead deduction for his Wells County property in 2010, Kellam presented a document he received from the Fountain County Assessor containing information about the Wells County property. * * * Therefore, a finding that Kellam did not qualify for a homestead deduction on the 2010 Fountain County property because he had a 2010 homestead deduction on a Wells County property is unsupported by substantial or reliable evidence. * * *

The Indiana Board also appears to have concluded that the Fountain County property was not Kellam’s “principal place of residence” because Kellam was not physically residing there. The legal standard for determining an individual’s principal place of residence, however, depends on the “intention” to return to the property after an absence, not continuous physical presence at the property. See 50 I.A.C. 24-2-5. In addition to explaining that he was not physically residing at the property because he was renovating it, Kellam testified that he alone intended to seek the homestead deduction for the Fountain County property. Moreover, as further evidence of his intent, the certified administrative record reveals that he used the Fountain County property as his mailing address; as the location of his voter registration; and as the address on his driver’s license, bank statements, and tax returns. Accordingly, the Indiana Board’s conclusion that the Fountain County property was not Kellam’s principal place of residence is contrary to law.

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Ind. Tax Ct. Decisions

Courts - "On average, 97 percent of defendants plead guilty in federal court."

Thanks to Sentencing Law Blog to the pointer today to this Dec. 6th article in The Atlantic authored by Andrew Guthrie Ferguson. It begins:

This week’s release of the Human Rights Watch Report, “An Offer You Can’t Refuse,” confirms that harsh sentencing laws have undermined the American jury system. On average, 97 percent of defendants plead guilty in federal court. For crimes that carry a minimum mandatory sentence, going to trial has simply become too risky. As Human Rights Watch reports: “Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty.”
The Report itself is titled "An Offer You Can’t Refuse" and is described:
The 126-page report details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences. Prosecutors offer defendants a much lower sentence in exchange for pleading guilty. Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Courts in general

Ind. Decisions - "The mere fact that an attorney practices before a judge, without more, does not establish a basis for a judge to recuse"

In Landmark CSA Corp. v. 322 N. Walnut and Bruce N. Munson, a one-page order remanding jurisdiction to the trial court, dated Dec. 6, 2013 and signed by Chief Justice Dickson, the CJ writes:

The Honorable Linda Ralu Wolf, Judge of the Delaware Circuit Court, pursuant to Ind.Trial Rule 79, certifies this matter here for the appointment of a special judge.

And this Court, being duly advised, now finds that jurisdiction of this matter should be remanded to the Delaware Circuit Court and Judge Wolf. Judge Wolf recused in this case because Defendant Munson is an attorney who regularly practices in her court. The mere fact that an attorney practices before a judge, without more, does not establish a basis for a judge to recuse.

IT IS, THEREFORE, ORDERED that jurisdiction of this matter is remanded to the Delaware Circuit Court and Judge Wolf, provided however that if there is any other proper basis for recusal established, Judge Wolf may resubmit this matter for consideration by the Court.

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In David Didion and Kristi Didion as Parents and Legal Guardians of Brayden Didion v. Auto-Owners Insurance Company, a 12-page opinion (with a separate concurring opinion), Judge Bradford writes:

In June of 2008, Braydon Didion was playing in the yard of a Gas City house (“the House”) being lived in by Michael Carl when he was allegedly bit in the face by Michael’s dog and injured (“the Loss”). Von Carl and Ginger Hawk, who lived in Kentucky at the time, owned the House and had home owner’s insurance pursuant to a policy with Appellee Auto-Owners Insurance Company (“the Policy”). Michael did not notify Auto-Owners, Von, or Ginger of the Loss. Braydon’s parents, Appellants David and Kristi Didion (“the Didions”), filed suit against Michael and eventually named Ginger as a defendant. Ultimately, default judgment was entered against Michael and Ginger, although the judgment as to Ginger was subsequently set aside. Most likely in July of 2009, Ginger became aware of the Loss and the lawsuit and soon notified her insurance agent of both. In February of 2012, Auto-Owners filed a complaint, seeking a declaratory judgment that it had no liability for the Loss. The trial court entered summary judgment in favor of Auto-Owners. The Didions claim on appeal that the trial court erred in concluding that (1) Michael was not an insured under the terms of the Policy and (2) Auto-Owners was not given timely notice of the Loss. Concluding that Michael was not an insured and that Auto-Owners was not given timely notice of the Loss pursuant to the terms of the Policy, we affirm. * * *

We must conclude that Ginger’s failure to notify Auto-Owners of the Loss until over year had passed did not satisfy her obligation to do so “as soon as possible.” We have little trouble concluding that the length of delay in this case was unreasonable. * * *

Ginger’s obligation to report the Loss to Auto-Owner’s was not altered by her ignorance of it. The trial court correctly concluded that Auto-Owner’s did not receive timely notice.

MAY, J., concurs.
BAILEY, J., concurs in result with opinion. [in an opinion that begins on p. 11 of 12] I agree with the majority that the trial court did not err when it entered summary judgment against the Didions on the question of the availability of insurance coverage for Michael under the homeowners’ insurance policy of his sister, Ginger, and I concur in the majority’s reasoning on that point. I write separately because I do not think there is any need to examine the question of the timeliness of notice.

NFP civil opinions today (2):

Sheryl A. Payne v. Thomas L. Payne (NFP)

Kennith Howard v. Erica Lofton (NFP)

NFP criminal opinions today (6):

Robert Jackson v. State of Indiana (NFP)

Raymond B. Baker v. State of Indiana (NFP)

Dabian Dorion Boyd v. State of Indiana (NFP)

Jessica L. Ryhe v. State of Indiana (NFP)

Aaron Edward Belcher v. State of Indiana (NFP)

Timothy D. Driscoll, Jr v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Judicial Technology Oversight Committee (JTOC) to meet Tuesday for the second time [Updated]

The JTOC, which is chaired by Justice Massa and includes, among other, four legislative members (see this post for details) is holding its second meeting this morning.

Oddly, unlike the Commission on Children, mentioned in this earlier post today, the JTOC has neither publicly announced its meetings nor made its agendas available.

See also this ILB post from Sept. 13th, and this one from June 30th.

[Updated at 4:18 PM] The ILB has now obtained a copy of the JTOC agenda for this morning's meeting, via the Kathryn Dolan, the Supreme Court Chief Public Information Officer

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Indiana Courts

Ind. Gov't. - Commission on Improving the Status of Children to meet Wednesday

From a courts news release:

The Commission will meet Wednesday, December 11 from 10:00 a.m. to 2:00 p.m. in Conference Room A at the Indiana Government Center South. The meeting is open to the public. Thanks to the Indiana Department of Education, the meeting will be webcast live on the Commission’s website. Archived meeting video will be online at a later date (as soon as possible).

The Commission also announced an executive committee. The five members of the executive committee include Justice Loretta Rush, Representative Rebecca Kubacki, Senator Travis Holdman, Dr. Ryan Streeter and Mary Beth Bonaventura.

The Commission will hold upcoming meetings February 19, 2014 from 10:00 a.m. to 2:00 p.m. in Conference Room A and April 16, 2014 from 10:00 a.m. to 2:00 p.m. in Conference Room C at the Indiana Government Center South.

In addition
The website for the Commission on Improving the Status of Children is now available. The website links to meeting videos, agenda details and information on topics discussed.
Terrific! This commission, chaired by Justice Rush, has really come through re transparency.

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Indiana Government

Environment - "Indiana challenges to pollution rules go to court"

Updating this ILB entry from Dec. 8, see also this story from the same day by Maureen Groppe of Gannett's Washington bureau. The long story begins:

WASHINGTON — Challenges by Indiana and other states to major air pollution rules will hit two key courtrooms Tuesday.

The Supreme Court will consider how the federal government can hold states, including Indiana, responsible for reducing pollutants from power plants that contribute to harmful levels of smog and soot in downwind states.

Indiana is among the states and power companies challenging the Environmental Protection Agency’s proposed solution.

Indiana is also one of the states contesting new national standards to reduce mercury and other toxic pollutants from coal and oil-burning power plants. That case comes before a U.S. Court of Appeals D.C. Circuit panel on Tuesday.

“It’s a very important day for clean air in America,” said Vickie Patton, general counsel of the Environmental Defense Fund, which is among the groups supporting the EPA’s positions.

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Environment

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

PRWEB posted a press release yesterday headed "Lee Christie Elected To Commission That Will Select The Next Indiana Supreme Court Chief Justice: Partner at Cline Farrell Christie & Lee to also help nominate future Indiana Supreme Court members and Court of Appeals judges. "

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Indiana Courts

Ind. Gov't. - More on: "Indiana State Police tracking cellphones — but won’t say how or why"

Updating this long post from Sunday, today Ryan Sabalow follows up his earlier Indianapolis Star report with another long story:

At least three state senators plan to introduce legislation that would ban police from gathering cell phone data without first acquiring a warrant.

Sen. Brent Steele, R-Bedford, who chairs the Senate Judiciary Committee, said Monday he would co-sponsor such legislation in the wake of an Indianapolis Star investigation that revealed the Indiana State Police had acquired a "Stingray" device for $373,995.

While State Police would not say how the intended to use the device, law enforcement officials elsewhere have said such equipment is a useful tool in fighting crime and terrorism.

But the suitcase-size device alarms civil liberties and open government groups because it can track the movements of anyone nearby with a cellphone. The equipment also captures the numbers of people's incoming and outgoing calls and text messages.

The fact that police won't discuss what they do with the data they collect, or whether they have privacy safeguards, also concerned some lawmakers.

"I'm not saying we should ban them totally," Steele said Monday. "But I think there's reasonable protections that our Constitution mandates and our society expects."

Other senators who expressed concerns Monday include Brent Waltz, Jim Smith and Mike Delph, all Republicans.

"The Indiana State Police, as other police agencies across the country, uses a variety of investigative tools to apprehend people who engage in criminal acts," said a spokesman, Capt. David Bursten. "To publicly reveal our methods only makes criminals smarter about law enforcement techniques."

Citing concerns that providing any information about the technology would jeopardize the agency's ability to fight terrorism and investigate crimes, police officials declined to comment for Sunday's story in The Star. The agency wouldn't answer questions about how the device is used, what's done with the data collected, or whether it obtains a search warrant before turning the device on. Other than a one-page purchase order, police also refused to provide The Star its contract with the company.

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Indiana Government

Ind. Courts - "Clark Circuit court judge suing council to fund two new positions in probation"

Matt Koesters reports today in the Jeffersonville News & Tribune:

In September, the Clark County Council denied a request from Circuit Court Presiding Judge Vicki Carmichael to fund the creation of two new positions in the county’s probation department. The council voted 6-0 Monday to contest a lawsuit filed by Carmichael against the council in Indiana Supreme Court requesting a mandate of funds to pay for the new positions.

“I believe that, unlike some other mandates, I believe we have a chance of contesting this one,” said County Council Attorney Scott Lewis.

Before it appoints a special judge to the case, the Indiana Supreme Court has ordered mandatory mediation between the involved parties, to be completed no later than Feb. 15, 2014.

Carmichael initially requested that the county council approve salaries for two probation officer positions totaling $41,337 and $29,912, respectively. One of those officers would work with adults, while the other would work with juvenile offenders, Carmichael told the council. The council tabled the request in August before unanimously denying it at a September meeting.

Carmichael was not present at Monday’s meeting, and did not respond to a message left on her voice mail requesting comment.

In the Order for Mandate of Funds filed with the Indiana Supreme Court on Nov. 8, Carmichael argues that she supplied the county council with ample evidence to demonstrate that the creation of the two positions is necessary. * * *

Lewis said he believes the council has a shot at defeating Carmichael’s mandate lawsuit because of statements made by Circuit Court No. 1 Judge Dan Moore at previous county council meetings regarding Clark County Community Corrections being underutilized by the courts.

“This particular judge has provided us with information that there isn’t a need for two additional probation officers because for whatever reason, certain courts have reduced the amount of referrals to community corrections when there’s capacity there to absorb that rather than going to probation,” Lewis said. “So the point is, when you have another fellow judge of the unified probation department saying this is not necessary, we believe those are grounds, then, to show that we have a current judge who is part of this probation department who has said there is capacity in community corrections where there’s not a need to add two new probation officers.”

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Indiana Courts

Ind. Courts - Fort Wayne doctor accused of firing for jury duty"

From the Fort Wayne Journal Gazette today, some quotes from this story by Julie Crothers:

A local pain physician faces misdemeanor charges after his former employee complained he was fired while serving on a jury.

Dr. William P. Hedrick, 52, was charged Monday with interference with jury service.

The employee, who was serving as an alternate juror during the David Bisard trial, contacted the Allen County Prosecutor’s Office after he said he had been fired from Inquest Health System. That company belongs to Hedrick.

The man told police he was in charge of purchasing at Inquest Health System, at the Lima Road location. In October, he responded to a jury summons and was picked as an alternate juror for a trial.

The man said he notified his direct supervisor that he would be away from work for up to several weeks.

While still on jury duty, he received an email from his personal assistant that said another person had been hired to do his job. The email, sent on Oct. 24, explained that the company had hired someone to handle purchasing while the employee was away.

The following day, the man received an email from the company’s director of human resources stating that Hedrick was “eliminating his employment due to volume.”

The man’s employment record stated his last day of work was Oct. 14 and his separation date was Oct. 25, according to court documents.

Posted by Marcia Oddi on Tuesday, December 10, 2013
Posted to Indiana Courts

Monday, December 09, 2013

Ind. Courts - More on: Judicial Technology Oversight Committee to meet Tuesday for the second time

Updating this post from earlier this afternoon, the US Courts has posted an announcement today headed "25 Years Later, PACER, Electronic Filing Continue to Change Courts." A few quotes:

PACER, now celebrating its 25th anniversary, and Case Management/Electronic Case Files (CM/ECF), an electronic case management system that began in the late 1990s, have together fundamentally changed how federal courts, and the lawyers, judges and staff who work in them, perform their jobs.

Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them. In clerks’ offices, work has changed from filing and stamping papers to performing quality control to make sure electronic entries are accurate and up to date. And everyone, from a self-represented litigant to an appellate judge, can track cases and case documents in nearly real time.

“Even skeptics have grown to love it,” said Stephen Funk, an Akron-based lawyer who said his colleagues quickly came to trust the system’s reliability and relative simplicity. In cases with multiple litigants, for example, it is far easier to notify all parties of new case documents by email, rather than through multiple paper mailings.

“Lawyers know that the judge is promptly receiving what is being filed,” said Funk, who practices extensively in the Northern District of Ohio. “Lawyers like the ability to get documents out to everyone simultaneously. The system works more fairly and equitably.”

Online access and case management also altered clerk’s offices, where paper had been king for decades. * * *

“Twenty-five years ago, the vast majority of cases were practically obscure. Today, every Third Branch court is using CM/ECF and PACER,” said Michel Ishakian, chief of staff for the AO’s Department of Program Services, who oversaw PACER from 2008 to 2013. “That means that all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes. This level of transparency and access to a legal system is unprecedented and unparalleled.”

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Indiana Courts

Ind. Courts - Judicial Technology Oversight Committee to meet Tuesday for the second time

Tomorrow is the second meeting of the Judicial Technology Oversight Committee - JTOC [not to be confused with the Judicial Technology and Automation Committee (JTAC), part of the Division of State Court Administration]. For background, see this Sept. 13th post on the first meeting.

For some reason, these meetings are not announced. No agenda is available, at least yet, for tomorrow's meeting.

The meeting will begin at 9:30 a.m. in Conference Room A of the Government Center South.

The ILB has learned that the focus of this meeting will be on the operation and interfacing capabilities of the various court case management systems being used in Indiana’s Circuit and Superior Courts.

As readers who have followed this topic are aware, there has been a constant tension over the years between the Judicial Technology and Automation Committee (JTAC), part of the Division of State Court Administration, and the private vendors who provide case management systems to many of Indiana's counties. This tension publicly evidences itself every two years when the automated record keeping fee used by the Court to fund JTAC project is considered by the General Assembly. See, eg, this Feb. 25, 2013 ILB post, as well as this one from May 2, 2011. (Here is a list of all ILB entries referencing JTAC.)

An announcement sent to JTOC members last month includes this information about tomorrow's meeting:

Attached, please find a list of 20 questions generated by Chairman Justice Massa. We have mailed these questions to the three case management systems (JTAC/Odyssey, CSI, and Court View) operating in our county courts. Organizations that wish to make a presentation to the Committee on December 10 will be required to return their written responses ahead of time so that each of you may review those responses and develop follow-up questions in addition to any other inquiries you have been thinking about.
As the ILB's Sept. 13th post reported, the committee's charge includes electronic filing and allowing public court records to be available on the Internet, topics of much importance in the 21st century. As the ILB has noted in its last two posts about the group, "when the Committee does meet, hopefully its meetings will be live-streamed around the state." At this point, however, no even its agendas are available.

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Indiana Courts

Courts - 9th Circuit leads the way in live video of oral arguments

Here is part of the 9th Circuit announcement:

SAN FRANCISCO – Internet users will soon have a seat in the courtroom when exceptionally important cases are argued before the United States Court of Appeals for the Ninth Circuit. The nation's busiest federal appellate court plans to provide live video streaming of its en banc proceedings, beginning with five cases (calendar and case summaries attached) scheduled for oral arguments December 9-11, 2013, in the James R. Browning U.S. Courthouse in San Francisco. Effective December 9, Internet users will find links to the video streams here or by visiting www.ca9.uscourts.gov and clicking on the link labeled “En Banc Video Streaming.” It is believed to be the first time a federal appellate court will use its technology to deliver live video of a proceeding over the Internet. Broadcast and cable news networks have previously provided live coverage of Ninth Circuit court proceedings, including Internet viewing. * * *

An en banc court is used to resolve intra-circuit conflicts of law and other legal questions considered to be of exceptional importance. On average, only about 20 cases receive en banc review each year. Rather than a three-judge appellate panel, an en banc court consists of the chief judge of the circuit and 10 judges drawn at random. En banc proceedings are held quarterly, usually in the Browning U.S. Courthouse in San Francisco and the Richard H. Chambers U.S. Court of Appeals Building in Pasadena, California. Since 2010, the court has video streamed en banc proceedings to all of its courthouses. Thus, an en banc court convened in Pasadena can be observed at the San Francisco courthouse, the William K. Nakamura U.S. Courthouse in Seattle and the Pioneer Courthouse in Portland, Oregon.

Here is a quite nice table of the 5 oral arguements to be heard this week. The videos also will be archived for later viewing. Thanks to How Appealing, here is a link to a long story by Bill Mears at CNN on videocasting federal appeals arguments.

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Courts in general

Ind. Gov't. - "Rash of homicides tests Fort Wayne's crime lab"

Rebecca S. Green had a good story in the Sunday Fort Wayne Journal Gazette looking at the nuts and bolts of the city's crime lab. A sample:

The evidence that the civilian analysts dust, heat up, steam, throw under a microscope, photograph and scan comes not only from the homicides. Crime scene management crews and officers collect it at the scenes of burglaries, robberies, vehicle break-ins and shootings.

The lab does not handle DNA evidence or firearms evaluations, such as identifying marks on shell casings. Those tasks belong to the Indiana State Police’s four forensic laboratories spread throughout the state.

It is safe to say, though, that all the other evidence collected at crime scenes, such as tire tracks, footprints, discarded firearms and fingerprints are keeping crime lab technicians plenty busy.

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Lagro Township and Karen Pinkerton Tatro v. George E. Bitzer and Zelma E. Bitzer, a 10-page opinion, Judge Mathias writes:

Lagro Township (“the Township”) filed an action in Wabash Circuit Court against George E. Bitzer and Zelma E. Bitzer (“the Bitzers”) seeking to exercise control over an area of land referred to as “the Belden Cemetery,” which is located on land owned by the Bitzers. The trial court granted summary judgment in favor of the Bitzers. The Township appeals and claims that the trial court erred in granting summary judgment in favor of the Bitzers. * * *

The statute authorizing a Township Trustee to exercise control over cemeteries
located within the township is inapplicable where the cemetery is located on land on which property taxes have been paid. And here, even though there was a genuine issue of material fact with regard to whether and to what extent the dedication of the Belden Cemetery to the public was accepted by the public through usage, there is no genuine issue of material fact with regard to the Bitzers’ payment of property taxes on the land on which the Belden Cemetery is located for decades. For this reason alone, the Township’s claims of authority over the Belden Cemetery must fail. Accordingly, the trial court properly granted summary judgment in favor of the Bitzers. Affirmed.

NFP civil opinions today (3):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of B.R., Minor Child and His Father, V.R. v. Marion County Department of Child Services and Child Advocates, Inc (NFP)

Lori A. Cissom v. Review Board of the Indiana Department of Workforce Development and Supreme Indiana Operations, Inc (NFP)

Pamela J. (McConnell) Neal v. David A. McConnell (NFP)

NFP criminal opinions today (6):

John Aaron Schoultz III v. State of Indiana (NFP)

Jacob Phipps v. State of Indiana (NFP)

Edward R. Hoffman v. State of Indiana (NFP)

Jon Alan Young v. State of Indiana (NFP)

Willie L. Montgomery v. State of Indiana (NFP)

Joshua Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Announcements: Notice of Open Bankruptcy Judge Position (Because of Judge Coachys' Retirement)

Here is the notice. The term of office is 14 years and the current salary is $160,080. Here is the application.

Here are the names of the current bankruptcy judges for the SD Indiana.

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending December 6, 2013 [Corrected]

[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, December 6, 2013. It is three pages (and 32 cases) long.

Three transfers were granted last week:

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - Criminal Law and Sentencing Policy Study Committee meets twice this month

Unlike the other interim legislative committees, which wrapped up their work early last month, the Criminal Law and Sentencing Policy Study Committee will be meeting tomorrow and Dec. 19. Tomorrow the agenda shows "Discussion of ARS report concerning costs of HEA 1006-2013."

According to a Sept. story by Maureen Hayden, quoted here in the ILB:

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

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

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

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Indiana Government

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

From Sunday, December 8, 2013:

From Saturday, December 7, 2013:

Posted by Marcia Oddi on Monday, December 09, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/9/13):

Next week's oral arguments before the Supreme Court (week of 12/16/13):

This week's oral arguments before the Court of Appeals (week of 12/9/13):

Next week's oral arguments before the Court of Appeals (week of 12/16/13):

Tuesday, December 17

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, December 09, 2013
Posted to Upcoming Oral Arguments

Sunday, December 08, 2013

Environment - This week, the SCOTUS will hear argument "on two joined cases, testing the federal government’s authority to require states to take action to prevent their air pollution from fouling the air in neighboring states"

Lyle Denniston of SCOTUSblog has a very lengthy argument preview on the two cases re EME Homer City Generation that have been joined and will be argued Tuesday. A sample:

Like many major regulatory disputes that reach the Supreme Court, this fight over the “good neighbor” policy on downward flow of upwind air pollution has layer upon layer of legal, scientific, economic, and mathematical complexity. The Court’s chore, though, is basically focused on just what Congress meant in 1990 when it toughened the “good neighbor” policy.

That is a task of interpreting the language of the statute, and determining whose interpretation of that should be treated as controlling. The crucial phrase that needs to be interpreted is the mandate that states may not “significantly contribute” to their neighbors’ inability to meet air quality standards. Since Congress did not define those words, the Court must initially decide whether it is the EPA’s power, in the first instance, to do so, or whether a reviewing court has a largely open-ended option of deciding what it means. And that is something that the Court probably has to do before it might move on to the merits.

If the Court were to view that mandate as the EPA does, it would see the 1990 revision as a considerable enhancement of the EPA’s authority to decide (1) whether a state plan to control downwind pollution is adequate, and, (2), if a state plan is flawed, the scope of the EPA’s duty — to require the states to revise their plans, or to devise one on its own.

If, however, the Court were to view it as the challengers to the EPA do, the phrase must not be read to disrupt the basic approach of the Clean Air Act — that is, sequential roles for the EPA, to devise air quality standards, and then for the states, having been given notice if they fall short, to draft the necessary revisions. The Act, the challengers have insisted, surely did not allow the EPA to find fault with upwind states, and then fail to let them respond before asserting a right to resolve the matter on its own, fudging each state’s responsibility.

Posted by Marcia Oddi on Sunday, December 08, 2013
Posted to Environment

Ind. Gov't. - "Indiana State Police tracking cellphones — but won’t say how or why"

On Oct. 22nd, the ILB had a post on an Oct. 17th opinion by the Public Access Counselor which turned on the application of a 2013 law. The Indianapolis Star's Ryan J. Sabalow had asked for:

Purchase orders or invoices for any International Mobile Subscriber Identity locator device (sometimes called an “IMSI catcher” for short). While some IMSI devices are sold under the product name StingRay or TriggerFish, this request applies to any such device the department has purchased with department funds or grant money.
The State Police had responded that the records sought either did not exist or were not subject to disclosure, relying on the exception in the 2013 law.

Today on the front-page of the Indianapolis Star we see the story reporter Sabalow was working on, headed "Indiana State Police tracking cellphones — but won’t say how or why." It begins:

This year, the Indiana State Police paid $373,995 for a device that law enforcement personnel have described as a powerful tool in the fight against crime and terrorism.

It could allow investigators in a surveillance vehicle to park in a crowded area and track the movements of anyone nearby with a cellphone and capture the numbers of people’s incoming and outgoing calls and text messages.

All of which concerns civil liberties and open-government groups.

They worry that the technology could be used to violate innocent Hoosiers’ constitutionally protected rights to privacy if proper checks and balances aren’t in place.

But officials at Indiana’s largest police agency aren’t saying what they do with the technology; they’re mum on whose data they’ve collected so far; and they’re not talking about what steps they take to safeguard the data.

Citing concerns that releasing any information would endanger public safety by hindering the agency’s ability to fight crime and combat terrorism, they won’t even say whether they ask a judge for a search warrant before they turn the equipment on. * * *

While most Americans have paid little thought to the fact that their smartphone is a mobile tracking device that broadcasts their location and data about who they’re calling and texting, local police agencies have taken sharp notice.

At least 25 police agencies around the country, including the Indiana State Police, have contracts with Harris Corp., of Melbourne, Fla., for devices called Stingrays, according to public records requests filed this fall with 115 police agencies by the Indianapolis Star, USA Today and other media outlets owned by Gannett.

Often installed in a surveillance vehicle, the suitcase-size Stingrays trick all cellphones in a set distance — sometimes exceeding a mile, depending on the terrain and antennas — into connecting to it as if it were a real cellphone tower. That allows police agencies to capture location data and numbers dialed for calls and text messages from thousands of people at a time.

Local and state police often buy the devices with federal grants aimed at protecting cities from terror attacks, and the devices, originally developed for military and spy agencies, are closely guarded secrets. * * *

The Indiana State Police paid Harris $373,995 this spring for a Stingray, but police officials were reluctant to share even that information.

State Police officials initially refused to provide any records related to the agency’s contract with Harris or grants they obtained.

After The Star appealed the denial to the Indiana Public Access Counselor, the state’s arbiter of public records disputes, the agency provided a one-page purchase order, which provided no clues to how the device works or how and when it may be used.

To receive more information, Public Access Counselor Luke Britt said, The Star would have to sue the State Police to see if a judge agreed with police that releasing the complete contract would constitute a public safety threat and harm the agency’s ability to investigate terrorists. * * *

USA Today and The Star also sought records about what are known as “tower dumps,” in which police seek court orders requiring cellphone companies to provide investigators with massive amounts of phone data.

State Police officials said they had no such records when The Star asked for any records that might shed light on how many times detectives used such methods.

But officials said they wouldn’t have shared the documents if they did keep them, citing a provision in Indiana’s records law that gives police agencies discretion to withhold all investigatory files. * * *

What most troubles civil liberties groups about Stingrays and tower dumps is that elsewhere in the country, cellphone data often can be obtained with a simple court order — and not a search warrant.

But it’s unclear whether the same standard applies in Indiana because local officials wouldn’t discuss the matter.

Court orders generally only require detectives to show that the data collected would aid in an investigation, a standard that’s much easier to meet than what’s required for a search warrant, in which detectives and prosecutors must demonstrate to a judge probable cause, a legal term meaning there is belief a crime occurred.

Kenneth Falk, legal director of the ACLU of Indiana, said the mass collection of cellphone information raises serious and troubling Fourth Amendment questions. The amendment protects citizens’ rights to privacy and to be free from government officials searching their homes and other property without probable cause.

He said police should at least be required to have a judge sign a search warrant before getting access to the phone data from potentially hundreds or even thousands of innocent Hoosiers.

Lanosga of the Coalition for Open Government said Indiana police agencies have an obligation to publicly address privacy concerns and explain what checks and balances are in place to protect the data collected.

Both Lanosga and Falk said they didn’t want to deny law enforcement the ability of using whatever technology is needed to fight crime and head off terror. But not without limits.

“What sort of reassurances can the agency make to those people their data is being destroyed, not maintained indefinitely, not abused for any purpose?” Lanosga said. “I think there are a lot of serious questions about that that demand the agency publicly address what it’s doing with these types of techniques and equipment.”

But that’s not happening.

“Maybe,” Lanosga said, “the legislature can intervene and get some answers.”

The Star's mothership, USA TODAY has a special multi-media report today on "NSA Phone Tracking - How Police Scoop Up Cellphone Data." From the "How we did it" section:
This story is a collaborative effort of USA TODAY and Gannett newspapers and TV stations across the country.

More than 50 investigative journalists requested public records from local and state police agencies in their communities, seeking records that might shed light on capabilities of civilian police to gather data from people's cellphones.

Records obtained from police agencies, as well as additional records from online databases of contracts and government proceedings, were gathered to paint a broad picture of the state of cellphone surveillance by police. Many agencies denied records requests.

Gannett newspapers and TV stations are reporting additional details about local agencies.

Eleven local papers' stories are linked, including the Star story.

See this interactive graphic titled "How Stingray Works."

Posted by Marcia Oddi on Sunday, December 08, 2013
Posted to Indiana Government

Ind. Courts - "ISU students develop program to aid courts in appointing public defenders"

That is the heading to this Nov. 26th news release from Indiana State University. Some quotes:

In Indiana, there is no standard system for determining whether people facing criminal charges are eligible for a public defender in the court of law.

Indiana State University students majoring in criminology and political science have spent the past several months working to help solve that problem.

With a grant from the Indiana Criminal Justice Association, the students have created a pilot screening system to help guide Vigo County judges in appointing public defenders. They began the project in May and will have all of their analysis finished by Dec. 31.

"Prior to this study, each court used a different method for evaluating a defendant for a public defender," Jordan Isaacs, a criminology graduate student from Terre Haute, said. "The system we created works to establish a uniform and efficient structure that asks the same questions for every Vigo County defendant."

Through an interview process, the students asked defendants a standardized set of questions about income, family status, employment and whether they receive public assistance. Based on that information, they made a recommendation to the judge about whether that individual should receive a public defender.

"We got it started from the bottom-up because how do you declare indigence on someone?" Isaacs said. "That's one of the first questions that I didn't know... but I've definitely learned a lot along the way."

Students modeled their screening system after one used in King County, Wash. They then tailored the system to the specific needs of Indiana and Vigo County based on statewide public assistance programs. * * *

The students also sent surveys to the other 91 counties in Indiana to ask about their current methods for determining eligibility for public defenders. Combining the data from the surveys and questions that have to be legally asked, the students want to create a standardized screening instrument that can be used state-wide by all county court systems.

Gretchen Etling, chief public defender for Vigo County, initiated the grant and subcontracted the project and evaluation to Indiana State's department of criminology and criminal justice.

"This is something that Indiana Public Defenders Association wants to install in every Indiana county... [a] uniform system where they can measure indigency," Isaacs said.

Although the students made recommendations to the judge about an individual's eligibility based on their interview, it was ultimately the judge's decision whether a public defender was provided.

Posted by Marcia Oddi on Sunday, December 08, 2013
Posted to Indiana Courts

Ind. Gov't. - "Editorial: Unhealthy approach to coverage"

Supplementing this ILB post from Dec. 3rd (quoting from the NWI Times and linking to the LCJ), today this Fort Wayne Journal Gazette has a lengthy editorial that begins:

Even as Indiana opponents of Obamacare shed crocodile tears for the few who may be forced to upgrade substandard medical insurance plans, they push ahead with a plan guaranteeing that thousands of Hoosiers will be left with no medical coverage at all.

The estimated 182,000 Hoosiers who will be shut out because the state declined the option of expanding Medicaid are, in sense, just collateral damage in an ideological battle.

The Pence administration, you see, wants to preserve the Healthy Indiana Plan, which requires that patients buy into their own coverage and, the theory goes, encourages them to use their health care prudently.

But HIP, which seemed a good idea when it began in 2008, has never lived up to expectations and today is decidedly unhealthy.

The plan was to help as many as 130,000 non-Medicaid-covered poor Hoosiers get access to health care. The program, though, “never broke 50,000” and now is at about 31,000, according to Erik Gonzalez, a financial analyst for the Indiana House’s Democrats.

About 11,000 of those enrollees will be knocked off the plan next month by the terms of the one-year extension Indiana received from the federal government for the program. Christy Denault, press secretary for Gov. Mike Pence, said the net effect of restructuring will be to insure 20,000 Hoosiers who are not now insured by Jan. 1.

But that could leave thousands upon thousands of Hoosiers who could have been insured, not insured.

This is not just a battle of hidebound ideology vs. compassion.

It is a matter of dollars and cents and economic growth.

Posted by Marcia Oddi on Sunday, December 08, 2013
Posted to Indiana Government

Ind. Courts - "Taxpayers pick up $13,519 tab in McCowan murder appeal"

Bob Kasarda reports today in the NWI Times in a story that begins:

VALPARAISO | A private attorney was hired to file an appeal on behalf of convicted murderer Dustin McCowan, but not before taxpayers picked up the $13,519 bill for the lengthy court transcripts used in the challenge.

The 3,186 pages of transcripts were completed Aug. 19 at the request of his public defender. But private defense attorney Thomas Vanes entered the case 11 days later, according to the online docket of the Indiana Court of Appeals.

McCowan had been represented by a public defender after it was determined at the time of his sentencing in March that he did not have the resources to hire a private attorney. The county-funded legal services included copies of the transcripts, which are the most expensive the court has seen.

There does not appear to be any wrongdoing in the decision to hire a private attorney after receiving the publicly funded transcripts since 21-year-old McCowan has retained his pauper status while just starting out on his 60-year prison sentence.

More from the story:
McCowan, who has maintained his innocence, is seeking a new trial or sentencing before a new judge in part, by challenging the technique used by investigators to place his cellphone at or near key locations at the time of the crime, according to the appellate brief filed by Vanes.

The technique did not involve GPS technology, but rather a new system Verizon had in place at the time, Vanes said.

"Verizon itself could not and would not vouch for its reliability," he argued.

The appeal also claims it was improper to introduce the cellphone records because it violated a state constitutional prohibition against unreasonable search and seizure. Police obtained the phone records with an emergency request and yet should have had a warrant, according to the appeal.

ILB readers may recall this post from Nov. 10th of this year, where a criminal defense attorney successfully appealed to the COA "to find her client indigent, so that he can obtain a copy of the trial transcript free of charge."

Posted by Marcia Oddi on Sunday, December 08, 2013
Posted to Indiana Courts

Ind. Law - "‘Lawsuit loans’ face more scrutiny"

Niki Kelly reports today in the Fort Wayne Journal Gazette:

Indiana lawmakers are eyeing a growing industry that advances money to plaintiffs waiting for a lawsuit settlement, sometimes at a high cost.

Indiana currently has no regulations for so-called lawsuit lending. Rep. Matt Lehman, R-Berne, pushed a bill last year to impose some restrictions, but it failed under lobbying pressure by the industry.

He is trying a new tack in 2014, bolstered by the Indiana Chamber of Commerce tapping it as a top legislative priority.

“There is probably a necessity for this industry. People need to pay bills. At the same time, there is desperation here and consumers are making bad choices,” he said. “A 100 percent return is ridiculous. We don’t want to stop free-market enterprise, but when you begin to take advantage, we need to step in.”

He said he considers the practice predatory lending, though some don’t agree with him.

As chair of the House Insurance Committee, the issue came to Lehman’s attention because the cases usually involve insurance settlements. For instance, someone is injured in a car accident and sues. But in the meantime, that person needs need cash to pay rent because he or she can’t work.

So the person goes to a third-party company that reviews the case and agrees to advance money that will be repaid – with additional fees – when a settlement is reached.

Most of these companies are nationwide, and the industry has been around for 10 or 15 years.

Lehman said no states have banned the practice. And he is focused on regulations, starting with having companies register with the state.

There is much more to read in this lengthy story.

Posted by Marcia Oddi on Sunday, December 08, 2013
Posted to Indiana Law

Ind. Decisions - "Law Firms Must Return Fees Collected From Judgment That Was Later Reversed"

The Indiana Court of Appeals' Nov. 7th opinion in the case of Minott v. Lee Alan Bryant Health Care Facilities, Inc. was the subject of a Bloomberg/BNA story Nov. 19th by Samson Habte. A quote from the long story:

The key issue on appeal, [Chief Judge] Robb said, “is whether the Law Firms were judgment creditors or merely entities which received payment from a judgment creditor (the Providers) for services rendered.”

Under the circumstances here, the court concluded, the law firms “were judgment creditors or their lawful equivalent and are therefore liable for restitution.”

The court pointed to a Black's Law Dictionary entry defining a “judgment creditor” as a “person in whose favor a money judgment is entered or a person who becomes entitled to enforce it.”

“Liens filed against the Providers' judgment entitled the Law Firms to the judgment proceeds,” Robb explained. Noting that “an attorney's lien take[s] priority over the rights of other creditors, including the judgment creditor,” she added: “If the [law firms'] rights to the judgment were greater even than the Providers' rights, we see no logical reason to treat them differently for the purposes of restitution.”

Posted by Marcia Oddi on Sunday, December 08, 2013
Posted to Ind. App.Ct. Decisions

Saturday, December 07, 2013

Ind. Courts - "A 31-year-old Rolling Prairie woman used a fake $100 bill while paying bail for a Porter County Jail"

From the story by Erin Guerra in the Gary Post-Tribune:

The counterfeit was discovered Wednesday and the woman was asked to bring in another $100 to replace it.

“There’s some obvious irony there,” said Porter County Sheriff David Lain, calling counterfeit bills “a pervasive threat in all forms of commerce.” * * *

Lain said he believes the woman who passed the bill at the jail is an entirely innocent victim.

The day after the sheriff’s department called her about the fake bill, she returned to the jail to replace it. When she did, she reported that one of the $100s she used for the bail had come from a Toys R Us store in South Bend, and four of the $100 bills had come directly from a bank. The rest of the $1,000 bail was in smaller bills.

Posted by Marcia Oddi on Saturday, December 07, 2013
Posted to Indiana Courts

Ind. Gov't. - "Licensing board calls on abortion doc"

Niki Kelly reports in the Fort Wayne Journal Gazette in a story that begins:

INDIANAPOLIS – The doctor who performs abortions in Fort Wayne and two other cities has been asked to appear before the Indiana Medical Licensing Board.

Dr. Ulrich “George” Klopfer is still “valid to practice while reviewed,” according to state records.

Sue Swayze, communications director for the Indiana Professional Licensing Agency, said the medical licensing board requested a personal appearance by Klopfer after seeing information in the media about not properly filing reports.

Klopfer filed for license renewal under the usual process in October.

“The board has reached out to him and said, ‘You are valid, but before you renew we want you to come talk to us,’ ” Swayze said. “It’s not very often that the board does this.”

Swayze used to be the legislative director for Indiana Right to Life, and recently moved to state employment. She said she was not involved in bringing Klopfer’s case to the board’s attention.

Posted by Marcia Oddi on Saturday, December 07, 2013
Posted to Indiana Government

Courts - "Federal judge criticized by Supreme Court Justice Alito fires back"

Interesting story via Reuters, re diversity among counsel in class action certification.

Posted by Marcia Oddi on Saturday, December 07, 2013
Posted to Courts in general

Ind. Courts - "Judge allows vehicle’s computer data as evidence in hit-and-run fatality case"

Ruth Ann Krause reports in this morning's Gary Post-Tribune:

Attorneys representing a Lakes of the Four Seasons man on trial in a fatal hit-and-run crash asked the judge to suppress information police investigators retrieved that showed the speed the man was traveling at impact.

Defense attorney Paul Stracci argued that defendant Jason Cozmanoff and his father (who owned the vehicle in question) had granted only limited consent to police to search his vehicle. That consent, Stracci said, did not include allowing police to retrieve computer data stored in the 2002 GMC Yukon, which police retrieved from the elder Cozmanoff’s garage.

“He was not consenting to anything beyond that,” Stracci said.

Lake Superior Court Judge Salvador Vasquez denied the request to suppress, saying the consent was “broad enough to give law enforcement access to every part of that vehicle.” * * *

Lake County police Lt. Steven Trajkovich said he retrieved data three days after the crash from the airbag control module, which stores information on the throttle position, vehicle speed and whether seat belts were in use both before and after air bags are deployed.

Five seconds before impact, the Yukon was at 100 percent throttle, going 78 mph; a second before impact, the speed was 65 mph.

Posted by Marcia Oddi on Saturday, December 07, 2013
Posted to Indiana Courts

Friday, December 06, 2013

Ind. Gov't. - More on "Four Hoosiers filed suit Wednesday over an alleged Open Door violation by the Indiana State Board of Education"

Following up on the story yesterday by its reporter, Niki Kelly, the Fort Wayne Journal Gazette today has a long editorial, headed "Suing for clarity on education." Some quotes:

Lawsuits targeting publicly financed agencies are never welcome, but Hoosiers need the legal analysis demanded by four public education advocates. In challenging actions taken by the State Board of Education, their suit will clarify the authority of public boards and commissions to operate outside public view.

The Indiana Public Access Counselor could have settled the question in his ruling on the open meetings law complaint filed by Julie Hollingsworth, a member of the Fort Wayne Community Schools board, and three other public school advocates. But Luke Britt, appointed by Gov. Mike Pence, took a pass on issuing a clear message on the law. He opted instead to recommend that the General Assembly clarify the law.

The governor and his education administration surely would prefer that the law’s fate rest with the GOP-controlled legislature, but Hoosiers deserve a ruling free of partisanship.

Superintendent of Public Instruction Glenda Ritz, a Democrat, earlier filed a lawsuit alleging the State Board of Education’s actions in “meeting” by email were illegal. Her lawsuit was dismissed not because it lacked merit but because the judge ruled she did not have authority to file suit without Republican Attorney General Greg Zoeller’s representation, or his permission to retain other attorneys. The same restrictions don’t apply to Hollingsworth and the three other plaintiffs, Bloomington parent Cathy Fuentes-Rohwer and former school superintendents Ed Eiler and Tony Lux.

While Zoeller has championed other public-access issues and occasionally avoided partisan battles, his unwillingness to resolve the questions involved contributes to the confusion and uncertainty regarding school policy.

Zoeller’s and Britt’s refusal to step up for open government leaves a gaping hole that can be closed only with a judicial ruling.

Posted by Marcia Oddi on Friday, December 06, 2013
Posted to Indiana Government

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

For publication opinions today (2):

In Everett Sweet v. State of Indiana, an 8-page opinion, Judge Najam writes:

In August of 2009, Everett Sweet pleaded guilty to dealing in methamphetamine, as a Class B felony, after he had been fully advised of his rights and he had agreed with the State’s factual basis underlying the allegation against him. In April of 2010, Sweet filed a petition for post-conviction relief in which he sought to have his conviction overturned on the theory that he had received ineffective assistance of counsel in a pretrial evidentiary hearing on a motion to suppress the State’s evidence. Had he not received ineffective counsel on his motion to suppress, Sweet contends, the State’s evidence against him would have been suppressed and he would not have pleaded guilty. This is not a permissible basis to collaterally attack a guilty plea in Indiana. We therefore affirm the post-conviction court’s denial of Sweet’s pro se petition for post-conviction relief.
In Michelle Orr Carpenter v. State of Indiana, a 7-page opinion, Judge Najam writes:
Michelle Orr Carpenter appeals the trial court’s revocation of her probation. Carpenter raises a single issue for our review, namely, whether the State presented sufficient evidence to demonstrate that she committed the alleged probation violation during the term of her probation. We reverse. * * *

The State failed to present any evidence to demonstrate that Carpenter violated the terms of her probation by using phenobarbital during her probationary period. Even when viewed most favorably to the State, the evidence here was in equipoise, and it was no more likely that Carpenter ingested phenobarbital during her probationary period than it was that she ingested it before her probationary period. Accordingly, we must reverse the trial court’s decision to revoke Carpenter’s probation.

NFP civil opinions today (0):

Tracy L. Oedzes v. Bryan S. Oedzes (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, December 06, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County attorney ID cards

In case you were overlooked, the ILB, along with most Marion County attorneys, has now received this notice:

12/6/2013

RE: Marion Superior Court - New Attorney ID Card Process

Good Day,

As you may be aware the renewal period for the Marion Superior Court issued Attorney ID Card for access to the City-County Building will begin on January 1st, 2014. The Marion Superior Court is eager to inform you of the new online application to apply for and/or renew your Attorney ID Card.

Information on the Attorney ID Card policy is available at http://www.indy.gov/AttorneyId

Beginning December 20th, 2013 you will be able to visit https://www.biz.indygov.org/attorneycards/ and apply for the new card online. The cost of the card is $35.00 and can be paid by credit card or electronic check.

Re the applicable policies:
The approval and issuance of an Attorney Identification Card (“I.D. Card”), is a privilege extended by order of the Circuit and Superior Courts (Court).

All attorneys granted this privilege accept the privilege subject to any and all terms and conditions set forth by the Court. These conditions include an Agreement by the attorney that he or she will not bring firearms, knives, or any other weapons or contraband into the City-County Building; that the I.D. Card is issued for the exclusive personal use of the authorized attorney, and is not to be loaned out to other persons; and that the I.D. Card will be used in accordance with the Rules of Professional Responsibility and the attorney’s responsibilities as an officer of the court.

The issuance of an I.D. Card may be revoked at any time at the sole discretion of the Court Administrator pursuant to the directives of the Court. The cost of an Attorney ID Card is $35.00.

Posted by Marcia Oddi on Friday, December 06, 2013
Posted to Indiana Courts

Thursday, December 05, 2013

Ind. Gov't. - Some additions to the Indiana Constitution: Documentary History, and a Request [Updated]

Some additions to the new ILB feature, "INDIANA CONSTITUTIONAL REVISION IN THE 1960s and 70s, A DOCUMENTARY HISTORY."

First, I've created a new blog category, "Indiana Const. Revision," so that one may easily locate a list of all the posts on the topic.

Second, I've added a quick link to the Indiana Constitutional Documentary History in the right-hand column, near the bottom, below "Indiana Constitution 2010."

Next, thanks to Laura Bartlett, longtime House Journal Clerk, who staffed the Constitutional Revision Commission from 1969-1972, I've been able to add Gov. Whitcomb's veto message, mentioned under "Interim Committee Report of the Constitutional Revision Commission, 1970." I've included details of how she found it for future researchers:

Marcia, I found the veto message, quite by accident, I admit. I was looking at 1971 roll calls and noticed that most did not tell what type of action (3rd reading, amendment) the roll call was on. I paged back a bit and there were votes on the 1969 vetoes (with the action typed on manually). The veto message (page 116 of the Journal) just says that the legislature did not provide funding so the Governor vetoed the 1969 act. The veto was sustained by a vote of 1-94, presumably because the Council had already re-created the Commission under its own powers rather than a separate statute. FYI, those old journals have a miscellaneous index (at the very back of the volume) which cover unusual things like vetoes from a prior session. I've scanned page 116, the roll call, and the page of the miscellaneous index containing veto messages.
The Supreme Court librarians have made copies of some of the State Library index cards for “veto” and “Constitution” which are a resource for locating old newspaper articles and might be useful for a future project. Did you know, for example, that Gov. Whitcomb vetoed 58 bills in 1969, "topping known records"?

They also copied from the microfilm one article, “1st meeting in nearly two years was held of the Constitutional Revision Commission” written by Hortense Meyers for the Indianapolis News, 3/14/72, p. 15. It can't be OCRed, but it is readable, and is fascinating. At some point I will transcribe it.

Finally, the request. The first item listed under the 1966 Report of the Judicial Study Commission is:

The 1965 General Assembly voted for the statute creating the Commission by an overwhelming majority. After a six-month delay caused by litigation, the Commission began work on December 9, 1965.
Can anyone help with finding out more about this litigation?

[Updated] The ILB now has details on "the Kriner case," and hopes to write them up this weekend.

Posted by Marcia Oddi on Thursday, December 05, 2013
Posted to Indiana Const. Revision | Indiana Government

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

For publication opinions today (3):

In William Klepper, on behalf of himself and all others similarly situated v. Ace American Insurance Company, a 26-page, 2-1 opinion, Judge Bailey writes:

William Klepper, on behalf of himself and all others similarly situated (“the Class”), appeals the trial court’s order adopting the special master’s reports and entering partial final judgment in favor of ACE American Insurance, Inc., (“ACE”). ACE cross-appeals, challenging the special master’s resolution of some of the issues and the entry of partial final judgment. This case also involves Pernod Ricard USA, LLC, d/b/a Seagram Lawrenceburg Distillery (“Pernod”), who was insured by ACE and XL Insurance America (“XL”). We affirm.

The Class and ACE raise several issues. We address the following dispositive issues:
I. whether the special master properly concluded that ACE was not bound by a settlement agreement between the Class, Pernod, and XL because Pernod breached its obligations under the ACE policy; and
II. whether ACE is entitled to final judgment on all outstanding claims. * * *

Conclusion. Because the “voluntary payment” and “legally obligated to pay” provisions preclude coverage, the trial court properly entered partial judgment in favor of ACE on this issue. Regarding the entry of final judgment on all claims, because of the distinct legal theories at play, the entry of final judgment in favor of ACE on the Class’s bad faith claim would be premature at the this stage of the proceedings. We affirm.

PYLE, J., concurs.
CRONE, J., concurs in part and dissents in part. [in an opinion which begins, at p. 25] I agree with the majority’s determination that ACE did not abandon Pernod or breach the Policy. I also agree that entry of final judgment on the Class’s bad-faith claim would be premature. I respectfully disagree, however, with the majority’s determination that ACE may avoid the settlement agreement based on the Policy’s “voluntary payment” and “legally obligated to pay” provisions. An insurer who defends an insured under a reservation of rights should not be able to use those policy provisions as both a shield and a sword.

In Old National Bancorp d/b/a Old National Trust Company, as Trustee of the Percy E. Goodrich Trust and the Hanover College Trust v. Hanover College, a 7-page opinion, Sr. Judge Darden writes:
Old National Trust Company (“Old National”) served as the trustee for both the Percy E. Goodrich Trust and the Hanover College Trust. In 2012, Hanover College petitioned the trial court to terminate both trusts. Following a hearing, the trial court entered judgments terminating both trusts and ordering the transfer of the trusts’ assets to Hanover College.

Old National, as Trustee, brought separate appeals from the trial court’s orders terminating both trusts. The two appeals were consolidated into one, and Hanover College filed a motion to dismiss the appeal alleging that Old National lacked standing. As this issue is dispositive, we need not and cannot consider the appeal on its merits, and, therefore, we dismiss. * * *

For the reasons stated, we are without jurisdiction to consider this appeal on the merits, and we dismiss.

In Katherine Ryan v. Larry Janovsky, an 11-page opinion, Chief Judge Robb writes:
The marriage of Katherine Ryan and Larry Janovsky was dissolved in 1991 pursuant to a settlement agreement that included a provision dividing Janovsky’s pension. Over twenty years later, Ryan presented a proposed Qualified Domestic Relations Order (“QDRO”) for Janovsky’s signature. Janovsky refused to sign, and Ryan filed a Verified Petition for Contempt and Rule to Show Cause, alleging Janovsky was in contempt of the parties’ settlement agreement for failing to sign the QDRO. Ryan appeals the trial court’s denial of her petition, raising one issue for our review: whether the trial court abused its discretion in finding her efforts to secure a QDRO were barred by the statute of limitations and the equitable doctrines of laches and waiver. Concluding the entry of a QDRO is not time-barred, we reverse and remand.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Keimonte Jackson v. State of Indiana (NFP)

Darryl L. Abron v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 05, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Is a computer a "public record"?

See this interesting Nov. 27th opinion from the state Public Access Counselor, Luke Britt, wherein he responds to the questions:

  1. Is a computer and/or its hard drive and/or data storage medium, containing data, which consists of public records stored on that computer, etc., stored thereon as a result of City officials acting in the course of their office duties, in its physical self a public record;

  2. Is a web page, created by a City or its agent, posted and accessible to the public online, itself a public record;

  3. Did the City of Jasper, IN, violate the Access to Public Records Act when it destroyed the computer used by its ex-mayor Schmitt;

  4. Did the City of Jasper, IN, violate the Access to Public Records Act when it destroyed, apparently, numerous [amounts of content] of its formerly extant web pages?

Posted by Marcia Oddi on Thursday, December 05, 2013
Posted to Indiana Government

Ind. Gov't. - "Four Hoosiers filed suit Wednesday over an alleged Open Door violation by the Indiana State Board of Education"

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

The group narrowly lost a ruling on the issue by the Indiana public access counselor, and now is taking the case to a judge. * * *

Superintendent of Public Instruction Glenda Ritz initially filed the same case but it was dismissed on a legal technicality and a court did not rule on the suit’s merits.

The lawsuit centers on a letter the State Board of Education sent in October asking legislative leaders to intervene in a dispute over issuing A-F school accountability grades.

The letter was not discussed in an open meeting of the board. It was drafted by staff of the administratively created Center for Education and Career Innovation and emailed around.

All members of the board – except Ritz – signed on. She was not included in the email chain as chair of the panel.

The lawsuit alleges that the letter constituted “official action” by the board and was done outside of an open meeting with notice to the public.

“The aforementioned actions, as well as other actions that may subsequently come to light through discovery, violated both the letter and the spirit of the (Open Door Law),” the suit said.

ILB: A copy of the complaint may be added shortly.

Here it is, the 15-page complaint (including exhibits), filed in Marion Superior Court. Judge Ayers will be presiding.

Posted by Marcia Oddi on Thursday, December 05, 2013
Posted to Indiana Government

Wednesday, December 04, 2013

Ind. Gov't. - "State appeals order that strips Indiana of $63 million in tobacco payments"

Both Lesley Weidenbener of The Statehouse File and Barb Berggoetz of the Indianapolis Star have stories late today reporting that, to quote from the Star story:

Indiana is appealing a federal ruling that reduces by $62.8 million the amount tobacco companies were due to pay the state in 2014 to compensate for smoking-related illnesses.

Attorney General Greg Zoeller asked a Marion County court on Wednesday to vacate a ruling by an arbitration panel relating to the financial fallout from the 1998 nationwide tobacco settlement. * * *

Zoeller ... contends in a motion filed in Marion County Superior Court, which has jurisdiction over the settlement in Indiana, that the panel exceeded its authority under law and the process it used to determine payments was unfair to Indiana.

He said the panel used a new legal definition of what is considered “diligent enforcement” that it created after the fact and imposed retroactively. He contends 20 other states that settled, rather than continue the arbitration process, were not held to the newly created enforcement standard that Indiana and five other states were held to by the panel. * * *

When the ruling was issued, state Reps. Gregory Porter, D-Indianapolis, and Charlie Brown, D-Gary, voiced concerns about what they called the state’s lack of adequate action to secure the funds.

Brown said Indiana didn’t try hard enough to make tobacco companies that didn’t sign the agreement to make payments into an escrow fund if they do business here.

A hearing date has not been scheduled yet on the state’s motion to vacate the ruling.

The ILB wrote quite a bit about this issue in October. This Oct. 17th post gives the background. The follow-up post, from Oct. 21st, links to the arbitrators' award document, and focuses on both the determination of diligent enforcement, and the roles played by former-Attorney General Carter.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Indiana Government

Ind. Decisions - More on "Paul Gingerich gains chance for freedom after boyhood in prison"

An editorial today in the Fort Wayne Journal Gazette, titled "Justice – delayed: 12-year-old’s adult sentencing leads to new law," concludes:

Late last year, the Indiana Court of Appeals ruled that there had been, in effect, a rush to judgment. It threw out Gingerich’s guilty plea and the legal process started all over again.

Meanwhile, the Indiana Legislature passed a law aimed directly at the problem presented by Gingerich’s case. The measure allows adult courts to pronounce a “blended sentence” on a youthful offender like Gingerich whose crimes may be beyond the scope of juvenile court.

Monday, Gingerich agreed to have his case waived to adult court and again pleaded guilty. This time, although Gingerich will still face court supervision for 25 years, the court will have the option of keeping Gingerich in Pendleton and allowing him to pursue his education. He will be re-evaluated periodically and might end up in a group home, in community corrections, or even on probation if his behavior and rehabilitation continue apace.

“His case sparked the writing of the law,” the author of the new law, Wendy McNamara, R-Evansville, said. “If you’re going to place someone in a prison, eventually you’re going to have to let them out.” McNamara, director of the Early College High School in Evansville, says it’s clear that young offenders placed alongside adult prisoners will become hardened criminals by the time they’re released.

Now, judges have options to ensure that young defendants get counseling, treatment and educational opportunities, while the need to deliver sentences and give victims and their families a sense of justice can be met as well.

The bill took two years to get through the legislature, McNamara said, after a lot of advocacy on both sides. “It’s a huge change in the criminal justice system.”

A senseless, horrific crime initially brought a hasty and ill-considered judicial response. Now, all sides seem to agree that justice has been done. Score one for the Indiana Legislature and child advocates like Rep. McNamara.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on: No decision yet by the Special Masters in the Judge Kimberly Brown disciplinary hearing

Updating earlier ILB entries, the docket in the Judge Kimberly Brown case today shows these new entries:

12-02-2013 THE MASTERS, HAVING CONSIDERED THE MATTER, NOW GRANT THE HONORABLE KIMBERLY J. BROWN'S REQUEST FOR EXTENSION OF TIME TO SUBMIT "PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW TO NOON ON DECEMBER 2, 2013."
HON. VIOLA J. TALIAFERRO, PRESIDING MASTER
ENTERED ON 12/03/13 KF
The extension request by Judge Brown for the submission of findings on her behalf was made on Nov. 25. There is no entry yet showing that Judge Brown's proposed findings have been received.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Indiana Courts

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

Updating this ILB entry from August 5th, the results are now in. Lee Christie has defeated Jan Carroll for the position. From an announcement yesterday afternoon from the Supreme Court's public information officer:

Lee Christie has been elected to serve as the Indiana Judicial Nominating Commission district two representative. Mr. Christie was elected by attorneys to fill the vacancy that will occur Dec. 31st when attorney William Winingham’s term expires.

District 2 is made up of Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White Counties. More than seven thousand ballots were sent to attorneys eligible to vote in district two. The Clerk of the Indiana Supreme Court collected the ballots and certified Lee Christie garnered 1435 votes and Jan Carroll garnered 1159 votes.

[Updated 12/10/13] - The ILB has now obtained a copy of the certified results of the 2013 JNC District 2 election.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Indiana Courts

Ind. Law - More on "ALEC facing funding crisis from donor exodus in wake of Trayvon Martin row"

Updating this ILB post from this morning, quoting The Guardian, one of the items linked in that story is headed "Internal documents reveal so-called 'Prodigal Son Project.'" It is a 501(c)(4) named "The Jefferson Project," the purpose of which is explained in a memo on p. 15 of this linked document.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Indiana Law

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

For publication opinions today (1):

In Rick Deeter v. Indiana Farmers Mutual Insurance Company, a 6-page opinion, Judge Baker writes:

Appellant-plaintiff Rick Deeter appeals the trial court’s grant of summary judgment in favor of appellee-defendant Indiana Farmers Mutual Insurance Company (Farmers) regarding his claim for insurance proceeds against Farmers. In particular, Rick asserts that Farmers failed to craft a clear and unambiguous insurance policy and thus improperly denied his claim based on the intentional loss exclusion in the policy for his home. Rick also argues that he is an “innocent co-insured spouse” and contends that the fact that Callie Deeter, his wife, is guilty of causing an intentional loss should not bar him from recovery. Thus, Rick argues that a genuine issue of material fact remains as to whether or not Farmers could refuse his claim under the insurance policy exclusion. Concluding that the trial court properly entered summary judgment for Farmers, we affirm the judgment of the trial court.
NFP civil opinions today (1):

Masoud Azimi, as Personal Representative of the Estate of Amir Mansour Azimi-Zavarehee, deceased v. Anne Bechman(NFP)

NFP criminal opinions today (1):

Arick J. Pam v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Ind. App.Ct. Decisions

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

Updating this ILB entry from Nov. 27th, a challenge to a law from Wisconsin has reached the 7th Circuit. Some quotes from Michael Tarm' long AP story yesterday in the Minneapolis Star-Tribune:

CHICAGO — An appellate court on Tuesday questioned a lawyer for the state of Wisconsin about why lawmakers singled out abortion clinics in requiring their doctors to have admitting privileges at nearby hospitals, as judges heard arguments about the hotly debated law.

The sometimes-contentious, hourlong hearing before the 7th Circuit Court of Appeals was meant to help a three-judge panel decide whether to lift a temporary block on the law imposed by a lower court.

Such laws in Wisconsin, as well as similar laws in Texas and other states, have recently become a focus of debate over abortion. Critics say they're designed to stymie abortion rights, while supporters say the laws protect women's health.

Judges often play devil's advocate during oral arguments, so questions they pose aren't always an indication of which way they are leaning. But the three judges in Chicago, led by Judge Richard Posner, were especially aggressive in their questioning of Daniel Lennington, Wisconsin's assistant attorney general.

At times appearing exasperated, Posner repeatedly interrupted Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries.

"Why did they start with abortion clinics? Because it begins with the letter 'A'?" Posner asked. * * *

Despite Flaxman's comment that the number of impacted doctors is unclear, opponents of the law have long argued that it will force a Planned Parenthood clinic in Appleton and an AMS clinic in Milwaukee to close because abortion providers at both facilities lack admitting privileges.

ILB: The admission privleges requirement in the Wisconsin law is similar to the requirement in an Indiana law passed in 2011, HEA 1210. See this May 29, 2013 ILB post for more.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Law - The Indiana POST Program: Physician orders for scope of treatment

HEA 1182 passed this year and took effect July 1, 2013. The ILB just learned of it yesterday via this column in the Fort Wayne Journal Gazette by Abraham Schwab, a medical ethicist and associate professor of philosophy at IPFW. A quote from the column:

As of July 1, there’s a new kind of medical order in Indiana .... Specifically, it’s for three types of seriously ill patients: those with advanced chronic progressive illness, with advanced chronic progressive frailty, or with terminal conditions. The POST (Physician Order for Scope of Treatment) form is a new kind of medical order that identifies the patient’s preferences for the scope of their medical care and gives it the weight of a medical order.

There are a few key facts you should know about the POST form. First, no one can force a patient to have a POST form – to be valid, it must be signed by the patient (or their legally appointed decision-maker). Second, it’s only for certain patients (see above). Third, it has to be signed by a physician. Both signatures should be preceded by a discussion of the patient’s medical condition and the likely outcomes of various levels or types of intervention. There is far more to know about POST – visit www.indianapost.org to find out.

The POST website contains a video, the form, and much more information. The introduction:
The Indiana POST Program is a new advance care planning tool that helps ensure treatment preferences are honored. It is designed for patients with serious illness. Preferences for life sustaining treatments including resuscitation, medical interventions (e.g., comfort care, hospitalization, intubation, mechanical ventilation), antibiotics, and artificial nutrition are documented as medical orders on the POST form. It must be reviewed and signed by a physician to be activated. This form transfers throughout the health care system and the orders are valid in all settings.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Indiana Law

Courts - "Gary angler takes fishing fight to the feds"

Great story in the Dec. 1st NWI Times, with photo, reported by Lauri Harvey Keagle. It begins:

Silas Sconiers and Stacey Clayton just want to spend their retirement fishing.

But for the men, who live in Gary and Griffith just a short distance from Lake Michigan, a fishing trip means driving to East Chicago or Portage.

"Why should I have to leave the city and spend my money when I'm on a fixed income?" Sconiers said. "I've been told I can to go Portage or Hobart, but I feel insulted by that."

Gary has the largest stretch of Lake Michigan shoreline in the region, but has no public fishing spot on the lakeshore.

Sconiers filed a civil rights complaint with the Department of the Interior against Gary early this year.

He is alleging Gary lacks recreational services afforded to other cities with majority white populations; that funding is being denied based on race and that the Marquette Plan and the Lake Michigan Coastal Plan do not provide equal opportunities for fishing in minority areas that are provided in nonminority areas.

"I came from Chicago, an African-American community, and with all their problems, access isn't one of them but you come here to a similar city under African-American control and we have no access here at all to this wonderful resource," Clayton said.

More from the story:
Sconiers and Clayton could legally wade into the lake to fish, but neither have the physical ability to do so.

Clayton, 59, is confined to a wheelchair due to injuries suffered in a shooting during a robbery. Sconiers, 62, has five herniated discs and is legally disabled.

The Portage Lakefront Park and Pavilion has ADA accessible fishing, but that involves a 6-mile drive for the men.

Even if the men were able, they said dangerous rip currents would dissuade them from wading into the water to fish. They can't afford a boat. * * *

Gary's Law Department responded to the allegations in a letter to Pruitt in October, saying the city is willing to work with state and federal officials, but does not believe fishing access is currently economically feasible.

The letter explains Gary's lakefront is divided into the recreational section near Marquette Park and the industrial section near Buffington Harbor.

The private property owners in Buffington Harbor, "have no affirmative duty or obligation to make their boat docks or property available to the public for deep sea fishing and the city has no control or authority to require these entities to provide access for recreational activities," Niquelle Allen, corporation council, wrote in the letter.

"The city makes every attempt to make recreational facilities and resources available to its citizens," Allen wrote. "However, deep sea fishing is not a fundamental right that is guaranteed nor is there any city ordinance the requires primary access to the lakefront for deep sea fishing to the public."

ILB: As I read this story, I recalled that in the upcoming session the General Assembly will have the choice to pass and send to the voters a constitutional amendment guaranteeing the right "to hunt, fish, and farm" ... For background, start with this ILB entry from Sept. 26th.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Courts in general

Ind. Law - "ALEC facing funding crisis from donor exodus in wake of Trayvon Martin row"

Updating many earlier ILB entries on the lobby group ALEC, The Guardian reported yesterday in a lengthy story complete with a number of documents that begins:

An influential US lobbying network of Republican politicians and big businesses is seeking to avert a looming funding crisis by appealing to major donors that have abandoned it over the past two years following criticism of its policy on gun laws.

The Guardian has learned that the American Legislative Exchange Council (Alec), which shapes and promotes legislation at state level across the US, has identified more than 40 lapsed corporate members it wants to attract back into the fold under a scheme referred to in its documents as the "Prodigal Son Project".

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Indiana Law

Ind. Courts - "Indiana earns ‘F’ for disclosure requirements for high court judges"

That is the headline to this story from The Center for Public Integrity. However, Indiana was not alone:

The Center for Public Integrity evaluated the disclosure rules for judges in the highest state courts nationwide. The level of disclosure in the 50 states and the District of Columbia was poor, with 43 receiving failing grades, making it difficult for the public to identify potential conflicts of interest on the bench. Despite the lack of information in the public records, the Center’s investigation found nearly three dozen conflicts, questionable gifts and entanglements among top judges around the country. Here’s what the Center found in Indiana...
The story includes the 2012 disclosure reports from Indiana's five Supreme Court justices.

Posted by Marcia Oddi on Wednesday, December 04, 2013
Posted to Indiana Courts

Tuesday, December 03, 2013

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

For publication opinions today (0):

NFP civil opinions today (1):

Angela D. Hartwell v. Indiana Insurance Company (NFP)

NFP criminal opinions today (5):

Jeffrey Watson v. State of Indiana (NFP)

Jimmy Nave, Jr. v. State of Indiana (NFP)

Willie G. Pargo v. State of Indiana (NFP)

Eric L. Hecker, Jr. v. State of Indiana (NFP)

William Paul Sallee, Jr., v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 03, 2013
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Another "secret" settlement: "County settles lawsuit over Bridge 13"

Paul Gable, editor of the Shelbynews.com, reports today in a story that begins [emphasis by ILB]:

A Shelby County bridge that is over 120 years old and has been closed for years, was recently the subject of a lawsuit between a New Palestine resident and the Shelby County Highway Department and Shelby County Commissioners.

Donovan Higgins was the plaintiff and was awarded a settlement as a result of an accident on Bridge 13 in Moral Township. Terms of the settlement have not been disclosed. County attorney John D. DePrez IV declined to give specifics, instead forwarding calls to The Travelers Companies.

“We are not able to go into detail on legal issues ... ” wrote Daryl Richard, corporte communications for Traveler’s, in an email.

Paul Belch, Travelers Staff Counsel, said in a phone interview that he could not disclose the financial settlement.

“Our policy is that we do not reveal that information,” Belch said.

Therefore, county residents will not know what the tort case brought by Higgins will cost nor what the settlement was.

Court records from Hancock County Circuit Show show the case was to have gone before a jury in February 2014.

ILB: For more on secret settlements, see this May 30, 2013 post, headed "'South Bend settles environmental claims related to former Studebaker, Oliver sites': Settlement is secret". The entry collects a number of earlier entries where secrecy claims were made. See also this followup story to the South Bend Studebaker story, from July 25th, 2013, where the terms of the settlement were revealed.

Posted by Marcia Oddi on Tuesday, December 03, 2013
Posted to Indiana Government

Ind. Courts - "Renovations at Tell City courthouse underway soon"

Nick LaGrange reported yesterday for WFIE, Evansville:

PERRY CO., IN (WFIE) -

Renovations to the Tell City Courthouse will soon get underway.
The Perry county courthouse really isn't that old, but county council members say renovations are needed to meet current ADA standards.

They say construction on those renovations is set to get underway next month.

Council President Tom Hauser says the renovations will include new paint, new lighting, modified ceilings, and new floors. He also says the building's restrooms will be modified to meet ADA specifications.

The courthouse is 20 years old, and Hauser says the council has been looking to make these upgrades for over a year.

Compare with the ILB post from Nov. 26th, headed "Public banned from Miami Courthouse restrooms."

Posted by Marcia Oddi on Tuesday, December 03, 2013
Posted to Indiana Courts

Ind. Gov't. - "Lawmaker questions Pence moves on health care"

Supplementing this post from Nov. 30th quoting a LCJ story headed "Medicaid expansion's tale of two states: Kentucky 'haves' vs. Indiana 'have-nots'", Dan Carden of the NWI Times reported yesterday in this story:

INDIANAPOLIS | State Rep. Charlie Brown, D-Gary, is not impressed with state efforts to dream up complicated workarounds to the Affordable Care Act when implementing the law would immediately provide health coverage to an estimated 400,000 low-income Hoosiers.

Republican Gov. Mike Pence, who voted against the Affordable Care Act in 2010 while serving in Congress, has refused to expand Medicaid eligibility in Indiana unless participants are required to directly pay a portion of their health care costs.

He recently asked for a meeting with federal health officials to discuss using the Healthy Indiana Plan, a state-run, high-deducible health insurance program, as an alternative to adopting the no-fee traditional Medicaid program.

"Unlike traditional Medicaid, the Healthy Indiana Plan gives its members 'skin in the game' with regard to their health care and lifestyle decisions," Pence said.

But Brown, who co-sponsored the 2007 law creating the Healthy Indiana Plan, said it's "bizarre" Pence is insisting on using it when the federal government will pay 100 percent of the costs for new Medicaid participants through 2016 and never less than 90 percent after 2020.

"Why would we not expand it if the feds are going to cover 100 percent for three years?" Brown said. "That means we are sending our tax dollars to all the bordering states."

Indiana will be an island of the uninsured come January, when low-income residents of Illinois, Michigan, Ohio and Kentucky can begin receiving Medicaid services without the additional fees or requirements Pence seeks to impose.

Unlike those states, where Medicaid eligibility will extend to a resident earning up to 133 percent of the federal poverty level, which is $14,856 for an individual or $30,657 for a family of four, Hoosiers will have to earn less than 22 percent of the federal poverty level — that's $2,457 for an individual or $5,071 for a family of four — to enroll in Medicaid.

Hoosiers earning between 22 percent and 100 percent of the federal poverty level will be in an especially tough spot -- they'll make too much to be eligible for Medicaid in Indiana, and too little to qualify for federal subsidies to buy private health insurance.

The Indiana Hospital Association estimates Indiana will lose $10.45 billion in federal funds it would have received over the next seven years if it had expanded Medicaid eligibility.

Posted by Marcia Oddi on Tuesday, December 03, 2013
Posted to Indiana Government

Environment - "Mix of plans weighed for watersheds at Eagle Marsh"

Dan Stockman reports today for the Fort Wayne Journal Gazette in a long story that begins:

FORT WAYNE – Construction on a multimillion-dollar project to physically separate the Great Lakes and Mississippi watersheds in Eagle Marsh could begin next summer.

The Great Lakes and Mississippi River Interbasin Study Newsletter says federal officials have been doing extensive computer modeling of the complicated water flows in the area and found that their proposed solution should not cause further flooding.

Fort Wayne sits along a continental divide, which led to its nickname as the Summit City: The eastern half of Eagle Marsh, on the city’s southwest side, drains into the Great Lakes by way of Junk Ditch, the St. Marys River and the Maumee River. The western half of the marsh drains into the Mississippi River by way of the Graham-McCulloch Ditch, the Little River, the Wabash River and the Ohio River.

When there are floods in Fort Wayne, Junk Ditch can flow backward, flooding overland through Eagle Marsh and into the Graham-McCulloch Ditch, allowing species to move from one basin to the other, including Asian carp, a huge, voracious fish that has invaded the Mississippi River system. Also called the Snakehead, officials fear that if it gets into the Great Lakes, it could devastate the sport fishing industry there. To prevent this, the Indiana Department of Natural Resources built a temporary fence across the marsh in 2010.

Federal officials announced in August they had narrowed the options they were studying to two: Reconstructing an existing berm along the Graham-McCulloch Ditch at a cost of $5.5 million, and a similar, but more ambitious plan that would reconstruct the berm, remove another berm and construct wetlands. That plan would cost $7.7 million.

Posted by Marcia Oddi on Tuesday, December 03, 2013
Posted to Environment

Law - "Online Matchmakers Offer New Way to Find Legal Help: Small firms can connect with lawyers for complex jobs"

From Jennifer Smith of the WSJ, this $$ story. It begins:

There's a new option for small companies seeking legal advice: online matchmaking services that promise to connect clients with lawyers in their price range.

Many small businesses can't afford to keep a law firm on retainer, so some consult with attorneys only when a crisis hits. Others turn to the Internet for quick legal fixes—downloading cheap legal forms to fill out themselves or paying a small fee to ask lawyers simple questions.

Now a handful of services let small businesses hire lawyers for more complex jobs, like drafting a lease or filing a trademark or patent, through Internet marketplaces.

UpCounsel Inc., for instance, lets clients post jobs and field bids for work from a screened group of lawyers, and handles billing and other tasks for those attorneys.

Posted by Marcia Oddi on Tuesday, December 03, 2013
Posted to General Law Related

Environment - "In Fracking, Sand Is the New Gold: Energy Boom Fuels Demand for Key Ingredient Used in Drilling Wells; 100 Sand Mines in Wisconsin "

That is the headline to this long interesting article today in the $$ Wall Street Journal, reported by Alison Sider and Kristin Jones. A few quotes:

Energy companies are expected to use 56.3 billion pounds of sand this year, blasting it down oil and natural gas wells to help crack rocks and allow fuel to flow out. Sand use has increased 25% since 2011, according to the consulting firm PacWest, which expects a further 20% rise over the next two years.

In Wisconsin, the source of white sand perfectly suited for hydraulic fracturing, state officials now estimate more than 100 sand mines, loading, and processing facilities have received permits, up from just five sand mines and five processing plants operating in 2010. * * *

Railroad operators are carrying boxcars filled with sand to shale fields including the Permian Basin of West Texas and New Mexico, the Bakken formation of North Dakota and the Marcellus Shale of Pennsylvania.

While some of these places might seem to have plenty of sand of their own available, many fracking outfits prefer Wisconsin white sand, which is bigger and has rounder grains better suited for holding open larger pathways. * * *

Prepping sand to be used in fracking involves sifting it for the right-sized crystals, separating out contaminates, washing it and drying it.

But the sand boom is creating worries about worker safety as well as local opposition over the clouds of airborne dust from heavy-duty trucks hauling the sand from mines to processing plants and rail depots. Pattison Sand Co. in Clayton, Iowa, has faced particular scrutiny.

The U.S. Centers for Disease Control and Prevention calls the fine granules unleashed from sand mining respirable crystalline silica—or silica dust—and says it is linked to silicosis and lung cancer.

"There's a tendency to say it's just dust and people have always been exposed to dust," said David Kriebel, an epidemiologist at the University of Massachusetts. "Crystalline silica is an extremely hazardous substance. Every little piece of crystalline silica that reaches the lungs causes scarring."

The story includes a fascinating slideshow of an underground sand mine.

Posted by Marcia Oddi on Tuesday, December 03, 2013
Posted to Environment

Monday, December 02, 2013

Ind. Decisions - "Paul Gingerich gains chance for freedom after boyhood in prison"

"12-Year-Old in Indiana Gets 25-Year Sentence", from Jan. 5, 2011, is the first of many posts that the ILB has had on the case of Paul Henry Gingerich.

Today a plea deal was announced.

Robert King, who has been covering the case for the Indianapolis Star, has this long, clear and detailed story for tomorrow's paper. It begins:

WARSAW, Ind – . Nearly three years after he became perhaps the youngest Hoosier ever sentenced to prison as an adult, Paul Henry Gingerich – given a second chance in the courts – has agreed to a plea deal that could set him free when he turns 18.

At age 12, Gingerich was sentenced as an adult to a 25-year prison term for a 2010 murder conspiracy in the shooting death of a friend’s stepfather. Even with credits for good behavior, that could have kept him in locked up until his mid-20s, with the final years likely spent in an adult prison.

The deal struck Monday by his attorney and the Kosciusko County prosecutor could see Gingerich, now 15, released on probation as early as 18 — so long as he continues to behave well in prison. Just as important to his family, the deal likely means Gingerich will never go to an adult prison, where the prisoners are older and their range of crimes more severe.

“He has the keys to his own jail cell,” said Gingerich’s attorney, Monica Foster.

The deal announced in a Kosciusko County courtroom comes after Gingerich won an appeal for a retrial, but it is also being guided by what some refer to as “Paul’s Law,” a new state law that took effect in July, granting the courts greater flexibility in blending aspects of juvenile and adult sentences. It also grants judges the leeway to revisit a juvenile’s case after sentencing — even to modify the terms for children showing progress toward rehabilitation.

The law was a legislative response to the outcry from child advocates and juvenile justice groups after Gingerich’s initial sentencing. Only a handful of cases have been affected by it so far. Gingerich’s is among the first to involve a plea deal.

“This is a fair sentence,” Foster said. “It makes Paul prove that he is worthy to be with us in society and it gives the judge some assurance that he’s not going to be a problem.”

Kosciusko County Prosecutor Daniel Hampton said the law “applies very well in this case” and allows flexibility that a previous judge in the case didn’t have nearly three years ago.

The deal isn’t a get-out-of-jail-free card. Much of Gingerich’s hope rests on his ability to continue showing progress in school and through rehabilitation programs. When Gingerich turns 18, a judge will decide where he goes from there, with options ranging from a maximum security adult prison to freedom on probation.

That Gingerich and his friend, Colt Lundy, were responsible for the death of 49-year-old Phil Danner is not in doubt.

The 2013 legislation referenced is HEA 1108. See this May 1st post from the Indiana Juvenile Justice Blog for details.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Ind. Trial Ct. Decisions

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

In CAROL BATES v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY (ND Ind., Lee), a 17-page opinion, Judge Kanne writes:

Carol Bates has suffered from radiating neck pain since 2004, when a truck struck her car from behind. In the intervening years, she has continued to care for her six adopted children, and dealt with the loss of her fiancé and mother. These physical and personal stresses have taken their toll, leading Bates to seek psychological and psychiatric treatment.

Because of her mental and physical impairments, Bates sought Supplemental Security Income (“SSI”). After her initial application was denied, Bates requested a hearing before an Administrative Law Judge. The ALJ denied her application, and the district court affirmed. Because we find the ALJ improperly discounted the opinion of Bates’s treating psychiatrist and improperly evaluated Bates’s testimony concerning her mental health, we reverse the decision of the district court and remand for rehearing. * * *

Because the ALJ improperly discredited Bates’s testimony considering the limitations caused by her mental illness and failed to grant Dr. Shahzaad’s medical opinion the weight it deserved under the treating physician rule, we REVERSE the decision of the district court and REMAND for proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - No decision yet by the Special Masters in the Judge Kimberly Brown disciplinary hearing

Updating earlier ILB entries, the docket in the Judge Kimberly Brown case today shows these new entries:

11-27-2013
COMMISSION'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
ENTERED ON 12/02/13

11-25-2013
REQUEST FOR EXTENSION OF TIME TO SUBMIT PROPOSED FINDINGS (2)
CERTIFICATE OF SERVICE (2) BY MAIL 11/25/13
*KIMBERLY BROWN*
ENTERED ON 11/25/13

In short, Judge Brown's attorneys asked for an extension of time in submitting their proposed findings, while the prosecution side (the Judicial Qualifications Commission) has now submitted its set of proposed findings.

The Commission’s Proposed Findings of Fact and Conclusions of Law is 114 pages long and as might be expected, recommends Judge Brown's removal. There is no indication yet from the Masters re whether they will grant the extension of time requested by Judge Brown for the submission of findings on her behalf.

The Special Masters must submit their report of hearing and transcript of hearing to the Supreme Court by Dec. 30th.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Indiana Courts

Ind. Gov't - "Fight over marriage amendment is foolish"

Deborah Daniels has written an IBJ column strongly against not only the General Assembly's readopting HJR 6, the anti-gay marriage amendment, but also against HJR 6 even being introduced this year.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Indiana Government

Ind. Courts - David Camm cases featured on "48 hours"

Here is the CBS video broadcast from Saturday, 42:50 minutes.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Indiana Courts

Courts - "The 1970s and 1980s marked the rise of merit selection for judges. However, recent trends have been to eliminate merit selection, alter its components, or return judicial selection 'to its roots.'"

Important article today by William Raftery, Knowledge and Information Services Analyst, National Center for State Courts.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Courts in general

Ind. Decisions - Transfer list for week ending November 29, 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 29, 2013. It is one page (and 1 case) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Indiana Transfer Lists

Ind. Gov't. - More on: Looking for historical documents for the 1970 amendment to Art. 7 of the Indiana Constitution

Updating this ILB post from Nov. 1st, here is what I have put together so far on the project.

There is much valuable information in these hundreds of pages. Many of the topics of today are touched on, such as the roles of the Superintendent of Public Instruction and the Attorney General. In other ways, it was a much different time, the legislature met only biennially, the governor and the lieutenant governor ran separately ...

Thanks to the Indiana Supreme Court librarians, who ferreted out most of these documents. Thanks also to John Rowings of LSA and Jon Larimore for the materials they contributed.

Posted by Marcia Oddi on Monday, December 02, 2013
Posted to Indiana Const. Revision | Indiana Government

Catch-up: What did you miss over the lovely 4-day weekend from the ILB?

From Sunday, Dec. 1, 2013:

From Saturday, Nov. 30, 2013:

From Friday Nov. 29, 2013:

From Thursday/Thanksgiving, Nov. 29, 2013:

Posted by Marcia Oddi on Monday, December 02, 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 12/2/13):

Thursday, December 5th

Next week's oral arguments before the Supreme Court (week of 12/9/13):

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

Monday, December 2

Next week's oral arguments before the Court of Appeals (week of 12/9/13):

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, December 02, 2013
Posted to Upcoming Oral Arguments