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Friday, January 31, 2014

Ind. Gov't. - "Despite all the talk about transparency, a six-month Eyewitness News investigation discovered Indiana is keeping secrets about hundreds of projects, thousands of missing jobs and millions in taxpayer dollars used to pay for them."

See the very lengthy story and video today, from Bob Segall at WTHR 13. A sample:

Among WTHR's findings:
  • IEDC's new transparency website is missing basic disclosure information that other states release to taxpayers.
  • The state agency is not releasing any information about hundreds of projects it previously announced.
  • IEDC is reporting official job statistics that exclude all failed economic development projects from its calculations.
  • Both IEDC and the governor are citing the state's new job transparency law as justification to withhold information from public disclosure.
* * *

It certainly looks transparent. [the IEDC transparency portal]

"There are some good things here like actual contracts posted online and the ability to download data from the portal. We applaud that," said Greg LeRoy, executive director of Good Jobs First, a Washington, D.C.-based non-partisan, non-profit watchdog organization that tracks economic development policy and transparency.

But LeRoy points out the transparency portal has critical flaws that blemish its claim of transparency.

"You're seeing jobs announced, but you're not getting actual jobs created. You're not getting actual wages paid. You're not even getting the address of the work site. None of that's here, so it's very, very bare-bones disclosure," he said while examining the website. "It's primitive in terms of giving you what you need to know to know if you're getting a bang for your taxpayer buck."

Illinois and several other nearby states do report that type of economic development information online.

After a further investigation of the transparency portal, LeRoy gave a much harsher critique.

"It's sham transparency. There's no other way to put it," he said.

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Indiana Government

Ind. Decisions - David Camm story on 2-hour NBC Dateline tonight

From the New Albany News & Tribune: "David Camm will discuss his 13-year quest to clear his name and the three murder trials on NBC’s 'Dateline' at 9 tonight, Jan. 31, on WAVE-3. Dateline tells the entire story in a report that runs for two hours."

From WAVE NEWS, a story by Janelle MacDonald headed "Tonight at 11: Why the Camm case isn't over yet." Some quotes:

But the price of justice has not yet been paid. Our newsgathering partner The News & Tribune reports there were still $659,000 in bills yet to be paid by Floyd County for the Camm trial as of mid-January, with all but $51,800 owed to the defense.

WAVE 3 News has covered the Floyd County Auditor's questioning of the receipts submitted to the county for reimbursement in the past. Now he will be making those arguments in court.

Tonight on WAVE 3 News at 11, the unusual step in this most-unusual case that has the county making its arguments to a judge about how it pays its bills. In addition, the Floyd County Council president explains what happens to the already financially-strapped county if it has to pay the full amount.

That's coming up after NBC News examines the Camm case on a special two-hour edition of Dateline Friday tonight at 9:00.

ILB: See this Jan. 17th ILB post re the Camm attorney fees, along with this one from Jan. 16th.

Watch the preview here, on NBC Dateline's website.

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Indiana Decisions

Courts - "Muncie native joins U.S. Court of Appeals"

The Muncie Star-Press has a long article today by Ivy Farguheson on Muncie native Robert Wilkins' recent confirmation to the U.S. Court of Appeals for the District of Columbia Circuit. From the story:

MUNCIE — Thanks to her son Robert, Joyce Wilkins has had a close look at the U.S. Senate confirmation process for federal judges.

Robert’s appointment to the U.S. Court of Appeals for the District of Columbia Circuit was confirmed earlier this month, less than four years after the Northside High School graduate was named district judge for the United States District Court for the District of Columbia.

This proud mother has been there with her son every step of the way, attending the investiture — also known as the official “robing” of a judge — in 2011 and plans to be there for this latest advancement in her son’s career.

“I’ve spent a lot of time on the Senate’s website. And on C-SPAN. I never thought I’d do that,” Joyce Wilkins said. “It’s really pretty interesting, this whole process. There’s a lot of back and forth that I only thought went on in committee and sometimes it looks like it’s just wasted time. But it’s not. He finally got here and it’s all pretty exciting.”

Appointed by President Barack Obama for both positions, Robert Wilkins’ road to his present position took longer than expected when last year congressional in-fighting led to delays in confirmation votes on the president’s appointees. * * *

Joyce Wilkins raised her sons — Robert and his younger brother Larry — as a single mother and has always worked hard to give them opportunities in life.

She said she never believed in the idea that as a single mother, she couldn’t provide her boys with a strong foundation for a successful life.

With the help of her parents and others in the community, Joyce gave her sons an understanding of hard work, persistence, faith in God and the ability to enjoy the results of their labor.

“I had a good support system and that really made a difference,” Joyce said. “(Robert) got a good start here in Muncie. In the schools and with my family ... there were a lot of people who knew he would do great things. Having a single mother didn’t stop anyone who knew him from believing that.”

After graduating from Northside in 1982, Robert Wilkins attended Rose-Hulman Institute of Technology where he received his bachelors of science in chemical engineering in 1986. In 1989, he obtained his law degree from Harvard Law School, deciding to work in the public service field as a private attorney and as a public defender. * * *

Robert Wilkins returns to Muncie regularly, most recently visiting with family and friends over the Christmas break. Friends said they’d expect nothing less from Wilkins, who has always been proud to call Muncie his home.

“Robert never did things the easy way out. He didn’t want to take the escalators. He wanted to take the stairs,” said Carl Kizer Jr., a friend of the Wilkins family. “I’m sure he’ll be considered for a Supreme Court spot if one should open up and that will be so exciting. He is an amazing role model, not only for black children or children in Muncie, but for people all across the United States of America. He’s a reminder that, in this country, dreams do come true. It takes hard work and giving back to your community, but they do come true.”

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Courts in general

Courts - More on: U.S. DOJ looking for prisoners to apply to the President for clemency

Updating this morning's post, quoting a NYT story, Sentencing Law Blog now has a post headed "Professor/practitioner perspective on DAG Cole's puzzling clemency conversation."

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Courts in general

Ind. Decisions - 7th Circuit decides two Indiana cases, one yesterday and one today

In UNITED STATES OF AMERICA v. SCOTT ADKINS (ND Ind., Simon), a 32-page opinion decided Jan. 30, 2014, Judge Flaum writes:

This is a consolidated appeal of two separate, but related, cases against Scott Adkins. In one case, a jury convicted Adkins of attempting to possess heroin with intent to distribute, and of being a felon in possession of a firearm. In the other, Adkins pled guilty to receipt of child pornography. Adkins raises several arguments on appeal. He first attacks his convictions on the heroin and firearm charges, arguing that he is entitled to a new trial due to alleged errors regarding evidentiary decisions, jury instructions, and improper statements by the government. We reject these arguments and affirm Adkins’ heroin and firearms convictions. Adkins next argues that we should vacate his sentence on the heroin and firearm convictions because of multiple alleged sentencing errors. We reject these arguments and affirm his sentence as well. Finally, with respect to his child pornography sentence, Adkins contends that one special condition of his supervised release is unconstitutionally vague and overbroad, and that we may review this issue despite the appeal waiver in his guilty plea. We agree. We therefore vacate and remand on this ground alone. * * *

[beginning at p. 26] Special Condition Five is unconstitutional * * *

Special Condition Five states: “The defendant shall not view or listen to any pornography or sexually stimulating material or sexually oriented material or patronize locations where such material is available.” Read literally, this provision might preclude Adkins from using a computer or entering a library—irrespective of what he views in either place—because both are “locations” where “sexually stimulating material … is available.” Indeed, he might not be able to ride the bus, enter a grocery store, watch television, open a magazine or newspaper, read a classic like Romeo and Juliet, or even go out in public (given the ubiquity of advertisements that use potentially sexually oriented or sexually stimulating images to pique consumer interest). More practically, how can we tell which images or voices are sexually stimulating for Adkins? Cf. United States v. Smith, 972 F.2d 960, 962 (8th Cir. 1992) (striking down a supervised release condition and criticizing it as “unworkable” in practice). It is hard to see how the potential breadth of Special Condition Five would satisfy the narrow tailoring requirement of 18 U.S.C. § 3583(d). * * *

However, this is not a case where we can tweak the relevant condition “easily.” Id. at 843. In order to render this special condition constitutional, we would need to define multiple key terms or provide multiple limiting constructions. In other cases where we found the special condition vague or much broader than necessary, we have vacated and remanded. See, e.g., Goodwin, 717 F.3d at 524–25; Monteiro, 270 F.3d at 473. And because the district court will retain jurisdiction over this case for many years, including the power to amend the conditions of supervised release at any time, see 18 U.S.C. § 3583(e)(2), it is in a superior position to write a new condition, if it so chooses.

We recognize the difficulty of drafting special conditions in this context. We therefore emphasize that various options remain open, including (1) defining the crucial terms in the existing special condition in a way that (a) provides clear notice to Adkins (preferably through objective rather than subjective terms), (b) includes a mens rea requirement (such as intentional conduct), and/or (c) is not broader than reasonably necessary to achieve the goals of 18 U.S.C. § 3553(a)(2)(b), (a)(2)(C), and (a)(2)(D), see § 3583(d); and (2) narrowing the scope of proscribed conduct, such as by (a) focusing on child pornography, which federal statutes objectively define, see, e.g., 18 U.S.C. § 2256(8), and/or (b) focusing on particular establishments such as strip clubs, adult bookstores, and adult theaters.

In sum, given the importance of notice and reasonably narrow tailoring, see 18 U.S.C. § 3583(d)—which our precedent, Goodwin, reinforces—we vacate Special Condition Five and remand to the district court.

In UNITED STATES OF AMERICA v. TIMOTHY L. RICHARDS (ND Ind., Springmann), a 14-page opinion, decided Jan. 31, 2014, Judge Bauer writes:

Timothy L. Richards (“Richards”) was charged in a four-count indictment with (1) possession of a controlled substance with intent to distribute, (2) maintaining a residence or place for the purpose of using and distributing controlled substances, (3) possession of a firearm in furtherance of a drug trafficking crime, and (4) being a felon in possession of a firearm. Prior to trial, the district court denied Richards’ first and second motions to suppress evidence that the police seized without a search warrant at the time of his arrest. After trial, a jury convicted Richards of all four charges.

Richards now appeals the district court’s decisions to allow the government to introduce the seized evidence and raises two issues. First, Richards argues that the district court erred when it found that Edward Rawls (“Rawls”) had the mental capacity to consent to the warrantless search of his home. Second, Richards argues that the district court erred when it found that (1) Rawls had apparent authority to consent, and even if Rawls did not have the requisite authority to consent, (2) exigent circumstances validated the warrantless search of a bedroom Richards used in Rawls’ house. For the following reasons, we find no error. * * *

The district court properly denied Richards’ first motion to suppress evidence because Rawls validly consented to the officers’ warrantless search of his house. The court properly denied Richards’ second motion to suppress because Rawls had apparent authority to consent to a search of his entire home, including the west bedroom. Therefore, the district court’s denials of Richards’ motions to suppress are AFFIRMED.

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court posts two disciplinary orders, both filed Jan. 27th

From In the Matter of: David E. SCHALK, a two-page order by Justice Rucker, acting CJ with all concurring, "finding respondent in contempt of court and imposing fine":

The Court entered an order suspending Respondent from the practice of law in this state for a period of not less than nine months, without automatic reinstatement, beginning May 24, 2013. See Matter of Schalk, 985 N.E.2d 1092 (Ind. 2013). The Commission filed a "Verified Motion for Rule to Show Cause" on September 25, 2013, asserting that Respondent engaged in several acts in violation of the suspension order, including holding himself out as an attorney and representing two persons in a guardianship proceeding. The Court issued an order to show cause on September 27, 2013, and Respondent filed an objection on October 2, 2013, denying any misconduct.

Based on the documents provided to the Court and on Respondent's own account of his actions, the Court concludes that Respondent's actions in the guardianship proceeding constituted the practice of law in violation of his suspension order. * * *

The Court concludes that Respondent's actions in the guardianship proceeding constituted the practice of law in violation of this Court's suspension order. The Court declines to find, however, that the other acts alleged by the Commission constitute contempt of this Court on the evidence provided. * * *

Under the circumstances of this case, the Court concludes that a fine of $500.00 is appropriate discipline for Respondent's contempt of court by practicing law while suspended.

In the Matter of: Paul J. PAGE is a one-page "order of interim suspension upon notice of guilty finding", signed by J. Rucker with all justices concurring except J.Massa, who did not participate:
The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent was convicted on a guilty plea to the following felony offense under federal law: Aiding and Abetting Fraud by Wire, Radio, or Television.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately.

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 17 NFP)

For publication opinions today (2):

In William E. Boehringer, Cleo A. Boehringer, and the Cleo A. Boehringer Trust v. Gregory J. Weber and Susan M. Weber, an 11-page opinion, Judge Bradford writes:

In 2006, Appellants-Plaintiffs-Counterclaim Defendants William and Cleo Boehringer and the Cleo A. Boehringer Trust (collectively, “the Boehringers”) purchased a house (“the House”) from Appellees-Defendants-Counterclaim Plaintiffs Gregory and Susan Weber (“the Webers”). Before the sale, the Webers indicated in a disclosure form that they had no knowledge of any hazardous conditions in the House. In 2007, the Boehringers discovered mold in the House, and in 2009 they filed a complaint against the Webers for fraudulently failing to disclose the presence of mold when they allegedly had actual knowledge of it. The Boehringers also sought rescission or compensatory damages on the basis of mutual mistake of fact. Finally, the Boehringers’ complaint asserted claims against Homes by John McKenzie; Beazer Homes Indiana, LLP; and Trinity Homes, LLC (“the Builder”). The Webers asserted a counterclaim for costs and attorney’s fees, a claim brought pursuant to the purchase agreement for the House, which specifically entitled the prevailing party in any litigation relating to that purchase agreement to recover such sums.

Both the Boehringers and Webers moved for summary judgment. The trial court denied the Boehringers’ summary judgment motion relating to their fraudulent misrepresentation and mutual mistake claims, and the case proceeded to trial. Following a jury trial, judgment was entered in favor of the Webers on the Boehringers’ claims, and the Webers were awarded $425,000.00 pursuant to their counterclaim.[1] The trial court denied the Boehringers’ motion to correct error, and they now appeal. The Boehringers claim that the trial court erred in denying them summary judgment on their fraudulent misrepresentation claim and that, in the alternative, the evidence presented at trial cannot sustain the jury’s verdict against them. Concluding that the trial court did not err in denying the Boehringers’ summary judgment claim and that the evidence sustains the jury’s verdict, we affirm. * * *

Both the Howell and Schubert reports, which, as previously mentioned, did not contain any mention of mold in the House, were admitted at trial. In addition, William testified that no inspector ever told him that there was mold in the House, mold was not discussed during a February of 2007 walkthrough with the Builder, and mold was not discussed during the March of 2007 remediation. Finally, Susan testified that nobody ever told her that the House had a mold infestation prior to the sale. This evidence, which the jury was entitled to believe and apparently did, establishes that the Webers lacked actual knowledge of mold in the House when they executed the sales disclosure, even assuming, arguendo, that any existed at the time. The Boehringers’ argument in this regard is nothing more than an invitation to reweigh the evidence, which we will not do. The evidence presented at trial sustains that jury’s verdict.
_________
1 The Boehringers do not challenge the amount of the award to the Webers. Of course, were we to rule in the Boehringers’ favor on the underlying claim, this award to the Webers would have to be reversed as well.

In T.G. v. State of Indiana , an 11-page opinion, Judge Crone writes:
T.G., a minor, appeals from his adjudication as a juvenile delinquent based on the trial court’s finding that he committed an act that would be class C felony child molesting if committed by an adult. On appeal, he argues that the evidence is insufficient to support the trial court’s finding and that the child molesting statute is unconstitutionally vague as applied to him. Concluding that the evidence is sufficient and that the statute is not unconstitutionally vague, we affirm.
NFP civil opinions today (3):

Sharniece Crump v. Claystone at the Crossing (NFP)

In Re: The Marriage of Mikiko Hige v. Christopher L. Glick (NFP)

In the Matter of the Term. of the Parent-Child Rel. of Mi.S. & M.W. (Minor Children), and M.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (14):

Rashard Ranson v. State of Indiana (NFP)

Christopher Wood v. State of Indiana (NFP)

Rolando Guzman v. State of Indiana (NFP)

Joshua Gillespie v. State of Indiana (NFP)

Matthew Dante Bennett v. State of Indiana (NFP)

Donald A. Wood v. State of Indiana (NFP)

Christian D. Reyes v. State of Indiana (NFP)

Juan Q. Beamon v. State of Indiana (NFP)

Cameron Mayfield v. State of Indiana (NFP)

A.S.B. v. State of Indiana (NFP)

Marcus Jones v. State of Indiana (NFP)

Marcus Minor v. State of Indiana (NFP)

Nathan Allen Kline v. State of Indiana (NFP)

Allan Kirkley v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Ind. App.Ct. Decisions

Courts - U.S. DOJ looking for prisoners to apply to the President for clemency

From the NYT today, a story by Matt Apuzzo that begins:

WASHINGTON — The Justice Department wants low-level drug criminals who were sentenced under tough laws from the days of the crack epidemic to ask the president for early release from prison.

In an unprecedented move, Deputy Attorney General James M. Cole asked defense lawyers on Thursday to help the government locate prisoners and encourage them to apply for clemency. The clemency drive is part of the Obama administration’s effort to undo a disparity that flooded the nation’s prison system and disproportionately affected black men.

Offenses involving crack, which was more commonly used in black communities, carried more severe penalties than crimes involving powder cocaine, which was usually favored by affluent white users. In some cases, crack crimes resulted in a 100-to-1 sentencing disparity.

Congress reduced that disparity in 2010. In December, President Obama commuted the sentences of eight federal inmates who received sentences under the old rules.

Posted by Marcia Oddi on Friday, January 31, 2014
Posted to Courts in general

Thursday, January 30, 2014

Indiana Law - Update on: Some thoughts on HJR 3: The time to speak out is now

On Jan. 15th the ILB posted this entry. Some quotes:

I was a law student during the civil rights movement, a young attorney during the women's rights movement, and now in my 70s feel privileged to be witnessing a revolution of gender equality.

But while barriers to same sex marriage are coming down across the nation, some of us in Indiana are determined to put in place new fortifications, ones that could take years to remove (except through the federal courts), and ones that may assure years of legal battles at the state level.

I wrote that in my opposition to HJR 3, "I stand with the majority of Indiana's citizens," and continued:
Still, as of now, some of our biggest Indiana business and legal leadership associations have failed to step forward.

The headline to this story by Daniel Suddeath in the New Albany News & Tribune Monday caught my eye. The headline:"State, Southern Indiana chambers of commerce mum on same-sex marriage ban."

What, I wondered, was the position of the Indiana State Bar Association, and the position of local groups, such as the Indianapolis Bar Association, on HJR 3? The ISBA and IndyBar speak out on many matters and represent many of us. What are their positions with respect to amending our Indiana Constitution's Bill of Rights to include a ban against same sex marriage, and to prohibit "a legal status identical or substantially similar to that of marriage for unmarried individuals."

I contacted the Indianapolis Bar Association at mid-day yesterday and they responded promptly. Jeff Abrams, IndyBar President: "The Association is surveying its members to provide insight into the most desirous role or position we might take. We anticipate knowing more next week."

The most recent word I have received from the ISBA is: "The Indiana State Bar Association has not taken a position on HJR-3."

But the time to speak out, and to act, is now.

On January 27th, the Indianapolis Bar Association announced its position against HJR 3, and published the results of a survey of its members:
2,196 members responded to the survey, which reflects a 47.4% response rate from the members receiving the survey; this is the highest survey response rate on record for the association. The results of the survey revealed that 73.1% of the respondents were in favor of publicly opposing HJR-3, 20.1% favored taking no position on the measure, 5.4% were in favor of supporting HJR-3, and 1.5% had no opinion.
Today the Indiana State Bar Association has announced its position, which continues to be not to take a position. Here are quotes from the statement of the ISBA president:
Over the last year, two separate committees of the ISBA considered the question of whether the ISBA should take a position on the same sex marriage amendment but neither presented a resolution to the House of Delegates for consideration at our Annual Meeting last October. As a result, the House did not address the issue and the ISBA does not have a position on it.

Recognizing that this issue would remain in the forefront of the public debate after the Annual Meeting and the fluid nature of the political process, the Board of Governors appointed a special committee chaired by Professor Joel Schumm at the IU-McKinney School of Law to monitor the activities concerning HJR-3 during this legislative session and to make recommendations to the Board as to whether the ISBA should play a role in the debate over HJR-3 and if so, the appropriate way to do so.

The Committee, on behalf of the ISBA, is following the process closely but has not made any recommendations yet. Last night’s vote in the House amending HJR-3 by removing the second sentence, for example, reshaped the issues significantly. The Committee continues to assess whether the ISBA should play a role in the debate over HJR-3 and, if so, the appropriate way to do so in a manner that is duly considered and approved in accordance with our bylaws.

Among our 12,700 lawyer members throughout the state, we have thoughtful individuals who hold a wide range of political, religious, legal, economic, and public policy beliefs on the issues raised by the proposed constitutional amendment.

The ILB may update this post...

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Law

Courts - "Maine supreme court: Transgender student's rights were violated"

How Appealing's post has links to today's Maine opinion, plus news coverage.

See also this story from NE Indiana Public Radio.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Courts in general

Ind. Courts - More on "Fixing the Marion County Township Small Claims Courts" [Updated]

In this post from Jan. 19th, the ILB noted Chief Justice Dickson's call, in his State of the Judiciary message on Jan. 15th:

Fixing the Marion County Township Small Claims Courts. Our present system has been the subject of ridicule by the Wall Street Journal, and local newspaper and television reporters launched investigations into the system. A task force co-chaired by Court of Appeals Judge John Baker and Senior Judge Betty Barteau held hearings and made a comprehensive report recommending changes urgently needed. Local leadership and changes in court rules, however, can only scratch the surface. Systemic change is imperative, and this requires legislative action.
The ILB noted that the Chief Justice's request appeared to be dead on arrival, as no interim legislative committee had studied the problem in either 2012 or 2013 and no legislation had been introduced.

It turns out a bill on the Marion County small claims courts has been introduced, SB 366, by Sen. Scott Schneider and Sen. R Michael Young. But the bill does not appear to address the myriad of issues raised by the Court's May 1, 2012 Task Force Report.

Indianapolis attorney/blogger Paul Ogden has a post today on SB 366, titled "Amendment Deletes Bill Language That Would Have Removed Circuit Court Judge Louis Rosenberg From Supervising Marion County Small Claims Courts."

[Updated at 4:16] A reader writes:

I watched the webcast and Yes, they amended it to include the language he cites, but they didn't strike anything from the introduced bill.

Sen. Hume was nonplussed by that. He asked, so we're going to move the bill and then study it?

Yes, replied Sen. Steele.

ILB: The adopted committee report (which, maddeningly, one can't link to directly), supports the reader's conclusion. It adds a new SECTION 7 urging a study committee, but leaves in place the SECTION 2 changes - the elimination of the Circuit Court judge's oversight powers over the small claims courts.

Some might say this bill ties the hands of the only person who has been able to implement any reforms of the current system, the Marion County Circuit Court judge.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Courts

Ind. Courts - "Parents of Lauren Spierer ask judge to seal information in lawsuit"

Tim Evans reported late this morning for the Indystar:

Attorneys for the parents of missing Indiana University student Lauren Spierer are asking a federal judge for a protective order to keep private some evidence in their lawsuit against two men who were with their daughter in the hours before she disappeared.

In a motion filed Wednesday in U.S. District Court for the Southern District of Indiana, Robert and Mary Charlene Spierer asked District Judge Tanya Walton Pratt to issue an order “preventing public dissemination of sensitive and private information” that may be included in documents filed in court as the case moves toward a trial.

The filing is the latest development in the lawsuit the Greenburgh, N.Y. couple filed against Jason Rosenbaum and Corey Rossman. It claims the two men gave their daughter alcohol while knowing she was intoxicated and owed her a "duty of care." * * *

The new request for a protective order says “the production of sensitive and private information and materials ... in this case is anticipated, as is the production of certain private information regarding non-parties.” The couple say the order is needed “to prevent the harm that would result from the unnecessary public dissemination of private information relating to the parties and non-parties and ongoing criminal investigations.”

The request also asks that all material deemed confidential be destroyed within 30 days of final termination of the case. * * *

The judge in December dismissed one count of the Spierers' complaint brought under a child wrongful death statute. But the judge let two other counts in the complaint go forward, based on the Spierers' allegations that Rosenbaum and Rossman gave Lauren Spierer alcohol while knowing she was intoxicated. [ILB: Here is the Dec. 23, 2013 ruling by Judge Pratt.]

Those counts accuse Rosenbaum and Rossman of "negligence per se" and "dram shop," a legal term used when damages are sought for providing alcohol to someone who is clearly intoxicated.

ILB: See this June 27, 2013 ILB post for background and links to the original filings.

Here is the Motion for Protective Order and accompanying documents, filed 1/29/14.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Courts

Ind. Gov't. - "Long moves gay-marriage amendment to Senate Rules Committee"

Niki Kelly reports this afternoon for the Fort Wayne Journal Gazette that:

Senate President Pro Tem David Long, R-Fort Wayne, has moved the gay-marriage amendment to the Senate Rules Committee for hearing early the week of Feb. 10.

He announced the move Thursday, which went against statements he made last week, in which he was adamant the bill would go to the Senate Judiciary Committee.

Long said he did not think the amendment would stall there, but that the Rules Committee was more representative of leadership of the chamber and a better place for it to be handled. * * *

Long said it is his preference that the amendment remain the same in committee, but that any changes can be offered in the Senate on second reading. None will be blocked.

Long would not say how he personally feels about whether the second sentence should be restored. * * *

“It’s a matter of when, not if,” Long said.

Megan Robertson, campaign manager for the bipartisan Freedom Indiana coalition fighting the proposal, didn’t agree with Long that it is a foregone conclusion the amendment will eventually pass two separately elected General Assemblies.

She pointed to how much support the amendment lost in the House since 2011, going from 70 yes votes to 57.

“After this session there’s not much appetite to do this,” Robertson said, noting public sentiment is shifting quickly.

Long conceded the debate about House Joint Resolution 3 “is a distraction, as any high-profile issue is.”

[More] See also, Potential delay of HJR-3 came from unexpected source," from Dave Bangert of the Lafayette Journal Courier.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

Alexis Hutchison and Martha Farber, deceased and Trilogy Health Services, LLC, d/b/a Springhurst Health Campus

Joel Stoffel v. JPMorgan Chase Bank, N.A. and Federal National Mortgage Association

In Re: The Matter of C.L., a Delinquent v. State of Indiana

NFP civil opinions today (3):

In the Matter of the Civil Commitment of T.K. v. Department of Veterans Affairs, Richard L. Roudebush VA Medical Center (NFP)

Lincolnshire Healthcare Operations Company, LLC, Lincolnshire Healthcare Center, Inc., and Tender Loving Care Management, Inc. (NFP)

In the Matter of the Adoption of T.G.: D.G. v. M.C. (NFP)

NFP criminal opinions today (7):

Edward Lee Matthys v. State of Indiana (NFP)

Derrick Barbour v. State of Indiana (NFP)

Joseph K. Buelna v. State of Indiana (NFP)

John Wallace v. State of Indiana (NFP)

John McLaughlin v. State of Indiana (NFP)

John Kryza v. State of Indiana (NFP)

Casey M. Jordan v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Constitution Check: Is the Religious Freedom Restoration Act unconstitutional?"

Fascinating article today in Constitution Daily, by Lyle Denniston.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Courts in general

Ind. Courts - Reader comment on the Clark County drug court stories

The ILB has received this note from a defense attorney:

The Clark County drug court situation and other stories like it is the reason why, when I hear what sounds like an outlandish story from my client, I investigate, no matter how unlikely it sounds.
Here is a list of ILB "Clark County drug court" stories (plus this one that eluded my search terms).

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Courts

Ind. Gov't. - "Voter registration drive next step in escalating gay marriage debate"?

Interesting editorial today in the Fort Wayne Journal Gazette. The last two paragraphs sum it up:

Freedom Indiana has done a commendable job of rallying broad opposition to HJR 3. But the fact that the contentious and damaging debate drags on proves more is needed.

Census figures suggest about a half-million Hoosiers age 18 and older are not registered. If even half of those eligible suddenly registered, imagine the chill they would place on the General Assembly’s wrongheaded effort to write discrimination into the constitution.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Government

Ind. Courts - "Courts could choose mental health experts under Senate bill"

Carley Campbell reports in $$ TheStatehouseFile:

INDIANAPOLIS- A bill that would eliminate the need for a psychiatrist in court cases dealing with insanity passed a Senate committee Wednesday.

Senate Bill 88, authored by Sen. Ron Alting, R-Lafayette, would amend part of a current statute that requires psychiatrists to determine insanity in criminal cases. The new bill would instead allow Indiana courts to choose two or three psychiatrists, psychologists, or physicians for that purpose, rather than forcing the use of at least one psychiatrist.

This bill would not apply to cases involving murder, or those facing sentences of life without parole or the death penalty.

Dr. Steven Ross, a member of the Indiana State Board of Psychology, and a psychiatrist in Fort Wayne, testified in favor of the bill. He said current statute puts a strain on both criminal courts and psychiatrists. He said that currently 50 out of Indiana’s 92 counties don’t have psychiatrists available for cases, and that the ones that do face long waiting lists. * * *

Henry County Circuit Court Judge Mary Willis said the need for a psychiatrist is a resource issue. She said that judges’ concerns come from having to preside over serious mental trials, and sometimes not so serious mental trials, both of which have the issue of becoming insanity cases.

“We have to go to our council to ask for money because sometimes our psychiatrist exams are triple the cost of our psychologist exams,” said Willis.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Courts

Ind. Law - "Trimmed abortion bill goes to Indiana Senate"

Niki Kelly has the story today in the Fort Wayne Journal Gazette. The story begins:

INDIANAPOLIS – A measure meant to put additional regulations on the state’s abortion clinics was vastly changed in a Senate committee Wednesday, leaving just a few smaller concerns.

Senate Bill 292 originally would have made some major changes to abortion law but an amendment was offered immediately by the committee chairwoman to remove most of the legislation. [ILB: Chairwoman Patricia Miller, R-Indianapolis]

After amendment, the bill passed the committee and now heads to the full Senate for consideration.

The bill originally would have eliminated a grandfathering provision and required all abortion clinics to meet certain physical plant standards. The amendment removed that language.

The original bill also would have required annual inspections of the clinic instead of biennial. The legislation now says the Indiana State Department of Health may inspect once a year and when complaints are filed.

Lastly, the measure touches slightly on current law requiring any abortion doctor to have admitting privileges at a nearby hospital or an alternate backup physician with admitting privileges.

The bill would have eliminated the back-up physician option but was kept to reflect current law.

It does now require more information to be provided about the backup to the state.

Barb Berggoetz's story in the Indianapolis Star begins:
A Senate bill that would have imposed more restrictions on abortion providers in the state was watered down in committee Wednesday, but Planned Parenthood leaders object to a remaining proposal they say could lead to harassing doctors.

The committee also passed a bill creating a legislative study committee to look into making it illegal to “coerce a woman concerning an abortion” and to determine how often this occurs in Indiana.

Under revised Senate Bill 292, the identities of physicians who agree to handle complications or emergencies for other physicians who perform abortions would have to be submitted to the Indiana State Department of Health.

“The one biggest remaining concern is the potential for the backup physicians to be named publicly,” Betty Cockrum, CEO and president of Planned Parenthood of Indiana and Kentucky, said after the hearing. “We know what that means. And it’s not pretty.”

During the hearing before the Senate Health and Provider Services Committee, Liz Carroll, Planned Parenthood’s vice president of patient services, said doctors who perform abortions and agency leaders have had protesters screaming outside their houses and been harassed in other ways.

In Bloomington, a protester took an axe to a clinic, she said.

In other states, two doctors have been killed and numerous clinics bombed or set on fire, according to news reports.

The bill, sponsored by Sen. John Waterman, R-Shelburn, passed the committee 8-2, with Democratic Sens. Mark Stoops of Bloomington and Gregory Taylor, Indianapolis, voting against it.

Cockrum said her agency suggests that information on backup physicians be made available to the state department at the time it inspects the clinics to lessen the risk of exposure. A law passed in 2011 requires a doctor who performs abortions in Indiana to have admitting privileges to a hospital or to have a backup physician who can handle potential medical complications.

ILB: Recall from this Jan. 28th post that the version of the law, as amended in 2013, already is in federal court, pending trial. The 2013 amendments have been enjoined from taking effect in the meantime.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Law

Environment - "Bartholomew County neighbors oppose plan for county’s largest hog facility"

A $$ story today in the Columbus Republic, reported by Mark Webber, begins:

PLANS for Bartholomew County’s largest-ever confined feeding operation for hogs near Anderson Falls Park have neighbors worried about a reduction in their quality of life.

Crop producer William Gelfius of Hartsville wants a zoning exception for 11.7 acres on the north side of his 378-acre farm property along East County Road 200N. That would clear the way for the first 80- by 400-foot swine building capable of housing 4,400 head of wean-to-finish swine this year.

A second identical building could be built on the property within four years if market conditions warrant, said Justin Gelfius, the applicant’s son. If and when the two barns are complete, the operation could house up to 8,800 hogs.

The Gelfius property is along the Bartholomew-Decatur County line about 1.5 miles northwest of Waynesburg, in Clifty Township.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Environment

Ind. Courts - "Judge: Prosecutor has until February to signal strategy"

Randy McClain of The [Columbus] Republic, reports in a $$ story that begins:

Bartholomew Circuit Judge Stephen Heimann wants to know by Feb. 20 if the county prosecutor has ruled out seeking the death penalty when Waynesville murder suspect Samuel E. Sallee goes to trial this summer.

If Prosecutor Bill Nash doesn’t declare the death penalty is out of consideration by that date, Heimann said he will appoint two new attorneys from outside Bartholomew County who are qualified to handle complex, death-penalty cases to take over Sallee’s defense.

The judge’s eight-page ruling acknowledges the legal tightrope he’s walking in trying to protect the 56-year-old Sallee’s right to a prompt trial and adequate defense and to allow the prosecutor’s office sufficient time to weigh the pros and cons of seeking death.

The AP has picked up the story here.

Posted by Marcia Oddi on Thursday, January 30, 2014
Posted to Indiana Courts

Wednesday, January 29, 2014

Environment - "No more stringent" bill passes House, 68-28

Rick Callahan of the AP reports this evening in a story that begins:

Indiana regulators would be barred from adopting environmental rules tougher than federal standards under a bill that's advancing in the General Assembly but has drawn criticisms that it would hamper efforts to protect the state's environment and public health.

The Republican-controlled Indiana House passed the bill Tuesday on a 68-28 partisan vote. The measure, which now heads to the Senate, would bar Indiana's environmental regulators "from adopting a rule or standard that is more stringent than" corresponding federal rules or standards.

State Rep. David Wolkins, R-Winona Lake, said the measure he's offered for several years is aimed at curtailing future actions by state regulators he fears could someday pursue environmental regulations that would be costly to Indiana's industries.

"Political appointees come and go. And if we get somebody who is a very rabid environmentalist, the fact is, they just don't pay any attention to the cost of things," he said Wednesday.

But Beverly Gard, a former Republican state senator who now heads Indiana's Environmental Rules Board that handles rule-making for air, water and solid waste regulations, said the measure is "bad public policy" and would bind the hands of the Indiana Department of Environmental Management.

Gard said existing state law already details what steps must be taken if rules are proposed that are more stringent than existing U.S. Environmental Protection Agency standards.

If the bill passes the Legislature, she said it could have numerous ramifications, including limiting what rules IDEM could propose to address the large amounts of manure produced by the state's big livestock farms.

"The current statue seems to me to be working, and Indiana hasn't had a history of really going overboard on environmental rule-making as far as rules more stringent than federal standards," Gard said. "I think it's bad public policy. It just wouldn't allow Indiana the flexibility to meet its needs."

Here is a list of ILB posts on "no more stringent" going back to 2005. In this one from Jan. 22 of this year, the ILB's points are similar to those former Senator Gard makes in today's story.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Environment

Ind. Courts - "Third person comes forward concerning Clark County drug court "

Updating the ILB post from a few hours ago, headed "'A Big Screw Up': Woman sentenced to two days in Clark County jail serves five months," WHAS 11, Louisville, is now reporting:

CLARK COUNTY, Ind. (WHAS11) -- A third person is now coming forward saying she spent months behind bars when she was only supposed to be there a few days.

It’s the latest in our continuing investigation into Clark County Indiana’s Drug Court.

This all comes one day after the director of that court was fired. A Louisville attorney is now preparing lawsuits to file against Clark County.

“I just felt like I was a hostage just sitting there,” Ashleigh Hendricks Santiago said.

Santiago is a participant in drug court. The program serves as rehabilitation. In May she violated the terms of drug court and was sent to jail for six days. But she wasn't released until late October.

“Worrying, wondering what's going on, why me. Why hasn't anyone got back with me? I was seeing other participants come out and yet I'm still sitting there being forgotten about,” Santiago said.

Santiago is the latest to come forward with complaints about drug court.

“There are safe guards put in place to prevent whomever to put people in jail without answers and those safe guards were ignored in that case,” Mike Augustus, Santiago’s attorney, said. “I plan to file a lawsuit due to those violations of my client’s constitutional rights.”

Augustus says he is also filing a lawsuit on behalf of another drug court participant Amy Bennett.

“They come to my house. Jeremy Snelling put handcuffs on me told me I was under arrest and put me in the back of the car while Susan Knoebel searched my purse,” Bennett said.

Jeremy Snelling is the bailiff of drug court and is suspended from his job right now. Amy Bennett is the second person to say she was unlawfully arrested by Snelling.

The drug court director, Susan Knoebel, has now been fired.

Snelling and Knoebel did not have arresting powers. The Indiana State Police are doing a criminal investigation.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Courts

Ind. Courts - " 'A BIG SCREW UP:' Woman sentenced to two days in Clark County jail serves five months"

Updating this post from earlier today, the ILB has learned via this story in The Daily Caller of a long Jan. 24th story by Gary Popp in the Jeffersonville News & Tribune with a different focus. It begins:

JEFFERSONVILLE — Editor’s note: This is an updated version of the original story.

A participant of the Clark County Drug Court Treatment Program sentenced to 48 hours in the Clark County jail was released from the facility Thursday — 154 days after being placed behind bars.

Destiny Hoffman, 34, Jeffersonville, was ordered to serve two days in jail on Aug. 22 by Clark County Circuit Court No. 2 Judge Jerry Jacobi.

The sentence came after Hoffman provided a diluted drug screen result, a violation of the drug court program, which Jacobi oversees.

Jacobi instructed the Clark County Sheriff’s Office through a bond notice to hold Hoffman under no bond and for her “to be held until further order of the court.”

But Jacobi never issued that order, and Hoffman remained behind bars for more than five months.

Even though Hoffman was released from the jail Thursday, she has said she may seek a civil suit against Clark County, resulting in another black eye for the embattled drug treatment program.

According to court records, after Hoffman’s two-day jail sentence, she was to be “[held] pending evaluation and treatment recommendation,” but that evaluation or recommendation never took place.

Records show Jacobi ordered Hoffman’s incarceration without a hearing or legal counsel.

It is unknown how much longer Hoffman would have remained in the jail had it not been for the efforts of Clark County Deputy Prosecutor Michaelia Gilbert, who first questioned the woman’s incarceration while reviewing old case files Wednesday.

Later in the day, Gilbert entered the motion for an immediate status hearing. According to the motion Gilbert drafted, Hoffman’s civil liberties were violated by the term of incarceration.

There is much more to the story. It concludes:
A lawsuit would add to the controversy surrounding Jacobi and the drug treatment program. The Clark County prosecutor’s office is expected to determine in the near future if criminal charges are appropriate for two drug court program employees, Susan Knoebel and Jeremy Snelling, who were placed on unpaid leave Jan. 7 and continue to be on suspensions.

As Jacobi was not in court Thursday, he was not reached for comment on Hoffman’s incarceration.

“I can’t explain it,” Masingo said about how Hoffman ended up in jail so long. “It is something the court should have known about. Obviously, it fell off their docket, and they just forgot about it.

“For the last several months,” he added, “she has been sitting in jail without counsel and without knowing what is going on.”

A pretrial hearing concerning the matter will be held Monday in the Office of the Clark County Prosecutor.

“The prosecutor and I are going to go over her options, but we expect she will be released from the drug court and all charges will be dropped,” Masingo said.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Courts

Ind. Gov't. - "Candidates may gain access to gated communities, restricted neighborhoods"

Dan Carden's story today for the NWI Times begins:

INDIANAPOLIS | Residents of gated communities and neighborhoods with prohibitions on political campaigning may soon be getting a lot of unwanted visitors, with no way to stop them.

The Indiana House voted 84-10 Tuesday for House Bill 1134, barring homeowners associations from adopting or enforcing rules that block an elected official or political candidate from entering association property or visiting homes in the neighborhood.

The measure, sponsored by state Rep. Shelli VanDenburgh, D-Crown Point, was changed Monday by the House at the request of state Rep. Milo Smith, R-Columbus, to also require homeowners associations grant access to the spouse of an elected official or candidate and any volunteers working on behalf of an official or candidate.

VanDenburgh said the legislation ensures elected officials and candidates have equal access to all their constituents or those they want to represent, regardless of where they live.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Government

Ind. Decisions - 7th Circuit case from Illinois" "Prosecutor Can Be Sued For Abusive Investigation and Misconduct"

This 7th Circuit opinion on Jan. 23rd, in the case of Fields v. Wharrie (ND Ill) is the focus of an article by Jonathan Turley today, where he writes that Judge Posner ruled that "that immunity does not protect the defendant — the county prosecutor — from liability under 42 U.S.C. 1983." (h/t Tim Evans)

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 20 NFP)

For publication opinions today (2):

In Ralph Andrews v. MOR/Ryde International, Inc., a 9-page, 2-1 opinion, Judge Pyle writes:

In this interlocutory appeal, Ralph Andrews (“Andrews”) appeals the trial court’s order finding that should his complaint against Mor/Ryde for breach of contract be successful at a future trial, the damages awarded under Indiana Code § 24-4-7-5(b), the Indiana Sales Representative Act (“the Act”), are punitive in nature, and, therefore, would be subject to the evidentiary standard, limitation, and diversion provisions of Indiana’s punitive damages statute under Indiana Code § 34-51-3-1 et seq. We affirm. * * *

Hence, we also presume that if the legislature intended the damages awarded under the Act to be something other than punitive in nature, it could have specifically exempted those damages from the requirements of I.C. § 35-51-3-1 et. seq. Therefore, when a plaintiff has alleged bad faith under the Act, the plaintiff must show bad faith by clear and convincing evidence, and any exemplary damages awarded are subject to the requirements of I.C. § 35-51-3-1 et. seq. The judgment of the trial court is affirmed.

CRONE, J., concurs.
BARNES, J., dissents with opinion. [that begins, at p. 7] I respectfully dissent. I do not believe the general statutes and principles governing “punitive” damages control an express statutory award of “exemplary” damages under the Indiana Sales Representative Act, even if those two words are sometimes used interchangeably.

In Cory L. Meadows v. State of Indiana, a 9-page opinion, Sr. Judge Sharpnack writes:
Cory L. Meadows appeals the trial court’s denial of his request for credit time. Meadows presents the case in terms of whether electronic monitoring is restrictive enough to require a grant of credit time. Rather, the case is in terms of whether it is an abuse of discretion to deny credit to a person who fails to comply with conditions for participation in a drug court program under a deferral of conviction and sentence plea agreement. We affirm. * * *

In sum, after careful evaluation of the statutory provisions governing sentencing, electronic monitoring, and deferral programs and after considering the objectives of the deferral programs, we conclude that it was within the trial court’s discretion to deny Meadows credit toward his sentence for time he spent on electronic monitoring while participating in a deferral program.

NFP civil opinions today (6):

Emergency Services Billing Corporation, Individually and as Agent of the Brooklyn Volunteer Fire Department v. Tonia Conklin and American Family Insurance Group (NFP)

In Re the Paternity of A.C.P-C., J.P. v. J.H.C. (NFP)

Robert L. Neale v. Correctional Medical Services, Inc., et al (NFP)

Ivan C. Patterson v. CitiMortgage, Inc. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: M.P. and E.P. (Minor Children), and F.P. (Mother) v. The Indiana Department of Child Services (NFP)

Kathleen Walton, Personal Representative of Estate of Mary Cox, Deceased v. Estate of Glenn Swisher, Deceased (NFP)

NFP criminal opinions today (14):

Talesa Howell v. State of Indiana (NFP)

Ronald Lemon v. State of Indiana (NFP)

Joseph Franklin v. State of Indiana (NFP)

Maurice D. Beckham v. State of Indiana (NFP)

Mark F. Johnson v. State of Indiana (NFP)

Jesus Maldonado v. State of Indiana (NFP)

Thomas Walker v. State of Indiana (NFP)

Andre Marshall, Jr. v. State of Indiana (NFP)

Lynda A. Harris-Martinez v. State of Indiana (NFP)

Michael Eaton v. State of Indiana (NFP)

Ryan Bailey v. State of Indiana (NFP)

Dawn M. Bailey v. State of Indiana (NFP)

Fredrick Kyles v. State of Indiana (NFP)

Aaron Gordy v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Worth rereading, quotes from Nov. 19, 2013 NWI Times story

The ILB ran across this earlier post, from Nov. 19, 2013, quoting a story from Dan Carden of the NWI Times. The quotes are worth a read.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Government

Ind. Gov't. - "Voucher schools invite public scrutiny in accepting public dollars"

A long editorial today in the Fort Wayne Journal Gazette begins:

What does school choice mean in Indiana? It means taxpayer-supported schools that can choose:

•To refuse admission to students on the basis of religion, economic background, academic record and more.

•Not to offer instruction to English language-learners or students with severe and profound disabilities.

•To conduct school board meetings behind closed doors.

•To teach creationism as science, in violation of federal law.

•To fire teachers without cause.

Taxpayers spent more than $36 million last year on schools not required to provide many of the services public schools must offer. A report released by the Indiana Department of Education this week showed that 19,809 students are using vouchers this academic year – more than double the number who received taxpayer assistance last year.

The General Assembly has expanded eligibility for vouchers each year so that there are now seven pathways for families to qualify. Almost 40 percent of Indiana voucher students this year were never enrolled in a public school. They didn’t choose to leave “failing” schools; they simply chose to use tax dollars at a private or religious school.

Vouchers are not limited to low-income families. A household with three children can earn as much as $102,000 a year and yet qualify for partial assistance. A quarter of the voucher awards this year are used by families at the higher end of income-eligibility limits. For a family of five, that’s more than $51,000 a year.

Related is this Jan. 26th story from Slate, by Chris Kirk, headlined: "Map: Publicly Funded Schools That Are Allowed to Teach Creationism. Thousands of schools in states across the country can use taxpayer money to cast doubt on basic science."

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Government

Ind. Courts - "Clark County judge fires drug program chief"

Gordon Boyd reported yesterday for WAVE:

JEFFERSONVILLE, IN (WAVE) - A southern Indiana judge has fired the director of a program he created to enable certain drug offenders to obtain treatment and maintain employment, rather than do jail time for their crimes.

Susan Knoebel's firing comes only days after a program participant, Destiny Hoffman, claimed she had served five months in jail rather than the two days agreed to as part of her plea deal. It came less than 12 hours after Hoffman's former public defender, Nathan Masingo, predicted she would sue Clark County and call for an investigation of Circuit Court Judge Jerry Jacobi.

Chief Probation Officer Henry Ford confirmed Judge Jacobi directed him to fire Knoebel, three weeks after suspending her and court bailiff Jeremy Snelling.

"There was no reason given," Ford said Tuesday. "She's an at-will employee of Judge Jacobi, as are we all."

"She was fired by phone call," Knoebel's attorney, Lisa Glickfield said.

"Somebody is making her a scapegoat for what's gone on," Glickfield continued.

Hoffman's case came to light as part of two investigations into drug court operations, the first by Indiana State Police. The other probe comes through a private firm, hired at Judge Jacobi's request.

"We're drafting a plan to remedy some of the problems pointed out," said Paul Lenfort, the program's interim director. "For now, it's business as usual."

Approximately 75 offenders have opted for treatment and monitoring, as an alternative to jail time, Ford said. "They pay for their own testing, two to three times a week."

Two caseworkers oversee all of the participants.

In a interview with WAVE 3 News Monday, Clark County Chief Deputy Prosecutor Jeremy Mull offered few specifics as to how Hoffman and another program participant Jason O'Conner appeared to have gotten lost in the system.

"Evidently, in these two cases, none of the follow-up that might typically occur in Drug Court did occur," Mull said.

"Drug Court is supposed to be a team-approach," Glickfield said. "The team includes the prosecutor, the Judge, the probation officers and the defendants themselves. They're all responsible."

Masingo claimed Hoffman herself wrote letters to Judge Jacobi and to drug court caseworkers.

"Once you plead, the Public Defender's office withdraws from the case," Masingo said. "Our job is done at that point. (But) somebody is asleep at the wheel up there."

"I believe she is going to file a disciplinary complaint on Judge Jacobi," Masingo said. "I'm not sure what will come of that. But I know definitely a lawsuit is going to be filed against the county."

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Courts

Ind. Gov't. - "Ban on gun buy-back programs approved by Senate"

Updating this ILB post from Jan. 23rd, Dan Carden reports today in the NWI Times:

INDIANAPOLIS | The Republican-controlled Indiana Senate ignored pleas for local control from three Lake County lawmakers and voted 28-21 on Tuesday to prohibit all municipal gun buy-back programs statewide.

Senate Bill 229, which now goes to the House, bars local governments or their police departments from holding gun buy-back events. It also requires police departments to auction or sell nearly all guns they seize or obtain, including those used in crimes.

State Sen. Jim Tomes, R-Wadesville, the sponsor of the proposal, said it doesn't make sense for police to destroy guns obtained through buy-back programs or other means when most guns have value that could be put to better use.

His measure permits proceeds from gun sales be spent by police to buy guns, ammunition or bulletproof vests. Current law requires those funds be used for training.

"I'm not trying to micromanage local government here," Tomes said. "But I don't know why we would tell the citizens of any town, 'We're going to waste your money whether you like it or not.' "

State Sen. Earline Rogers, D-Gary, said officials running the Gary gun buy-back program, which offers store gift cards in exchange for guns with no questions asked, sees more value in getting guns permanently off the street than in recirculating them.

"This bill takes away local control, and if a community wishes to use this as an opportunity to start a discussion about firearms in their particular community, they ought to be able to do that," Rogers said. "I'm appalled that you would use something like a 'best business practice' to try to really cover up what's being done here -- it's the old proverbial lipstick on a pig."

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Government

Ind. Law - "Pared gay marriage ban OK’d by House: It’s Senate’s call whether to restore civil union sentence"

That is the headline to Niki Kelly's HJR 3 story in today's Fort Wayne Journal Gazette. Some quotes:

The amendment now mirrors state law, after House members on Monday removed a second sentence that would have also banned civil unions. That pushes a possible public vote on any amendment until 2016.

But if the Senate restores the provision, Hoosiers could vote on the amendment in November. That chamber likely won’t take up the matter until the week of Feb. 10 due to legislative deadlines. * * *

The proposed amendment now says, “Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.”

Rep. Eric Turner, R-Cicero, said that without the constitutional amendment, the state “runs the risk of a state court changing the will of the people, the will of the legislature.”

The Indiana Court of Appeals upheld the state law in 2005, and the Indiana Supreme Court declined to take the case. [ILB: Actually, that is incorrect, the parties did not seek Indiana Supreme Court review - see this post from Feb. 18, 2005.] * * *

Rep. Ed Delaney, D-Indianapolis, said the constitutional amendment doesn’t protect Indiana from a federal court interceding as it has in other states.

He also said that no church can be forced to bless marriages it doesn’t approve of.

“I was so proud last night that this body fought, considered, deliberated and made a tough decision,” Delaney said of the House removing the second sentence. “This is a tougher decision. I think the right decision is to end this now, not spend the rest of the year tearing ourselves up, tearing our public up.” * * *

Pressure immediately moved to the Senate. The Family Research Council Action joined the Indiana Family Institute and the American Family Association of Indiana in calling on senators to restore the second sentence.

“Yesterday the Indiana House of Representatives disenfranchised voters who expected their elected officials to respect the right of the people to decide the future of marriage,” Family Research Council President Tony Perkins said.

“This is why the state Senate must restore the amendment rather than leave the future of marriage in the hands of activist judges. Freedoms are on the line.”

Barb Berggoetz and Tony Cook of the Indianapolis Star have this story. Some quoes:
Opponents of the same-sex marriage ban now face an even bigger uphill battle in the Indiana Senate, after the amended version of the constitutional ban passed the House by a 57-40 vote on Tuesday.

Passage of the revised amendment was expected in the House following Monday’s vote to eliminate the amendment’s second sentence, which also banned civil unions.

The change made House Joint Resolution 3 more palatable for some wavering House Republicans. But the change is likely to face a more critical eye in the Senate, where efforts to re-insert the second sentence are likely to emerge.

In 2011, the amendment — including the civil unions ban — passed the Senate by a 40-10 margin. No Republicans voted against it. Since then, the body has changed only slightly. Three new Republicans and one new Democrat started their terms in 2012.

Now, the Senate has 37 Republicans and 13 Democrats. Recently, a couple Republicans have voiced reservations about the amendment. But, unlike in the House, none has openly said they are against it.

Supporters of the amendment began lobbying senators immediately following the House vote. They want the second sentence re-inserted.

“Retaining the second sentence makes the first sentence much more likely to survive a legal challenge,” said Curt Smith, president of the Indiana Family Institute, a group that supports the ban. [ILB: Really?] * * *

If the Senate approves the House version of the resolution, a statewide referendum on the gay marriage ban likely would be delayed until 2016, because a new General Assembly probably would have to approve it again next year.

Supporters of the ban, including Gov. Mike Pence, wanted it on the ballot this November. That could still happen if the Senate restores the second sentence and the House goes along with the change. * * *

During Tuesday’s debate on the House floor, House Minority Leader Scott Pelath, D-Michigan City, said alterations to the amendment “have not dismantled this bomb, we simply have placed a longer fuse on it before it detonates in our faces.” * * *

Rep. Matthew Piece, D-Bloomington, argued the constitution is intended for defending the rights of minorities and this amendment would do the opposite. He said a referendum in Germany in 1930 on whether Jews should have equal rights likely would not have passed.

“We shirk our responsibility when we say, let’s just let the people decide,” Pierce said. “We don’t want to be a conveyor belt of constitutional amendments just to move them along.”

The Indianapolis Star has an editorial today titled "Let’s finally end the distraction of HJR-3." It writes:
The protracted debate over this amendment, first passed in 2011, already has been an enormous waste of time and energy. It’s time to set it aside, and to tackle the challenges that stand in the way of growth in our state.
But it gives no clue as to how to accomplish that.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Law

Ind. Gov't. - More on "School gun amendment slips into House bill"

Updating this post from yesterday re a story by Niki Kelly of the Fort Wayne Journal Gazette, in a new story Kelly reports:

House Republicans tried to pull a fast one Tuesday by amending a bill on government reduction with language allowing teachers, students and parents to bring guns onto school grounds.

But the provision was removed by the end of the day by leadership. * * *

“I didn’t realize it was going to be a big deal,” [Rep. David] Wolkins said.

He was called to House Speaker Brian Bosma’s office about the situation Tuesday morning.

A spokeswoman said Bosma is concerned with what happened and that he would address it.

As a result, there was an emergency meeting of the House Rules Committee on Tuesday afternoon where the gun provision was removed so the rest of House Bill 1005 could move forward.

“I support the language 100 percent in another context,” said Rep. Jerry Torr, R-Carmel, chairman of the Rules Committee.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Indiana Government

Ind. Decisions - More on: 7th Circuit reversed Annex Books yesterday, the oral argument was the week before

Updating this ILB report from last Sat., Jan. 25th, the Indianapolis Star reports today, in a long story by Tim Evans that begins:

A federal court has struck down an Indianapolis ordinance limiting the hours of adult bookstores, the latest in a decades-long series of local regulatory and law enforcement maneuvers taking aim at adult businesses.

The U.S. Court of Appeals for the 7th Circuit overturned a district court ruling that ­upheld a 2003 city ordinance requiring adult bookstores to be closed from midnight to 10 a.m. daily and all day on Sundays.

The federal ruling Friday came in a challenge mounted by four businesses affected by the city rules: Annex Books, Keystone Video and News, ­Lafayette Video & News and New Flicks, which is now out of business.

“This is an important victory for freedom of speech ­under the First Amendment,” said J. Michael Murray, a Cleveland attorney representing the bookstores.

“When a government singles out a business by its content, stores that sell a certain type of literature, magazines and DVDs, it implicates the First Amendment, and the city has to justify that the ordinance furthers a legitimate government interest. ... In this case, the city could not meet that burden.”

ILB: On Jan. 22nd the ILB wrote:
The ILB has lost track of the various manifestations of Annex Books (long list of entries here).
Indianapolis taxpayers paid for all that ligitation.

Posted by Marcia Oddi on Wednesday, January 29, 2014
Posted to Ind. (7th Cir.) Decisions

Tuesday, January 28, 2014

Courts - I love this! - from BUZZFEED

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Courts in general

Ind. Courts - "Indiana abortion law trial set for June 1, 2015"

Updating this post from Nov. 26, 2013, which was headed "Ind. Decisions - Federal district court temporarily enjoins state enforcement of IC 16-18-2-1.5(a)(2) which Planned Parenthood has asserted would shut down its Lafayette clinic," today Tim Evans of the Indianapolis Star reports that:

A new Indiana law that redefines abortion clinics, aimed at shutting down a Lafayette health clinic that dispenses an abortion pill, is headed for trial in federal court.

U.S. District Judge Jane Magnus-Stinson this week set a June 1, 2015, trial date in a legal challenge to the law brought by the American Civil Liberties Union of Indiana on behalf of Planned Parenthood of Indiana and Kentucky.

The judge in November issued a preliminary injunction, stopping the law approved by the General Assembly in 2013, from going into effect on Jan. 1.

The lawsuit filed in August claims changes made by the 2013 legislation that redefines abortion clinics are unconstitutional.

It is at least the fourth lawsuit filed in the past decade in the contentious fight in Indiana over abortion rights and the services provided by Planned Parenthood.

The latest lawsuit takes aim at Senate Enrolled Act 371 [2013].

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Courts

Ind. Gov't. - More on "Jasper biomass lawsuit pricetag exceeds $500,000 (so far)"

Updating this ILB post from Oct. 2, 2013, Dubois County NewsNow is reporting "Judge Signs Off On Settlement; 'Biomass' Battle Now Officially Over." Some quotes:

Special Judge Sherry Gregg-Gilmore has signed off on the settlement reached last week between the City of Jasper and the local citizens group Healthy Dubois County, Inc.

Gregg-Gilmore signed the settlement Monday bringing an end to a nearly two-and-a-half year legal battle that started immediately after the City signed a lease agreement with a Georgia-based company to lease the now-idled Jasper power plant. * * *

Terms of the settlement include that both sides dismiss all legal claims against the other and that each pay their own legal costs. The City of Jasper has accrued legal expenses of about $600,000 defending its position. The City has also lost neasrly a half-million dollars in lease payments from Twisted Oak Corporation. Meanwhile, HDC says its legal fees total about $240,000.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Government

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

For publication opinions today (5):

In Allen County Public Library v. Shambaugh & Son, L.P., Hamilton Hunter Builders, Inc., W.A. Sheets & Sons, Inc., and MSKTD & Associates, Inc. , an 8-page opinion on rehearing, Judge Barnes concludes:

Here, the Library specifically procured a “builder’s risk” policy to cover only the renovation and addition project, i.e. “the Work.” It did not rely upon a pre-existing general property insurance policy that applied to both “Work” and “non-Work” property, unlike the property owners in the “majority view” cases cited by the Defendants. There is no evidence in this case of any other insurance available to the Library that would cover pollution remediation costs of land outside “the Work” of the library building renovation and addition. As such, even under the holding of the “majority view” cases, most notably Sigma Pi, Section 11.3.7 of the AIA contract did not bar the Library from seeking to recover uninsured losses from the Defendants for damage caused to “non-Work” property by the Defendants. With the above observations, we reaffirm our original opinion in all respects.
In Tammy Lou Kelly v. State of Indiana, a 21-page opinion, Judge Robb writes:
Tammy Lou Kelley appeals her convictions, following a bench trial, for criminal confinement, a Class C felony; three counts of battery resulting in bodily injury, Class D felonies; and resisting law enforcement, a Class A misdemeanor. Kelley presents several issues on appeal, one of which we find dispositive: whether the trial court’s verdict finding Kelley guilty but mentally ill was contrary to law. Concluding that the trial court’s verdict was contrary to law we reverse and remand. * * *

Concluding that the trial court erred in contravening the unanimous determination of the psychiatrists that Kelley was insane at the time of the incident, we reverse and remand with instructions for the trial court to enter a finding of not guilty by reason of insanity.

In Wayne Campbell v. State of Indiana, a 13-page opinion with a pro se appellant, Judge Barnes concludes:
Campbell failed to establish that he received ineffective assistance of trial counsel with respect to either the manner in which voir dire was conducted or in the failure to object to the supplemental jury instruction defining “intentionally.” We affirm the denial of Campbell’s PCR petition.
In Audie Wilson v. State of Indiana, an 11-page opinion on rehearing, Judge Bailey concludes:
The trial court did not abuse its discretion when it permitted the State to cross-examine Wilson regarding his use of other nicknames. Additionally, there was no fundamental error in giving Final Instruction 23.
In Jeremy Schath v. State of Indiana , a 5-page opinion, Judge Bradford writes:
During the evening hours of November 17, 2012, Appellant-Defendant Jeremy Schath was raccoon hunting, with permission, on property located along the south side of County Road 640 in Decatur County. At some point, Schath’s hunting dog crossed onto property on which Schath knew he did not have permission to hunt. When Schath became aware that his dog had entered the other property, he entered the property, unarmed, for the purpose of retrieving his dog.

On March 12, 2013, Appellee-Plaintiff State of Indiana charged Schath with Class C misdemeanor hunting upon private property without the consent of the landowner. The trial court conducted a bench trial on July 29, 2013, during which the State amended the charging information to include the allegation that Schath chased wildlife, i.e., a raccoon, on privately owned property without the consent of the landowner. At the conclusion of the bench trial, the trial court found Schath guilty of the amended charge. On appeal, Schath contends that the evidence is insufficient to sustain his conviction. Concluding that the evidence supports only the inference that Schath went on to the property in question to retrieve his dog, not to “chase” a raccoon, we reverse.

NFP civil opinions today (3):

Thomas A. Christopher v. Mike Raisor Imports (NFP)

In the Matter of the Involunatary Termination of the Parent-Child Relationship of K.B., Minor Child, and Her Mother, M.B., M.B. v. Indiana Department of Child Services (NFP)

Eleanor L. Mitchell v. RIH Acquisitions IN, LLC, d/b/a Resorts East Chicago (NFP)

NFP criminal opinions today (6):

Michael Johnson v. State of Indiana (NFP)

Jesse Imel v. State of Indiana (NFP)

John Collins v. State of Indiana (NFP)

Raul Fuentes v. State of Indiana (NFP)

Charles A. DePree v. State of Indiana (NFP)

Reginal Exson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Ind. App.Ct. Decisions

Environment - "Tully: At the Statehouse, protection for polluters" via "right to farm"

From Matthew Tully's Indianapolis Star column today:

The state legislature is in session so you can assume, with confidence, that Indiana’s already fragile and battered environment is taking another beating. It happens every year at the Statehouse, where powerful special interests representing factory farms push cringe-worthy pieces of legislation filled with gifts for the industry.

It’s a fact of life that doesn’t always get heavy attention but does leave behind a heavy stench, both in the literal and figurative sense.

One of this year’s most troublesome bills recently raced through the state Senate with little trouble and looks likely to do the same in the House, barring the type of negative attention that has helped kill a few other pieces of awful public policy in recent years. The bill (Senate Bill 186) essentially seeks to give factory farms — say, large-scale pig and poultry outlets — a significant advantage over the rest of us in regulatory, zoning and courtroom debates, as if they didn’t already have that advantage over average citizens.

So, yes, to be clear, a state that ranks near the bottom on so many core environmental fronts, a state where factory farms are already treated with kid gloves, is looking to make things even worse. * * *

Senate Bill 186, along with its companion, House Bill 1200, has bled out of the push in recent years to put a so-called “right to farm” amendment in the state constitution. This amendment was insincerely pitched last year as a way to honor the state’s long and treasured agricultural history. But it was in fact an attempt to give concentrated animal feeding operations a leg up when it comes time for juries, local governments and regulatory bodies to make decisions. It would have put in the constitution a special protection for such farms, making it even more difficult for the state to restrict their actions or for neighbors to seek justice when harmed by, say, animal waste discharges.

The good news is that those lawmakers pushing the idea, backed by Indiana Farm Bureau and major CAFO companies, seem to have backed away from their plan to put it the constitution. The bad news is that they have simply transferred the language to a more traditional bill that now has a good chance of becoming state law.

ILB: For more, see this ILB post from Jan. 14th, and a follow-up from Jan. 15th.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Environment

Ind. Gov't. - "Dean emeritus of the Robert H. McKinney School of Law" off to Olympics

Mike Corbin reports for WIBC:

[Gary Roberts]leaves Tuesday for the world sporting spectacle where he'll serve as one of nine arbitrators on the special tribunal that will settle any legal disputes that may come up during the games. Roberts is an expert in sports law and says he's never been to Russia so he's excited to go and bring his wife along.
h/t Michelle Olsen @AppellateDaily

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Government

Ind. Gov't. - "School gun amendment slips into House bill"

Niki Kelly reports this morning in the Fort Wayne Journal Gazette about how guns in schools language was slipped into another bill today. Some quotes:

INDIANAPOLIS – House Republicans pulled a fast one Tuesday by amending a bill on government reduction with language allowing teachers, students and parents to bring guns onto school grounds.

House Bill 1048 was heard in the House Public Policy Committee several weeks ago but was held before a vote. It was scheduled again but the chair held it again due to the Purdue University shooting happening.

On Tuesday morning the Public Policy Committee met on other bills but the gun bill was not scheduled. Today is the last day for bills to make it out of committee.

Instead, an amendment with the gun language was slipped into House Bill 1005 at a meeting of the Select Committee on Government Reduction. * * *

Rep. David Wolkins, R-Winona Lake, chaired the committee. He said the chairman of the Public Policy Committee – Rep. Tom Dermody, R-LaPorte – had second thoughts about the gun bill and decided not to move it forward even though it had the votes.

Wolkins asked Dermody if he was OK with the amendment and he said yes.

“I didn’t realize it was going to be a big deal,” Wolkins said.

He was called to House Speaker Brian Bosma’s office about the situation this morning.

A spokeswoman said Bosma is very concerned with what happened and he will address it this afternoon during session.

He could refuse to call down the committee report on House Bill 1005, which could kill the language.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Government

Ind. Law - "House amends HJR-3, possibly delaying referendum"

Tony Cook and Barb Berggoetz report in a long story today in the Indianapolis Star:

In an atmosphere of rapidly shifting opinions on gay marriage, nearly two dozen Indiana House Republicans bucked their leadership to strip a same-sex marriage ban of the clause opponents find most objectionable.

The House voted 52-43 to remove the proposed constitutional amendment's second sentence, which would have banned civil unions and similar arrangements. That leaves only the first sentence, which would still ban gay marriages.

If the altered version is adopted by both chambers of the General Assembly, the measure would not go to voters this November as supporters — including Gov. Mike Pence — would like. The full House is expected to vote Tuesday on the altered resolution, which might not make it to voters until 2016. * * *

"Obviously, this is a great night for our campaign, and we're extremely excited to have the second sentence taken out," said Megan Robertson, campaign director for Freedom Indiana, a coalition working against the amendment.

But, she added: "Getting rid of one bad sentence doesn't fix the whole bill."

Opponents of the measure acknowledge they still have a fierce uphill battle ahead of them. The odds of defeating what's left of the amendment remain long, and they still face the prospect of the Senate reinstating the ban on civil unions in a renewed effort to send the issue to voters in November.

Rep. Ed Clere, R-New Albany, who was the only Republican to vote against the measure in 2011, said the vote to take out the second sentence was "a little stronger than I expected."

"It's the first real hard evidence of the shift that's been taking place," he said.

Indeed, backers of the amendment see Indiana as ground zero in the fight to turn back a tide of judicial opinions and votes to legalize gay marriage. * * *

The change of heart among some rank-and-file Republicans stands in contrast to the party's state leaders.

In recent weeks, the governor, a Republican, has used several high-profile appearances to reiterate his support of traditional marriage and to press lawmakers to resolve the debate this year.

Meanwhile, House Speaker Brian Bosma, R-Indianapolis, went so far as to remove the measure from a committee where it seemed doomed to fail and reassign it to a more favorable committee.

Although 23 House Republicans joined Democrats to change the amendment, Bosma said he doesn't see the vote as a defeat. * * *

The changes made Monday will likely make it easier for the measure to pass the House on Tuesday. From there, the altered version will go to the Senate.

Senate President Pro Tempore David Long said last week that his chamber would honor the version it receives from the House. But once it reaches the full Senate floor, "it's open to amendment, so a reverse could happen," he said, suggesting that perhaps the second sentence could be re-inserted.

See also this long Jan. 27th story by Maureen Hayden, CNHI Statehouse Bureau, titled "Some Republicans distancing GOP party from marriage amendment." Halfway though the story Hayden reports:
A year ago, the state Republican Party dropped its support for the gay marriage ban from its platform, though Republicans nationally still support “traditional marriage” in their platform. [Craig] Dunn said the decision reflected polling and a growing awareness that the amendment was polarizing among Republicans whose opinions on the issue were evolving.

Dunn is a member of the state Republican Central Committee, which helps shape the agenda for state and federal legislators. Last fall, the committee overwhelming refused to endorse the gay marriage ban during a private meeting, Dunn said.

Still, it was given legs by Republican legislators, who’ve made it a priority and once staged a walkout when the House’s then-Democratic leaders refused to call the bill.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Law

Ind. Decisions - SCOTUS rules "Steelworkers will not get back pay for suiting up before their shifts"

Joseph S. Pete reports in the NWI Times in a long story that begins:

GARY | The nation's highest court has ruled Northwest Indiana steelworkers should not get back pay for the time they spent putting on hard hats and other protective gear before clocking in, or taking it off at the end of the shift.

U.S. Steel has prevailed in an eight-year legal battle that began at Gary Works and ended up being argued before the U.S. Supreme Court last fall. The court ruled unanimously against 800 current and former steelworkers who argued they should be paid for putting on safety glasses, respirators, ear plugs and other protective gear, as well as for the time it takes to get from the locker room to their work stations on the sprawling mill that stretches along seven miles of the Lake Michigan shoreline.

The opinion was Sandifer v. U.S. Steel Corp., "in which the Court was considering what constitutes 'changing clothes' for purposes of the Fair Labor Standards Act," per SCOTUSblog.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Decisions

Courts - What is the state of online public access to top state courts?

Open Virginia Law has put out a 21-page report titled "Public Access to the States’ Highest Courts: A Report Card." From the introduction:

State courts are key sources of law, and they serve the public. They should facilitate public access to legal proceedings and should make available official, usable versions of legal records that can be accessed on demand, searched, cited, and relied upon. Doing so should not be viewed as optional or extra but as an essential part of the judicial job in a democratic society.
The entire report is an interesting read, highlighting many areas for possible improvement. Indiana received C+, it failed to score higher because there is no online public access to briefs and other filings.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Courts in general

Ind. Gov't. - "Calumet Twp. suit claims Griffith secession law is unconstitutional"

Bill Dolan reports today in the NWI Times:

GARY | Lawyers for Calumet Township officials are challenging the constitutionality of a 2013 state law that could force them to cut millions of dollars in assistance to Gary's neediest residents.

Trustee Mary Elgin and Dwight Gardner, a Gary resident, have filed suit in U.S. District Court in Hammond contending the law, known as House Bill 1585, is improper special legislation to provide tax relief to the predominantly white town of Griffith at the expense of black Gary residents.

The law would reduce the millions of dollars paid annually to tens of thousands of township blacks to provide emergency shelter, rent, mortgage payments, transportation, utilities, health care, food and burial services to tens of thousands of residents requesting township assistance.

It also would permit Griffith, which provides much of Calumet Township assistance revenues, to hold a referendum to leave Calumet for another neighboring township and escape Calumet's high poor-relief tax rate -- more than 22 times the state average last year.

"HB 1585 fuels the flames and passions of prejudice to encourage and pit one community against another," the suit states.

It names Gov. Mike Pence and Micah G. Vincent, commissioner of the Indiana Department of Local Government Finance, which would enforce the law, as defendants.

There is much more information in the story.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Government

Ind. Law - "House sends expungement changes to Senate"

Updating this ILB post from Jan. 16th, the same reporter, Hannah Troyer of the $$ Statehouse File, reported Jan. 23rd in a story that began:

INDIANAPOLIS – Hoosiers seeking an expungement under a state law that took effect last year would get more opportunities to get their applications right under a bill the House passed Thursday.

House Bill 1155 would also change the way applications are filed and who can still see the expunged records, like law enforcement and court officials.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Law

Ind. Gov't. - "Senate committee passes bill to allow high-fence hunting"

Updating this long ILB post from Jan. 16 that includes much background, including links to the trial court rulings, Ryan Sabalow reported yesterday in the Indianapolis Star in a comprehensive story:

A bill that would open the door to high-fence hunting in Indiana passed the state Senate’s Agriculture and Natural Resources Committee today on a 6-1 vote.

The bill introduced by the committee’s chairman, Sen. Carlin Yoder, R-Middlebury, would provide a regulatory framework for an industry that has been working without one for the better part of a decade.

Yoder’s bill sets annual permitting fees, annual state inspections and creates standards for hunting farm-raised deer, such as requiring fenced preserves be at least 160 acres. The bill also would prohibit hunting within 150 yards of a feeder and require that a deer be hunted at least 24 hours after its released into an pen to ensure it’s acclimated to its environment.

The four preserves have been operating without any sort of hunting oversight since 2005, when preserves’ owners sued the Department of Natural Resources after the agency tried to shut down the facilities.

The preserve owners contended that the DNR didn’t have authority to regulate farm-raised deer. As the court case played out, the preserves were allowed to stay in business and could hunt in any manner they chose.

“There are no regulations,” said committee member Sen. Brent Steele, R-Bedford. “It is the Wild West out there.”

Harrison Circuit Court Judge John Evans ruled last fall that the DNR overstepped its authority. Attorney General Greg Zoeller’s office is appealing the case because it would effectively eliminate the wildlife agency's authority to regulate hunting behind a fence.

There’s also confusion in the law. The Harrison County decision came 10 months after a judge in Owen County threw out a case involving similar arguments.

Hunting would be allowed on the preserves from Sept. 1 to March 1, which is far longer than the traditional hunting seasons.

Yoder said he was told by the Attorney General that, given the vagueness in the law, it’s unlikely that the appellate court will be able to issue a definitive ruling. Instead, Yoder said, a legislative fix is needed.

“What this bill is is my attempt to make sense of all the different rulings that have taken place and come up with a fair and balanced way to approach this issue going forward,” Yoder said.

At the hearing, proponents of the bill included high-fence preserve owners and Indiana deer farmers who say they welcome oversight. They frame the issue as one of private property rights and rural economics. Deer farmers say preserves provide them with a place to sell their deer, bred for their enormous antlers.

“We have to have a terminal market,” said Gary Jacobson of the Indiana Deer and Elk Farmers’ Association. “The terminal market is the hunting preserves.”

Opponents included hunting and wildlife groups and animal-rights activists who call hunting behind a fence “canned hunts.” They described preserves as posing a risk of disease to native deer as well as an unsavory, unsporting practice.

“The shooting of a tame deer in a pen is not what we do as hunters.” said Doug Allman, of the Indiana Wildlife Federation and the Indiana Deer Hunters Association.

The bill is Senate Bill 404.

[More] See also this story by Niki Kelly in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Government

Ind. Law - Some farm-related legislative proposals

From Gary Truitt of Hoosier Ag Today, a story Jan. 26th headed "Farm Bills Moving in General Assembly," discussing a number of measures.

From Bill Hyden of the New Castle Courier-Times, a story headed "Saunders wants big farms to pay for cleanup" that begins:

A local state legislator has introduced a bill that would require owners of large-scale animal farms to set aside funds in the event of an environmental disaster that occurs after such facilities close.

State Rep. Tom Saunders (R-Lewisville) has proposed legislation that would forbid anyone from starting construction of a confined feeding operation (CFO) or a concentrated animal feeding operation (CAFO) without presenting proof of sufficient financial ability to pay for costs related to the closure, monitoring, maintenance and spill response in the event of a catastrophe.

The Indiana Department of Environmental Management would determine closing cost requirements on pending large-farm operations, Saunders said.

"What I am doing with this bill is asking the IDEM to make the rules for closing costs," said Saunders. "If you are doing business of this scale, then you need to be able to take care of any problems you create for others. I heard about a facility in northern Indiana that was operating before the owners walked away and left the state with the cleanup bill."

ILB: Similar legislation has been in place for years for solid and hazardous waste facilities.

Posted by Marcia Oddi on Tuesday, January 28, 2014
Posted to Indiana Law

Monday, January 27, 2014

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

In BITLER INVESTMENT VENTURE II, LLC, et al. v. MARATHON PETROLEUM COMPANY LP, et al. (ND Ind., Springmann), an 11-page opinion, Judge Posner writes:

The appeal in this diversity suit governed by Indiana and Michigan law presents issues of contract and property law (the venerable doctrine of waste). The plaintiffs, affiliated real estate firms that we’ll pretend are one and call Bitler, sued affiliated oil companies that we’ll also pretend are one and call Marathon. Bitler seeks damages for harm caused by Marathon in attempting to clean up pollution at gas stations that Bitler had leased to it. According to Bitler’s law firm, the suit sought more than $9 million in damages. * * * Later its expert witness estimated Bitler’s damages at $17.4 million. But the final judgment was for only $269,000, and Bitler appeals. * * *

It would not make sense, or conform to the reasonable expectations of the parties, to limit liability for waste or other misconduct by a tenant simply because a lease originally for a specified time—that is, an estate for years—had to be extended for an indefinite period to allow a response to unforeseen changes. Those changes were the new EPA regulations in the late 1980s, which required extensive clean‐up of the properties. Neither Marathon nor the judge gave any reason for interpreting the Michigan statute literally in such a case.

So the judgment awarding damages for waste regarding the four Michigan properties is vacated with directions to the district court to double those damages. The dismissal of the contract claims relating to the canopies is affirmed, but the dismissal of the contract and waste claims relating to the buildings on the properties in Adrian and Michigan Center is reversed and that aspect of the case is remanded for trial. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Appellees file brief in Marion County redistricting case [Updated]

In the case of MAYOR GREGORY BALLARD v. MAGGIE LEWIS, JOHN BARTH, and VERNON BROWN, for which the Supreme Court granted a Rule 56(A) expedited transfer on Nov. 1, 2013 (docket here), the Appellees have now filed their brief. Access it here.

Although the record shows that Appellants filed their brief on Dec. 23, 2013, the ILB does not yet have a copy to post.

From earlier, here is the Aug. 26, 2013 ILB post linking to the Marion Superior Court Redistricting Order, plus a link to the maps.

[Updated 1/28/14] Here is an amicus brief on behalf of Common Cause Indiana, filed yesterday. Common Cause aligned itself with the appellees and argued to affirm the trial court.

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Indiana Courts

Ind. Law - A number of second reading amendments have been filed to HJR 3

Tony Cook and Barb Berggoetz have a new story at IndyStar describing the amendments. the story concludes:

Although the proposed changes have been filed, that doesn’t necessarily mean the authors will offer them on the House floor.

A vote on any proposed changes to HJR3 could happen as early as this afternoon. The resolution’s author, Eric Turner, R-Cicero, wouldn’t say today whether he plans to call it to the floor for a vote today. He said he wants to examine the proposed changes before making a decision.

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

In In Re The Paternity of C.J.A.: G.C. (Mother) v. T.A. (Father), a 23-page, 2-1 opinion, Judge Mathias writes:

T.A.’s (“Father”) paternity to C.A. was established in the Tippecanoe Circuit Court. Father and G.C. (“Mother”) agreed to custody and parenting time, and the trial court adopted their agreement in an order titled “Amended Second Provisional Order.” However, approximately two years after the entry of that order, Father challenged Mother’s custody of their child, C.A. while she continued to reside in South Carolina.

After a hearing, the trial court issued an order awarding Mother primary physical custody of C.A., but only if she returned to Indiana. In the event she failed to establish her residence in Indiana, Father would automatically have primary physical custody of C.A. Mother appeals and raises several issues, which we consolidate and restate as:

I. Whether the trial court has authority to issue provisional orders in paternity proceedings;
II. Whether the “Amended Second Provisional Order” was a provisional or final custody order; and,
III. Whether the trial court erred when it prospectively ordered an automatic change of custody in the event Mother failed to establish her residence in Indiana.

We reverse and remand for proceedings consistent with this opinion. * * *

NAJAM, J., concurs.
BROWN, J., dissents with separate opinion [which begins, at p.19] I respectfully dissent from the majority’s conclusion that the order is a final
judgment. “The authority of the Indiana Supreme Court and Court of Appeals to exercise appellate jurisdiction is generally limited to appeals from final judgments.” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (quoting Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind. 2006), reh’g denied). We have the duty to determine whether we have jurisdiction over an appeal before proceeding to determine the rights of the parties on the merits.

In Ruben Rosales v. State of Indiana , a 13-page, 2-1 opinion, Judge Najam writes:
Ruben Rosales appeals his conviction for attempted murder, a Class A felony, following a jury trial. Rosales raises a single issue for our review, namely, whether the trial court committed fundamental error when it instructed the jury. We affirm. * * *

Rosales raises a single issue for our review, namely, whether the trial court committed fundamental error when it instructed the jury on accomplice liability. * * *

In sum, Rosales’ argument on appeal must fail. There is more than sufficient evidence in the record that Rosales was the principal in the attack on Torres and, as such, the evidence supports the jury’s verdict that Rosales committed attempted murder. Considering all relevant information given to the jury, including closing argument and other instructions, Boesch, 778 N.E.2d at 1279, we cannot say that the instruction error claimed by Rosales denied him “fundamental due process” or “ma[d]e a fair trial impossible” or constituted “clearly blatant violations of basic and elementary principles
of due process,” Brown, 929 N.E.2d at 207. As we have already noted, not every Spradlin claim amounts to fundamental error. The fundamental error exception is available only in “egregious circumstances.” Id. The record shows that Rosales was fairly tried and convicted. Affirmed.

BAKER, J., concurs.
CRONE, J., dissents with separate opinion. [which begins, at p. 12]
It is undisputed that the trial court erred in instructing the jury on accomplice liability, and it is also undisputed that the record is silent regarding whether the jury found Rosales guilty of attempted murder as an accomplice or as a principal. Relying on Thomas, the majority concludes that the error was not fundamental. I respectfully disagree.

In Quanardel Wells v. State of Indiana, a 13-page opinion, Judge May concludes:
The law of the case doctrine precludes our review of the denial of Wells’ motion to sever offenses. In addition, his sentence is not inappropriate based on the nature of the offenses or his character. Accordingly, we affirm.
In Thomas D. Dillman v. State of Indiana, a 5-page opinion, Judge May writes:
Thomas D. Dillman, pro se, appeals the denial of his Motion for Release of Cash Bond. He raises one issue, which we restate as whether he is entitled to recover the entirety of his $250.00 cash bond. We reverse and remand. * * *

The State has not provided an appellee’s brief. In such a case, we do not assume the burden of controverting Dillman’s arguments. * * *

Because Dillman’s $250 bond was a cash bond posted under Ind. Code § 35-33-8-3.2(a)(1), the court was not authorized to retain the bond “for any purpose.” See Goffinet, 775 N.E.2d at 1233. We must accordingly reverse the denial of Dillman’s Motion for Release of Cash Bond and remand for further proceedings consistent with this decision.

In Frank Jacobs v. State of Indiana , an 11-page opinion, Judge May concludes:
Any errors that may have occurred when the trial court excluded S.L.’s testimony regarding G.L.’s truthfulness or the exclusion of Justin as a witness were harmless because there existed independent evidence of Jacobs’ guilt. Therefore, we will not reverse Jacobs’ convictions based on the trial court’s decisions regarding the admissibility of S.L. or Justin’s testimony. However, Jacobs’ convictions of Class B criminal deviate conduct and Class C criminal confinement subjected him to double jeopardy, and we remand for the trial court to vacate his conviction of Class C felony criminal confinement.
NFP civil opinions today (3):

In Re: The Marriage of Terri L. Potter and Brent D. Potter: Terri L. Potter v. Brent D. Potter (NFP)

Melba Deloris Polk-King v. Lawrence Delorosa King (NFP)

Nancy Kriel v. Richard Kriel (NFP)

NFP criminal opinions today (11):

David D. Darr v. State of Indiana (NFP)

Laurence F. Myers, Jr. v. State of Indiana (NFP)

Daniel Lee Pierce v. State of Indiana (NFP)

Ventriss R. Hulitt v. State of Indiana (NFP)

Adam Sullender v. State of Indiana (NFP)

Lauren Hurse v. State of Indiana (NFP)

Nita Trott-Fluty v. State of Indiana (NFP)

Larry Bobbitt v. State of Indiana (NFP)

Clayton Morgan v. State of Indiana (NFP)

Jeffery Deaton v. State of Indiana (NFP)

Brandon McManomy v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Ind. App.Ct. Decisions

Indiana Decisions - Three new disciplinary orders from Supreme Court

Three new discilinary orders have been posted, all filed Jan. 23rd:

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 24, 2014

[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 Dec. 20, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 24, 2014. It is 2 pages (and 18 cases) long.

Three transfers were granted last week:

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Indiana Transfer Lists

Ind. Law - Problems with trying to amend HJR 3 on second reading

Niki Kelly wrote in the FWJG this weekend:

[House Democratic Leader Scott Pelath] has prepared an amendment to remove the second sentence but said he and his caucus will have to decide whether it will be offered.

He called it a tactical decision, noting it might be easier to defeat the proposal in the legislature or at the ballot box in November with the language considered confusing and unnecessary remaining.

A few minutes ago Kelly tweeted:
IFI [Indiana Family Institute] email said House Democrats and growing # of House GOP will try to change the wording of the gay marriage ban "essentially killing it"
ILB: But would stripping out the second sentence of HJR 3 kill it?

Yesterday I posted a chart showing that the only sure way to defeat HJR 3 would be to defeat it on 3rd reading in the House. Such a defeat would be difficult at best, but would probably become impossible if the language that would keep some members from voting for it had been stripped out by a successful second reading amendment.

What might happen if HJR 3 passed the House with only the first sentence intact? Here are some alternatives:

  1. It could pass the Senate in the same form, but then the same language would have to be passed by another General Assembly. It would not go on the ballot in November. "Starting over" - that is the conventional thinking.

  2. The Senate Committee could put the second sentence back in and HJR 3 could pass the Senate in that form. Then, under normal procedure, the House would need to concur in the changes. But a Supreme Court decision from 1972, where the new Judicial Article to the Constitution was at issue, said that wasn't necessarily so. For more, see the last part of this Dec. 15, 2013 post, starting a little more than half-way though, with the heading "ILB: Maybe. Maybe not.."

  3. The companion bill to HJR 3, HB 1153, includes the language necessary to place HJR 3 on the ballot in November. So:
      (a) if the Senate passes HJR 3 without the sentence, or
      (b) if the Senate puts the second sentence back in, and the House concurs, or
      (c) if each house just proceeds as happened in the 1972 case,
    HJR 3 could still end up in the ballot in November, unless stopped by a successful lawsuit.

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Indiana Law

Ind. Law - "Gay union ban advancing: Amendment eligible for House vote this week"

In her story this weekend in the Fort Wayne Journal Gazette, headed "Gay union ban advancing: Amendment eligible for House vote this week," reporter Niki Kelly writes:

Andrew Downs, director of the Mike Downs Center for Indiana Politics at IPFW, said Bosma made a tactical error not counting noses in the first committee it was assigned, a failure that has made the process unnecessarily messy.

Downs also said one of the most interesting things about watching the amendment has been seeing some lawmakers reconsider their decision from three years ago.

In Indiana, changing the state Constitution requires that two separately elected General Assemblies pass a measure before it goes to the voters for final approval or defeat.

The first legislative vote was in 2011. A vote this year sends it to the ballot in November. But philosophies on gay marriage have recently been shifting. And some members are analyzing whether their first vote was the best way to go.

“That reinforces why the process for constitutional amendments is slow and arduous,” Downs said. “So we don’t make decisions in a heated moment. We are seeing exactly what the framers wanted.”

The next big moment is whether the House votes to change the language on second reading.

The proposed amendment says “Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.”

This language mirrors a state law already on the books.

But the second sentence of the proposal goes further, including banning civil unions in the future. It says “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Several Republicans think the second sentence goes too far and have expressed a desire to remove it. But no one has promised to offer an amendment to do so. * * *

House Democratic Leader Scott Pelath said he knows some Republicans in the House want to offer an amendment to remove the sentence “but I don’t know what the consequences for those members will be.

“The Democratic members don’t have anything to fear from the speaker,” he said. “When you get within a caucus it becomes a little more difficult to stray from the herd.”

Pelath has prepared an amendment to remove the second sentence but said he and his caucus will have to decide whether it will be offered.

He called it a tactical decision, noting it might be easier to defeat the proposal in the legislature or at the ballot box in November with the language considered confusing and unnecessary remaining. * * *

Removing the second sentence is especially controversial because it most likely restarts the constitutional process – something Bosma and Gov. Mike Pence have vocally been against.

There are differing legal opinions but most people believe any change to the language would delay a public vote until 2016.

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Indiana Law

Ind. Law - Weekend news coverage of the marraige amendment issues

"Indiana House members wavering on marriage amendment" was the headline in many Gannett papers around the state to Indianapolis Star reporters Tony Cook and Barb Berggoetz long, front-page story. A quote:

As the House prepares to take up the issue again — as early as Monday — members who have declared a position are split down the middle, an Indianapolis Star poll found.

Of the 100 House members, 38 plan to vote for the measure, House Joint Resolution 3, while 38 plan to vote against it. The other 24 said they were undecided (13) or declined to comment (11).

That gives opponents a better shot than most anyone expected just weeks ago, but they still need to woo 13 noncommitted lawmakers — including at least 11 Republicans — to kill the ban.

“Everyone assumed it would be closer this time than in 2011,” said Andy Downs, director of the Mike Downs Center for Indiana Politics at Indiana University-Purdue University Fort Wayne. “But this is a lot closer than I think people would have expected.

“If I were leadership at this time,” he said, “I’d be pretty nervous right now.”

Even backers acknowledged the shift.

“That’s consistent with what we’re hearing,” said Curt Smith, director of the Indiana Family Institute, a group supporting the amendment. “I think it’s tightening.”

Still, Smith is “guardedly optimistic” the amendment will win approval, considering that many members voted for the ban in 2011. If it passes, it will be put on the November ballot for voters to consider.

Here is the Indianapolis Star database of how each house member said he or she planned to vote.

"Settling gay marriage debate?" is the headline to Scott Smith's column in the Kokomo Tribune. The story ends with quotes from Howard County Republican Party Chairman Craig Dunn:

“There are sizeable numbers of Republicans that don’t really believe that this is the thing to do. Not that I’m saying they think marriage is anything but between one man and one woman,” Dunn said.

Dunn also doesn’t believe the gay marriage debate in Indiana will drag on for decades.

“If it’s defeated, it’s done forever. If it passes with the second sentence intact, I believe it will be overturned by the U.S. Supreme Court.”

"Marriage amendment headed to vote, despite warnings" is the headline to a story Sunday by Christin Nance Lazerus in the Gary Post-Tribune. Some quotes:
Two local mayors — Hammond’s Thomas McDermott and Valparaiso’s Jon Costas — have indicated their opposition to the measure.

McDermott and Rep. Charlie Brown, D-Gary, were critical of the move by House Speaker Brian Bosma, D-Indianapolis, who put House Joint Resolution 3 in the hands of the Elections committee when it got bogged down in the Judiciary committee.

“Changing the constitution is not supposed to be easy,” McDermott said. “It’s supposed to be an arduous process.”

Brown said it’s the first time he can think of that a bill changed committees after the first committee held a hearing and heard testimony.

“It’s really something unique and bizarre, and it makes a mockery of the entire legislative process,” Brown said. “You have to look at the real underlying purpose for this move, and it’s major fundraising tool for his caucus. That’s the main reason for getting it out there.”

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Indiana Law

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

Actually, you missed quite a lot!

From Sunday, January 26, 2014:

From Saturday, January 25, 2014:

From Friday afternoon, January 24, 2014:

And from first thing this morning, Monday, January 27, 2014:

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/27/14):

Next week's oral arguments before the Supreme Court (week of 2/3/14):

Monday, February 3

Thursday, February 6

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/27/14):

Next week's oral arguments before the Court of Appeals (week of 2/7/14):

Monday, February 3

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, January 27, 2014
Posted to Upcoming Oral Arguments

Ind. Law - Indianapolis Bar Association Timely Announces Opposition to HJR-3 and HB1153

From a news release this morning:

The Indianapolis Bar Association today announced its opposition to HJR-3, the constitutional amendment to ban same-sex marriage and civil unions, and HB1153, its companion legislation. Last week, the Indianapolis Bar Association surveyed its members regarding their position on HJR-3. 2,196 members responded to the survey, which reflects a 47.4% response rate from the members receiving the survey; this is the highest survey response rate on record for the association. The results of the survey revealed that 73.1% of the respondents were in favor of publicly opposing HJR-3, 20.1% favored taking no position on the measure, 5.4% were in favor of supporting HJR-3, and 1.5% had no opinion.

Considering these survey results and the Board's review of the proposed amendment and companion legislation, the Indianapolis Bar Association opposes passage of the proposed amendment and legislation. First, based on Indiana constitutional history and precedent, the content of this amendment stands out as inappropriate. In the 163 year history of the State's constitution, it has been amended on subjects such as term limits, taxation, governmental structure, elections, and courts. Prior amendments dealt with what government could and could not do, and how the government is to be formulated and operated, not the regulation of its individual citizens. Second, members of the Indianapolis Bar Association expressed great concerns about the unintended consequences upon potentially hundreds of Indiana laws if HJR-3 is passed and ratified, including those in the areas of family law, criminal law, employment law, health care law, and tax law. This uncertainty would likely lead to an interruption in the administration of justice, years of litigation and significant expense for individual citizens and Indiana businesses.

The Indianapolis Bar Association is a voluntary membership organization comprised of 4,928 attorneys, judges, paralegals and law students. Founded in 1878, the association's mission is to serve its members, promote justice and enhance the legal profession. The association is governed by a 32 member Board of Directors.

For background, start with this ILB post from Jan. 20th.

Here is a graphic of today's poll results:

Posted by Marcia Oddi on Monday, January 27, 2014
Posted to Indiana Law

Sunday, January 26, 2014

Ind. Law - HJR 3: "An example of the older generation attempting to lock in their views and impose them upon my generation"

A great story today by Tom LoBianco of the AP, about the research of one of the young people who testified at the House hearing last week on HJR 3. Some quotes:

INDIANAPOLIS (AP) — Slipped in between the emotional testimony at legislative hearings and arguments from both sides in Indiana's gay marriage battle this past month has been the surprising revelation that Indiana lawmakers have become increasingly more reliant on "locking" down their preferred policies by placing them in the state constitution. * * *

DePauw University student Mickey Terlep has quietly worked the halls of the Statehouse over the past few weeks, delivering research that shows the history of alterations to the state's constitution. He completed the research with fellow DePauw student Leif Anderson.

Carrying a chart of the alterations made to the state constitution since it was written in 1851, Terlep has outlined how changes for many years consisted of conforming with federal amendments (such as granting African-Americans and women the right to vote) or altering the structure of government (such as allowing governors to serve to serve two consecutive terms.)

But a new trend has emerged, Terlep says: Lawmakers are increasingly using the state's constitution to write laws instead of following the traditional process of passing bills through the House and Senate on their way to the governor's desk and eventually the state code.

"This transformation raises the question: 'Why have lawmakers sought to use constitutional amendments as a means for enacting specific public policies?'" Terlep told members of the House Elections and Apportionment Committee last week. * * *

Much like amending the U.S. Constitution, amending Indiana's constitution is a lengthy and arduous process that comes with some permanency. State law already bans gay marriage. Placing that ban in the constitution would protect it from changes by future lawmakers or state courts, but would falter before any U.S. Supreme Court ruling.

"I believe (House Joint Resolution 3) is an example, along with other amendments such as the property tax cap and the right to hunt and fish, of the older generation attempting to lock in their views and impose them upon my generation," Terlep said last week.

ILB: Jon Murray of the Indianapolis Star posted a copy of the chart, "AMENDMENTS TO THE INDIANA CONSTITUTION BY ARTICLE, DECADE AND TYPE OF CHANGE: Leif Anderson and Mickey Terlep, DePauw University, January 9, 2014", here.

Posted by Marcia Oddi on Sunday, January 26, 2014
Posted to Indiana Law

Ind. Gov't. - Watch the archived Jan. 22 public hearing on HJR 3

Here are the archives of the 2014 House Elections and Apportionment Committee. On the pull-down menu, select Monday, Jan. 22, the date of the hearing. The hearing is nearly 4 and a half hours long. The supporters of HJR 3 testify first.

The archived Jan. 13th hearing of the Judiciary Committee may be found here.

Posted by Marcia Oddi on Sunday, January 26, 2014
Posted to Indiana Government

Courts - "Nevada ponders switch on same-sex marriage"

Very interesting post last evening by Lyle Denniston of SCOTUSblog - it begins:

Nevada’s attorney general, who filed a full-scale defense of the state’s ban on same-sex marriage just four days ago, has now said publicly that the arguments she made “are likely no longer tenable” in the U.S. Court of Appeals for the Ninth Circuit. That court is now reviewing a challenge to Nevada’s ban, in the case of Sevcik v. Sandoval (Circuit docket 12-17668).

State Attorney General Catherine Cortez Masto, in a statement released Friday, cited a sweeping new ruling by the Ninth Circuit last Tuesday which concluded that the Supreme Court has put up a higher obstacle to laws that discriminate on the basis of sexual orientation. The Ninth Circuit drew that conclusion from last June’s decision by the Justices in United States v. Windsor.

Nevada’s top legal officer said that she is using the weekend to further study the state’s arguments on same-sex marriage “in light of” the court of appeals’ new ruling and will discuss the issue with the state’s governor next week. In that new ruling, a three-judge Ninth Circuit panel last week found that laws biased against gays and lesbians must satisfy the more rigorous constitutional standard of “heightened scrutiny.”

The panel decision came in the case of SmithKline Beecham Corp. v. Abbott Laboratories, a civil antitrust dispute between two pharmaceutical companies. The panel ruled that, applying the new standard of review, it is unconstitutional to exclude individuals from serving on juries because of their sexual orientation.

In a brief filed just this past Tuesday in the Sevcik same-sex marriage case, state officials had relied heavily on the argument that the state’s ban is to be judged only by the easiest-to-meet standard — that is, “rational basis” review.

Posted by Marcia Oddi on Sunday, January 26, 2014
Posted to Courts in general

Ind. Law - "Debate over protection orders: Streamlined for victims; now some think burden of proof too low"

Here is the long story in the Sunday South Bend Tribune, reported by Virginia Black. A quote from the lengthy story:

A legal remedy meant to help protect those afraid for their safety -- the protection order -- has become easier to seek and more quickly available to law enforcement. Such an order forbids one person from harassing, stalking or going near another.

Over the last decade, the process has been tweaked to help victims more easily file petitions, for free, requesting the civil-court documents that can save lives, authorities say.

But others contend the relatively low burden of proof needed for a judge to grant a protection order without even a court hearing is unfair and could potentially affect job seekers, their names online for all to see, even if an order is ultimately dismissed.

The 2012 brutal death of Mishawaka resident Trina Winston -- whose husband had a history of domestic violence against her -- led to an uptick of petitions that year, to 1,119.

Otherwise, St. Joseph County's numbers of granted orders in the last five years have teetered between 912 in 2009 and 1,037 in 2013.

More than 87,000 active orders are in the Indiana registry. The numbers of new petitions statewide has grown from 60,548 in 2009 to 68,339 in 2013.

Indiana law allows a judge to grant a protection order petition without a hearing -- called "ex parte," St. Joseph Circuit Court Judge Michael Gotsch explains. He or she can also deny the petition outright based on merit, or schedule a hearing.

A little more than half the time, the petitions are granted ex parte. They're dismissed about 5 percent of the time, he guesses, and hearings are ordered in the rest.

"I don't think anybody is doing these in a cavalier manner," Gotsch said. "We understand the ramifications of what happens here. We have to make sure the least of us is protected."

Posted by Marcia Oddi on Sunday, January 26, 2014
Posted to Indiana Law

Courts - More on "‘Judge Judy’ is behind a new courtroom TV drama, ‘Hot Bench’"

Supplementing this ILB post from Jan. 24th, see this post at the WSJ Law Blog by Joe Palazzolo. It begins:

Judith Sheindlin, better known as “Judge Judy,” is launching her own show, and she’s recruited a popular judge from New York to star in it.

The name of the show is “Hot Bench.”

Patricia DiMango, Brooklyn Supreme Court’s administrative judge for criminal matters, is already known for her made-for-television remarks in court. (“What else do you want?” she once reportedly told a defendant, after he was offered a plea deal. “We’re not sending you to the Bahamas with your attorney.”)

Judge DiMango, known for her efficiency, earned acclaim last year after taking a shift in the Bronx, to help with the borough’s case backlog. She reportedly put to bed more than 500 cases in six months.

The post links to an entertaining July 29, 2013 story in the NYT about NY Justice Patricia DiMango that I remember reading at the time. A sample:
So go the negotiations in the courtroom of Patricia DiMango, a straight-talking State Supreme Court justice brought in to the Bronx from Brooklyn to do what she does best — put old cases to rest.

Since arriving in January, Justice DiMango has been an anomaly in the Bronx courts, where she is charged with clearing a backlog of felony cases that had swelled to crisis proportions. Her brash style and forceful personality, not to mention her relentless efficiency, have set her apart in a courthouse infamous for inaction.

In six months, she has churned through more than 500 cases, slashing by 40 percent the backlog of those over two years old, and leading senior court officials to declare a partial victory after years of failed efforts.

Posted by Marcia Oddi on Sunday, January 26, 2014
Posted to Courts in general

Ind. Courts - Decatur County courts using video conferences for initial hearings

From WTRE 1330, a brief story headed "Technology has gone to court." Some quotes:

Decatur Circuit Court and Decatur Superior Court will be doing the initial hearing process through a video conference with the judge in the courtroom and the prisoner at the jail. * * *

Family and friends who wish to be present at an initial hearing can still be present. They would be in the courtroom and could hear the judge and the prisoner. The initial hearing involves the judge telling the accused what he or she has been charged with, the penalties if convicted, makes a determination on whether or not the court needs to appoint an attorney, sets a court date and bond.

Decatur Superior Court Judge Matthew Bailey used the system 5 times this week and Decatur Circuit Court Judge Timothy Day utilized it 3 times.

Posted by Marcia Oddi on Sunday, January 26, 2014
Posted to Indiana Courts

Saturday, January 25, 2014

Ind. Gov't. - Part 2 of: What will happen to HJR 3 on 2nd reading?

Here is a quick-glance chart of the House floor opinions on HJR 3, and their ramifications. Let me know if you see any errors or omissions.

NOTE: There are 31 House Democrats and 69 Republicans in the Indiana House. If all Democrats voted for an amendment to HJR 3 on 2nd reading, or against HJR 3 on 3rd reading, it would still take 20 Republican votes to achieve a 51-49 majority.

Posted by Marcia Oddi on Saturday, January 25, 2014
Posted to Indiana Government

Ind. Gov't. - What will happen to HJR 3 on 2nd reading?

Barb Berggoetz and Tony Cook report today in the Indianapolis Star that:

House Minority Leader Scott Pelath, D-Anderson, said Friday he intends to file that measure, but he will decide with his caucus whether that’s the best strategy to kill the amendment.
They also report that:
Some House Republicans also are disturbed by the potential effect of the second sentence and may move to delete it, but it’s not clear who, if anyone, would take that step.

If a change in the wording is made and the amendment is approved, then another, separately elected Indiana General Assembly would have to approve it before it could go to voters. That would take until at least November 2016. If the legislature passes the proposal without change this session, the measure would go to voters in November — clearly the desire of Gov. Mike Pence and the Republican legislative leadership.

More from the story:
Pelath said the Democratic caucus — with 31 members, compared to 69 Republicans — have two options. The first, he said, is to try to get rid of the “stink bomb of the second sentence,” in case the amendment does get approved.

“The other approach is to let HJR3 die under its own lumbering, Brontosaurus weight.”

It’s a tactical question, Pelath said, to try to figure out if the amendment has a better chance of being defeated either legislatively or at the ballot box with the more objectionable second sentence.

He said he knows some Republicans want to offer a proposal to drop the second sentence and want to get credit for it, but he doesn’t know the consequences for those members. * * *

“I think there will probably be some push not to have anybody offer amendments,” he said. “I think that will happen because the proponents of HJR3 are adamant they want it passed this year.”

He said he would vote to get rid of the second sentence, even if Democrats offer the amendment.

If the measure passes the House as expected, Senate Pro Tempore David Long said he will assign it to the Senate Judiciary Committee, where debate could begin the week of Feb. 10.

Erika Brock and Ryanne Wise of The Statehouse File also have a report, that includes:
An amendment to HJR 3 means the constitutional amendment process would likely restart. That could postpone a possible ratification by voters from this fall to 2016.

Republicans will likely be waiting for Pelath’s decision as well. Rep. Casey Cox, R-Fort Wayne, voted for HJR 3 when it came before the House Elections Committee this week. But later, he said that he may vote against the proposal when it reaches the House floor next week.

Cox said he wants to “reconsider” the second sentence. He cited concerns raised by a lawyer with Indiana University, who said the provision threatens the school’s ability to offer benefits to same-sex partners.

“I thought IU’s council made some points that certainly need further discussion,” Cox said. “The caucus really wanted this to come to the floor. I can understand that. If it remains intact, I certainly reserve the right to vote no.”

ILB: The ILB is preparing a quick-glance chart of the House opinions. Check back.

Posted by Marcia Oddi on Saturday, January 25, 2014
Posted to Indiana Government

Ind. Gov't. - Reports of two House Republicans who cannot vote for HJR 3 as written

Updating the ILB post headed "Rep. McNamara wants 'second sentence' stripped out of marriage amendment: Isn't satisfied with companion legislation", the ILB now has access to the Jan. 24th story by Chelsea Schneider, statehouse reporter for the Evansville Courier Journal. Some quotes:

State Rep. Wendy McNamara wants a ban on civil unions stripped out of a measure intended to amend Indiana’s constitution to prohibit same-sex marriage in the state.

The Mount Vernon Republican, who has previously declined to publicly share her position on the issue, said Thursday through her press secretary that while she supports the first sentence of the amendment – which defines marriage as between one man and one woman – she can’t support its second sentence, which also restricts civil unions or any other legal recognition identical or substantially similar to marriage.

McNamara said she hoped a follow-up bill Republicans are pushing to ease concerns about what that restriction would mean would remedy her worries – but that she isn’t satisfied with it.

“It did not remediate those concerns. If an amendment were to be brought up to remove the second sentence I will fully support this resolution. If the second sentence remains, I will not support the resolution,” McNamara said in a prepared statement.

McNamara had been regarded as a critical swing vote when the legislation, known as House Joint Resolution 3, was in the House Judiciary Committee, which recessed last week after three hours of public testimony without voting on the measure.

And from very late Friday, a story from WFLI 18, West Lafayette, reported by Dan Klein:
WEST LAFAYETTE (WLFI) – Next week, the Indiana House of Representatives is set to take up debate on House Joint Resolution 3, the proposed marriage amendment that could lead to a permanent ban on gay marriage. When discussion begins, at least one area Republican representative says, he has changed his mind.

Randy Truitt (R) voted for the proposal in 2011, but told News 18 Friday that his position has evolved and that he cannot support the current wording. He adds he can’t support the second sentence of HJR-3 which would not recognize civil unions and other similar partnerships.

He also doesn’t think it should need a companion bill to explain the intent.

“For me, being a believer and strong supporter in traditional marriage between a man and a woman, the second sentence ended up being something that I felt was something that I would not want in the Constitution. Even though I’m not the one that was voting on whether it was going in the Constitution, I believe this is something that needs to be very clear, very clean, very crisp and no room for interpretation,” said Truitt.

Truitt said for every voter who told him they were in favor of the amendment, there were two who told him they were against it.

Posted by Marcia Oddi on Saturday, January 25, 2014
Posted to Indiana Government

Ind. Courts - "Constitutional amendments and companion bills: What to make of House Bill 1153?"

That is the title to this article by Michael Limrick of Bingham Greenebaum Doll, posted last evening to the firm's website. Here are some quotes from the article:

The role of intent in constitutional interpretation

The scenario isn’t difficult to imagine. HJR-3 is adopted by statewide election. Shortly after, a lawsuit is filed to determine whether an employer may continue offering health benefits to same-sex partners. What does the court do?

When it comes to constitutional interpretation, the Indiana Supreme Court describes the process this way: “[T]his Court looks to the common understandings of both those who framed it and those who ratified it.” But figuring out that “common understanding” is more of a challenge that one might expect—especially when it comes to constitutional amendments.

Before an amendment goes into effect, it must:

(1) be approved in one General Assembly;

(2) be approved in the next-elected General Assembly; and

(3) be ratified by a majority of voters in a general election.

So, a court discerning the “common understanding” of an amendment has to sort out the intent of two separate groups of framers as well as the voters who ratified it.

The intent of those who “frame” the amendment

It’s safe to say a court would accept HB 1153 as describing the intent of a particular group of “framers”—the 118th General Assembly. But it’s far from certain that the intent in HB 1153 would be attributed to the 117th General Assembly, which took up the amendment in 2011. The reason is simple: the circumstances under which each body has addressed the issue are different.

As of 2011, the Michigan Supreme Court had already decided that language similar to HJR-3 (concerning “similar union[s]” to marriage) barred public employers from providing insurance benefits to employees’ same-sex partners. It’s not difficult to imagine that the 117th General Assembly had that ruling in mind when it approved HJR-3. And a court would not be required to choose the 118th General Assembly’s viewpoint over that of the 117th General Assembly, if the court decides the latter had something different in mind.

The intent of those who “ratify” the amendment

That leaves the intent of the voters, and this is where the issue gets complicated. If HJR-3 is on the ballot, voters will not be asked to adopt or reject the language in HB 1153. Voters will be presented the two sentences of the proposed constitutional amendment, and a single question: Yes or no?

Some who vote “yes” might think HB 1153 is a good idea, and assume it will apply. Others might oppose HB 1153, but vote “yes” thinking the amendment itself is the only language that matters. Or, the “yes” voter might not know HB 1153 even exists. What then?

Conclusion

Most likely, the court in our hypothetical case will resort to the default setting for constitutional interpretation—largely ignoring HB 1153 and focusing on the literal text of the amendment. As the Indiana Supreme Court has explained, “The actual language … is particularly valuable because it tells us how the voters who approved the Constitution understood it, whatever the expressed intent of the framers in debates or other clues.” If a court thinks HB 1153 is consistent with the text of the amendment, it would likely apply the current legislature’s stated intentions. But a court that thinks HB 1153 is inconsistent with the literal text is just as likely to disregard it.

Ultimately, the question for the legislature is whether it’s comfortable with the literal text of HJR-3—divorced from the statements in HB 1153—because HB 1153 is likely to have little value in determining the amendment’s scope.

Sources for the above portion of the article:
2. Snyder v. King, 958 N.E.2d 764, 772 (Ind. 2011).

3. Ind. Const. Art. 16, § 1.

4. Nat’l Pride at Work, Inc. v. Governor of Mich., 748 N.W.2d 524 (Mich. 2008).

5. FGS Enters. v. Shimala, 625 N.E.2d 1226, 1229 (Ind. 1993).

6. Bonner v. Daniels, 907 N.E.2d 516, 519-520 (Ind. 2009).

ILB: See also this ILB post from Jan. 24th, quoting an op-ed by former Indiana supreme Court Justice Ted Boehm.

Posted by Marcia Oddi on Saturday, January 25, 2014
Posted to Indiana Courts

Ind. Decisions - 7th Circuit reversed Annex Books yesterday, the oral argument was the week before

On Jan. 22, the ILB posted that oral argument had been heard Jan. 15th in the long-fought case of Annex Books v. City of Indianapolis. Yesterday, Jan. 25th, the opinion was issued.

In Annex Books v. City of Indianapolis (SD Ind., Barker), a 5-page opinion, Judge Easterbrook writes:

The Supreme Court has held that state and local governments may regulate adult establishments by using time, place, and manner restrictions to reduce the secondary effects of those businesses on third parties, but may not regulate them to restrict the dissemination of speech disapproved by local residents. Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); see also, e.g., Illinois One News, Inc. v. Marshall, 477 F.3d 461, 463 (7th Cir. 2007).

Indianapolis requires adult bookstores to remain closed between the hours of midnight and 10 a.m. every day, and all day Sunday. Other retail businesses are not subject to these restrictions. In earlier rounds of this litigation, Indianapolis contended that closure would curtail secondary effects, but we concluded that the evidence it offered was weak, contested in material respects, or concerned different kinds of businesses or different kinds of laws, such as minimum distances between adult outlets rather than closure. See 581 F.3d 460 (7th Cir. 2009); 624 F.3d 368 (7th Cir. 2010). The district court then held a trial. Indianapolis gave a single justification: fewer armed robberies at or near adult bookstores. The district court found this adequate and entered judgment for the City. 926 F. Supp. 2d 1039 (S.D. Ind. 2013). * * *

The judgment of the district court is reversed, and the case is remanded with instructions to enter an injunction against enforcement of the closure ordinance.

Posted by Marcia Oddi on Saturday, January 25, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Court of Appeals cases did not decrease by 11% in 2013

In the State of the Judiciary address on January 15th, the Chief Justice of Indiana said:

During the past year, over 2,000 appeals were presented to the Court of Appeals (one of the highest volume and most efficient appellate courts in the country). The Indiana Tax Court received 76 new cases. And review was sought in the Supreme Court in just over 1,000 cases. Compared to last year, this represents nearly an 11% decrease in new cases for the Court of Appeals, just over an 8% decrease for the Tax Court, and almost a 3% increase for the Supreme Court.
This was an error. According to a correction made Friday to the version posted on the Court website, the language I have indicated above has now been corected to read:
...this represents over a 1% increase in new cases for the Court of Appeals
The statistics indicate the number of fully briefed COA cases in 2012 was 2,110, and in 2013 was 2,135, a 1.18% increase.

Posted by Marcia Oddi on Saturday, January 25, 2014
Posted to Indiana Courts

Friday, January 24, 2014

Ind. Courts - Daviess Superior Court holds Adm.Rule 9 hearing on unsealing of court records

Here is the story from WAMW 107.9 FM:

Thursday afternoon, what Judge Dean Sobecki called “ an unusual hearing” was held in Daviess County Superior Court. The hearing was called by Court itself, to gather information about whether or not the court records in the case of Logan Evans should be unsealed. Evans was arrested for the shooting death of Devon Burris in early December. Since Evans’s arrest, the probable cause affidavit and all other record dealing with the case have been sealed on a motion from the Daviess County Prosecutor’s Office, citing a continuing investigation.

Sobecki told the Court that he initiated yesterday’s hearing after a conversation with a Washington Times-Herald reporter, questioning the need for the documents remaining sealed.

Attorney Jan Carroll, speaking on behalf of the newspaper, cited Indiana’s open document law in asking the Judge to unseal the documents. The Judge also questioned Carroll concerning Administrative Rule 9, which is part of guidelines established by the Indiana Supreme Court.

The Daviess County Prosecutor’s office said that circumstances had not changed in regard for the need to seal the documents.

Judge Sobecki took briefs presented during the hearing under advisement. The Judge said he would most likely have a decision in regard to unsealing the documents with in the week.

In 2006 the ILB had a long list of entries under the heading, "Judge seals records in French Lick casino dispute without hearing." This took place in Orange County and is a fascinating read.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts

Ind. Gov't. - "IURC Nominating Committee Announces Candidate Interviews"

From the news release (which oddly does not announce the time and place of the public interviews):

INDIANAPOLIS – The Indiana Utility Regulatory Commission Nominating Committee announced today the names of 21 people who will be interviewed as a candidate for the position of commissioner at the Indiana Utility Regulatory Commission. The candidates to be interviewed are:

Keith Beall
David Coker
Laura Cvengros
Carol Drake
Eric Hand
Robert Hartley
Jim Huston
Marty Irwin
Matthew Kelley
Matthew Klein
Bill Malcolm
Richard Maultra
Michael Musa
Jim Ray
Greg Server
Craig Shumaker
Carol Stephan
Stuart Summers
Marcus Turner
Angela Weber
David Yount

The Nominating Committee is evaluating candidates to fill two current vacancies on the Indiana Utility Regulatory Commission created by the resignations of Commissioners Kari Bennett and Larry Landis. The committee will present Governor Mike Pence with a list of six qualified candidates from which he will select two to fill the remainder of Bennett and Landis’ terms. Commissioner Bennett’s term expires March 31, 2014. Commissioner Landis’ term expires December 31, 2015.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Government

Ind. Courts - Wonder what former Justice Ted Boehm thinks of HJR 3's companion "clarifying bill," HB 1153?

Well, wonder no more. Boehm wrote a Jan. 20th opinion piece for INforefront, which is "an online community hosted by Indianapolis Business Journal for thoughtful conversation about politics, policy and government." Some quotes:

The legislature seems poised to enact a statute that purports to explain what is and is not intended by the constitutional amendment. Maybe something like that can work for a bill enacted by the same general assembly, but amending the Indiana Constitution requires more than one legislature’s approval.

The first General Assembly to pass what was then HJR-6 was elected in 2010. We know what the language adopted by that General Assembly says. But introducing legislation in 2014 purporting to explain the amendment three years later is a not very tacit admission that there are some significant issues in interpreting that language.

Who knows whether the first General Assembly thought it was doing what the folks elected in 2012 now say they believe the language should be understood to mean?

The net effect of this latest maneuver is to create a question for the courts whether this amendment, whatever its merits, was adopted in a process consistent with the state constitution, which requires that the same amendment be adopted by two different sessions of the legislature.

Finally, actions by subsequent legislatures can of course amend a statute. But the cases discussing interpretation of statutes do not suggest that actions by subsequent legislatures backdate actions of prior sessions. That’s what this clarifying statute apparently attempts to do.

ILB: Recall also that the author of HJR 3, the marriage amendment, and HB 1153, the marriage amendment ballot language plus "clarifying language," Rep. P Eric Turner, during his testimony before the House Judiciary Committee, cited as authority for the concept of a "companion" bill to spell out legislative intent behind a constitution amendment, a 2000 opinion by then-Indiana Supreme Court Justice Ted Boehm. Even had it been on point, the opinion was a somewhat unlikely choice, as Dickson and Rucker (the only two justices still on the Court) were in dissent.

Both Indiana University general counsel Jackie Simmons and Barnes & Thornburg partner Peter Rusthoven, on the other hand, cited the 1964 Supreme Court opinion in Hendricks v. State for the proposition that "a legislative intention as to how the Constitution is to operate is of little value in determining the intention of the drafters."

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts

Ind. Courts - Supreme Court appoints Judge Pro Tempore to Judge Kimberly Brown's seat

From the order, filed Jan. 23rd:

On January 9, 2014, this Court issued an Order suspending the Honorable Kimberly J. Brown pending final disposition of the disciplinary matter pending against her under case number 49S00-1308-JD-560. Accordingly, we find that in the interest of continuing the orderly administration of justice and pursuant to Ind.Trial Rule 63, a Judge Pro Tempore should be appointed temporarily to discharge the duties of that office. Further, this Court has been advised that Mr. David Cook, an attorney licensed to practice law in Indiana, is willing to serve as Judge Pro Tempore.

IT IS, THEREFORE, ORDERED that Mr. David Cook is appointed as Judge Pro Tempore in the Marion Superior Court upon taking and tiling an appropriate oath of office, commencing February 10,2014, and until further Order of this Court.

This Order shall be sufficient authority for Judge Cook to continue the employment of court personnel and otherwise discharge the duties of Judge of the Marion Superior Court. Judge Cook shall be entitled to compensation for this service, paid by the State of Indiana, computed at the same rate as the regular judge commencing from the effective date of his appointment, pursuant to T.R. 63(D).

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts

Ind. Gov't. - "Indiana Public Retirement reissues search for annuity provider amid legislative uncertainty"

This new long article by Rick Baert in the trade publication, Pensions & Investments, begins:

The Indiana Public Retirement System, Indianapolis, reissued an RFP for a lifetime annuity provider for its $5.6 billion annuity savings account program despite bills pending in the Indiana General Assembly that would force the retirement system to continue to manage the program in-house.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Government

Ind. Decisions - Well known Indiana attorney, Stanley Kahn disciplined by Supreme Court

Readers may recall this Dec. 12, 2012 disciplinary order, where Mr. Kahn was " suspended from the practice of law for noncooperation with the Commission, effective immediately," followed by this Jan. 6, 2012 order, where Mr. Kahn was reinstated after cooperation.

Today there is posted online a new, 3-page attorney disciplinary order from the Supreme Court, headed In the Matter of Stanley Kahn, filed Jan. 17, 2014. The matter concerns client trust accounts. The resolution:

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, all stayed subject to completion of 18 months of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement, which include:

(1) Respondent will maintain his trust account consistent with the practices set forth in a document entitled "Trust Account Management: Handling Client and Third Party Funds."
(2) At Respondent's expense, Respondent's trust account will be monitored by a Certified Public Accountant, approved by the Commission, who will make detailed quarterly reports to the Commission.
(3) Respondent's probation shall be automatically revoked if there is a judicial finding that he violated the Rules of Professional Conduct or any criminal law during the term of his probation.

Notwithstanding the expiration of the term of probation set forth above, Respondent's probation shall remain in effect until it is terminated pursuant to Admission and Discipline Rule 23(17.1).

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Update to the Judge Kimberly Brown disciplinary case

The docket today contains this new entry dated 1-23-2014:

RESPONDENT KIMBERLY J. BROWN'S BRIEF IN SUPPORT OF PETITION
FOR REVIEW (9) AND VERIFIED PETITION FOR REVIEW (9) CERTIFICATE
OF SERVICE BY MAIL DATE 01/23/14 ENTERED ON 01/23/14 JS
The ILB has requested copies of the filings from the court officer.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

Saral Reed and Durham School Services, Inc. v. Richard Bethel

State Farm Mutual Automobile Insurance Company v. Kimberly S. Earl and The Estate of Jerry Earl

Jeffrey A. Cleary v. State of Indiana

NFP civil opinions today (6):

Roberta Himes v. Bruce Thompson (NFP)

Timothy Michael v. Gene Chandler (NFP)

Jess G. Revercomb, Sr. v. Yellow Book Sales and Distribution Company, Inc. (NFP)

Jerry Dillon v. State of Indiana, Burton A. Padove, Laurie Leber, and Patricia Pitcher (NFP)

In the Matter of: N.W. (minor child), a Child in Need of Services; A.B. (Mother) and No.W. (Father) v. The Indiana Department of Child Services (NFP)

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

NFP criminal opinions today (5):

Randall Capatina v. State of Indiana (NFP)

Jason Halcomb v. State of Indiana (NFP)

Wesley Lee v. State of Indiana (NFP)

Michael Sakha v. State of Indiana (NFP)

Carlton Hillman v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Ind. App.Ct. Decisions

Courts - "‘Judge Judy’ is behind a new courtroom TV drama, ‘Hot Bench’"

Fascinating read from the ABAJournal blog.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts

Ind. Law - "Rep. McNamara wants 'second sentence' stripped out of marriage amendment: Isn't satisfied with companion legislation"

Well, that is the tantalizing headline to this story this morning by Chelsea Schneider, who replaced Eric Bradner as statehouse reporter for the Evansville Courier Journal. Unfortunately, since the paper has now gone behind a total paywall, all we can read is the headline and this snippet:

State Rep. Wendy McNamara wants a ban on civil unions stripped out of a measure intended to amend Indiana’s constitution to prohibit same-sex marriage in the state.
Here is more about Representative McNamara, a Republican. She is a member of the House Judiciary Committee, where HJR 3 was originally assigned by Speaker Bosma.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Law

Environment - Still more on "No more stringent" rules limitation effort back again

Updating this ILB post from Jan. 22nd, the Louisville Courier Journal today has a long op-ed from Jesse Kharbanda, executive director of the Hoosier Environmental Council, headed "Bill would weaken Indiana's environmental options." A few quotes:

The fact that nearly a decade and a half into the 21st century, our country still finds itself vulnerable to catastrophic environmental situations ought to be sobering. And it ought to be a strong message to the 2014 Indiana General Assembly, and its leaders, House Speaker Brian Bosma and Senate President Pro Tem David Long, as well as Gov. Mike Pence that Indiana should continually ensure that Indiana has the tools that it needs to head off environmental tragedies in our state and improve our public health.

Astonishingly, some legislators are advancing a bill that would move Indiana in reverse. House Bill 1143, benignly called “no more stringent than,” would weaken Indiana’s ability to head off environmental tragedies like those mentioned above by stripping away the power of Indiana’s executive branch, except potentially in rare circumstances, to develop policies that go beyond what the federal government enacts. * * *

For 20 years now, this very controversial bill has been introduced and has not moved forward in the Indiana legislature. And the leader who was crucial to stopping this dangerous bill was, contrary to some readers’ presumption, a stalwart Indiana Republican. But since this lawmaker has now retired, this bill is likely to get far less scrutiny as it moves through this short legislative session.

“No more stringent than” is dangerous for Indiana. We urge Hoosiers of all political persuasions to contact their legislators to oppose HB 1143 and any bills that may contain this language. And we hope that Indiana’s legislative leadership and governor will put safeguarding the health of Hoosiers above safeguarding rigid ideology.

ILB: The retired lawmaker referenced is Bev Gard, a powerful state senator who who chaired the Senate Environmental Committee for many years.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Environment

Ind. Gov't. - More on "Lawsuit challenges Porter County Council redistricting"

Updating this ILB entry from Jan. 2nd, Amy Lavalley of the Gary Post-Tribune reports today in a story headed "Both sides claim victory in ruling over Porter County redistricting" that begins:

A LaPorte County Circuit judge ruled Thursday that the Porter County Board of Commissioners will have to remove a noncontiguous “bubble” within recently redrawn council districts, but County Councilman Jeremy Rivas, D-2nd District, who filed a lawsuit over the redistricting, will remain in District 4 under the new boundaries.

Judge Tom Alevizos did rule, however, that Rivas could continue with his civil rights claim that the redistricting was done to purposefully force him out of his district.

“It’s not exactly what we were asking for, but we are pleased with the result,” said Crown Point attorney Edward Hearn, who represented Rivas and a handful of Porter County residents in the suit.

The suit had asked Alevizos to either invalidate the new council districts, which commissioners passed on Dec. 17, or put off the May primary so there would be time to redraw the boundaries.

Alevizos ordered commissioners to fix what was referred to in court as a “bubble,” a tiny portion of District 2 surrounded by District 1. Two people live in the portion of Westchester Township Precinct 17 in that parcel.

According to the judge’s ruling, that parcel was inadvertently created when precinct maps were redrawn at the end of 2011. It still must be fixed because state statute calls for council districts to be contiguous; commissioners will hold a meeting next week to put the precinct completely in District 1.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts | Indiana Government

Ind. Courts - "Judge: Mandate will cost county more money"

That is the headline to this snippet of a story by Sherri Morrrison (the rest is behind a paywall) in today's Rensselaer Republican. It reads:

JASPER COUNTY — An Indiana Supreme Court ruling on Dec. 31, 2013 now mandates an appointment of counsel in juvenile delinquency proceedings. The rule, which will be enacted in 2015, states that a juvenile charged with a delinquent act is entitled to be represented by counsel in accordance with Indiana Code Section 31-32-4-1.

Counsel for the child must be appointed at no expense to the family if the family does not hire their own attorney, regardless of income, according to Jasper County Circuit Court Judge John Potter.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts

Ind. Gov't. - "The not so transparency government portal"

Here are some quotes from a long story by Eileen Oaks in the Kokomo Perspective:

The state’s transparency portal for local government, called “Gateway” has helped the Howard County Auditor’s Office achieve better efficiency and accuracy this year than in previous years. However, the transparency portal accessible to citizens, which is meant to provide clarity into their budgeting and accounts, is not user friendly, and lacks the desired accessibility to the public.

The transparency portal has made improvements in convenience since last year, but it still isn’t self explanatory. Mike Claytor, the Democratic nominee for State Auditor in 2014 said, “The state transparency portal has a ton of good information on it, but you have to be an expert in state finances to find the information. It should be something where if anyone wanted to use the information they could find it.”

The state portal, which is accessible to the public through the Indiana government’s website, has won national awards in design and openness since 2004, however, as Claytor explained, “If you want to know the state’s overall budget or how much the state is spending in total, those are really easy to get. But, if you’re looking for specific information, that’s a lot more difficult.”

Claytor used the state’s contract with IBM to demonstrate the website’s shortcomings. He explained that if a user wanted to research state contracts, they can go to the contract portion of the portal and find the contract very easily. However, if a person wanted to find out how much the state paid IBM specifically, it is a more difficult process because the tabs are not clear and the state doesn’t provide enough website guidance.

The state expenditure database is organized into different compartments on the website, but the public will find that it is hard to figure out exactly where to find the information for which they are looking.

Claytor said that in order to find information on a government project a person needs to know the fiscal year it was approved, the agency it came from, the fund which it was drawn from, the specific account in the fund, and the fund type.

The Indiana portal is complicated, because there are numerous tabs that could be misinterpreted. Users of the site, as Claytor explained, are expected to know which tab will lead them to their results, without instructions.

“We are suggesting that the state have a simple set of instructions,” said Claytor. “Right now, it explains some of the basics, but not how to find the information ... that kind of help would really be beneficial if someone was trying to find something.”

ILB: These are good suggestions and applicable to many other state projects, all of which seem to have been designed by government insiders with no input from the citizens they are designed to serve.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Government

Ind. Courts - "Compromise sought on St. Joe County elected judges issue"

WNDU South Bend reported last evening:

Much like Thanksgiving and Christmas it seemingly comes once a year—a bare knuckles brawl in the Indiana General Assembly as to whether St. Joseph County Superior Court judges should be elected or appointed.

This year will be different.

Two camps that have fought for decades over elected judges as an ‘either or proposition,’ are now talking compromise.

“Really, HB 1298 is about trying to bring as much public accountability into our judicial system in St. Joseph County as we can, but does not go as far as requiring the election of county judges.”

Under the proposal, St. Joseph County voters would not have the power at the polls to put superior court judges on the bench, although it could become a heck of a lot easier to kick judges off.

HB 1298 would lower the standard for lowering the boom—requiring that a ‘no’ vote of 40-percent or more would be good enough to remove a judge from office.

“In St. Joseph County, a judge has never been not-retained,” said Rep. Wesco. “I think this really sets the bar up a little bit higher so that the judges know they need to maintain a high level of professionalism.”

Others feel the 40 percent rule flies in the face of fundamental Democracy.

“It really doesn’t make any sense under our principles of Democracy in any way, it’s, you’re allowing a minority of the people to vote someone out of office,” said Joseph Fullenkamp, with the St. Joseph County Bar Association.

But arch enemies now do find some common ground in another part of the bill. It seeks to inject some elected officials into a judicial selection process that currently has none.

In fact, “the current code forbids elected officials from serving on the commission,” said Ind. Rep. Tim Wesco, (D) Osceola.

The revised judicial nominating commission would have six elected officials seated on a nine member panel.

Elected participants would be the Sheriff of St. Joseph County, the President of the St. Joseph County Commissioners, the mayors of South Bend and Mishawaka, and the two St. Joseph County judges that are currently elected—those from the Probate and Superior Courts. * * *

Wesco’s bill would also set a mandatory retirement age of 75 for judges on the superior court.

The measure has yet to be scheduled for a hearing.

Posted by Marcia Oddi on Friday, January 24, 2014
Posted to Indiana Courts

Thursday, January 23, 2014

Ind. Decisions - Tax Court decides one today

In William W. Thorsness v. Porter County Assessor, a 10-page opinion, Judge Wentworth writes:

William W. Thorsness appeals from the final determination of the Indiana Board of Tax Review regarding his 2007 real property assessment. The Court affirms the Indiana Board’s final determination. * * *

Thorsness’s evidence indicated that there were six residential properties in Dune Acres that apparently were assessed, and therefore taxed, at a lower percentage of market value than his property. While this evidence is no doubt relevant, the Indiana Board did not err in determining that it was not probative in demonstrating that Thorsness’s property was assessed and taxed at a level that exceeded the common level within Westchester Township overall. Accordingly, the Court will not reverse the Indiana Board’s final determination on this basis.

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - HJR 3 is on the House 2nd reading calendar for Monday

HJR 3 is now on the House calendar for second reading Monday, Jan. 27. The House convenes at 1:30 PM, but there are a number of other items on second reading that may precede it. The proposal will be eligible for "amendment, recommitment, or engrossment". Any proposed amendments must be filed in advance.

From House Rule 143 and 143.1 (p. 14):

When the bill is called, the Speaker shall hand down the bill to be read and then state that the bill is ready for amendment, recommitment or engrossment.

If a bill is eligible for second reading and no amendments to the bill have been filed pursuant to Rule 117.2, the Speaker may, upon the request of the author and with consent of the members, immediately move the bill to engrossment.

All this may happen in the blink of an eye: unless a motion is made to amend, the gavel comes down and the bill is moved on to engrossment, meaning it will be on the third reading calendar in a subsequent day.

If a motion is made to amend, there likely will be debate and a vote on the amendment or amendments, before the bill is moved to engrossment.

OR, the author may decide not to call HJR 3 down on Monday, in which case it will remain where it is on the calendar for the next session day.

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Indiana Government

Law - "Red light bribe scandal could be widespread" says Chicago Tribune

While Ohio is having court cases re speed cameras, in Chicago, as David Kidwell reports today in the Chicago Tribune, in a story headlined "Red light bribe scandal could be widespread" that begins:

A fired executive of Chicago's beleaguered red light camera company alleges in a lawsuit that Redflex Traffic Systems doled out bribes and gifts at "dozens of municipalities" in 13 other states and says he is cooperating in an ongoing federal investigation.

The explosive allegations, accompanied by few specifics, suggest investigators may be examining Redflex's business practices around the country in the wake of the company's admission last year that its flagship camera program in Chicago was likely built on a $2 million bribery scheme.

Aaron Rosenberg, who was the company's top national salesman, said in a civil defamation claim against Redflex that he was made a "scapegoat" to cover up a long-standing practice of "providing government officials with lavish gifts and bribes" after the Tribune began asking questions about the Chicago contract.

Re the other states:
Rosenberg said that during his tenure Redflex "bestowed gifts and bribes on company officials in dozens of municipalities within, but not limited to the following states: California, Washington, Arizona, New Mexico, Texas, Colorado, Massachusetts, North Carolina, Florida, New Jersey, Tennessee, Virginia and Georgia."
The ILB has a long list of entries on red-light cameras.

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 4 today (and 3 NFP)

For publication opinions today (4):

In Chubb Custom Insurance Company, et al. v. Standard Fusee Corporation , a 22-page opinion, Judge Riley writes:

Appellants-Defendants, GAN North American Insurance Company (GAN) and Chubb Custom Insurance Company (Chubb) , appeal the trial court’s summary judgment and award of defense costs in favor of Appellee-Plaintiff, Standard Fusee Corporation. We reverse. * * *

[Issue] Whether, under Maryland law, the trial court erred in deciding that the total pollution exclusion clause in Appellants’ comprehensive general liability insurance policies is not applicable to Standard Fusee’s liability for the release of perchlorate and therefore Appellants’ duty to defend and indemnify was triggered. * * *

We expect that, our decision notwithstanding, interpretation of the scope of pollution exclusion clauses likely will continue to be ardently litigated throughout state and federal courts. We are also aware that courts may arrive at divergent decisions from our own within the specific context of perchlorate contamination. Yet, guided by Maryland’s rules for interpreting insurance contracts, we conclude that the total pollution exclusion clause applies and relieves Appellants of their duty to defend and indemnify the Standard Fusee in the underlying action.

Conclusion. Based on the foregoing, we conclude that the total pollution exclusion clause in Appellants’ comprehensive general liability insurance policies is applicable to Standard Fusee’s liability for the release of perchlorate and therefore Appellants’ duty to defend and indemnify is not triggered. Reversed.

In State of Indiana v. DeAngelo Banks , a 22-page opinion, Judge Brown writes:
The State appeals the trial court’s grant of DeAngelo Banks’s motion to suppress his confession of murder. The State raises one issue which we revise and restate as whether the court erred in granting Banks’s motion to suppress. We affirm. * * *

We are therefore confronted with an inadequate Miranda warning to an undeniably and seriously mentally ill suspect who was in the area of the Newcastle Correctional Facility where the mentally ill are housed apart from the general prison population, who was involuntarily medicated at the time and in restraints even during the interrogation at issue. Yet, despite these compelling and compromising facts and circumstances, the State chose to interview Banks, and secured the confession we now review.

There is substantial evidence supporting the trial court’s decision, and its decision is not contrary to law. Given our deferential standard of review, we affirm the trial court’s determination that Banks’s confession should be suppressed.

In A.J.R. v. State of Indiana, a 16-page opinion, Judge Robb writes:
A.J.R. appeals the juvenile court’s adjudication of A.J.R. as a delinquent based on conduct that would be criminal mischief, cruelty to animals, and aiding, inducing, or causing criminal mischief if committed by an adult. He raises three issues on appeal: (1) whether admission of certain testimony given by a police officer without notice from the State that the officer would testify as a skilled witness was an abuse of discretion; (2) whether there was sufficient evidence to prove A.J.R. shot two cattle; (3) assuming he shot the cattle, whether there was sufficient evidence to prove his acts constituted mutilation or torture of an animal. We hold that the juvenile court did not abuse its discretion by admitting the officer’s testimony, and the evidence is sufficient to prove A.J.R. shot two cattle and to sustain his adjudications for criminal mischief. However, concluding A.J.R.’s actions did not constitute mutilation or torture of an animal, we reverse his adjudications for cruelty to an animal. Accordingly, we affirm in part and reverse in part.
In Johnathon R. Aslinger v. State of Indiana , a 25-page opinion, Judge Riley writes:
The State is mistaken in its sequence of events; in fact, Officer Foster had to physically take the cigarette from Aslinger and then sniff it to detect any odor. Accordingly, because the seizure of the hand-rolled cigarette was unrelated to the purpose justifying the Terry stop and not subject to seizure under the plain view doctrine, Officer Foster did not have probable cause to make an arrest and conduct an incidental search. We find the trial court abused its discretion in admitting the marijuana joint, methamphetamine, and paraphernalia (with the exception of the second pipe, which was thought to have been a knife) because no warrant or warrant exception authorized their seizure. * * *

Based on the foregoing, we conclude that, the trial court erred in admitting the evidence seized in violation of Aslinger’s Fourth Amendment rights and in imposing consecutive HSO sentence enhancements; we thus reverse and remand the conviction for Case #127. We further conclude that, in Case #152, the trial court did not err in excluding Aslinger’s jury instruction, and his sentence for dealing methamphetamine is not inappropriate in light of the nature of the offense and character of the offender.

KIRSCH, J. concurs
ROBB, J. concurs with concurring opinion [J. Robb concurs, beginning at p. 23] I concur in the majority opinion. However, I write separately regarding the search and seizure in Case #127 because I believe the majority’s statement of law applicable to the plain view doctrine is too broad.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: R.A.B. (Minor Child) and Z.T.B. (Mother) & R.W.B. (Father) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Dexter Hawkins v. State of Indiana (NFP)

Tyrone Shelton v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Circuit Split Watch: Are 'Boobies' Bracelets the New Black Armbands?"

See Michelle Olsen's article at Appellate Daily. One of the cases mentioned is the ND Indiana Aug. 20, 2013 decision, J.A. et al v. Fort Wayne Community Schools.

See also this related ILB post from Aug. 20, 2013.

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Courts in general

Ind. Gov't. - "Gay marriage vote moves on to full House: Passes panel on party-line vote"

There are a number of stories this morning on yesterday's lengthy House Elections Committee public hearing and vote on SJR 3.

Niki Kelly of the Fort Wayne Journal Gazette writes:

Nine Republicans moved a proposed constitutional gay marriage ban out of committee Wednesday night – setting up a much-anticipated full House vote on the measure next week.

All three Democrats on the House Elections Committee voted no, including Rep. Phil GiaQuinta, D-Fort Wayne.

Rep. Casey Cox, R-Fort Wayne, voted yes but said he is reserving his right to vote against the measure later if a contentious second sentence isn’t removed.

The initial passage came after a political maneuver by House Speaker Brian Bosma to shift it to the elections panel, which saved the proposal from defeat.

It was originally heard in the Judiciary Committee last week but stalled when leaders realized several Republicans might vote no.

The legislature first approved the proposed amendment in 2011. If it passes this year, then voters would get final say on the November ballot.

The FWJG also has a lengthy editorial today titled "Speaker’s power play." A sample:
What does it say about a proposed amendment to the Indiana Constitution – the state’s most important document – that it requires special handling to accommodate its passage? Shouldn’t a measure that takes the unprecedented step of depriving certain Hoosiers of their rights with constitutional language advance with the overwhelming support of the legislature?

More important, should any measure that deprives a group of its rights be subject to a vote of citizens? Under that approach, a state with more Democrats than Republicans could vote to ban the GOP, or vice-versa; whites, theoretically, could vote to re-enslave blacks. Our system of government is specifically designed to protect the minority from the rule of the majority. Bosma and his allies don’t seem to get that.

"House committee advances Indiana gay marriage ban" is the headline to Tom LoBianco's story for AP, here as printed in the Gary Post Tribune. Here is Dan Carden's story in the NWI Times.

Barb Berggoetz and Tony Cook have this front-page story in the Indianapolis Star. Som quotes:

After two hearings, eight hours of testimony and a controversial committee switch, a proposed same-sex marriage ban is headed to the Indiana House floor as early as Monday.

All nine Republicans on the House Elections Committee voted in favor of the proposed constitutional amendment Wednesday night, while three Democrats were against the move.

During the packed 41/2-hour hearing, young Republicans implored their older party members to send a message of tolerance to the next generation. Gay and lesbian Hoosiers spoke about leaving the state if the amendment passes. A woman with cancer expressed fears that she and her partner won't have the same rights as straight, married couples when facing end-of-life decisions.

Despite the personal appeals and testimony from business and university leaders, Republicans were not persuaded to back off the amendment, which has caused some fissures within their party. After the testimony, Republicans voted with few comments.

"Marriage is between a man and a woman, and I believe the people of Indiana are demanding a right to vote on the amendment," said committee member Rep. Timothy Wesco, R-Osceola.

Democrats who voted against the bill said they feared a divisive campaign if the measure goes to the November ballot and millions of dollars in legal fees if the measure passes.

"When my grandchildren have to watch the ads that are going to be on television," said Rep. Kreg Battles, D-Vincennes, "are you going to be proud? Are we as a body going to be proud of that?"

See also Star writer Matthew Tully's column from earlier this week, headed "Gay marriage debate’s biggest problem? It’s just plain wrong," and writer Erika Smith's column, "Get mad, stay mad over Bosma decision on gay marriage ban."

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Indiana Government

Courts - "U.S. Supreme Court asked to review Delaware's 'secret trials' case" [Updated]

Tom Hals's Jan. 21st Reuters story begins:

Delaware asked the U.S. Supreme Court on Tuesday to review a lower court decision that stopped the state's nationally important business court from overseeing private arbitrations, a process critics compared to secret trials.

The U.S. Court of Appeals in Philadelphia upheld in October a ruling that found the five judges on Delaware's Court of Chancery had violated the U.S. Constitution by overseeing private arbitrations in their courtrooms.

All court filings and even the existence of the cases was secret.

Later in the story:
Fees associated with incorporating businesses accounts for as much as 40 percent of Delaware's general budget.
Here is a story, also by Tom Haps, from Oct. 23, 2013, that begins:
(Reuters) - Delaware's legal industry suffered a blow when a federal court found on Wednesday the state violated the U.S. Constitution with its novel system of allowing judges to arbitrate private business disputes, which critics called secret trials.

The U.S. Court of Appeals for the Third Circuit found private arbitrations taking place in Delaware's highly respected Court of Chancery violated the First Amendment of the U.S. Constitution.

"Allowing public access to state-sponsored arbitrations would give stockholders and the public a better understanding of how Delaware resolves major business disputes," wrote Judge Dolores Sloviter in a 2-1 ruling.

The 37-page ruling contained three opinions. Judge Julio Fuentes wrote a concurring opinion, but took a narrower view that secrecy was a problem but involving judges in arbitration was not. Judge Jane Roth dissented and called Delaware's system a "perfect model for commercial arbitration."

[Updated at 1:45 PM] Liz Hoffman has this post at the WSJ Law Blog, including links to the documents.

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Courts in general

Law - "Virginia's New Attorney General Will Not Defend Gay-Marriage Ban"

Eyder Peralta had this introduction to Steve Inskeep's 7-minute story (audio only right now) this morning on NPR's Morning Edition. A quote:

In an interview with Morning Edition's Steve Inskeep, Democrat Mark Herring said his office will no longer defend the state's ban on same-sex marriages.

"As attorney general, I cannot and will not defend laws that violate Virginians' rights," Herring said. "The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied."

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to General Law Related

Ind. Law - "Lawmakers take aim at gun buy-back programs"

Dan Carden reports this morning in the NWI Times:

A proposal forcing Gary and other Indiana cities to end their gun buy-back programs was approved 6-2 Wednesday by the Senate Judiciary Committee.

Senate Bill 229, which now goes to the full Senate, prohibits local governments and their police departments from conducting gun buy-back events intended to reduce the number of guns circulating in a community.

The sponsor of the measure, state Sen. Jim Tomes, R-Wadesville, said he can't understand why police would want to destroy guns, when most guns police obtain or seize have significant value and could be resold.

Under the legislation, police only would be permitted to destroy a gun if the weapon's serial number has been obliterated. All other guns obtained by police would have to be sold to a firearms dealer or through an auction.

Proceeds from the sale of those guns then could be spent to purchase more police guns, ammunition or bulletproof vests. Current law requires gun sale funds be spent only on police training.

"I don't see why anyone would object to this because it benefits everyone involved," Tomes said.

State Sen. Lonnie Randolph, D-East Chicago, voted for the proposal and asked Tomes to add him as a co-sponsor of the measure.

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Indiana Law

Ind. Law - "Weakened ag-gag bill advances to full Senate"

Niki Kelly reported yesterday in the Fort Wayne Journal Gazette:

The Senate Corrections and Criminal Law Committee neutered the disputed “ag-gag” bill [SB 101] Tuesday when the bill’s author brought an amendment that removed the problematic provision.

Sen. Travis Holdman, R-Markle, said the revised bill now focuses solely on those who trespass on agricultural property and cause damage, such as broken doors, fences or more.

The bill in previous incarnations went much farther in an attempt to stop people from taking photos and videos at these operations that later cause the farm embarrassment or loss of business.

But First Amendment issues continued to vex lawmakers wrestling with the bill.

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Indiana Law

Courts - "Judges build on Supreme Court’s Windsor ruling to extend gay rights" [Updated]

Alison Frankel writes at the "On the Case" blog at Reuters in an entry that begins:

Justice Antonin Scalia of the U.S. Supreme Court got at least one thing right in his controversial dissent last term in U.S. v. Windsor, the case that struck down federal prohibitions on same-sex marriage as an unconstitutional intrusion on the equal rights of gays and lesbians. In a 5-to-4 opinion by Justice Anthony Kennedy, the majority said its ruling addressed only the conflict between the federal Defense of Marriage Act and the laws of states that have approved same-sex marriage, not the right of a state to bar same-sex marriages. Chief Justice John Roberts’s dissent emphasized the limited scope of the ruling. But Justice Scalia predicted otherwise.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” he wrote, in one of his dissent’s many hectoring passages. “Henceforth those challengers will lead with this court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples, The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows.”

[Updated at 2 PM] See also this article today at Constitution Center, by Lyle Denniston. It begins:
Lyle Denniston says the question of the correct constitutional standard about same-sex marriage is going to reach the Supreme Court in a way that can no longer be avoided

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Courts in general

Ind. Law - Some bills being heard in committee this week; Some bills on 2nd reading today

Some bills being considered in Committee this week:

Some bills on 2nd reading in Senate Thursday: Some bills on 3rd reading in Senate Thursday: Some bills on 2nd reading in House Thursday: Some bills on 3rd reading in House Thursday:

Posted by Marcia Oddi on Thursday, January 23, 2014
Posted to Indiana Law

Wednesday, January 22, 2014

Environment - More on "No more stringent" rules limitation effort back again

Updating this ILB entry from Jan. 17th, which traced the "no more stringent" effort over the years, the Hoosier Environmental Council has put out a news release reporting that HB 1143 was reported out of committee this morning. A quote from the release:

Chairman Wolkins expressed in today's hearing an openness to amend the bill to ensure that emergency rule-making for Indiana's Executive Branch is preserved...
This statement, if quoted correctly, appears to involve a misunderstanding of the current environmental rulemaking statutes.

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 today (and 14 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Michael E. Mattingly v. Review Board of the Indiana Department of Workforce Development, and Meijer Stores Limited Partnership (NFP)

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

NFP criminal opinions today (12):

Antoine Duff v. State of Indiana (NFP)

Anthony Barnett v. State of Indiana (NFP)

Zachary Buza v. State of Indiana (NFP)

Bruce Jones v. State of Indiana (NFP)

Michael T. Smith v. State of Indiana (NFP)

Challie A. Gray v. State of Indiana (NFP)

Antonio D. Johnson v. State of Indiana (NFP)

Kevin Joseph Cherrone v. State of Indiana (NFP)

Tabitha Edwards v. State of Indiana (NFP)

Justin Kyle Loy v. State of Indiana (NFP)

J.F. v. State of Indiana (NFP)

Reginald Binion v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Ind. App.Ct. Decisions

Courts - More on: SCOTUS to consider "the authority of police to follow up on an anonymous tip about an unsafe driver"

Updating this ILB post from Jan. 20th, Mark Sherman of the AP has this story on the oral argument. A quote:

Lawyers for California and the Obama administration, defending the traffic stop based on the anonymous tip, said keeping the public safe from drunken drivers outweighs the intrusion of a traffic stop. They said a tip about someone driving recklessly would be enough because reckless driving often follows having had too much to drink.

But Justice Sonia Sotomayor said people use the term "reckless" differently, suggesting she might not accept the governments' argument.

Sotomayor gave as an example her mother, who doesn't like it when the justice tops 50 miles per hour behind the wheel. "She thinks that when I'm going 51, I'm speeding and reckless," Sotomayor said.

The case is Navarette v. California. Lyle Denniston of SCOTUSblog has this argument recap. A quote:
On Tuesday, the Court was offered two basic options on where to draw that line: the police should not be free to act on the basis of an anonymous tip that contains some reliable but innocent facts just because the crime that might have occurred is a serious one; and the police should be free to act in that circumstance, especially when the tipster claims to have been an eyewitness.

The Justices did not seem happy with either formulation, because the suggested lines of demarcation would become a bit fuzzy when hypotheticals tested them.

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Courts in general

Ind. Decisions - Transfer list for week ending January 17, 2014

Now updated with details.

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Indiana Transfer Lists

Ind. Law - "IU McKinney students prepare to compete in international commercial moot court"

From the announcement:

IU McKinney’s Willem C. Vis International Commercial Arbitration Moot Court competes in Vienna this spring

For the second year running, a group of students from the Indiana University Robert H. McKinney School of Law are competing in the most prestigious international business law competition in the world.

In April 2014, the IU McKinney Vis Team will face off with top law students from around the globe in Vienna, Austria at the Willem C. Vis International Commercial Arbitration Moot competition. This event brings together more than 2,000 law students from 300 law schools and more than 70 countries. The IU McKinney Vis Team prepared throughout the 2013-2014 academic year to prepare written briefs and oral arguments on behalf of fictitious clients involved in an international commercial arbitration proceeding. Judging is performed by more than 650 of the world’s leading arbitrators, arbitration practitioners and academics.

Prior to competing in Vienna, the IU McKinney Vis Team will participate in pre-moot competitions organized by several law schools throughout the United States. The 2014 IU McKinney Competition Team consists of Justin Hage JD ’15, Devin Hillsdon-Smith JD ’14, Minji Park JD ’14, and Vanessa Woolsey JD ’14 and an additional team of researchers, coaches and managers.

To learn more, please visit the team Facebook page.

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Indiana Law

Ind. Courts - More on: Marion County Superior Court elections and Judge Brown - Some questions

Updating this ILB post from Jan. 10th, The Indianapolis Bar Association has now released the results of its membership poll on the candidates (incumbent and not) for Marion County Superior (and Circuit) Court this year. Access it here.

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Indiana Courts

Ind. Decisions - More on "Adult bookstore court case could cost city taxpayers"

The ILB has lost track of the various manifestations of Annex Books (long list of entries here); the most recent post was Oct. 24, 2012.

Last week, on Jan. 15th, the 7th Circuit heard oral argument on:

13-1500 Annex Books, Incorporated v. City of Indianapolis | civil | 01/15/2014 | oral argument

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Watch the archived Jan. 13 public hearing on HJR 3

The HOUSE Elections & Apportionment Committee will be hearing HJR 3 at 3:30PM in the House Chamber. You can watch the testimony and the likely vote by going to the General Assembly website at 3:30 and selecting from the yellow box: Watch Live > House.

You also can watch the three hours of testimony heard last week on the same proposal before the House Judiciary Committee. It has been archived. Like the rest of the new LSA/General Assembly website, finding it is not intuitive and like versions of bills and the like, it cannot be linked to directly (which is a real deficit).

Here are the archives of the 2014 House Judiciary Committee. On the pull-down menu, select Monday, Jan. 13, the date of the hearing. (This morning I did this successfully on my Chrome browser, but not on the Firefox browser. Yesterday, it worked on both ...)

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Indiana Government

Ind. Law - Some bills being heard in committee this week; Some bills on 2nd reading today

Some bills being considered in Committee this week:

Some bills on 2nd reading in Senate Wednesday: Some bills on 3rd reading in Senate Wednesday: Some bills on 2nd reading in House Wednesday: Some bills on 3rd reading in House Wednesday:

Posted by Marcia Oddi on Wednesday, January 22, 2014
Posted to Indiana Law

Tuesday, January 21, 2014

About this Blog - Law blogs going behind paywalls, law blogs sold, and for sale

Both The Volokh Conspiracy and The Blog of Legal Times are going behind paywalls. Here is the Legal Times announcement. Here is The Volokh Conspiracy announcement. Additionally, readers may remember that a few month's ago we learned from Tom Goldstein, the SCOTUSblog founder, that the blog was for sale.

Howard Bashman of How Appealing points out, however, that "WSJ.com's Law Blog recently decided to make itself much more accessible by entirely dropping its paywall," and also assures us that "the How Appealing blog's agreement with law.com ensures that this blog will remain freely accessible to all who have internet access.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to About the Indiana Law Blog

Ind. Law - Bosma revives HJR3, reassigns it to Elections Committee [Updated]

Niki Kelly of the Fort Wayne Journal Gazette reports this afternoon:

INDIANAPOLIS – House Speaker Brian Bosma rescued the gay marriage amendment Tuesday by moving it to a friendlier committee.

He said he struggled with the decision over the weekend but had heard from a majority of the House Republican caucus – for and against the measure – that they wanted to vote on the bill on the House floor.

“This seemed like the best way to do it – the least intrusive and most respectful of the process,” Bosma said.

He moved House Joint Resolution 3 – the proposed constitutional amendment to ban gay marriage and civil unions – and a companion bill to the House Elections Committee.

“It has a likelihood of making it to the floor with this route,” Bosma said.

The House Judiciary Committee heard the bill last week but stalled when several Republican members were publicly undecided, and would not confirm which way they would vote to leadership.

Both HJR 3 and the companion explanatory bill, HB 1153, will be heard by the House Elections and Apportionment Committee at 3:30 PM tomorrow, Jan. 22nd, in the House Chamber. Another full public hearing is anticipated, for the benefit of the members of the new committee. The members of the committee are listed here, 9 R and 4 D.

[Updated at 4:06 PM] Barb Berggoetz and Tony Cook report in the IndyStar:

In a highly unusual move, Indiana House Speaker Brian Bosma today moved the controversial same-sex marriage ban to a new committee — where it stands a better chance of passing — after the measure stalled in another committee.

Asked how he justified the step, Bosma said, "I responded to the overwhelming majority of the Republican caucus who have extensively lobbied me to bring this to the floor in one fashion or another." * * *

Democrats didn't hesitate to attack Bosma's decision.

Judiciary Committee member Rep. Ed DeLaney, D-Indianapolis, called the move "embarrassing."

"This is what happens when you have a really bad idea and get over committed to it," he said. "You start breaking the procedures. You start attacking the structure of the system. That's what the speaker has done."

Senate Democratic Minority Leader Tim Lanane, D-Anderson, said, "Instead of letting hours of testimony and the democratic process play out, the Speaker of the House has decided to start the clock over.

"Sometimes the legislative process does not garner the expected result, but that does not mean one gets to change the rules in the middle of the game," he added.

Some quotes from a lengthy story by Brian A. Howey and Matthew Butler in Howey Politics:
Bosma had said in recent months that the marriage amendment would be treated "like any other bill" and both he and Senate President David Long vowed not to "dictate" passage of the amendment. But it has become clear that with the social conservative stars in alignment with Gov. Mike Pence and two super majority Republican legislative chambers, the marriage amendment has become the movement's top priority, even as they have rhetorically distanced themselves from it.

State Rep. Ed DeLaney, D-Indianapolis, reacted to the move by saying, "The Speaker has just insulted the legislature and my committee in particular, by saying having heard the bill and having understood the bill we’re not going to be allowed to vote. This is what we call forum shopping.I think it’s totally inappropriate. Constitutional amendments tend to get passed with great support. They don’t get shoved up a hill; people don’t get their hands broken in the process. This is not appropriate for a constitutional amendment.” * * *

Time is becoming of the essence here. With no Judiciary Committee meetings scheduled since the Jan. 13 showdown when proponents of the measure expected a vote, other issues such as the criminal code reform tweaks, are held up. Feb. 3 is the crossover date for bills to move out of the chamber of origin. * * *

DeLaney also noted the potentially explosive political repercussions. “I have no way to predict how that committee that has no background or experience with this topic is supposed to handle it," he said. "But there is a high risk that if they don’t handle it in a very professional, very open, detailed manner then they’re going to look very bad. You know when I have jury trials, I never get a chance to say, could you give me a different jury judge, this one’s not working out.”

“What he should have done is let us take a vote and anything other than that is just a distortion of the process," DeLaney continued. "I’m sorry to see this. This is probably the biggest political trick I’ve seen played in this place in six years. If he couldn’t get it through this committee doesn’t that tell him this is not a worthy idea? This is what we’re here for.”

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Indiana Law

Ind. Decisions - Supreme Court decides Boonville annexation issue

In American Cold Storage, et al. v. The City of Boonville, a 5-page, 5-0 opinion, Chief Justice Dickson writes:

This appeal arises from an action by numerous landowners to remonstrate against an attempt by the City of Boonville to annex 1,165 acres of real estate located west of Boonville's geographic limits. The sole disputed issue in this appeal is whether the statutory prerequisite sixty-five percent (65%) of remonstrating landowners is to be determined by separately counting the multiple parcels acquired by the State for an adjoining public roadway or collectively as one parcel. * * *

We hold that the land in this case, which comprises the portion of State Road 62 included in the annexed territory, should be considered and counted as a single parcel in determining whether the remonstrating Landowners comprise 65% of the owners of the annexed territory. We therefore reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Ind. Sup.Ct. Decisions

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

In UNITED STATES OF AMERICA v. LOVOYNE DRAIN (SD Ind., Barker), a 16-page opinion, Judge Sykes writes:

Lovoyne Drain appeals his aboveguidelines sentence for possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). He argues that the district judge ran afoul of U.S.S.G. § 4A1.3(a)(3) and the Due Process Clause by considering his record of unadjudicated arrests, many for offenses involving drugs or violence. But § 4A1.3(a)(3), like every provision of the sentencing guidelines, is advisory. And the judge did not violate Drain’s right to due process by taking account of his arrest history as part of her evaluation of the sentencing factors under 18 U.S.C. § 3553(a). Accordingly, we affirm Drain’s sentence.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Courts today posts four disciplinary orders, all filed Jan. 16th

The orders include two reinstatements: Patrick V. Baker and Earl C. Mullins, Jr.

Also two resignations, Franklin A. Safrin and Michael K. Bonnell, with both orders beginning:

Respondent has tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that there is presently pending an investigation into or a proceeding involving allegations of misconduct and that Respondent could not successfully defend himself if prosecuted.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In Michael Weist v. Kristen Dawn and State Farm Insurance Companies , an 11-page opinion, Sr. Judge Sharpnack writes:

Michael Weist appeals the trial court’s grant of summary judgment to Kristen Dawn and State Farm Insurance Companies. We affirm in part, reverse in part, and remand.

Weist raises one issue, which we restate as: whether the court erred in granting summary judgment to Dawn and State Farm. * * *

Weist argues that the trial court erred in concluding that the doctrine of equitable estoppel does not apply. Before we address that argument, however, State Farm raises a different ground for affirming the trial court’s grant of summary judgment in its favor. Specifically, State Farm asserts that Weist’s claims against it are barred by the direct action rule. * * *

In the absence of a claim for declaratory relief, the direct action rule bars Weist’s claim against State Farm. Cf. Myers v. Deets, 968 N.E.2d 299, 303 (Ind. Ct. App. 2012) (determining that a complaint “sufficiently stated facts that would support a declaratory judgment action” against the insurer and remanding for further proceedings). The trial court did not err in granting summary judgment to State Farm. * * *

Accepting Weist’s version of events, as we must under our standard of review, he has established disputes of material fact as to both elements of the equitable estoppel test set forth in Davis. It is thus necessary to reverse and remand the case for a trier of fact to resolve whether Dawn is equitably estopped from asserting the defense.

In In the Matter of the Petition for Temporary Protective Order: A.N. v. K.G., a 20-page decision, Judge Riley writes:
Appellant-Respondent, A.N., appeals the trial court’s Order of contempt in favor of Appellee-Petitioner, K.G. We affirm.

A.N. raises two issues, which we consolidate and restate as the following issue: Whether trial court improperly acted as advocate for K.G. thereby violating her due process right to a fair trial before an impartial tribunal. * * *

Based on the foregoing, we conclude that the trial court did not improperly act as an advocate and therefore did not deny A.N. her due process right to a fair trial before an impartial tribunal. Affirmed.

KIRSCH, J. concurs
ROBB, J. concurs with separate concurring opinion [that reads in full] I believe the trial court was precariously close to crossing the line of acceptable intervention into the course of these proceedings. Had the evidence of A.N.’s impermissible contacts not been so strong, the trial court’s actions may have been enough to compromise the parties’ rights to a fair trial. However, because the evidence that A.N. violated the protective order is overwhelming, I agree that the trial court’s contempt order should be affirmed.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: N.I., the minor child, and K.I., the mother, K.I. v. The Indiana Department of Child Services (NFP)

Smita Radhakrishnan v. Access Therapies, Inc. (NFP)

VPR Properties, LLC and Purna Veer and Radhika Veer v. Affiliated Foot Care Clinic, PC (NFP)

NFP criminal opinions today (9):

Terry Berry v. State of Indiana (NFP)

Christopher Jethroe v. State of Indiana (NFP)

Tievon N. Nichols v. State of Indiana (NFP)

Brandon M. Ebeyer v. State of Indiana (NFP)

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

Edward Zaragoza v. State of Indiana (NFP)

Darrell Kirkwood v. State of Indiana (NFP)

Timothy J. Padgett v. State of Indiana (NFP)

Donald Ware v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 17, 2014

[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 Dec. 20, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 17, 2014. It is two pages (and 25 cases) long.

Three transfers were granted last week:

In addition, in G.H. v. State of Indiana, a case where oral argument was held on Jan. 9th, the Court now orders: "Order granting transfer on 9/13/13 is vacated and transfer is denied. - Rucker, Massa, and Rush, JJ., concur. Dickson, C.J., and David, J., dissent to the denial of transfer and would affirm the trial court."

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Indiana Transfer Lists

Courts - Pa. Supreme Court implements constitutional amendments guaranteeing the right "to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment" [Updated]

I saved this Jan. 6, 2014 story by Steve Esack in the Penn. Leigh Valley Morning Call because I thought the reported decision and the approach might at some point have relevance re constitutional amendments being considered in states outside Pennsylvania... Some quotes from the long story:

HARRISBURG — Environmentalists and municipal officials have been celebrating a Pennsylvania state Supreme Court decision striking down key elements of a 2012 law that eliminated local zoning laws in favor of statewide regulations that allowed energy companies to dig gas wells anywhere they wished.

But the court's Dec. 19 decision invalidating most of Act 13 — a signature piece of Gov. Tom Corbett's jobs and economic policy — was no ordinary zoning ruling to settle a run-of-the-mill lawsuit.

The court's 4-2 majority decision set a landmark constitutional precedent for Pennsylvania.

That precedent — which the Corbett administration now wants the court to reconsider — could have far-reaching legal, policy and political ramifications beyond where wells and drilling equipment can be located.

Now here comes the part that caught my interest:
Writing for the majority, Chief Justice Ron Castille said Commonwealth Court was correct when it ruled the state could not supersede local zoning laws related to natural gas drilling. But Castille also said Commonwealth Court was wrong to reject a claim by the plaintiffs that Act 13 violated the state Constitution's Vietnam-era amendment guaranteeing Pennsylvanians the right "to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment."

The amendment (Article 1 Section 27) says the commonwealth must guarantee people's environmental rights, Castille wrote. So the governor and Legislature did not have the right to adopt statewide regulations that abolished local drilling-related zoning laws municipalities had created to ensure all property owners can leisurely and financially enjoy their land, Castile wrote.

"The type of constitutional challenge presented today is as unprecedented in Pennsylvania as is the legislation that engendered it," Castille wrote. "The Commonwealth's efforts to minimize the import of this litigation by suggesting it is simply a dispute over public policy voiced by a disappointed minority requires a blindness to the reality here and to Pennsylvania history, including Pennsylvania constitutional history; and, the position ignores the reality that Act 13 has the potential to affect the reserved rights of every citizen of this Commonwealth now, and in the future."

That decision has been criticized as too liberal, Duquesne University law professor Bruce Ledewitz said. But the ruling, issued by Republican Castille and three Democratic justices, was the type of literal constitutional interpretation advanced by conservatives like U.S. Supreme Court Justice Antonin Scalia, Ledewitz said.

"It was a Scalia original," said Ledewitz, a constitional scholar. "Castille made the claim — the people who wrote and adopted this amendment really meant what they said." * * *

That history shows the court's literal interpretation of the environmental rights amendment could affect other aspects of state law, Ledewitz said. It could make passage more difficult for one such bill to loosen the state's decades-old endangered species laws as energy companies and developers want. The decision also could open the state to legal claims it is not doing enough to limit industrial greenhouse gas emissions, he said.

ILB: There is much more in the long story. Here is a link to the 162-page, 4-2 opinion in Robinson Twp. v. The Commonwealth.

[Updated on 1/23/14] "A closer look: Pa. Supreme Court decision on fracking" is the heading to this story by Morgan Myers in the Williamsport PA Sun-Gazette that concludes:

The Supreme Court's historic decision also calls into question the power and relevance of the Environmental Rights Amendment, which was passed in the early 1970s. The Environmental Rights Amendment states that the public has the right to clean air and clean water. It also imposes a duty upon the commonwealth to maintain public resources for the benefit of all, according to [Penn State Dickinson School of Law professor Ross Pifer].

"Up to Act 13, I think it's fair to say that there was a question as to how much teeth (the Environmental Rights Amendment) really had," Pifer said.

In his opinion, Supreme Court Chief Justice Ronald Castille uses "very, very strong language" and the authority of the Environmental Rights Amendment to declare portions of Act 13 unconstitutional, according to Pifer.

Three justices signed on to the entirety of Castille's opinion; one concurred in Castille's result but not his specific reasoning; and the remaining two dissented, according to Pifer.

"If it had been a majority opinion, it would have had a huge impact moving forward because it placed great emphasis on the constitutional rights the public has through the Environmental Rights Amendment. But it was only signed off on by three justices. So the question is, how is that going to play out in the future?" Pifer said.

Depending on the weight placed on Castille's opinion, it could have an impact well beyond the oil and gas industry, according to Pifer. Pifer said he "certainly wouldn't be surprised" if future claims emerge in lower courts that rely on Castille's opinion to address the environmental impact of activities outside of oil and gas development.

"This opinion perhaps raises more questions than answers," Pifer said of the Supreme Court ruling.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Courts in general

Law - "Speed-camera ruling likely to reverberate across Ohio"

The Fort Wayne Journal Gazette on Sunday, Jan. 19 published an interesting AP story by Dan Sewell that began:

CINCINNATI – A judge’s upcoming ruling in a lawsuit against a Cincinnati-area village’s speed cameras will lead off a pivotal year in the accelerating debate over traffic cameras in Ohio.

Ticketed motorists want Hamilton County Common Pleas Judge Robert Ruehlman to order the village of Elmwood Place to refund speeding fines and fees totaling $1.8 million.

The village says there shouldn’t be refunds for speeding violations and has appealed the judge’s earlier rulings against cameras.

Ruehlman last year ordered the village to halt its camera use, comparing the automated system to a rigged card game. He also has approved class-action status for ticketed Elmwood Place drivers.

The judge said he’ll rule Thursday. Whatever his decision, the case will likely be appealed by the losing side.

Several other lawsuits are pending, including one before the Ohio Supreme Court challenging traffic cameras in Toledo.

Meanwhile, state legislators are pushing ahead on measures to ban or restrict camera enforcement statewide.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to General Law Related

Ind. Courts - Bond denied in LaPorte County murder trial

In a story Jan. 17th, Gabrielle Gonzalez reported in the LaPorte Herald-Argus:

La PORTE — The man charged in the murder of Rayna Rison was denied bond Thursday afternoon.

A hearing was held on Tuesday regarding whether or not Jason L. Tibbs, 38, of La Porte could receive bond. His attorneys, L. Scott Pejic and John Tompkins, argued a bond had been set for a case involving a murder within the state last year. * * *

La Porte County Circuit Court Judge Thomas Alevizos gave a statement on Thursday for why he denied Tibbs of a bond.

"Traditionally, Indiana has not allowed bond to issue in murder cases. However, in a 2013 decision, "Fry v. Indiana," the Indiana Supreme Court held in a 3-2 decision that bond could issue unless the State could show that it should not," Alevizos wrote in his decision. "Under the "Fry" decision, the burden of proof moved to the State. However, unlike previously, the burden of proof is a low one; preponderance of the evidence. The court finds, given the testimony that was presented, that the state has met this burden. Therefore, bond will not issue in this instance."

ILB: The case is Loren Hamilton Fry v. State of Indiana, see this June 25, 2013 ILB summary calling Fry a 39-page, 3-2 "fractured" set of 4 separate opinions.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Indiana Courts

Law - "Alabama Blogger’s Incarceration Raises First Amendment Questions"

On Jan. 14th, Campbell Roberton had a long story in the NY Times headed "Blogger’s Incarceration Raises First Amendment Questions." The first paragraph:

BIRMINGHAM, Ala. — For over six years, Roger Shuler has hounded figures of the state legal and political establishment on his blog, Legal Schnauzer, a hothouse of furious but often fuzzily sourced allegations of deep corruption and wide-ranging conspiracy. Some of these allegations he has tested in court, having sued his neighbor, his neighbor’s lawyer, his former employer, the Police Department, the Sheriff’s Department, the Alabama State Bar and two county circuit judges, among others. Mostly, he has lost.
Today Indianapolis attorney/blogger Paul Ogden has a post on the NYT story, headed "Alabama Attorney-Blogger Remains in Jail Indefinitely Due to Judge's Order Imposing Prior Restraint on Speech ."

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to General Law Related

Ind. Gov't. - "Legislature Upgrades Voting Software, But With Glitches "

Eric Berman of WIBC has this story, with audio, about the new, problematic voting system in the General Assembly, paralleling perhaps the clunky bill reporting and etc. software.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Indiana Government

Ind. Law - Catching up after long weekend?

If you are just getting back to the ILB after the weekend, there were a number of good posts, including this post from this weekend on whether the Indiana Supreme Court's legislative requests to the General Assembly this year were dead on arrival, and this post from yesterday on a recent win by Prof. Eugene Volokh in a case similar to the Brewington First Amendment/blogger case.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Catch-up

Ind. Law - "Delicate path for gay marriage in red states"; What about Indiana?

WTHR13 yesterday picked up this long AP story by Brady McCombs and Nicholas Riccardi. Some quotes:

SALT LAKE CITY (AP) - Hours after federal judges struck down bans on same-sex marriage in Utah and Oklahoma, activist Evan Wolfson and his colleagues reached out to gay rights groups in the deeply conservative states with both congratulations and a reminder: Court wins alone won't be enough.

Wolfson knows the perils of judges forcing social changes on a population that isn't ready for them - he filed the first successful gay marriage lawsuit in the 1990s in Hawaii, and the backlash against that case convinced him to focus on the political process rather than litigation alone.

That strategy has helped lead to a stunning turnaround in public opinion on gay marriage and a series of electoral wins that laid the groundwork for the recent court rulings.

Now the movement faces its greatest test as foes complain that the recent decisions have leapt ahead of the public in those deeply red states and risk creating another Roe v Wade, where courts settle a divisive social issue but sow the seeds for prolonged conflict.

In both states, elected officials largely greeted the rulings with fury and gay rights groups are bracing for a series of proposals in the state legislature that could target their community. * * *

Gay marriage bans have also been struck down by courts in New Jersey and New Mexico, and a spate of new laws have passed in other states. In the seven months since the Supreme Court's landmark decision, the number of states allowing gay marriage has jumped from 12 to 17 with Utah and Oklahoma in limbo pending decisions by appeals courts. Gay marriage supporters argue the time is ripe for the lifting of bans nationwide by the Supreme Court.

John Eastman of the National Organization for Marriage in Washington, DC, which opposes same-sex marriage, said that the recent rulings courts disaster. "If they don't let it be fought out in the states, there is going to be an eruption," Eastman said.

But Scott J. Hamilton, executive director of the Cimarron Alliance Equality Center, said a backlash is worth it. "It will go away eventually," he said. "I'm frankly not worried about equality coming through the courts....If we relied on popular opinion in Oklahoma to grant marriage equality it probably wouldn't happen for generations."

Hamilton, Wolfson and other gay rights activists see the proper case less as Roe v Wade and more as Loving v Virginia, the 1967 U.S. Supreme Court ruling that struck down laws against interracial marriage. At the time, interracial marriage was less accepted in polls than gay marriage is now. But opponents saw that the marriages didn't actually harm them and "life went on," Hamilton said.

What about Indiana? Indiana marriage equality proponents are following the "take it slow" approach. The fight in the General Assembly this year is not to repeal the existing statutory prohibition against same sex marriage, but rather to stop or slow down efforts by opponents of same-sex marriage to write the prohibition into our Indiana Constitution.

And there are no law suits pending in Indiana. After the failure of an effort in the Indiana Court of Appeals in 2005 (Ruth Morrison, et al v. Doris Ann Sadler, et al) challenging our statutory same-sex marriage prohibition on Indiana constitutional grounds, the Indiana ACLU did not appeal the case to the Supreme Court and it has not brought an equivalent challenge since that time.

My question to Jane Henegar, Executive Director of the Indiana ACLU, last week: "Of course I'm asking now with the benefit of seeing what is happening in Utah and Oklahoma... My question, for use in the ILB, is whether the ACLU may be bringing such a suit in Indiana?" Ms. Henegar's answer:

Marcia, the ALCU has been a leader in defending the rights of the LGBT community since the 1930s. Here in Indiana, we are now focused on defeating HJR-3, which would amend discrimination into our state’s constitution.

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Indiana Law

Ind. Law - Some bills being heard in committee this week; Some bills on 2nd reading today

Some bills being considered in Committee this week:

Some bills on 2nd reading in Senate Tuesday: Some bills on 3rd reading in Senate Tuesday: Some bills on 2nd reading in House Tuesday: Some bills on 3rd reading in House Tuesday: ILB: most selected with environmental law focus. BTW, had I realized how long it would take me, due to the SLOWNESS of the clunky LSA/GA "new improved" bill system, to put together this simple list, I would not have started it. It should only have taken a few minutes!

Posted by Marcia Oddi on Tuesday, January 21, 2014
Posted to Indiana Courts

Monday, January 20, 2014

Law - "Kentucky disbarred lawyers face career, personal hurdles"

Andrew Wolfson's long story for the Louisville Courier Journal has been reprinted in USA Today. The fascinating story begins:

LOUISVILLE — They are outcasts — stripped of their licenses, their livelihoods and their identity as professionals; some lose their homes, their cars and even their spouses.

"It's almost like you don't know who you are," said Robert Treadway, a Harvard Law School graduate who was once a partner at one of Kentucky's largest law firms. Now he is among 82 Kentucky lawyers who have been disbarred during the last 10 years.

Their ranks include some of the state's most successful and brilliant former attorneys who now are barred from making their living practicing law.

Nobody is saying they didn't deserve their sanctions, but what do they do with the rest of their lives? How do they try to support — and possibly redeem — themselves?

One disbarred attorney teaches part time at the University of Louisville, while another sold used cars for a while. A third has built a legal-publishing empire, while a fourth calls himself "The Legal Ghost" and writes briefs for licensed attorneys. Others retire early.

A second long story, also by Wolfson, is headed "Some other examples of how lawyers have handled disbarment," and is equally of interest.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to General Law Related

Courts - SCOTUS to consider "the authority of police to follow up on an anonymous tip about an unsafe driver"

Lyle Denniston previews at length the SCOTUS oral argument tomorrow in Navarette v. California.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Courts in general

Ind. Decisions - More on "Durham won't have to pay to appeal $200M fraud conviction"

Updating this ILB entry from Jan. 7, 2013, the 7th Circuit calendar shows that tomorrow at 9:30 the 7th Circuit will hear oral argument in 12-3819, 12-3833 & 12-3867, USA v. Durham. Here are some other ILB Durham posts.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Law - WSJ: "Scooters Spark Fight in Evansville, Indiana Low-Powered Mopeds Lead to Heated Political and Cultural Fight"

A quote from the lengthy story by Keach Hagey:

"It's like someone had taken Miracle-Gro and all of a sudden there are scooters everywhere," said Mayor Lloyd Winnecke. "If you spent any time driving the streets of Evansville, you might be inclined to think they have no training."

Indeed, Indiana is one of the few states that doesn't require riders to have a license, registration or insurance to ride low-powered mopeds or scooters. Popular with many riders because they are inexpensive and fuel-efficient, the vehicles have also earned the nickname "liquor cycles" for their popularity among people who have a suspended license from a drunken-driving conviction. One scooter dealer estimates there are as many as 50,000 scooters in the state.

Now Evansville, the state's third-largest city, has become the loudest voice in the state's cries for change in scooter laws. Representatives from the city's police department have traveled to Indianapolis to lobby, while the mayor and other local legislators have also petitioned state lawmakers. At the same time, the city has seen the outbreak of a social-media war presenting clashing images of scooter culture.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Indiana Law

Courts - State and local offices closed today

As this is Martin Luther King Day, state and local offices are closed. There will be no court opinions today.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Indiana Courts

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

Updating this ILB post from Dec. 31, 2013, which quoted from a story Joan C. Rogers in Bloomberg BNA, Tim Evans of the Indianapolis Star today has a lengthy story headlined "Attorney loses job, but battle remains vs. Anson development, Duke Realty." Some quotes:

What would ensue was a classic not-in-my-backyard square-off. They happen all the time in Indiana and across the U.S. as residential and commercial creep swallows up farmland outside of small towns and big cities.

The time, however, there was a twist: [Carol Sparks] Drake was an attorney. And not just any attorney. She was a longtime partner in the law firm that happened to represent Duke on the Anson development — the very project she feared would spoil her rural lifestyle.

Drake was not directly involved in the firm’s work with Duke, but her personal fight with the important client created a problem.Duke made that clear on more than one occasion. And in 2006, three years into her fight with the developer, Drake was booted from her job at the Lebanon-based law firm where she had been a partner for more than 20 years.

Still, Drake continued to fight the development, even as Anson began to grow up around her farm.

But that fight, too, has taken an odd twist: Drake is suing Duke for interfering with her employment. She claims the repeated ultimatums from Duke cost her the job with Parr Richey Obremskey & Morton. Drake, however, is not suing the law firm, because the other partners had every right to vote her out.

So starts a very long and complex story.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Ind. App.Ct. Decisions

Courts - Blogger/Law Prof Eugene Volokh winning attorney in 1st amendment case for defendant blogger

On Friday Prof. Eugene Volokh of The Volokh Conspiracy posted this entry which is titled "Bloggers = Media for First Amendment Libel Law Purposes" and begins:

So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,
The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.
ILB readers will recall that Prof. Volokh, along with Indianapolis attorney Michael Sutherlin, argued the Indiana 1st amendment blogger case, Brewington v. State, before our Supreme Court on Sept. 11, 2013. Our Supreme Court has not yet issued its decision in the case. Here is a long list of ILB entries on Brewington.

Here is a Jan 17th WSJ Law Blog post on the 9th Circuit ruling.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Courts in general

Ind. Gov't. - "Redistricting feud clouds City-County Council races"

The most recent ILB post in this issue is from Nov. 4th, 2013, and is headed "Supreme Court grants direct transfer in Marion County redistricting case."

Jon Murray reported Sunday in a story in the Indianapolis Star that:

... council district boundaries still are in flux as the courts sort out a redistricting case, making it tougher to begin lining up potential candidates for 25 districts.

The council’s makeup can make or break a mayor’s signature initiatives. Just ask Mayor Greg Ballard, a Republican who has run into interference from the Democrat-controlled council on big proposals, including paying for more public works projects.

The long story continues with a list of five "key factors shaping council elections" and which party benefits.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Indiana Government

Indiana Law - More on: Some thoughts on HJR 3: The time to speak out is now

Updating this ILB post from Jan. 15th, where the ILB wrote:

What, I wondered, was the position of the Indiana State Bar Association, and the position of local groups, such as the Indianapolis Bar Association, on HJR 3? The ISBA and IndyBar speak out on many matters and represent many of us. What are their positions with respect to amending our Indiana Constitution's Bill of Rights to include a ban against same sex marriage, and to prohibit "a legal status identical or substantially similar to that of marriage for unmarried individuals."

I contacted the Indianapolis Bar Association at mid-day yesterday and they responded promptly. Jeff Abrams, IndyBar President: "The Association is surveying its members to provide insight into the most desirous role or position we might take. We anticipate knowing more next week."

The ILB has learned that this Saturday, Jan. 18th, the Indianapolis Bar Association Board of Directors sent out a questionnaire to all its members, on the issue of HJR 3. Responses are due by this Friday, January 24 at 5:00 p.m.

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Indiana Law

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

From Sunday, January 19, 2014:

From Saturday, January 18, 2014:

From late Friday afternoon, January 17, 2014:

Posted by Marcia Oddi on Monday, January 20, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/20/14):

Next week's oral arguments before the Supreme Court (week of 1/27/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/20/14):

Thursday, January 23 Wednesday, January 22

Next week's oral arguments before the Court of Appeals (week of 1/27/14):

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, January 20, 2014
Posted to Upcoming Oral Arguments

Sunday, January 19, 2014

Ind. Law - House republican caucus "has been consumed' by the gay marriage issue since the start of the session

So reports Tom LoBianco in this just posted AP story. More from the long story:

House Speaker Brian Bosma has spent months working behind the scenes to approve an amendment banning gay marriage while publicly keeping the measure at arm's length, promising that it would run its normal democratic course in the Statehouse. Until last week.

Bosma's public revelation that he was ready to change the makeup of the House Judiciary Committee in order to advance the measure showed just how much pressure is being applied outside the public eye to ensure the proposed ban advances.

Bosma has spent hours inside private meetings of the Republican caucus pushing the amendment. Routine meetings of House committees have been thrown off track as rank-and-file Republicans have tried to figure out when the marriage debate would hit the full House.

The first hint that things might not go according to plan came last Monday, after the House Judiciary Committee heard close to four hours of testimony. Committee Chairman Greg Steuerwald, R-Avon, ended the committee without holding a planned vote, amid speculation that a handful of wavering Republicans could spike the measure.

The prospect that the amendment might be defeated inside a single House committee finally drew Bosma out into the spotlight.

"I've said one person shouldn't make the decision; we've got to figure out if a couple people ought to make the decision for all Hoosiers," Bosma told The Times in Munster last week. "The speaker, of course, has the power to move bills and has complete autonomy over committee membership."

Later in the story:
[H]is statement that he was willing to substitute members of the judiciary committee was stunning proof of how much power Indiana's speaker would consider exercising.

His more assertive public stance is hardly news to the members of the House Republican Caucus, which has been consumed by the issue since the start of the session.

Meetings of the caucus -- routine and private affairs where most of the toughest decisions are made before lawmakers return to public view -- have become incredibly tense, according to a person with direct knowledge of the meetings who spoke on condition of anonymity because of their private nature.

Posted by Marcia Oddi on Sunday, January 19, 2014
Posted to Indiana Law

Ind. Courts - Check out the newest 2014 summaries of bills of interest to the judiciary; and a look at the CJ's legislative requests in the State of the Judiciary (are they DOA?)

Check out the second weekly installment of the Legislative Update for the 2012 legislative session, from The Indiana Judicial Center.

This week's reports are dated Jan. 17th. Keep scrolling down to see those from the first week of this year's session, dated Jan. 10th.

The "summaries of bills of interest to the judiciary heard this week in committee" is of bills in the first house committee.

ILB: Note that committees generally meet only once each week and that the last day for 3rd reading of Senate bills in the Senate is Wed., Feb. 5. That means that Senate Committees have at most only two meetings remaining to consider Senate bills, this coming week and the next.

Note that the deadline for filing Senate bills was Jan. 10th.

Chief Justice Dickson's State of the Judiciary speech was Jan. 15th. Among the items mentioned at the end of his speech, the Chief Justice listed:

  1. Bringing the Judgment Docket, an ancient but statutory court record, into the digital age. The Court has had a special ad hoc committee, part of our Records Management Committee, working with various stakeholders, including county clerks and others, in an effort to modernize this relic of the quill pen era. We need your help.

  2. Fixing the Marion County Township Small Claims Courts. Our present system has been the subject of ridicule by the Wall Street Journal, and local newspaper and television reporters launched investigations into the system. A task force co-chaired by Court of Appeals Judge John Baker and Senior Judge Betty Barteau held hearings and made a comprehensive report recommending changes urgently needed. Local leadership and changes in court rules, however, can only scratch the surface. Systemic change is imperative, and this requires legislative action.
Were these requests for this session, or for next session?

The ILB could find no legislation introducted this session on either judgment dockets or the Marion County small claims courts. An ILB inquiry to the Court press office ("Can you point me to the legislative measures prepared to implement these requests?") returned no response.

Looking first at judgment dockets, the Indiana Commission on Courts, a permanent group (IC 33-23-10) which meets during the interim, is the origin of most legislation dealing with the judicial branch that is considered each year by the General Assembly.

Here is the Nov. 2013 Final Report of the Commission on Courts. From p. 5 of the Report:

The legislative branch and the judicial branch are separate and co-equal branches of state government. The Commission on Courts was established to give the Indiana General Assembly adequate time to study legislative proposals that will affect the judicial branch.

At its fourth meeting on October 8, 2013, the Commission heard testimony concerning the contents of judgment dockets. Details can be found in the minutes of that meeting. The attachments to the minutes include the testimony of Justice David, who included draft legislation in his presentation. However, the Commission did not make a recommendation on this topic in its final report and thus introduced no legislation.

To check if legislation had been introduced independently, I tried to look at the LSA/GA "subject index" (which does not seem to work) and then tried to look at the citation list, one of the most important tools for following legislation during the session, for IC 33-32-3-2, which is the cite J. David's proposal would have amended. But the new LSA/GA cite list also does not seem to work, or even exist any longer!

Looking now at "Fixing the Marion County Township Small Claims Courts", the topic was never mentioned in the meetings of the 2013 Indiana Commission on the Courts. As far as I can determine (with the limited tools now available), no legislation has been introduced on the topic in the 2014 General Assembly.

The Task Force created to evaluate the Marion County Small Claims Courts issued its 33-page report on May 1, 2012; see this ILB post for details. The Task Force presented a number of recommendations, some of them in the alternative.

In this May 31, 2013 ILB post, the ILB wrote about a long story, with video (still available) by Sandra Chapman of WTHR.com titled "Small Claims: Big Injustice," where the abuses detailed continued to be the same as had been reported on a year earlier, prior to the Task Force investigation.

In this Aug. 4, 2013 ILB entry, I wrote:

Today's long story by Marisa Kwiatkowski and Alex Campbell adds new information about the problematic operations of the Marion County small claims courts - about which stories have been accumulating now for several years, back to this July 18, 2011 report in the Wall Street Journal, headed "In Debt Collecting, Location Matters". * * *

It appears that Marion County legislators of both parties have little interest in changing the status quo. Not even a study committee was proposed during the last session. This seems like it would have been an ideal topic for the Indiana Commission on Courts, created by IC 33-23-10, which already has had three meetings this summer.

So, to conclude, there was no legislative interest in either 2013 or 2014 in dealing with the Marion County small claims court issues. If change is to be considered by the General Assemby, it looks now like the earliest time will be in 2015, and even then only if at least a study committee bill is passed this year on the topic.

Posted by Marcia Oddi on Sunday, January 19, 2014
Posted to Indiana Courts

Environment - "Chemical Spill Muddies Picture in a State Wary of Regulations"

Sunday's NY Times has a long, front-page story reported by Trip Gabriel, Michael Wines, and Coral Davenport re the West Virginia "chemical spill that left more than 300,000 people without usable water for days." Some quotes:

The spill, which occurred when 7,500 gallons of a chemical used to clean coal leaked from an aging, outmoded storage tank into the Elk River, played out in a state that outsiders often see as a place apart. West Virginia, with its strong ties to coal and chemicals, has long had a fierce opposition to environmental regulations. It has also been the scene of five major accidents related to coal or chemicals in eight years.

But amid an energy boom that stretches from Pennsylvania to North Dakota and the belief among many conservatives that the nation suffers from too much regulation, the issues involved have enormous relevance well beyond West Virginia’s borders. They include all the questions about the incident raised by regulators and environmental critics: why the tank was so close to a water treatment plant, how often it was inspected and by whom, the hazard status accorded the chemical inside the tanks, what regulations might have prevented the spill and what would have been their costs. * * *

At the very least, the spill raised concerns for many West Virginians about the state’s attitudes toward regulation.

“This ought to be a huge wake-up call,” said Barbara Evans Fleischauer, a Democratic member of the West Virginia House of Delegates. “I don’t think people want the government to get out of the way right now. What we’re supposed to do in state government is protect the health and welfare of our citizens.” * * *

West Virginia’s record of deferring to industry is long and deep, reflecting its heavy economic reliance on coal, chemicals and, most recently, natural gas. The tank farm where chemicals were stored, just a mile and a half upstream from the intake of the state’s largest water provider, seems to have fallen outside the bounds of multiple state and federal antipollution laws. * * *

West Virginia imposes an unusual hurdle for its Department of Environmental Protection: Regulations it writes are not enforceable until approved by the Legislature, giving lawmakers influenced by lobbyists a chance to revise them. Last year a regulation requiring natural-gas drillers to disclose the chemicals injected into the ground during hydraulic fracturing was revised at the request of Halliburton, the giant oil-services company, to keep the disclosure confidential.

In recent years the Department of Environmental Protection has moved to weaken limits on the amount of aluminum, a mining pollutant, in state waterways. Last year a bill sought by coal lobbyists ordering the department to revise limits on discharges of selenium, which is toxic to fish and expensive to clean up, passed the House of Delegates and the State Senate without opposition.

“A lot of our elected officials think it’s political suicide to take a stand against coal or in favor of the E.P.A.,” said Angie Rosser, the executive director of the West Virginia Rivers Coalition, a conservation group.

Posted by Marcia Oddi on Sunday, January 19, 2014
Posted to Environment

Friday, January 17, 2014

Law - "If the police arrest you, should they be able to snoop through your iPhone" Yes in Indiana [Updated]

That is the answer given in this Forbes article by Kashmir Hill, with an interactive map referencing, for Indiana, the Feb. 29, 2012 7th Circuit opinion in Flores-Lopez. See also this March 1, 2012 ILB post re the Posner opinion.

[Updated at 5:15 PM] However, a reader points to the Sept. 24, 2012 Indiana Court of Appeals decision in Gregory Kirk v. State of Indiana, summarized here (5th case), finding a warrentless search of a cell phone "unreasonable under Article I, Section 11 of the Indiana Constitution." Transfer was denied, Dec. 14, 2012.

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to General Law Related

Ind. Decisions - 7th Circuit decides one Indiana case, dated Jan. 15

In IN THE MATTER OF: NEW ENERGY CORPORATION (ND Ind., Miller), a 5-page opinion, Judge Easterbrook writes:

New Energy Corp. operated an ethanol plant in South Bend, Indiana. After entering bankruptcy, it proposed to sell most of its assets by auction. One was held on January 31, 2013. The winning bid of $2.5 million came from a joint venture of Maynards Industries (1991) Inc. and Biditup Auctions Worldwide, Inc. New Energy asked the bankruptcy court to confirm this result; so did the United States Trustee, as representative of all creditors, and the Department of Energy, the largest single creditor. Only Natural Chem Holdings opposed confirmation of the sale, contending that establishment of the joint venture amounted to collusion that spoiled the auction. * * *

This sale was not stayed, and the bankruptcy judge found that the winning bidder acted in good faith. That finding is not clearly erroneous or an abuse of discretion and would be fatal to Natural Chem’s protest if it had standing—which it does not. AFFIRMED

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "Schaerr Leaves Winston to Represent Utah in Marriage Case" - the reason?

Tony Mauro has this interesting post today at The Blog of Legal Times on "Veteran Supreme Court and appellate advocate Gene Schaerr ... leaving Winston & Strawn to represent the state of Utah in defense of its constitutional ban on same-sex marriage." These paragraphs stand out:

The [firm's] statement does not address reports by some online commentators [Buzzfeed] suggesting that Schaerr left Winston because representing challengers to same-sex marriage would be too controversial for the firm. The Winston web site boasts of its work with LGBT organizations and issues and has an LGBT affinity group within its work force. It also was one of the first law firms to extend certain benefits to same-sex partners of employees.

The news of Schaerr's move calls to mind Paul Clement’s highly public 2011 departure from King & Spalding when he signed on as counsel for congressional supporters of the Defense of Marriage Act. Pressure from within King & Spalding -- as well as from some of its clients -- were said to be factors in Clement’s exit.

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to Courts in general

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

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: L.B. and S.B., (Children), J.J. (Mother) and J.B. (Father) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (6):

Shane L. Duckworth v. State of Indiana (NFP)

Felipe Cortez v. State of Indiana (NFP)

Samuel L.Knox v. State of Indiana (NFP)

Julianna K. Williams v. State of Indiana (NFP)

Landin Anderson v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Camm lawyers ready to battle over legal fee from third trial"

Updating the story from late yesterday in the LCJ, Chris Morris of the New Albany News & Tribune also has a story about Floyd County resisting paying the defense bills, and hiring a special counsel to represent the County Council in its resistance. It does not say how much the additional counsel will be paid ... Some quotes from the long story:

NEW ALBANY — While David Camm was found not guilty in his third murder trial three months ago, the debate on how much Floyd County should pay the defense team lingers.

Tuesday night, the Floyd County Council discussed the ongoing dispute with some of the bills submitted by Camm’s defense team led by attorney Richard Kamen.

Auditor Scott Clark said the county still owes $659,000 in bills related to the Camm case. All of those bills are for defense expenses except for $51,800.

Of that total, Kamen’s bills total $297,082 and fellow defense attorney Stacy Uliana is owed $19,744. Around $2 million has already been spent on the the three trials, Clark said.

Clark told the council Tuesday that he recently received a court order, which was faxed to him with Kamen’s invoices, instructing the county to pay the bills. He also said he has been working with Special Prosecutor Stan Levco to go over the witness list and try to figure out who is owed what.

“There are a number of situations with the bills. We are trying to verify who the people are and if they testified or not,” Clark said.

Clark has been in contact with Judge Jonathan Dartt and provided updates on what the council was preparing to do about the outstanding bills. A special hearing in front of Dartt will likely be held soon.

That is where the real debate came in Tuesday night.

After several minutes of discussion, the county council finally approved a resolution which will allow for special counsel to be hired to represent the council at a hearing to discuss the bills, and for possible litigation.

Council Attorney Chris Lane worked in the Floyd County Prosecutor’s office during Camm’s second trial and although he did not participate in the trial, some council members said it would be a conflict of interest to have him represent the board.

John Schellenberger disagreed. Schellenberger, who was voted out as president at the beginning of the meeting, said it would not be a conflict of interest to have Lane draft a letter to the judge or discuss the outstanding bills at a hearing.

“At this point it’s just fact finding. This is not litigation. Chris Lane is our legal counsel and should initiate discussion,” Schellenberger said. “I don’t think we should hire an independent counsel.”

However, Brad Striegel, who submitted the resolution, said to avoid potential problems in the future that an independent counsel should be hired. The other five members agreed, and will seek to hire special counsel.

“It’s important we demonstrate that we recognize the bills and recognize that we are responsible to pay them,” said Council President Jim Wathen. “But we want to pay the right amount or the right bill.”

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to Indiana Courts

Courts - "Writing a brief for the iPad judge"

Thanks to this Eugene Volokh post for highlighting this Jan. 14th article in the Columbia Business Law Review, written by Daniel Sockwell, titled "Writing a Brief for the iPad Judge".For instance:

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization. * * *

Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same. This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”

An earlier ILB post, from June 12, 2012, referred to a post written by a federal judge on the use of iPads by judges.

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to Courts in general

Law - Copyrighted statutes, administrative codes, muncipal ordinances the subject of congressional hearing

Congress had a hearing January 14th on "The Scope of Copyright Protection." The OpenGov Foundation has a long summary of some of the testimony. (Unfortunately, the House Judiciary page seems to be undergoing work at the moment, so many of the links don't work at the moment.)

This is a topic the ILB has posted on before. See, for instance, this post from July 22, 2011, that begins:

The ILB has had a number of entries on the private copyrighting of state fire and building codes by trade groups, and their resultant inaccessibility except through the groups' printed publications.

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to General Law Related

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

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

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

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

The ILB also follows a number of other lawyers and reporters (currently 118), and "retweets" the tweets that I feel may be of interest to ILB readers. Because of this, the Twitter ILB combined with the Blog ILB can provide a richer variety for the reader. Take a look for yourself, here, by scrolling down the long list of recent ILB tweets (12,610 right now).

The ones with the ILB logo are my tweets, the ones with another logo are others' tweets I felt may of interest to ILB readers.

The ILB tries very hard not to overload you with tweets and to stick to the central focus of the ILB: Indiana law and government, and other information that may impact Indiana law and government.

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

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

There is no requirement that you follow a number of other twitters, for starts you can choose to follow just @indianalawblog, for instance. I'd suggest also following @SCOTUSblog.

The Oct. 23, 2013 NY Times has a good introductory article on Twitter, by Hanna Ingber, headed "Twitter Illiterate? Mastering the @BC’s."

One of its most useful suggestions:
ORGANIZE YOUR FEED One of the best ways to organize the madness that can become Twitter is by using the platform’s lists tool. Create different lists based on your interests and then add people to them. At 9 a.m., when you want the news, you can pull up your media list and see what your favorite news services and journalists are tweeting. At 5 p.m. on a Friday, pull up your entertainment list to get weekend plans.
Other useful resources are Twitter's "Getting started with Twitter" and the Twitter signup page. Also WikiHOW's "How to use Twitter." More advanced (but sometimes dated), Mashable's "Twitter Guide Book – How To, Tips and Instructions by Mashable."

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to About the Indiana Law Blog

Environment - "No more stringent" rules limitation effort back again

Ray Steele of WIBC reports, with audio, in a story headed "Environmental Group Opposing New Bill on Regulations." Some quotes:

An environmental group says a bill before Indiana lawmakers could lead to a regulatory atmosphere similar to the one they say contributed to the West Virginia chemical spill. The bill's sponsor says that claim is overblown.

The bill (HB 1143) heard by the House Environmental Affairs Committee on Wednesday would bar state regulators from enacting environmental rules that are more stringent than their corresponding federal rules. A committee vote on the bill is expected next week. Representative David Wolkins (R, Warsaw) says he introduced the bill more as a prevention measure.

"There is nothing that I'm aware of on the horizon," Wolkins said when asked if he thought the federal Environmental Protection Agency was about to propose regulations that he believes would harm Indiana industries. "A few years ago, we had a assistant commissioner of (the Indiana Department of Environmental Management) who started a rule making , whereby under the Clean Air Act we were going to have to test for 60 different substances. The federal standard was only five."

Some environmentalists, however, believe the bill will tie the hands of regulators if they need to enact rules to address gaps in regulations. "Perhaps to put some pollution controls on massive, fecal-filled lagoons at large hog farms; they wouldn't be able to do so if (the bill) were enacted," said Jesse Kharbanda, executive director of the Hoosier Environmental Council. He believes more power in the hands of regulators could have prevented the chemical leak that caused 300,000 West Virginians to lose their tap water for several days.

Wolkins says he doesn't know the specifics of what happened in West Virginia, saying perhaps an existing environmental rule wasn't enforced properly. But he says the state will still have the freedom to add rules as it sees fit. He just wants that decision to come from lawmakers instead of regulatory agencies. "If we have a unique situation whereby we need to be more stringent than the federal rule, we can do that. The legislature should make that happen rather than a bureaucrat."

ILB: This is certainly not the first time this effort has been made. Here is a long list of ILB entries, going back to 2005, using the term "no more stringent." Reading them is instructive. For instance, from an Indianapolis Star editorial in 2005:
Provisions barring the state's air pollution and water pollution control boards from adopting rules or standards more stringent than federal regulations were slipped into Senate Bill 298, a measure dealing with regulations affecting small businesses. According to state Sen. Beverly Gard, Republican chairwoman of the Energy and Environmental Affairs Committee, the amendments were an "end run" around her committee.

"It's a terrible piece of legislation that has serious consequences," the normally reserved legislator said. "We abdicate to the feds to set all of our environmental policy."

The measure could make it impossible for state environmental agencies to establish health-based standards and reporting requirements if a cluster of health problems should emerge. Indiana rule makers could be hamstrung dealing with issues unique to Indiana that the federal government doesn't address. Almost any state rule dealing with the air, water or the disposal of hazardous waste could be tied up in court for years.

The state might as well abolish its environmental boards. They would be nothing more than handmaidens to federal bureaucrats.

Posted by Marcia Oddi on Friday, January 17, 2014
Posted to Environment

Thursday, January 16, 2014

Ind. Courts - "Camm lawyers ready to battle over legal fee from third trial"

A long story this evening in the Louisville Courier Journal, reported by Grace Schneider, begins:

David Camm’s defense lawyers are vowing to fight back aggressively if the Floyd County government attempts to withhold paying legal bills for representing the former state trooper acquitted in October of killing his wife and two children.

Camm lawyer Stacy Uliana said Thursday that if she and co-counsel Richard Kammen encounter more obstacles, they will ask Special Judge Jonathan Dartt to hold Floyd County Auditor Scott Clark in contempt for disobeying a court order to pay their claims from the trial.

“All this is going to do is cost the people of Floyd County more money,” Uliana said.

Later in the story:
County records show [Auditor] Clark has demanded more documentation for $659,645 in invoices, of which $607,845 were due for Camm’s defense. The balance of $51,800 is owed to two firms hired by Special Prosecutor Stan Levco.

The two largest of 10 outstanding bills are for Kammen, $297,082; and Independent Forensic Services, $211,750. The Dutch forensics company performed “touch” DNA analysis on items from the crime scene, as well as testimony in Boone County, where the proceedings were moved to ensure a fair trial.

Much more in the story.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Indiana Courts

Ind. Gov't. - "Indiana high-fence hunting bill may advance"

Ryan Sabalow is reporting in IndyStar:

Last year, the head of Indiana’s senate likened high-fence hunting preserves to dog fighting and called them a “slaughterhouse without a roof.”

Today, Senate Pro Tem David Long says he’s going to allow legislation to be introduced that could open the door to allowing farm-raised deer and elk to be hunted behind fences in Indiana.

Long told The Star that he’s allowing Sen. Carlin Yoder, R-Middlebury, to introduce legislation that would formally legalize the practice after a Harrison County judge ruled this fall that the state’s wildlife agency didn’t have the authority to shut down hunting preserves.

Long blocked similar legislation last year after it overwhelmingly passed the Indiana House. At the time, Long spoke out strongly against high-fence hunting, which animal rights and some hunting groups disparagingly call “canned hunts.” * * *

Today, Long said that the court ruling prompted him to allow the legislation to advance.

“What I have done the past few years is enforce a long existing agreement that we would not allow any additional expansion or try to eliminate existing preserves ... until the court ruled,” Long said in a statement. “It finally did rule, after years of delay, and found that the preserves were legal and the state was acting improperly to block them.” * * *

Harrison County Circuit Court Judge John Evans ruled this fall that the DNR overstepped its authority, and that deer behind fences are in essence livestock, so they’re not subject to the DNR’s oversight.

But the case is far from over. Attorney General Greg Zoeller’s office is appealing the case since it would effectively eliminate the wildlife agency’s authority to regulate hunting behind a fence.

There’s also confusion in the law. The Harrison County decision came 10 months after a judge in Owen County threw out a similar challenge by a preserve owner. * * *

A related high-fence hunting bill has been introduced in the House by Rep. Bill Friend, R-Macy. * * *

Friend, who has introduced several pieces of legislation on the subject over the years, said Zoeller told him several years ago there was confusion in the law and a legislative fix was needed.

Long said Yoder represents several deer and elk farmers in his district who supply hunting preserves.

He said he’s asked Yoder and Sen. Mike Crider, a former law enforcement chief at the DNR who’s spoken out against the preserves in the past, to come up with workable legislation.

“I expect to see a proposed bill next week,” Long said. “And we will then decide what to do.”

ILB: For background see this Oct. 3rd ILB entry, headed "Ind. Decisions - More on "Trial judge rules DNR overstepped in attempt to shut down high-fence deer hunting", which includes background plus links to the two trial court rulings mentioned: Owen County Judge Nardi's brief Nov. 29, 2012 ruling and Harrison County Judge Evans' September 27, 2013, 2-page order and judgment (holding that "The deer purchased by Whitetail Bluff and offspring thereof, are privately owned and are not the property of the people of the State of Indiana. Therefore the animals are not subject to regulation by DNR by virtue of the provisions of Indiana Code §14-22-1-1.")

The ILB has had a long list of entries on this issue over the years. Some of the most recent entries are headed:

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Environment | Indiana Government

Courts - "Gay marriage rulings in Oklahoma, Utah build momentum"

A new long AP story by Sean Murphy and Brady McCombs begins:

OKLAHOMA CITY (AP) -- In less than a month, two federal judges have struck down state bans on gay marriage for the same reason, concluding that they violate the Constitution's promise of equal treatment under the law.

Although that idea has been the heart of the gay marriage debate for years, the decisions in deeply conservative Oklahoma and Utah offer new momentum for litigants pressing the same argument in dozens of other cases across the country. And experts say the rulings could represent an emerging legal consensus that will carry the issue back to the Supreme Court. * * *

Litigants in more than three dozen cases are challenging gay marriage bans in 20 separate states.

ILB: However, no challenges have been filed in Indiana.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Courts in general

Courts - "Never call a judge 'Judge'"

That is the advice from this FindLaw article by Brett Schneider, Esq. A quote:

Never call a judge "Judge." Whenever you speak in open court -- and especially when it's on the record -- refer to that robed man or woman seated slightly higher than everyone else as "Your Honor" or "The Court." Alicia Florrick violates this rule often on "The Good Wife," but that's why it's such a compelling drama.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Courts in general

Courts - "Beware of email attachments purporting to carry case information"

See this post from the ABAJournal Blog.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Courts in general

Ind. Gov't. - "Private e-mail accounts: State and federal officials, regardless of political party, have sidestepped public records laws meant to keep government activities transparent"

The AP's Jack Gillum had a story Jan. 11th headed "Christie aide is latest to use private emails." Some quotes from the long story (access quickly, a companion story is already gone):

WASHINGTON (AP) — Personal emails at the center of the brewing scandal for New Jersey Gov. Chris Christie may have remained secret, had the public and press relied solely on the state's open records law.

Emails disclosed this past week show a top Christie aide asking the Port Authority of New York and New Jersey to shut down three lanes on the busy George Washington Bridge, resulting in major backups for days last September. Those emails were leaked to reporters last week, even though one newspaper requested them nearly a month ago, only to be told they didn't exist.

The use of private emails adds Christie, a possible Republican presidential candidate in 2016, to a growing list of administrations that use private email accounts and other digital services to conduct official business. In turn, state and federal officials, regardless of political party, have sidestepped public records laws meant to keep government activities transparent.

The Record of Bergen, N.J., said it filed an open-records request last month asking for emails related to the Port Authority's decision to close the bridge lanes. The request specifically sought emails between David Wildstein, a Christie-appointed Port Authority official, and employees in the governor's office.

The newspaper received a response from Christie's office 10 days later, stating that the office "reviewed its records" but did not find any responsive emails. Weeks later, however, emails similar to what The Record asked for were made public after being obtained under subpoena by state Assembly Democrats.

Later in the story:
Public records laws, which can vary widely from state to state, govern how officials' documents and correspondence should be stored and released. But those laws largely have been slow to catch up to the digital age.

The result creates a gray area for how state and federal employees can use electronic services, such as personal email accounts and phone text messages, to conduct their business. It also creates murkiness for how those records should be disclosed to an inquisitive public.

The story continues with a number of useful examples.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Indiana Government

Courts - SCOTUS: "Oral argument read from a prepared text is not favored"

Very interesting post by Tony Mauro of The Blog of Legal Times on Justice Scalia's calling out an attorney who was reading his oral argument. BTW, here is the kind of remark you hopefully will never see the ILB blog, or any Indiana attorney, making about one of our appellate judges:

As news of Scalia's remark spread, commentators lined up on both sides. Supreme Court blogger, law prof and author Josh Blackman called it "a dick move," adding that "just because [Scalia] wears a robe does not entitle him to be a jerk, and embarrass the lawyer for something like this."

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Floyd County and Floyd County Plan Commission v. City of New Albany and New Albany City Plan Commission, a 19-page opinion, Judge Robb writes:

The City of New Albany and the New Albany City Plan Commission (collectively, the “City”) sought a declaratory judgment regarding whether it or Floyd County and the Floyd County Plan Commission (collectively, the “County”) has zoning jurisdiction over an unincorporated area (the “fringe area”) outside the City limits. The trial court granted summary judgment for the City. The County appeals, raising several issues for our review which we consolidate and restate as two: 1) whether the trial court erred in determining as a matter of law that the County is not entitled to claim zoning jurisdiction over the fringe area pursuant to Indiana Code section 36-7-4-205(e), and 2) if the trial court did not err, whether the County’s consent is required for the City to exercise jurisdiction pursuant to Indiana Code section 36-7-4-205(f). The City cross-appeals, contending the trial court abused its discretion in striking a supplemental affidavit it submitted after the summary judgment hearing.

Concluding the supplemental affidavit could be, and in fact was, considered by the trial court, and that as a matter of law, the County is not entitled to exercise jurisdiction over the fringe area, nor is it required to consent to the City’s exercise of jurisdiction, we affirm. * * *

The City’s supplemental affidavit was properly considered by the trial court and is therefore before this court, as well, in considering the summary judgment motions. Because the County has a population of less than 95,000, Indiana Code section 36-7-4-205(f) determines which entity is entitled to exercise jurisdiction over the fringe area, and because the City is providing municipal services to the fringe area, it is entitled to the exercise of jurisdiction without the necessity of County approval. The judgment of the trial court in favor of the City is therefore affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Chauncey Krantz v. State of Indiana (NFP)

Ronald Lemon v. State of Indiana (NFP)

Jack Perkins, III v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on: Pipeline bill showing signs of rebirth (as is CWIP for nuclear power plants)

Note the "as is CWIP for nuclear power plants" portion of the above heading, from this April 16, 2011 ILB post.

Yesterday John Russell of the Indianapolis Star has a long story headed "Nuclear power for Indiana?." A few quotes:

[A]n influential state senator says it's time to encourage nuclear power again and has introduced a bill that would provide financial incentives to utilities to build nuclear plants.

Sen. Jim Merritt, R-Indianapolis, chairman of the Senate Utilities Committee, says nuclear energy is clean, safe and reliable and should have a place in Indiana's energy lineup.

His bill, Senate Bill 302, would allow utilities to build a nuclear plant, or a small modular reactor, and pass along the construction costs to customers years before the plant goes into operation. * * *

Two years ago, the Indiana Senate passed a set of financial incentives for nuclear power but backed off a month later, after a catastrophic failure at a nuclear power plant in Fukushima, Japan. The failure was caused when the plant was hit by a tsunami and released large amounts of radioactive material. * * *

Some citizens groups and environmental groups oppose the push toward small modular reactors, especially if utilities begin charging ratepayers to help build them years before they go online. They say it is unfair for households to see their bills climb, sometimes sharply, to pay for an unproven technology.

The only power plant in Indiana to be built under this financing plan, known as Construction Work in Progress (or CWIP) is Duke Energy's coal-gasification plant in Edwardsport. The plant, originally approved at $1.9 billion, has soared to more than $3.3 billion, with ratepayers picking up much of the increase. * * *

The Citizens Action Coalition of Indiana said CWIP financing has stung Indiana ratepayers in the Edwardsport case and should be avoided for nuclear plants.

"The only reason utility companies need CWIP is because those investments are too risky, too expensive, and Wall Street won't support them, similar to the Edwardsport (plant)," said Kerwin Olson, the group's executive director. "If an investment is sound, then CWIP isn't needed. If it's not a good investment for shareholders, why is it a good investment for consumers?" * * *

Two efforts to build nuclear power plants in Indiana in the 1980s were scrapped in the face of rising opposition and high costs.

The Northern Indiana Public Service Co. had proposed a 644-megawatt Bailly Nuclear Power Plant at a site near the Indiana Dunes National Lakeshore in 1967, at a cost of $1.8 billion. It was never built.

And Public Service Indiana proposed the Marble Hill Nuclear Power Station, with two nuclear reactors, in southeastern Indiana in 1973. The company halted the project in 1984 when it was half-built, after spending $2.5 billion, making it the most expensive nuclear construction project ever abandoned. PSI was nearly bankrupted by the effort and was later bought by Cinergy, now part of Duke Energy.

The ILB has had a number of past entries mentioning Marble Hill.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Indiana Government

Ind. Law - "House Public Policy Committee retains felony penalty for guns at school"

Two stories today on the committee action on HB 1048.

Niki Kelly's story in the Fort Wayne Journal Gazette begins:

INDIANAPOLIS – Lawmakers turned back an attempt Wednesday to lessen the criminal penalty for bringing a gun into a school.

House Bill 1048 originally would have dropped that crime from a felony to a misdemeanor.

But the House Public Policy Committee amended the legislation to retain current law as a felony.

Rep. Tom Dermody, R-LaPorte – chairman of the panel – said he was uncomfortable with reducing the criminal penalty for the crime.

The remaining portion of the bill redefines what is considered school property to exclude adjacent property such as parking lots.

This means that teachers, visitors and students with a valid license to carry a handgun can keep firearms in their locked vehicles – out of sight – in school parking lots.

The gun cannot be carried into the school building or on a school bus.

Dan Carden's long story in the NWI Times is headed "Dermody persuades panel to revise guns-at-schools plan." Some quotes:
State Rep. Tom Dermody, R-LaPorte, skillfully handled a controversial guns-at-schools proposal Wednesday during his first meeting as chairman of the House Public Policy Committee.

House Bill 1048, sponsored by state Rep. Jim Lucas, R-Seymour, originally would have made it a misdemeanor, instead of a felony, for a person to bring a firearm into a school, on school bus or on school property.

Lucas, who unsuccessfully tried last year to require at least one person in every school be armed at all times, said licensed handgun carriers shouldn't face a potential felony conviction, and the corresponding loss of their Second Amendment rights, just for stepping on school property while armed.

Well aware Lucas' idea likely wouldn't fly with prosecutors, school leaders and most lawmakers, Dermody worked with representatives of those groups, and Lucas, prior to the committee meeting to hammer out a compromise.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Indiana Law

Ind. Decisions - Still more on: Supreme Court decides Indiana Gas (Rockport) case

Updating this ILB post from Dec. 17, 2013, Bloomberg News has a story by Rick Callahan headed "2 groups challenge Ind. coal-gasification permit." The issue involves the extension by IDEM of the entity's air construction permit.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Lottery privacy bill an early loser"

Maureen Hayden, CNHI Statehouse Bureau, reports today in the Logansport Pharos Tribune in a long, interesting story that begins:

INDIANAPOLIS — If you won millions in the Hoosier Lottery, would you want to keep it secret?

That the question an Indiana lawmaker was hoping his colleagues would consider with a bill that would give lottery winners the choice of anonymity, with the goal of helping them protect their sudden fortunes from scam artists, unscrupulous financial planners and greedy relatives.

“You wouldn’t believe the people who come out of the woodwork when they hear someone has come into a large sum of money,” said state Sen. Brent Waltz, R-Greenwood, who filed the bill to grant lottery winners privacy.

His legislation hasn’t been scheduled for a hearing, though, and likely won’t be. The chairman of the Senate Public Policy Committee, Sen. Ron Alting, R-Lafayette, has signaled he won’t hear the bill this during this year’s short session, essentially killing it. Alting declined to say why.

Waltz seems undeterred and pledged to file the bill again next year. He wants Indiana to join the six states that currently allow lottery winners to keep their identities secret from the public.

It’s an issues arising other states: In recent months, lawmakers in Michigan, New Jersey and Pennsylvania have pushed measures to protect winners’ privacy.

In some states, lottery officials object to closing off public access to winners’ names, arguing that the publicity gained from announcing winners helps drive sales. They also contend that releasing winners’ names reduces suspicion that the games are fixed to benefit insiders.

State lottery officials in Indiana declined to comment publicly on Waltz’s proposal. Hoosier Lottery spokeswoman Stephanie McFarland said lottery officials would comply with whatever legislative changes may come.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Indiana Government

Ind. Law - "Bill that tweaks expungement law headed to full House"

Hannah Troyer of the $$ Statehouse File reports that:

INDIANAPOLIS – Lawmakers set to work Wednesday fine-tuning a law passed last year that gives some convicted felons the ability to expunge their crimes from their records.

House Bill 1155 is the result of time the author – Rep. Jud McMillin, R-Brookville – spent last summer traveling the state and discussing the expungement law’s successes and problems with prosecutors, attorneys and other court officials.

The House Criminal Law and Sentencing Policy Study Committee passed the bill 10-2 on Wednesday after some amendments. It now moves to the full House for consideration.

Some of the changes are meant to help make the process easier for defendants.

McMillin told the committee that the bill fixed the “poison pill” issue with the original law – that a defendant couldn’t fix a petition once it was filed.

“That really scared a lot of people,” McMillin said. “And what we are including in now is an opportunity. We are basically allowing folks, that if in good faith if you screwed something up, you can file an amendment to your petition and change it.” * * *

If passed, the bill would allow law enforcement officials, attorneys and prosecutors to see all expunged records if it is helpful to a current case.

It would also allow employers to see the records if an applicant or employee had expunged a serious crime. But some committee members expressed concern that employers would still not be able to see all of a person’s criminal history if it was expunged.

“It’s important to note that the only ones that are sealed from employers seeing them are misdemeanors and D felonies where no one gets hurt,” McMillin said. “If it’s anything above that, which most employers would be concerned with, employers still get to see them even if they are expunged. They will have the opportunity to see that someone has committed a crime. But, it prevents them from using that info to discriminate against that individual.”

Since the expungement process became law last summer, courts across the state have had a large number of filings. McMillin said his bill would change how the courts handle future cases.

Currently, the law requires that defendants file in the same court in which their convictions occurred. The bill would let them file the case in any court in the county of conviction.

“That will allow people to consolidate their cases in one location,” he said. “The court is now in the process of attempting to create a separate cause number that only deals with expungement. People are filing this stuff a lot to such a degree that the court feels like it would be justified having its own individual cause number. It will also allow the court to enact rules that protect confidentiality so people don’t have something accidentally still available for people to see.”

ILB: The introduced bill is 18-pages long and looks to make many changes. The committee amendments are not yet available, as of this writing.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Indiana Law

Ind. Decisions - More on: 7th Circuit "rules 3 Notre Dame students can intervene in lawsuit challenging health care law"

Here is an extended version of Tom Coyle's AP story from yesterday. A quote:

The 7th U.S. Circuit Court of Appeals in Chicago ruled late Tuesday that the three students — identified only as Jane Doe 1, Jane Doe 2 and Jane Doe 3 — can take part in the lawsuit. Ayesha Khan, who is representing the women and is legal director of Americans United for Separation of Church and State, said Wednesday that the women wanted a say in the lawsuit because they have a perspective different from lawyers representing the federal government.

"They are the people who would be impacted by Notre Dame getting out of the Affordable Care Act regulation," she said. "The United States is defending an entire regulatory skein, not speaking on behalf of any particularly affected women."

She said students' decisions to attend Notre Dame should not make them unable to have health care coverage that covers birth control "that the government has determined to be necessary for women's health care."

University spokesman Paul Browne said the case is fundamentally about the mandate's unconstitutional impingement on religious liberty, "and only incidentally about contraceptive services." * * *

She said the three women wish to remain anonymous because the case involves information of a "private nature." The university's code of conduct states that students who engage in sex outside of marriage may be subject to referral to the university conduct process. Khan also said the women could be "ostracized" if their identities were made public.

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Vote on Indiana same-sex marriage ban pushed into next week"

Tony Cook and Barb Berggoetz report this morning in the Indianapolis Star:

A critical vote on the proposal to ban same-sex marriage in Indiana’s constitution likely will be pushed into next week.

Indiana House Speaker Brian Bosma, R-Indianapolis, said he wanted to give members of the House Judiciary Committee more time to digest the issue.

That panel of 13 lawmakers had planned to vote on the amendment Monday, but Chairman Greg Steuerwald, R-Avon, delayed a vote after nearly four hours of impassioned testimony.

Several Republican members of the committee remain publicly undecided. Three Republicans would have to join the committee’s four Democrats to defeat the measure.

“It’s pretty close,” Bosma said. “There are a couple people still working through it.”

Bosma said he wants to see the issue reach the House floor.

When asked whether he might replace committee members to make that happen, he said “there are all kinds of options under our rules and under precedent.”

But, he said, “I’m not considering anything at this point. I’m just letting people talk and work their way through the issue.”

ILB: I can recall in the past incidents of replacement of conference committee members who won't go along, but never members of standing committees who won't vote the way desired by the majority. Examples?

Posted by Marcia Oddi on Thursday, January 16, 2014
Posted to Indiana Government

Wednesday, January 15, 2014

Courts - " Illinois Eavesdropping Law Assailed on Appeal"

The ILB had a number of entries in 2012 about an Illinois under the heading "Woman who recorded cops acquitted of felony eavesdropping charges". Yesterday a related case re the Illinois Eavesdropping Act was argued in front of the Illinois Supreme Court. Jack Bouboushian of Courthouse News Service has a long and detailed story about the oral argument and the case, including a number of links. The story begins:

CHICAGO (CN) - Technological improvements that make covert recordings easier than ever require updating the eavesdropping law in Illinois, not trashing it, a state's attorney told the Illinois Supreme Court today.

The court is considering the constitutionality of the law after a woman prosecuted under it was incarcerated for over 18 months before her trial ended with a hung jury.

Annabel Melongo was once an employee of the Save-A-Life Foundation, an Illinois charity that has been accused of dishonesty or financial impropriety. After secretly recording her phone conversations with a Cook County court reporter and posting those tapes on a personal website, she was charged in 2010 with violating the Illinois Eavesdropping Act, a law that requires a person to obtain the consent of anyone whose conversation he records.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Courts in general

Ind. Decisions - 7th Circuit "rules 3 Notre Dame students can intervene in lawsuit challenging health care law"

Supplementing this ILB post from Dec. 23, Tom Coyle of the AP is reporting:

SOUTH BEND, Indiana — A federal appeals court has ruled three University of Notre Dame students who want the school to provide health care plans that cover birth control can intervene in a lawsuit filed by the university challenging portions of the federal health law.

The 7th U.S. Circuit Court of Appeals ruled late Tuesday that the three unidentified students can participate in the lawsuit filed last month by the university.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - More on "House panel votes to block annuity privatization plan"

Supplementing this ILB post from last yesterday, Niki Kelly reports today in a story headed "Bill stalls teacher pension cuts." Some quotes (HB 1075):

When someone retires, the person can take the money built up in the savings account as a lump sum or receive monthly annuity payments from the Indiana Public Retirement System calculated with an automatic 7.5 percent interest rate.

About 50 percent of retirees take the annuity option.

The Indiana Public Retirement System board decided to privatize the annuity system with a third-party vendor using market-based rates. According to state pension officials, the current market rate would be from 4.0 percent to 4.5 percent.

This would result in a cut of tens of thousands of dollars to beneficiaries.

The bill passed in committee would prohibit the annuity board from privatizing the annuity program for five years. This would give older employees who had planned to retire soon the chance to do so without major changes.

During that five-year period, the pension board can set the annuity interest rate annually – but not lower than the rate of return earned by the retirement accounts. The current rate is about 6.5 percent.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Indiana Government

Ind. Law - More on: Put "right to farm" in the Indiana Code, again?

Updating this ILB post from Jan. 14th on SB 186, referred to as the "right to farm bill," which was heard in committee this week, the ILB has obtained a copy of the testimony against the bill submitted by Kim Ferraro, Staff Attorney Director of Water Policy, Hoosier Environmental Council.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Indiana Law

Courts - "Federal Judges in U.S. See $25,000 More as Salary Freeze Falls"

See James Rowley's story Jan. 13th in Bloomberg News.

The ILB has a number of posts on the federal law suit that led to the ruling, including this one from Oct. 6, 2012, that includes a copy of the opinion of the COA for the Federal Circuit, and this one from Oct. 7, 2012.

My interest came from our state justices' decision in 2007 to agree to link judicial salaries to that of legislators, just at the time when federal judges had realized a similar link had been a big mistake for them, leading to their long legal struggle.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Courts in general

Ind. Courts - CJ Dickson to deliver State of Judiciary today at 2:00 PM [Updated]

Chief Justice Dickson will deliver the 2014 State of the Judiciary address to a joint session of the Indiana General Assembly in the House Chamber on Wednesday, January 15 at 2:00 PM EST. Watch it here.

[Updated at 3:00 PM] Here is the text of the 2014 State of the Judiciary.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In The City of Fort Wayne v. Northern Indiana Public Service Company and Nisource, Inc., a 9-page opinion, Judge Bradford writes:

In 2009, Appellee/Defendant/Counter-Plaintiff Northern Indiana Public Service Company (“NIPSCO”) hired a contractor to perform remediation work on land it owns in Fort Wayne. The remediation project was designed to address contamination and involved excavation and construction of an underground monolith. NIPSCO requested information from Appellant/Plaintiff/Counter-Defendant the City of Fort Wayne (“the City”) regarding the locations of underground facilities operated by the City, information the City subsequently provided. As it happened, the information was incorrect regarding the location of an underground drain, and NIPSCO’s contractor damaged the drain, causing flooding in the area. The City brought suit against NIPSCO and NiSource, NIPSCO’s sole shareholder and corporate parent. Ultimately, the trial court granted NiSource’s motion to dismiss1 and NIPSCO’s motion for summary judgment. The City now appeals, contending that the trial court erred in striking portions of an affidavit it designated, in failing to strike portions of an affidavit designated by NIPSCO, and in granting summary judgment in favor of NIPSCO. We conclude that the City’s failure to discharge its statutory duties to provide accurate locations of its underground facilities to NIPSCO is dispositive of all claims on appeal, and we affirm.
NFP civil opinions today (2):

Tracy Rambo v. Jeffrey Justice, M.D. (NFP)

Beverly Czech v. James Czech (NFP)

NFP criminal opinions today (3):

Calvin Murphy v. State of Indiana (NFP)

Gregory Poling v. State of Indiana (NFP)

Demetrius Jackson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Tax Court decides three cases, dated yesterday [Updated]

Updating this ILB post from yesterday, that noted that all three new links do not lead to opinions, but to reports of "cases transmitted" from last year, I'm sorry to say it appears that no one at the Tax Court reads the ILB, as the error continues.

[Updated at 2:30 PM]
The erroneous links have now been removed; it turns out there have been no new opinions this week.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Some bills being heard in committee today

Here are a few of the bills being heard this morning. Check the calendars for all bills.

Senate Judiciary at 9 AM, Room 130:

Bills include SB 160, which seems to have some history behind it. The digest reads "Specifies that a new court may not be established and a juvenile magistrate may not be appointed unless the establishment of the court or the appointment of the juvenile magistrate is approved by the commission on courts and authorized by state law."

House Public Policy at 8:30 AM, Room 156-B:

HB 1048, which appears to weaken laws dealing with guns and school property.

House Insurance at 10:30 AM, Room 156-B:

HB 1241, Environmental coverage, and HB 1123, Insurance covering abortion.

House Environmental Affairs at 10:30, Room 156-C:

HB 1143 - Environmental rules and standards

House Courts and Criminal Code at 11:45:

HB 1155 - Expungement.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Indiana Government

Indiana Law - Some thoughts on HJR 3: The time to speak out is now

I was a law student during the civil rights movement, a young attorney during the women's rights movement, and now in my 70s feel privileged to be witnessing a revolution of gender equality.

But while barriers to same sex marriage are coming down across the nation, some of us in Indiana are determined to put in place new fortifications, ones that could take years to remove (except through the federal courts), and ones that may assure years of legal battles at the state level.

I think this General Assembly should stop HJR 3 now, before needlessly damaging our State's reputation as a welcoming, 21st century place to live and work. The optimal time to stop HJR 3 would be to never vote it out of first house committee.

I stand with Jane Henegar, executive director of the American Civil Liberties Union of Indiana, who said Monday in calling for action now, rather than a referendum in November: "It’s not right for Hoosiers to put the rights of their neighbors up to a vote."

I stand with Senior U.S. District Judge Terence C. Kern, who yesterday wrote when striking down Oklahoma's constitutional prohibition: "Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions.”

I stand with those who fought against HJR 6 in 2012 and before that, SJR 7 in 2007 (where the resolution was defeated in committee, albeit in the second house).

And I stand with the majority of Indiana's citizens. I saw that the gay rights revolution really had taken hold in Indiana just a few short year ago when supporters stopped prefacing their statements with: "I'm not gay, but...". It had stopped being the struggle of the few against the many and had become an equality issue.

Still, as of now, some of our biggest Indiana business and legal leadership associations have failed to step forward.

The headline to this story by Daniel Suddeath in the New Albany News & Tribune Monday caught my eye. The headline:"State, Southern Indiana chambers of commerce mum on same-sex marriage ban."

What, I wondered, was the position of the Indiana State Bar Association, and the position of local groups, such as the Indianapolis Bar Association, on HJR 3? The ISBA and IndyBar speak out on many matters and represent many of us. What are their positions with respect to amending our Indiana Constitution's Bill of Rights to include a ban against same sex marriage, and to prohibit "a legal status identical or substantially similar to that of marriage for unmarried individuals."

I contacted the Indianapolis Bar Association at mid-day yesterday and they responded promptly. Jeff Abrams, IndyBar President: "The Association is surveying its members to provide insight into the most desirous role or position we might take. We anticipate knowing more next week."

The most recent word I have received from the ISBA is: "The Indiana State Bar Association has not taken a position on HJR-3."

But the time to speak out, and to act, is now.

Posted by Marcia Oddi on Wednesday, January 15, 2014
Posted to Indiana Law

Tuesday, January 14, 2014

Ind. Courts - More on Jackson County Courts flooding - a first-hand report

Updating this post from this afternoon, the ILB just received more information:

Ms. Oddi, I am a big fan of the ILB. Really helps me keep up to date.

I read your post "IND. COURTS - JACKSON SUPERIOR COURT I JUDGE BRUCE MARKEL III TAKES A CALL IN HIS OFFICE, SHORTLY AFTER IT SUSTAINED HEAVY WATER DAMAGE IN A SPRINKLER PIPE BREAK"

I am the Deputy Prosecuting Attorney whose office is in Jackson Superior Court #1. I thought I could give you a more detailed description of the flooding if any of the readers were interested. I've also attached some pictures I took myself.

I was in my office in the early afternoon. One of the primary pipes for the building and the sprinkler controls and other machinery run through/into a closet immediately adjacent to my office. A loud grinding sound was coming from that closet at about 1:15 PM. Whatever is in there had made this noise multiple times in the year that I have been there, so it didn't alarm anyone. After about twenty minutes of the grinding, it suddenly stopped. And, in the same instant the grinding stopped, the fire alarm activated.

My staff and I exited the building as well as the rest of the court's personnel and the clerk's office. Judge Markel was out of the office at the time. Shortly after everyone was outside, the court's bailiff came out to tell us that the back hallway was flooding. This hallway runs from the court's office, past the Judge's office, behind the main courtroom, and then further down the building. I went inside to grab the judge's computer and the water was pouring out right above his desk.

The fire department and police arrived within 10-15 minutes of the alarm sounding and they quickly turned off the water. The real damage was limited to Judge Markel's office and his office staff's area. The courtroom took some fairly significant water, but did not get far or deep enough to cause any real damage. As far as I could tell, the water primarily damaged the most recent of Judge Markel's reference books (and thus, the most valuable), possibly his diplomas and bar certifications on his wall, and other materials he had compiled himself.

As of today (1/14), we are planning to conduct court in the main courtroom tomorrow for the first time since the flooding. While Judge Markel and his staff's offices' are being dried and carpeted, his operations have moved into another part of the building. Fortunately, it has not caused any major interruptions due to the quick response of local officials.

Again, love reading the ILB.

Tyler Banks
Deputy Prosecuting Attorney

And I in turn love first-hand reports like this from readers.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Courts

Courts - Oklahoma District Court rules the Oklahoma constitutional prohibition violates the Equal Protection Clause

Here is the 68-page opinion, via ThinkProgress. Unlike Utah, however, the Oklahoma judge did stay his ruling, pending appeal.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Courts in general

Ind. Courts - Jackson Superior Court I Judge Bruce Markel III takes a call in his office, shortly after it sustained heavy water damage in a sprinkler pipe break

Check the photo here, from the Jackson County Banner.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Courts

Ind. Gov't. - "House panel votes to block annuity privatization plan"

So reports the NWI Time's Dan Carden re this morning's committee meeting on HB 1075. The story begins:

INDIANAPOLIS | State lawmakers took a first step Tuesday toward halting a plan to privatize the supplemental annuity payment available to retired state and local government employees, including teachers.

House Bill 1075, prohibiting the Indiana Public Retirement System, INPRS, from contracting with a third-party annuity provider prior to Oct. 1, 2019, was unanimously approved by the House pensions committee and now goes to the full chamber.

For background, read the first 7 entries on this ILB list.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Government

Ind. Law - Put "right to farm" in the Indiana Code, again?

SB 186, referred to as the "right to farm bill," would amend IC 15-11-2-6, which it deals with the Indiana state department of agriculture. Currently, IC 15-11-2-6 concerns the "Promotion of agricultural business."

The amendment would insert a new subsection(a) into the current provision on promotion of agricultural business, to read:

(a) The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of agriculture, agricultural businesses, and agricultural land for the production of food, fuel, fiber, and other agricultural products. The Indiana Code shall be construed to protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.
Notably, Indiana already has a statute which is commonly referred to as the "right to farm" law. It is located at IC 32-30-6 and deals with agricultural nuisances. Section 9 ( IC 32-30-6-9) reads (note the language I have boldfaced and compare it with the proposed amendment to Title 15):
Sec. 9. (a) This section does not apply if a nuisance results from the negligent operation of an agricultural or industrial operation or its appurtenances.

(b) The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.

(c) For purposes of this section, the continuity of an agricultural or industrial operation shall be considered to have been interrupted when the operation has been discontinued for more than one (1) year.

(d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if the following conditions exist:
(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following:
(A) The conversion from one type of agricultural operation to another type of agricultural operation.
(B) A change in the ownership or size of the agricultural operation.
(C) The:
(i) enrollment; or
(ii) reduction or cessation of participation;
of the agricultural operation in a government program.
(D) Adoption of new technology by the agricultural operation.
(2) The operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.
As added by P.L.2-2002, SEC.15. Amended by P.L.23-2005, SEC.1.

Stephanie Wang's Indianapolis Star story, dated yesterday, reports:
A state lawmaker framed his legislation as a simple declaration of Indiana’s support for agriculture: A right to farm.

But one clause in Senate Bill 186 could have implications that favor farmers’ rights over other property owners’ rights, environmentalists say — and allow for easy expansions of controversial factory farms that pose food safety and pollution concerns. * * *

The bill unanimously passed its first Senate committee hearing on Monday and would re-affirm existing Indiana code that establishes state policy to “conserve, protect, and encourage” agriculture.

“It just, I think, solidifies it a little bit more and makes it a little more clear as far as the direction we want Indiana to go,” Yoder said. “And if future issues come up, I think this will help ensure that Indiana farmers and ag producers have rights that won’t be trampled on.”

The measure is supported by the Indiana Farm Bureau, Indiana Soybean Alliance and national group Protect the Harvest.

The clause in Senate Bill 186 that concerns environmentalists would protect farmers’ rights to use any “generally accepted” practices or new technologies.

Hoosier Environmental Council attorney Kim Ferraro told the Senate agriculture panel Monday that the bill would give freedom to hog farms and large industrial farming complexes to grow and pollute unfettered while promoting the interests of large corporations.

“There is no need to create special and enhanced rights for one industry,” she said, arguing that the bill was unnecessary when farmers already garner federal and state support.

Yoder said he didn’t think the bill took away from others’ rights. He said that local governments would still set their own ordinances to control farming operations.

Dan Cole, a professor at the Indiana University Maurer School of Law, said the bill’s language is ambiguous and could potentially result in a “tremendous expansion of the property rights of farmers, at the expense of property rights of non-farming neighbors and communities.

ILB comments: Indiana has developed quite a lot of case law now construing the existing "right to farm" or "freedom to farm" statute. Here is a list of ILB entries.

Several years ago, the ILB received a note regarding a retired legislator in a rural county, from their son:

A [deleted] put a CAFO across the country road from their house, and they literally can't go outside any longer. They've lived in the house for 25 years, and it's really sad that the stink outside is so bad that they can barely breath. Do you know a good attorney who deals with these types of issues? I really appreciate it. They tried to sell the house, but no one will buy it now. I think my mother is embarrassed to come and visit because all of her clothes smell like pigs. It's terrible.
In my answer, inter alia, I pointed to the obstacles that might be posed by the "right to farm" act (I didn't ask if the retired legislator had voted for it) and provided this then-timely ILB link to indicate the problems the parents might face. I remembered that incident when I read this part of Stephanie Wang's story today (along with Prof. Cole's warning about "piling on"):
“It just, I think, solidifies it a little bit more and makes it a little more clear as far as the direction we want Indiana to go,” Yoder said. “And if future issues come up, I think this will help ensure that Indiana farmers and ag producers have rights that won’t be trampled on.”

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Law

Ind. Decisions - Tax Court decides three cases, dated yesterday

At least that is what the Court website says.

However, the links do not lead to opinions, but to reports of "cases transmitted" from last year.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Law - This is confusing

A story today in the Indianapolis Star reports that SB 186, a "right to farm" bill, "unanimously passed its first Senate committee hearing on Monday and would re-affirm existing Indiana code that establishes state policy to “conserve, protect, and encourage” agriculture."

However, when I look the bill up on the GA site, the "bill actions" section does not even report that the bill has been assigned to committee ...

It is also impossible to look back at yesterday's committee schedule to see if it was scheduled.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Law

Courts - "Bed bugs found in courts building in Cleveland"

From the AP, a story that begins:

CLEVELAND (AP) — Bed bugs have invaded the Cuyahoga County Justice Center in downtown Cleveland.

Court officials said in a statement Monday that the pesky insects have been discovered in the building that houses the common pleas court, city and county clerk of courts, city council chambers and other services.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Courts in general

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

In KIMBERLY SPURLING v. C&M FINE PACK, INC.(ND Ind., Simon), a 14-page opinion, Judge Kanne writes:

This appeal follows the district court’s entry of summary judgment in favor of C&M Fine Pack, Inc., (“C&M”) regarding its termination of Kimberly Spurling. Spurling alleged that C&M discriminated against her in violation of the Americans with Disabilities Act, as amended (“ADA”), as well as the Family and Medical Leave Act of 1993 (“FMLA”). For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings. * * *

Spurling established disputed issues of material facts as to whether C&M failed to properly engage in the interactive process as required by the ADA, but did not provide sufficient notice to establish a claim under the FMLA. Accordingly, we AFFIRM the entry of summary judgment for C&M on the FMLA claim, REVERSE the entry of summary judgment in favor of C&M on Spurling’s ADA claim and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Termination of Parent-Child Relationship of D.C. & A.R. (Minor Children), and T.R. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Dione Wells v. State of Indiana (NFP)

Patrick Palmer v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - "Opponents talk children, voting in Franklin College marriage debate"; More

John Sittler of the $$ TheStatehouseFile has video and a story today on last night's debate at Franklin College on the marriage amendment. Some quotes:

FRANKLIN, Ind. – The president of an Indiana family institution said Monday that the decision over the proposed amendment to ban same-sex marriage should be left up to the residents of Indiana.

But Jane Henegar, executive director of the American Civil Liberties Union of Indiana, said it’s not right for Hoosiers to put the rights of their neighbors up to a vote.

The discussion was part of a debate hosted Monday night at Franklin College that featured Henegar and Curt Smith, president of the Indiana Family Institute. * * *

Henegar opened the discussion by saying passage of the amendment would be a “permanent stain” on the state constitution. She would come back to this phrase often throughout the night, as she urged the General Assembly not to pass House Joint Resolution 3.

Smith lobbied in favor of the amendment – and its accompanying House Bill 1153. He said it’s time to let Hoosiers decide the “role marriage should play in our state’s great life.”

“I trust Hoosiers,” he said.

But Henegar said it would be “foolhardy and harmful” to pass legislation she said is very unclear. She echoed many House Democrats who have said it is unnecessary to pass a 73-line bill to explain a 16-line amendment.

She said this demonstrates HJR 3 does not contain language that should be put into the state’s constitution. And she said she is not alone in this belief.

“The majority of Hoosiers agree this is not the way we should deal with same-sex marriage,” Henegar said.

Howey Politics yesterday had a long story by Matthew Butler headed "Legal heavyweights Rusthoven, Bopp argue HJR-3, then no vote." The story quotes at length the testimony of both Peter Rusthoven and James Bopp.

Maureen Hayden, Statehouse reporter for CNHI, has a long story today on yesterday's committee testimony. The well-crafted story begins:

INDIANAPOLIS — Carolyn Rhoton and the Rev. Donald McCord spent more than four hours sitting on hard benches outside the Indiana House chamber Monday, having started the morning with conflicting prayers.

Rhoton, a retired nurse from Lebanon, said she prayed for legislators to have the wisdom to push forward a ban on same-sex marriage, ultimately putting it to voters on the November ballot. “I believe it’s what God wants,” she said.

McCord, a retired pastor in Indianapolis, said his prayer was for those same lawmakers to have the wisdom to kill the resolution and stop an increasingly divisive fight in Indiana. “We ought not to be passing legislation on how other people ought to live their lives,” he said.

Neither of their prayers was answered.

Having heard hours of emotional testimony, the House Judiciary Committee unexpectedly failed to vote to send the amendment to the state constitution on to the full House. It was the first hearing on the contentious matter this session, and committee Chairman Rep. Greg Steuerwald, R-Avon, said members wanted more time to reflect on the testimony.

What they heard was divided opinion from legal experts, faith leaders, and average citizens about the amendment that would ban both same-sex marriage and civil unions.

Jim Bopp, a prominent conservative lawyer from Terre Haute and former member of the Republican National Committee, spoke in favor and predicted the amendment would hold up in court.

Peter Rusthoven, a prominent conservative lawyer from Indianapolis and former adviser to President Ronald Reagan, opposed the amendment and a companion bill that seeks to explain the amendment’s intent. He predicted legal challenges would keep litigators busy for years to come. He suggested renaming the measure as the “Full Employment For Lawyers Act,” eliciting laughter from the crowds inside and outside the House chamber.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Law

Ind. Courts - "Historian gives visitors inside look at courthouse mysteries"

Matt Fritz of the LaPorte Herald-Argus has this long story today on the LaPorte County Courthouse, about a presentation by La Porte County Historian Fern Eddy Schultz titled "The Inside Story of the La Porte County Courthouse." A sample:

During the presentation, Schultz shared with audience members the many details and mysteries of the building, details people might never have noticed if they only gathered there to pay bills or get marriage licenses or handle other legal matters.

Starting with the outside of the building, she noted there are (by her count) 45 faces carved into the red sandstone bricks used for the facade of the structure. These faces include men, animals, monsters, and many other visages, no two alike. Some of them are around the windows, some of them are hidden by the wiring around the building. How they were constructed, she did not know, but she surmised they could have been completed beforehand, or rough cut first and then installed, with a mason sculpting the finished faces. Their purpose beyond decoration was not known.

Of the red bricks themselves, she said they were an odd choice for a courthouse in Indiana, with La Porte sporting the only red sandstone used. Most courthouses were made with Indiana white limestone.

She said two additional faces can also be found inside the building by the front staircase. She has been unable to locate any others.

Of the inside of the building she said there is a lot of detailed woodworking and stained glass windows, most notably the one featuring the Goddess of Justice, in the circuit courtroom.

Unlike other representations of the Goddess of Justice, the courthouse's version is holding a book as opposed to a set of scales and a double edged sword. She said the scales measure a case's strength while the sword represents the power of reason and justice that can be wielded against a party. She did not know why the designers decided against these more common representations for La Porte.

Schultz said her own interest in the courthouse started when she was a girl. She used to ride up and down the original courthouse elevator, an open cage model installed in 1917, which allowed occupants to look out from all four sides and see the different floors passing them by.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Courts

Ind. Law - "House GOP wants drug tests for welfare recipients, despite cost"

That is the headline of Dan Carden's story today in the NWI Times:

INDIANAPOLIS | Indiana is poised to take another spin on the welfare drug testing merry-go-round, even though the program's cost will significantly exceed the savings gained from positive tests and a federal judge last month ruled a similar Florida law unconstitutional.

House Speaker Brian Bosma, R-Indianapolis, said Thursday he was happy to "enthusiastically endorse" legislation set to be filed Monday by state Rep. Jud McMillin, R-Brookville, that Bosma described as "entitlement reform through drug testing."

This will be McMillin's fourth attempt to subject the state's 27,000 recipients of Temporary Assistance for Needy Families benefits — mostly single mothers with children — to mandatory drug testing as a condition of receiving cash assistance.

The Republican-controlled House and Senate separately approved his 2013 proposal, but it died in a conference committee tasked with resolving the two versions. It would have spent more than $3 million to implement drug testing, with the state getting back only $215,000 from positive tests, according to the nonpartisan Legislative Services Agency.

TANF recipients are among the very poorest Hoosiers. A two-person family, such as a mother and child, must earn less than $5,661 a year and have less than $1,000 in assets to qualify for TANF.

The average per person monthly TANF payment is about $85, according to the Indiana Family and Social Services Administration. The state pays just one-third of the approximately $25 million provided annually to Hoosier TANF recipients. The federal government pays the rest.

Bosma said drug testing of TANF recipients is needed to "ensure public money is being used for the purpose intended and not for other purposes."

He cited no evidence that TANF beneficiaries use illegal drugs more often than the general public. In the four months that Florida's drug testing program was running, before being halted by court order, fewer than 3 percent of tests were positive.

Bosma scoffed at the idea that he, as a recipient of a state government paycheck, also should be required to be drug tested.

"If I looked like I wasn't giving a full day's work for that, perhaps," Bosma said.

When asked directly if he considered the many things mothers do, including low-income mothers receiving TANF payments, to be work worthy of state support, Bosma said no.

"They're not working for those funds," Bosma said.

The idea of drug testing welfare recipients is supported by the powerful American Legislative Exchange Council, or ALEC, a business-backed group that writes model legislation on hundreds of issues for state lawmakers to adopt. About 30 state legislatures considered welfare drug testing proposals last year.

At least 50 of the 106 Republican members of the Indiana House and Senate are ALEC members. Republican Gov. Mike Pence was the keynote speaker at ALEC's December policy summit.

Interesting, the traditionally somewhat conservative Fort Wayne News-Sentinel has an editorial today headlined:"General Assembly and the Fourth Amendment: How many groups will legislators single out with no good cause." Some quotes:
The General Assembly has a thing for drug testing, doesn’t it?

It is considering a bill requiring welfare recipients to be tested for drugs if they fail a written screening exam, agreeing to enter treatment or risk losing benefits if they test positive. They’re still serious about the idea despite the facts that a similar proposal failed twice and federal welfare officials have turned back similar plans in other states.

And now there is a lawsuit filed by the American Civil Liberties Union of Indiana challenging a new rule requiring patients prescribed certain amounts of pain medication to submit to annual drug tests. The ACLU says, reasonably, that the requirement violates the Fourth Amendment’s protections against unreasonable government-mandated searches for which no probable cause exists.

Heck, why don’t legislators stop this piecemeal approach and just require all of us to undergo yearly drug testing for every illegal substance on Earth? They wouldn’t then be singling out one group such as welfare recipients or pain sufferers but in a fair way targeting everyone. And we would be assured of having a drug-free Indiana full of clean-blooded Hoosiers.

Of course, they’d have to come up with a suitable punishment for miscreants. Perhaps they can create a whole new system of drug-test prisons or double the tax bills of sinners or just shoot every 10th violator.

We’re being hyperbolic, of course, but to prove a point. “Innocent until proven guilty” is the bedrock of our criminal justice system. Yes, it applies most directly to procedures in a court of law, but it’s also a philosophy underpinning the way the authority is supposed to deal with us. The Fourth Amendment depends on such a sentiment: Unless we have created a reasonable suspicion that we have done wrong, go away and leave us alone. [Emphasis in original]

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Law

Ind. Law - "Bill seeks to bar trespassing on agricultural property"

SB 101, the ag-gag bill, is being heard in Senate Committee this morning. Here are some quotes from a long story yesterday by Rachael Bunn in the $$ Bloomington Herald-Times:

“Ag-gag” is back in Indiana.

On the first day of the Indiana General Assembly, a new bill, Senate Bill 101, was filed, setting the stage for a debate about trespassing and First Amendment rights.

The bill allows agricultural operations to post signs that prohibit acts that could compromise operations or trade secrets and would make it a Level 6 felony if someone commits an act prohibited by the posting. It expands the criminal trespass statute and raises the penalty for criminal trespass that causes a monetary loss. A Level 6 felony is punishable by a term of six to 30 months in jail. The bill is similar to one proposed in 2013. * * *

“This is a trespass bill, and so enhanced trespass is a more accurate title of the bill,” said Amy Cornell, public policy adviser and counsel for the Indiana Farm Bureau. The farm bureau supported a previous bill in the Legislature and supports legislation protecting agricultural business from trespassing.

Trespassing is an issue on Indiana farms, from something as small as grabbing an apple from a tree in an orchard to planting ropes and spikes among corn fields to purposely damage farm equipment.

“It is a big problem for farmers in Indiana, and it’s a problem across all sectors,” Cornell said. “There’s a mentality that you can go out into the country and do whatever you want, but that land is owned by someone.” * * *

Most of the bills follow a similar mold, based on the Animal and Ecological Terrorism Act; part of the American Legislative Exchange Council’s “model legislation” that the conservative policy group circulates to lobbyist and lawmakers. The ALEC act was drafted in 2002.

A similar bill in the Indiana Legislature died at the last minute in 2013. It was withdrawn after a lengthy debate and criticism of the broadness of the criminal charges.

“This version of the bill is actually, if anything, worse than the first version,” said Sen. Mark Stoops, D-Bloomington. Stoops sits on the Senate Corrections and Criminal Law Committee where the bill has been referred. “It creates this almost second protected class in the agriculture industry.”

The original language of the bill allows businesses to define what is illegal or prohibited on their properties; a concern by environmental and media that whistleblowers and media could be targeted to protect illegal or distasteful practices.

Environmental and media groups have already spoken out against the bill, which Stoops calls unconstitutional. There are also concerns about the severity of the punishment.

“To me, it’s a concern that agriculture businesses are having problems with vandalism, but this bill goes way beyond that,” Stoops said.

“We already have laws in place that protect people from trespassing, that protect from defamation and libel,” he continued. “There’s really no reason for this.” * * *

Even though bills like this are aimed at protecting larger businesses, Lindy Miller, Greene County extension director and extension educator for agriculture and natural resources, has had his own farm vandalized, and knows other farmers that have faced similar damages.

“You try to figure out what the best reactions are and the first thing you think, you want to throw these people in jail,” Miller said.

He’s not convinced of a need for legislation, though. There is a lot of misinformation about agriculture businesses and a misperception that they all engage in illegal activities. The same is true for environmental activists.

“What it amounts to are two completely different perspectives that aren’t educated,” Miller said. “It may not be the best thing to sneak into a guy’s house, but it’s also not the best thing to lock people out.”

In his view, letting activists come visit farms and educating them about the farming process, particularly animal slaughter for food, would be beneficial for all involved.

“I always tell people: Nothing loses its life without a struggle,” Miller said. “But when you think about it, these animals are in service to mankind, and there’s not greater service than to feed the hungry and poor.”

Education is the key to any debate, and Miller thinks there has been a lack of it between the two groups so far. Adding restrictive legislation to the mix does not give hope for any improvement.

“The whole society’s gotten polar – politics is polar – society’s just gotten more polar, and the truth lies somewhere in the middle,” Miller said.

A quote from an editorial Jan. 11th in the Richmond Palladium-Item (originally in the Muncie Star-Press):
egislators wasted no time getting to business on unneeded legislation that likely violates the First Amendment.

Case in point: the return of the so-called “ag gag” bill, once again introduced by state Sen. Travis Holdman of Markle. His bill creates a new kind of crime, “agriculture mischief.” Unlike last year’s version that prohibited photographing or videotaping farming activity, this year’s version is a name-your-own-crime bill that allows farmers to prohibit any kind of activity that might cause monetary damage to a farm.

Talk about conferring special rights to a protected group. Ridiculous.

The genesis of this bill comes courtesy of the American Legislative Exchange Council, which distributes model legislation. Similar bills unfortunately have been enacted in other states.

The gist of this bill, SB101, now referred to the Corrections and Criminal Law Committee, is to punish whistleblowers who discover unscrupulous practices such as cruel treatment of animals or health violations. It’s designed to protect the big agriculture concerns and confer a special set of protections because the ag industry has the financial clout to impose its will. Name any other industry that can define what it considers to be a felony. This bill confers that “right.”

Violators of these user-defined crimes would be considered to have committed a Level 6 felony, punishable by a term of six to 30 months behind bars.

There already are laws on the books to protect agriculture and every other business. There are trespassing, privacy and libel laws that offer protection against someone wandering onto property uninvited. Farm employees and visitors can be required to sign waivers prohibiting them from photographing or recording what they see. There are plenty of avenues to land violators of existing laws in court.

At the core of the matter, this legislation is not just about intimidating the media, it’s about intimidating anyone who sees something suspicious or awry. It’s enough to make one wonder what’s really up down on the farm.

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Law

Ind. Gov't. - Some bills being heard in committee today

This morning at a meeting of the Senate Corrections and Criminal Law Committee scheduled to start at 9:30 AM in Rm. 130, the Committee will hear SB 101, Agricultural operations and criminal trespass, otherwise known as the ag-gag bill.

The House Employment, Labor and Pensions Committee, meeting at 8:30 AM in Rm. 156-A, will hear the HB 1075, re PERF and TRF annuities, a issue in controversy since the end of the last session.

The House Government and Regulatory Reform Committee, starting at 10:30 AM in Rm. 156-A, will hear three bills of interest:

HB1033 Publication of notice. Torr [a 25-page bill, involves non-newspaper publication of notices, as well as language about use of police radios.]

HB1121
Administrative adjudication. Koch

HB1141 Methamphetamine lab disclosure in property sales. McNamara, Ober

Posted by Marcia Oddi on Tuesday, January 14, 2014
Posted to Indiana Government

Monday, January 13, 2014

Ind. Law - "Committee vote on proposal to ban gay marriage delayed"

Fort Wayne Journal Gazette reporter Niki Kelly, who you may have seen seated behind the speakers taking notes (dressed in purple) during the entire long hearing this morning, has now posted good coverage of the hearing. Some quotes:

INDIANAPOLIS – The chairman of the House Judiciary Committee unexpectedly delayed a vote Monday on the proposed constitutional ban on gay marriage and civil unionsRep. Greg Steuerwald, R-Danville, said committee members wanted time to reflect on the more than three hours of testimony given on the matter.

The surprise postponement spurred talk that Republicans were unsure they had enough votes to get the measure out of committee.

Seven votes are needed. The four Democrats are on record as voting against. * * *

The opponents wrapped up their coordinated testimony with well-known Republican lawyer Peter Rusthoven, who has constitutional expertise.

He focused on the ambiguity of the second sentence – even with the so-called clarifying bill.

“We are turning future decisions about what will and will not be recognized in Indiana to the courts,” Rusthoven said.

He said House Bill 1153 can’t be used to explain what an earlier legislature – with up to 20 different members – meant when the initial vote was taken in 2011.

The proponents had their own big-time Republican lawyer – Jim Bopp – who has handled constitutional cases at both the state and federal level.

“The benefit (to the companion bill) is it addresses the meaning of the amendment by the framers of the amendment,” he said. “That is exactly what the courts look to.”

He also said the reason opponents fight so hard against the constitutional amendment is they want the opportunity to more easily change the definition of marriage in statute in the near future.

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Indiana Law

Ind. Law - Still more on the concept of using a "companion" bill to spell out legislative intent behind a constitutional amendment [Updated]

Updating this post from this morning, and referencing this story posted this afternoon on the IndyStar website, a reader writes:

The Star does not report that Peter Rusthoven testified. With his R credentials, it would be interesting to know what position he took. Your citation of his quotes appear to oppose HJR-3. That would be newsworthy. Just asking -- if you observed the hearing.

Ted A. Waggoner
Peterson Waggoner & Perkins, LLP

Thanks for pointing that out. Mr. Rusthoven, a noted Indiana Republican and litigator, spoke against HJR 3, and specifically the second sentence, for the reason that it would leave the decisionmaking to the courts. He called his concern a republican point of view. He also spoke against the companion bill, and pointed out that case law was against such a legislative approach, as the Constitution is the organic law of the State. [More about that in this earlier post.]

[More] More, with the help of notes from a reader. Key takeaways include: A constitutional amendment is “not an exercise of legislative power per se,” and what the legislature has to say about a constitutional amendment is not dispositive and has actually been explicitly rejected in two cases in Indiana. [See earlier post]

Rusthoven cited the statutory interpretative doctrine that the expression of the one is the exclusion of the other, and warned lawmakers that an argument at least will be made that anything not included in HB 1153 is rejected.

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Indiana Law

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

Updating this ILB post from Sept. 19, 2013, this weekend I obtained the actual award, sent from the Indiana Trial Lawyers Association. It is quite nice in appearance:


Posted by Marcia Oddi on Monday, January 13, 2014
Posted to About the Indiana Law Blog

Ind. Courts - The Good Wife and a two-jury trial; three-jury trial proposed in Indianapolis [Updated]

Last night on CBS, the hit legal show, The Good Wife, featured a case with two defendants, two sets of attorneys, and two juries, all tried together in the same courtroom before one judge. The name of the show was "We, the Juries." The trial turned into something of a mess.

Here in Indianapolis there is talk in the Richmond Hill case of a concurrent trial with three juries, one for each defendant. See this Fox 59 story by Russ McQuaid:

INDIANAPOLIS (Jan. 10, 2014) – An attorney representing Richmond Hill suspect Monserrate Shirley has filed an objection to a prosecutor’s plan to hold his client’s trial concurrently with the cases against two other defendants.

James Voyles filed an objection with Judge Shelia Carlisle in opposition to the proposal for concurrent trials by the Marion County Prosecutors Office.

Voyles argues that trying all three defendants at the same time in front of three seperate juries in a Super Trial would be a “recipe for mistrial disaster.”

Voyles claims he would not be able to mount a vigorous defense for his client if agressive cross-examination or an inadvertent comment by a witness could contaminate either of the juries hearing the cases against co-defendants Bob and Mark Leonard. * * *

The Marion County Prosecutor has suggested, due to cost and logistical challenges, that all three trials be held side-by-side before three juries and one judge with jurors excused during sensitive or contradictory testimony.

Voyles argues that Indiana law does not spell out guidelines for concurrent trials and that such an arrangement would be a, “breeding ground for confusion,” as jurors would naturally speculate why they were being excluded during some testimony.

The attorney writes that the, “stakes are high,” for his client who faces the possibility of a life sentence without parole if convicted and that the prosecutor’s proposal would, “gut,” Shirley’s due process rights.

Voyles also shares the prosecutor’s misgivings over trial, security, evidence and jury housing challenges.

Mark Leonard’s attorneys have also filed an objection to the plan.

Judge Shelia Carlisle extended the deadline until today to receive counsel objections to the proposal.

Here is a long Jan. 10th story from WTHR:
INDIANAPOLIS -

All three suspects accused in the Richmond Hill neighborhood explosion oppose the state's proposal of holding one trial with three separate juries.

In a new court filing, attorneys for Monserrate Shirley say concurrent trials will make it difficult for their client to get a fair trial. They also question using a large and complicated case as a test case for concurrent trials.

Attorneys for Mark and Bob Leonard made substantially the same arguments in papers filed at two weeks earlier. * * *

After the judge agreed to give each suspect a separate trial, prosecutors proposed holding one trial with a different jury for each suspect. They argued the cost and resources needed for three separate trials would be prohibitive.

Shirley's attorneys say that plan will likely violate her due process right and her right to a fair trial. Attorney Jim Voyles also says the amount of evidence "would require the trials to take longer than if separated out because of the shuffling back and forth of juries."

He also says concurrent trials will cause problems for attorneys who may not be able to "zealously advocate" for their clients in fear of causing a mistrial. He says it will be a problem for attorneys reaching a crucial point in a cross examination to have to slow down to avoid crossing a boundary or to have to stop for a jury to leave.

Voyles calls the concurrent trial plan is a "logistical nightmare" as jurors are moved in and out of the courtroom because of evidence they may not be allowed to hear. He writes that "will spawn more speculation and suspicion that can ever be cured by any sort of admonishment."

The filing also suggests two different attorneys would need to cross examine each witness.

"The complexity of the case makes concurrent trials a recipe for mistrial disaster," Voyles writes. He points out the unpredictability of many of the witnesses, especially on cross examination. "It could be a single statement made by one of these witnesses who have this type of information that could taint any of the defendants' rights."

As part of their argument, Mark's attorneys wrote, "The State is asking this Court to conduct an experiment with what may arguably be the largest trial in Marion County history." They say this is an especially bad idea because of the high stakes for the defendants who face life in prison without the possibility of parole.

Shirley's attorney points out that there is no precedent in Indiana about handle concurrent trials. He cites several cases from around the country where judges have issued cautions about using multiple juries, particularly in complex cases.

Attorneys for Bob Leonard call efforts for concurrent trials an "experiment" and a "gimmick."

Attorneys for both Shirley and Mark Leonard express concern about finding an appropriate facility for concurrent trials given the space, security and logistical needs. Attorneys for Bob Leonard write, "Any consideration for judicial economy achieved by simultaneous juries in this Case will no doubt be far eclipsed by the costs and security concerns associated with moving simultaneous juries somewhere outside the Marion County City-County Building."

[More] A reader writes:
I saw the show and agree three juries would be chaos. They would hold the trial in a gymnasium? Lawyers and witnesses would be expected not to mention certain things in front of certain juries, but in a trial that spans weeks or months mistakes would be made. Just one mistake is enough for a mistrial. The only thing more expensive than three separate trials would be retrying the case again and again.
A second reader writes:
Pre-filed testimony is regularly used in court and administrative proceedings. (I call it "litigation lite"). It should be ordered here in each of the three trials. 80% of the evidence is going to be a no brainer in each of these trials. Jury selection takes place, and the three juries are empaneled. Agreed upon pre-filed testimony (to be repeated in open court) and exhibits will be presented to all three juries. Thereafter, contested evidence and conflicting evidence can be presented to each of the juries, separately. The juries should be sequestered from each other, but only one court room is needed to shuffle them in and out. I did watch the "Good Wife" episode last night: art imitates life.

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending January 10, 2014

[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 Dec. 20, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 10, 2014. It is two pages (and 27 cases) long.

Three transfers were granted last week:

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Indiana Transfer Lists

Ind. Law - More on the concept of using a "companion" bill to spell out legislative intent behind a constitutional amendment [Updated]

Updating this ILB post from this morning, thanks to Peter J. Rusthoven, Barnes & Thornburg, who has provided, at the request of the ILB, the cases he referenced in his testimony this morning about HB 1153 and HJR 3 and the weight given by the Indiana Supreme Court to expressions of legislative intent relating the organic law of our State, the Indiana Constitution:

Take a look at Hendricks v. State ex rel. N.W Ind. Crime Comm’n, 245 Ind. 43, 55 196 N.E.2d 66, 72 (1964), which states “although the conduct of the Legislature may be indicative of the legislative intention, regarding the acts of the Legislature itself, such conduct is not controlling as to the construction which must be placed upon the Organic Law itself’ [i.e., the Constitution]. Hendricks then inserts a lengthy quotation from Tucker v. State, 281 Ind. 614, 676, 35 N.E.2d 270, 293 (1941), which includes “But the Legislature did not draft the Constitution, and a legislative intention as to how the Constitution is to operate is of little value in determining the intention of the drafters of the Constitution ….” The most detailed exposition of the limited role of the Legislature in the constitutional amendment process—including that proposing amendments is not an exercise of general legislative power, and that amendments are adopted by the voters --is found in Ellington v. Dye, 178 Ind. 336, 99 N.E. 1 (1912).
ILB: Unfortunately, Tucker (1941) and Ellington (1912) are not readily (freely) accessible online. But these two opinions are landmark cases in Indiana. [Update: I've just received a scanned copy of the 1912 opinion in Ellington]

Incidentally, the facts behind each of the cases is fascinating. In Tucker (1941) the General Assembly had by statute stripped the Governor of his responsibility for most state agencies and distributed it, by statute, amongst other state officials. In Ellington (1912), the General Assembly had attempted a wholesale rewriting of the Indiana Constitution, by statute.

In the 1941 case, the General Assembly was attempting to redefine, by statute, the separation of powers clause in the Constitution. In the 1912 case, it was attempting to redefine Art. 16, which sets out the process for constitutional amendment. Both efforts were stricken by the Supreme Court.

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Indiana Law

Ind. Law - Opinion by former Justice Boehm cited as authority for HJR 3 companion bill [Updated]

The author of HJR 3, the marriage amendment, and HB 1153, the marriage amendment ballot language plus "clarifying language," Rep. P Eric Turner, this morning cited as authority for the concept of a "companion" bill to spell out legislative intent behind a constitution amendment, a 2000 opinion by then-Indiana Supreme Court Justice Ted Boehm. The opinion is McIntosh v. Melrose Company.

[Updated at 11:24 AM] As a reader points out, McIntosh v. Melrose Company was a 3-2 opinion, with Dickson and Rucker (the only two justices still on the Court) in dissent.

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to General Law Related

Ind. Law - More on: House Judiciary Committeee meeting to hear same sex marriage prohibition Monday morning

Here are more stories on this morning's hearing:

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Indiana Law

Ind. Law - "Not all sexting is alike, say Indiana experts"

Jill Disis of the Indianapolis Star has a long story today on sexting involving middle school and high school students. Some quotes:

How should authorities respond to a behavior that, while technically illegal, is growing more common among younger generations?

"The kids of that age are of the computer age, of the phone age, none of us can change that," said Frances Watson, a professor at Indiana University's McKinney School of Law. "They don't know it's conceivably a crime."

As more middle school and high school students gain access to cellphones, sexting has become a fairly common activity. * * *

When bullying or intimidation factor into why teenagers share nude photos of themselves, the investigation and prosecution process can be fairly clear-cut. * * *

But when that sharing is mutual, legal experts say, deciding whether to prosecute a case can get complicated.

The Indiana statute covering child pornography and exploitation makes it a crime if someone "presents" or "exhibits" digital images of sexual conduct by someone under 18 — even if the presenter is also under 18. * * *

Since at least 2009, Indiana's criminal code has specifically said that having sexually explicit images of someone 16 or younger on a cellphone constitutes child exploitation and pornography.

The statute could change if one lawmaker has his way.

Sen. Jim Merritt, R-Indianapolis, has for the past couple of years proposed diluting the law. If offending teenagers in a sexting case are prosecuted under the current law, they face a felony charge. Merritt wants to make the crime a misdemeanor in those cases.

"It's a parental issue and not a prosecutor issue," Merritt said. "It will be against the law, but I really believe it's a teaching moment and kids do make mistakes. And this is a part of the law that ought to be a little gray rather than black and white."

Merritt said he hopes to introduce that change again this session.

[Brian] Gensel, the prosecutor from Porter County, said he thinks his office's handling of the 2010 sexting cases has led prosecutors to discuss how best to deal with the issue.

"Unless there was evidence that it was more than digital 'I'll show you mine if you show me yours,' " Gensel said, "formal prosecution was not necessary. As in much of criminal prosecution, cases have to be judged on their individual facts."

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Indiana Law

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

From Sunday, January 12, 2014:

From Saturday, January 11, 2014:

From Friday afternoon, January 10, 2014:

Posted by Marcia Oddi on Monday, January 13, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/13/14):

Thursday, January 16

Next week's oral arguments before the Supreme Court (week of 1/20/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/13/14):

Tuesday, January 14

Next week's oral arguments before the Court of Appeals (week of 1/20/14):

Wednesday, January 22

Thursday, January 23

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, January 13, 2014
Posted to Upcoming Oral Arguments

Sunday, January 12, 2014

Ind. Law - House Judiciary Committeee meeting to hear same sex marriage prohibition Monday morning

The House Judiciary Committee will meet Monday at 10:00 AM in the House Chamber to hold public hearings on HJR 3, the marriage amendment, and HB 1153, the marriage amendment ballot language plus "clarifying language." You will be able to watch the hearing live, via the General Assembly website.

Here is a list of the members of the House Judiciary Committee.

A long AP story from Jan. 9, headed "House panel pivotal in Indiana gay marriage debate," reported:

Lobbyists on both sides of Indiana's gay marriage debate have been bombarding a small group of House lawmakers pivotal in deciding the fate of a measure that would codify a same-sex wedding ban as part of the state constitution.

Even before key legislation was formally introduced Thursday, activists were focusing on the 13 members of the House Judiciary Committee, which is scheduled to take up the package on Monday. Volunteers with Freedom Indiana, the umbrella group opposing the amendment have been targeting lawmakers in their home districts for months with phone calls and emails. While workers for religious conservative groups have relied in part on church fliers to get their message out.

That lobbying battle went public this week after amendment supporters bought ads targeting committee members. In the ad, mug shots of the 13 lawmakers flash on screen as a narrator argues that voting against the amendment amounts to silencing the public.

"State's marriage amendment again dominates forum" is the headline to this Sunday Bloomington Herald-Times $$$ story by Lindsey Erdody. the long story begins:
For the second day in a row, three Monroe County state legislators addressed the same issue that seems to be on everyone’s mind — Indiana’s proposed marriage amendment.

State Reps. Matt Pierce and Peggy Mayfield and state Sen. Mark Stoops attended the Greater Bloomington Chamber of Commerce 2014 legislative forum Friday and discussed the amendment at length, only to repeat parts of that conversation Saturday morning at the League of Women Voters’ first legislative update of 2014. The state lawmakers were joined Saturday in Bloomington’s City Hall by state Reps. Matt Ubelhor and Eric Koch and state Sen. Brent Steele.

"Pressure builds for lawmakers voting on gay marriage ban" is the heading to this Sunday Indianapolis Star story by Tony Cook and Barb Berggoetz. Some quotes:
He has received hundreds of emails and letters, countless phone calls, and his face is plastered across a new television advertisement.

It's a lot more attention than state Rep. Daniel Leonard, a furniture salesman from Huntington, is accustomed to receiving. * * *

"When I voted for this in 2011, I didn't have anyone calling me, I didn't have any letters," Leonard said. "What a dramatic change. What a dramatic turnaround."

Leonard said he's a firm believer that marriage should be between one man and one woman, but like others he has concerns about the amendment's second sentence, which would ban other arrangements "substantially similar" to marriage, including civil unions.

In an effort to ease such worries, House Republican leaders introduced a companion bill that seeks to clarify the amendment's intent. That measure states that the amendment is not intended to deny employer health benefits to same-sex couples or to circumvent local ordinances that forbid discrimination.

That helps, said Leonard, but he's concerned that such clarifying legislation would carry little weight in the courts, because the 2011 legislature didn't vote on it and voters statewide wouldn't either.

"There is a faction that wants a commitment on how I am going to vote," he said. "I told them they'll know when I push the button. So they paint me as a definite no or yes because I won't commit. That really aggravates me." * * *

Rep. Ed DeLaney, D-Indianapolis, who said he'd vote "hell no" if he could, expects the amendment to come up for a final vote on the House floor by Thursday because Republicans want to "reduce the pain to themselves now."

The companion bill, House Bill 1153, will only lead to more judicial intervention, not less, he said.

"I think it's very surprising we're going to tell the courts what the public meant before they vote," he said. "This is of no help to anyone, other than to pretend to be doing something."

Senate Democrat Leader Tim Lanane had a good op-ed piece this weekend, available here. Some quotes:
No matter how hard Republican leaders in the General Assembly attempt to frame their decision, they can’t run from the choice they’ve made. In moving forward with renamed House Joint Resolution (HJR) 3, they have elected to launch a needless fight over locking discrimination into our state’s constitution. The course they’ve set will be divisive, it will likely end in costly litigation and will certainly distract the legislature from deliberating on other critical issues.

From the onset, this effort to codify prejudice has been an exercise in unintended consequences. Legal experts have cast significant doubt on the wording of the two-sentence amendment, questioning whether passage of HJR 3 would make partnership benefits offered by public universities and local governments to their employees unconstitutional.

In an attempt to ease those concerns, Republicans leaders will take an unprecedented approach, and in doing so, all but admit the amendment is poorly drafted. The leaders offered up a three-page bill in conjunction with the resolution, aiming to clarify the legislature’s intent when drafting the amendment. The only problem: when questioned this week, the Senate President Pro Tempore and Speaker of the House themselves did not know how the accompanying bill would impact civil unions or other partnership agreements. If the driving forces behind this approach are unsure of the legal ramifications, perhaps that’s reason enough to admit the amendment is fatally flawed?

For states that have gone before us in passing constitutional amendments barring same-sex marriage and similar partnerships, there is a common thread: lawsuits. Wisconsin passed a constitutional amendment in 2006 and has been tied up in litigation since. A similarly-worded amendment has been winding its way through the Michigan courts for 9 years, piling up legal bills and doing nothing to address other issues.

Dan Cardin of the NWI Times writes:
INDIANAPOLIS | Apparently forgetting Ronald Reagan's political axiom, "If you're explaining, you're losing," the Republican leaders of the Indiana House and Senate are hoping two and a half pages of explanation can make their two-sentence marriage amendment more palatable.

Statehouse Democrats aren't buying it.

"They've got some sort of a monster they've created and now they're trying to dress up, or make the monster a little prettier," said Senate Democratic Leader Tim Lanane, D-Anderson.

"It's still discrimination; it still says certain people in the state of Indiana cannot enjoy the rights everybody else has." * * *

State Sen. Karen Tallian, D-Ogden Dunes, said she thinks it's "pretty audacious" for legislators to interpret the amendment for the judges and justices who will have to square existing law with the constitutional change, if it is approved by the General Assembly and by Hoosier voters in November.

"That's certainly a violation of separation of powers," Tallian said. "We don't do that. Any constitutional amendment should be clear enough to not have this."

Posted by Marcia Oddi on Sunday, January 12, 2014
Posted to Indiana Law

Ind. Law - "Permissive parents who allow underage drinking in their homes could face arrest and prosecution under a proposed “social host” liability law"

That is the lede to this story this weekend by Maureen Hayden of CNHI newspapers. More:

Adults who allow minors to drink on property they own, rent or control would face jail time and fines in a bill filed by state Sen. Pete Miller, R-Avon.

The proposed legislation mirrors the so-called “social host” liability laws in at least 28 other states and goes beyond holding parents responsible for just providing alcohol to teens. The law would penalize adults for condoning teen drinking, even if those adults didn’t buy or supply the booze.

Miller said the law, if passed, won’t stop underage drinking, but it will give law enforcement a tool to prosecute parents and other adults who make it easy for teenagers to drink illegally.

“More importantly, it would send a strong message to teens as well as adults that irresponsible alcohol use should be discouraged,” Miller said.

Some lawmakers have dubbed the legislation, filed as Senate Bill 28, “the Jack Trudeau bill.” Trudeau, a former Indianapolis Colts quarterback, was arrested in 2007 for allowing underage drinking at his Boone County home during a high school graduation party for his daughter.

Trudeau later admitted to the infraction of inducing a minor to possess alcohol. But a prosecutor dropped criminal charges — including contributing to the delinquency of a minor — after Trudeau denied furnishing alcohol to the 13 teenagers who were also arrested at the party.

For background, see this May 31, 2008 ILB post, and its links.

Posted by Marcia Oddi on Sunday, January 12, 2014
Posted to Indiana Law

Friday, January 10, 2014

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

In JULIO CESAR CHAVARRIA v. UNITED STATES OF AMERICA (ND Ind., Van Bokkelen), a 7-page opinion, Judge Cudahy writes:

This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine. * * *

The district court correctly concluded that it was bound by Chaidez and that Padilla had no retroactive effect on Chavarria’s case. Having determined that the distinction between affirmative misadvice and failure to advise does not somehow evade the non‐retroactivity of Padilla, we AFFIRM.

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - State of the Judiciary is next Wednesday, January 15th at 2:00 p.m.

From the Courts news office:

State of the Judiciary, Indiana House Chamber, Wednesday, January 15th, 2:00 p.m. EST.

Indiana Chief Justice Brent E. Dickson will address the Governor and a joint session of the Indiana General Assembly for the annual State of the Judiciary. The formal update on the work of the judicial branch will be held January 15, 2014.

The Chief Justice is required to provide Indiana lawmakers with an update on the “condition of the courts” according to Article 7, Section 3, of the Indiana Constitution. The 2014 address will be Chief Justice Dickson’s second State of the Judiciary.

Trial and appellate court judges from across the state wear traditional black robes for the event and are escorted by members of the General Assembly to the Indiana House of Representatives for the joint session.

The address will be webcast live at courts.in.gov. Indiana Public Broadcasting Stations (IPBS) will also air the address on radio and television.

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Indiana Courts

Ind. Courts - Marion County Superior Court elections and Judge Brown - Some questions [Updated]

I'm having trouble with this post, here is what I have so far ...

A declaration of candidacy for primary nomination form in 2014 must be filed no later than NOON, February 7, 2014, and no earlier than January 8, 2014.

The Marion County Superior Court is comprised of 36 elected judges. Judges are elected for 6 year terms. Under IC 33-33-49-13(b):

(b) At the primary election held in 2008 and every six (6) years thereafter, a political party may nominate not more than eight (8) candidates for judge of the court. At the primary election held in 2006 and every six (6) years thereafter, a political party may nominate not more than ten (10) candidates for judge of the court. The candidates shall be voted on at the general election. Other candidates may qualify under IC 3-8-6 to be voted on at the general election.
In other words: (1) the terms are staggered, with 8 Democratic candidates and 8 Republican candidates to be nominated in a primary election in 2014. (2) "Other candidates" may qualify under IC 3-8-6, "Nomination by Petition for Independent or Minor Political Party Candidates."

First problem/question - I don't see how the "filing" and the slating fit together. Isn't the declaration of candidacy "filing"?

Next, I'm told:

I've also been told:
Democrats are requiring everyone who is going through slating to file. Then, they are requiring everyone that is going through slating to fill out a withdrawal form and sign it. After slating, the party supposedly would take the losing endorsement seekers’ withdrawal form to Sec of State’s office to have them removed from the ballot.
I'd also like a post the names of the current judges of each party who are up for re-election this year. Are there any addition vacancies, and if so, how will they be filled. Would Judge Kimberly Brown be up for reelection this year - i.e. does her current turm end in 2014?

[Update #1] I've received this additional information re the Democratic judgeships:

Filing for office opened on January 8th and closes on February 7th. The Democratic slating convention is February 8th which means they have to file for the office before slating. If you lose, you have until noon on February 10th to withdraw. You have until January 30th to file for slating.

There are eight positions to be filled thus there are eight slots, with a slot named for each of the five incumbents. No one has filed in any of the incumbents' spots except Kim Brown's spot (she has not filed for slating yet - no one knows whether she intends to seek re-election and she is not required to go through slating).

Here is the breakdown:

Kim Brown's slot: Commissioner Shatreese Flowers v. Magistrate Mark Jones

Slot 6: Angela Davis - no opponent as of yet (I doubt she will have one)

Slot 7: Karen Celestino-Horseman v. Commissioner Christina Klineman

Slot 8: Marcel Pratt v. Todd Woodmansee

The Republicans only have one slot and they go about it a bit differently. A committee makes recommendations on who the precinct people should vote for.

[Update #2] I've received this comment:
Slating guarantees you nothing – no more than the Meridian Kessler Neighborhood Assoc endorsement does or the FOP PAC endorsement does. It is not a statutory animal. It is a group, in this case political parties, that has decided to 1) review, gather, and select who they want to support in the primary, and then 2) go out and work to make that preference a reality.

Because it has worked so well, many think that it is a statutory system. It is not – it is a group process that has been effective in making their own wishes come true.

[Clarification from the Commenter]: Should have been more clear – when I wrote, “because it has worked so well”, I meant their endorsements have rarely been beaten at the ballot. The parties have backed up what they have done. They have carried, mostly, those they have supported in the primary – NOT that those choices or endorsements were of the best candidates or most qualified.

[Update #3] A reader disagrees with the last sentence of Comment #1:
An on the Republican side, a committee does NOT make a recc on who the precinct people should vote, or at least, has not in years. In the more recent past, a committee has been used to vet the backgrounds of candidates seeking the endorsement of the Republican organization. Those background searches included criminal background searches, credit histories, etc. In effect, they were looking for skeletons. The committee then made a recommendation on whether the person was ‘qualified’ or ‘not qualified’. To my knowledge, no candidate seeking their endorsement has ever been deemed ‘not qualified’ as it is a minimum threshold test. So, all the candidates could potentially be determined to be qualified even though there would be less openings than candidates.
[Update #4] Details on the Republican judgeships:
Republican candidates this year:

Incumbents running for re-election and their current assignments:

Cynthia Ayers (Civil 4)
David Certo (Community Court and Environmental Court)
Kurt Eisgruber (Criminal 1)
Gary Miller (DV Court)
Marilyn Moores (Juvenile Court)
Tim Oakes (Civil 13)
Marc Rothenberg (Criminal 2)

Not Running/Retiring:

Ted Sosin (Civil 2)

Others Running:

P.J. Dietrick
Rom Byrom

[Update #5] More from a reader correcting/answering my original post:
First, Democrats are not required to complete a withdrawal to participate in slating. Each candidate decides if he or she wants to proceed after January 8th.

Second, there is filing to be a candidate and then there is filing to be a participant in the slating convention. The slating process is the party process. To be a candidate on the ballot, you file a declaration of candidacy with the Secretary of State. To be a participant in the slating process, you enter an agreement with the party.

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (4):

Luis Antonio Palacio v. Raquel Villavicencio (NFP)

In the Matter of the Termination of Parent-Child Relationship of D.C. & A.R. (Minor Children), and T.R. (Mother) v. The Indiana Department of Child Services (NFP)

In Re the Termination of Parent-Child Relationship of B.W., A.W., W.S., & U.S., B.W., and J.S. v. Indiana Department of Child Services (NFP)

In Re the Marriage of James Barnum Gregory v. Ellen Davies Gregory (NFP)

NFP criminal opinions today (3):

Patrick Palmer v. State of Indiana (NFP)

James Christian Warner v. State of Indiana (NFP)

Joshua Batchelor v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lake Superior Court Judge Gerald Svetanoff dies at age 78"

Bill Dolan has the story in the NWI Times today.

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Indiana Courts

Ind. Law - "The more you have to explain a marriage amendment ..."

Supplementing this ILB post from earlier this morning, Columnist Dave Bangert has this piece today in the Lafayette Journal Courier:

Who knew, in 2011, when the Indiana General Assembly voted by overwhelming majorities — 4-to-1 margin in the Senate, nearly 3-to-1 in the House — that lawmakers would feel compelled to qualify what they’re thinking as they look to amend the constitution to include the state’s ban on same-sex marriage?

But it’s 2014. Three years later, lawmakers who rode a marriage amendment around the first turn with virtually no expectation of defeat now see the field gaining — if not already passing them. And they’ve been doing all they can to soften the personal and political responsibility of a question that they innocently — and conveniently — say should be a matter for the voters. * * *

But if it wasn’t clear before that HJR-3 is on shaky ground, House Bill 1153 was 2½ pages of stammering proof that the more you have to explain, the weaker your premise.

And that’s no position to leave a two-sentence constitutional amendment.

HB 1153 attempts to parse the proposed marriage question into what the General Assembly intends the constitutional amendment to be and what it doesn’t intend it to be.

Intended: Reaffirm Indiana’s existing law on marriage, which limits the definition to one between one man and one woman.

Not intended, according to HB 1153: To limit health benefits offered by private or public employers, to stop cities from adopting equal opportunity ordinances, to block anyone from terms of a will or power of attorney, or to affect Indiana’s domestic violence laws. * * *

General Assembly leaders, including House Speaker Brian Bosma and Senate President David Long, said they stood by the addendum to the marriage amendment, seemingly persuading themselves that they’d given themselves a constitutional out from HJR-3’s criticized second sentence: “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

(Then again, Bosma famously offered this gem during a different fight in January 2012: “It’s not our job here to determine the constitutionality of something before we vote on it.”)

“I can’t imagine what they think they’re doing,” said Will McLauchlan, a political science professor at Purdue University who specializes in constitutional law. “I suspect they’re trying to deflect and assuage the concerns of many people about what those words in the proposed amendment are intended to do. That’s not going to work.”

McLauchlan said there could be a hope that a companion bill could give guidance about legislative intent to judges if and when lawsuits are filed. But hope doesn’t nail down a constitutional amendment.

“An amendment stands on its own if it’s put in the constitution. And that’s up to the courts to interpret later in any way they wish to do,” McLauchlan said. “What they’re trying to do, obviously, is something you don’t do with a constitutional amendment.” * * *

In November, I asked state Sen. Ron Alting, a Lafayette Republican who voted for HJR-6 in 2011, what he’d do if he could with a marriage amendment that seemed to be slipping out of the win column and into a no-win, emotional abyss of nastiness through November. His answer: “I wish it would go away.”

Bosma and Long could have gone that route. Should have gone that route. Still could go that route. Instead, they seem content to keep explaining — to take some of the sting out it, as Long told reporters Thursday.

But this isn’t the same as explaining away a botched school assignment. This is the state constitution.

How do you explain an amendment that rides up with a sidecar of qualifications and meant-to-says?

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Indiana Law

Ind. Decisions - More on: 7th Circuit 2-1 ruling today in case out of Illinois has 3 opinions

Updating this ILB post from Wednesday, Bruce Vielmetti of the Milwaukee Journal Sentinel wrote yesterday about the opinion in the paper's Proof & Hearsay Blog ("Crime, courts and legal issues in Milwaukee and throughout Wisconsin"):

In his dissent, Judge David Frank Hamilton, an Indiana judge appointed by President Barack Obama, calls the matter a simple case of an ordinance that is "unconstitutional on its face."

Hamilton calls the booking fee in essence a criminal fine applied to those who may not ever be convicted, or even charged, or who may not even have been lawfully arrested. The village ordinance includes no remedy for such people to obtain refunds.

He says the most difficult question in the case may be whether the defense of the booking fee is more akin to the fiction of Lewis Carroll (the Queen of Hearts' philosophy of sentence first, verdict after) or George Orwell, suggesting that to call the $30 charge a user fee is like something from the latter's Ministry of Truth in "1984," where language means the opposite of what it states, like "War is peace. Freedom is slavery. Ignorance is strength."

Hamilton notes that at oral argument, Woodridge's lawyer actually suggested the $30 is justified because even the wrongly arrested person gets a benefit from being photographed and fingerprinted by the jail, an argument Hamilton called "truly Orwellian."

The decision is gaining attention from legal commentators around the country.

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - More on: After 8 years [now 9 years], Michigan courts are still litigating the meaning of the November 2004 constitutional amendment

A year ago, on January 9, 2013, the ILB has this post. It began:

After 8 years, Michigan courts are still litigating the meaning of the November 2004 amendment to the Michigan Constitution stating that “one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”
Issues include health insurance coverage of domestic partners. A check last evening with a source in Michigan revealed that litigation about the meaning of the constitutional provision continues, now NINE years later.

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Courts in general

Ind. Law - "Companion bill tries to clarify gay amendment"

Yesterday HJR 6, the proposed constitutional ban on same sex marriage and the like passed for the first time in 2012, was reintroduced and assigned a new number, HJR 3. But this year it was accompanied by a companion bill, HB 1153. Here is some coverage of yesterday's action.

Niki Kelly of the Fort Wayne Journal Gazette reports:

Republicans threw a new wrinkle into the already-controversial debate over prohibiting gay marriage in the Indiana Constitution by introducing a separate bill Thursday to clarify the intent of the ban.

The 2 1/2 -page House Bill 1153 seeks to make clear the legislative intent behind a two-sentence constitutional amendment.

The companion bill could help garner support from wavering lawmakers and pre-empt an adverse judicial ruling, leaders said.

“It takes the guesswork out,” said Senate President Pro Tem David Long, R-Fort Wayne.

But just after its introduction, the GOP leaders of the Indiana House and Senate – both lawyers – couldn’t agree on whether the constitutional ban would bar future civil unions.

Republican House Speaker Brian Bosma said civil unions would not be allowed in Indiana but domestic partnerships would be. Long said he wasn’t clear whether civil unions would be prohibited.

“They’ve got some sort of monster they’ve created, and now they’re trying to make the monster prettier,” said Senate Democratic Leader Tim Lanane of Anderson. * * *

There was no bill on the amendment’s intent in 2011 when the legislature – with a number of different members – voted on it.

Long called the clarifying bill “unprecedented” but said it was necessary to allay some fears of what the amendment does and doesn’t do.

The proposed amendment says “only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana,” which is the same as state law.

But the second line goes further, saying “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Opponents believe the second sentence clearly bans future civil unions but also that it could affect universities or businesses giving health care benefits to same-sex couples, could nullify human rights ordinances protecting gays and lesbians and could even strip domestic violence laws protecting unmarried people.

House Bill 1153, carried by Rep. Eric Turner, R-Cicero, attempts to eliminate concerns in these areas. Turner also wrote the ban in House Joint Resolution 3, known previously as HJR6.

“There are some valid questions raised about the second sentence of the amendment. There have also been some questions raised – I’d call them red herrings,” Bosma said. “So it seemed to make a lot of sense to address the issues.”

Democrats pointed out that a bill doesn’t trump the Indiana Constitution. They said a judge could rule the bill itself violates the state’s highest document. Or in five years, the legislature could change or repeal the “intent.”

“Supporters of the amendment seem to finally understand that the language they want to permanently insert into our state’s founding document is deeply flawed,” said Megan Robertson, campaign manager for Freedom Indiana, a bipartisan coalition fighting the proposed amendment.

“Unfortunately, instead of addressing the amendment’s defects through proper channels, they’re trying to sidestep and obfuscate the process by introducing a bill they think explains away the potential harm to Hoosier families.”

She said the solution is simple – scrap the current language and start over. But Bosma said it’s time to bring the decade-long discussion to a close one way or another.

The first hearing on HJR3 and the clarifying bill will be at 10 a.m. Monday before the House Judiciary Committee.

Here is the story in the Indianapolis Star, reported by Barb Berggoetz and Tony Cook. A few quotes:
The fiery debate over a state constitutional amendment that would ban gay marriage is headed for a hearing Monday, but an effort by Republican lawmakers to quell some concerns about the measure could further muddy the issue.

After months of lying low on the proposal, House Republicans filed a resolution Thursday that would send the amendment to voters in November.

But they also introduced a wild card: a companion measure, House Bill 1153, that seeks to clarify the amendment's intent. * * *

But legal experts say it opens up a Pandora's box of legal questions if the same-sex marriage ban is passed and later challenged in court, as it almost certainly will be.

Jennifer Drobac, an Indiana University McKinney School of Law professor who has followed the same-sex marriage issue nationally, believes the bill really complicates the amendment's passage and potential challenges.

"If this is a clarification of a constitutional amendment, it has to go through the same process that the constitutional amendment goes through," she said. "How can this companion bill change the constitution, if this bill hasn't been passed by the voters or gone through two legislatures?"

In Indiana, a constitutional amendment needs to pass two separately-elected General Assemblies and then be approved by a majority of voters in a public referendum before becoming a part of the constitution. Lawmakers already approved the amendment by wide margins in 2011 without any companion bill.

Introducing one now is "not valid," Drobac said. "Their intentions may be quite noble, but this creates a huge amount of confusion." * * *

Drobac questioned why lawmakers in support of the ban needed to tack on an extra bill if their previous claims that the amendment would not affect issues like domestic partner benefits were true.

"This is bad lawmaking. These lawmakers should know what they're doing," she said.

Matthew Tully, Indianapolis Star columnist, writes today:
After all, bills on education, roads, taxes and other matters are passed every year. It’s not often, however, that legislators launch a statewide debate over a significant change to the state’s most sacred document.

So Bosma and others can attempt to downplay the issue, but the reality is that if the marriage amendment is approved in the coming weeks, this session will be remembered for that and that alone. Republicans need to accept the truth, and the truth is that when you seek to amend the constitution, that becomes the top-line item on your agenda. * * *

Bosma said he believes a companion piece of legislation will ease concerns among some who oppose gay marriage but also think the amendment goes too far. The sidebar legislation would make clear, he said, that the legislature’s intent is not to strike down an anti-discrimination ordinance in Indianapolis or same-sex couple benefits offered by universities and other public employers.

The extra legislation is needed, Bosma said, because “valid questions” have been raised about the sweeping scope of the amendment language. Think about that: House Republicans are pushing forward with something as lasting as a constitutional amendment despite “valid questions” about its language. It makes you wonder what the founders of our country, who so carefully worded our founding documents, would think.

But what is most striking about this debate, and from the Republican flirtation with a constitutional change, is what’s been missing from it. Things like passion, a coherent argument, and an explanation of why a deep source of division should be forced into the public arena.

For more than a year, House and Senate Republicans have shown little inclination to even talk about the amendment. You’d be hard-pressed to find a significant change to any constitution in recent history, anywhere in the nation, that had so little outspoken legislative support. It’s strange to think that the same lawmakers who have dodged questions about same-sex marriage want to force a statewide conversation about it

And because such marriages are already prohibited by statute in Indiana, it’s been hard to understand why a constitutional amendment is needed. Even Bosma noted Thursday that claims that the amendment vote would finally end the debate were wrong, as court challenges will follow and same-sex supporters will continue to fight against the ban.

Those with knowledge of Bosma’s thinking say he has been torn by this issue, pressured hard in different directions by key Republican constituencies of business and social conservatives. He has expressed concern to colleagues about launching the state into a 10-month-long culture war — one that would attract national attention. Still, he sat in his Statehouse office Thursday morning and defended his decision to move forward with the effort.

Politically, Bosma probably had no choice. He helped start this fight more than a decade ago. He helped push the amendment through the legislature three years ago (it must be passed twice). Changing course now could permanently damage him with key elements of the GOP base.

But in dodging that consequence, he has given Statehouse Democrats, now relegated to a steep minority, an issue to champion and perhaps a way forward as public opinions polls continue to shift away from gay marriage opponents. Every minute spent on this debate, they will argue, is a minute not spent on the issues that matter.

“Indiana just missed its last, best chance to avoid a needlessly divisive debate,” House Democratic Leader Scott Pelath tweeted as Bosma was talking with reporters. “We’re better than this.”

Posted by Marcia Oddi on Friday, January 10, 2014
Posted to Indiana Law

Thursday, January 09, 2014

Ind. Decisions - Judge Brown suspended with pay, pending final disposition of disciplinary case

Late this afternoon, the Supreme Court issued a unanimous order suspending Judge Kimberly Brown with pay, effective the close of business today, Jan. 9, 2014. Here are the first two paragraphs of today's order, to which the ILB has added links to the referenced documents:

On December 27, 2013, the Special Masters in this matter tendered their report recommending certain findings of fact and conclusions of law and removal of the Respondent, the Hon. Kimberly J. Brown, from judicial office. On January 3, 2014, the Indiana Commission on Judicial Qualifications ("Commission") filed its "Response to Masters' Report and Recommendation," [ILB: accompanied by this 40-page supporting memorandum] in which the Commission recommended to the Supreme Court that the Respondent be removed from office, and immediately suspended with pay pursuant to Indiana Admission and Discipline Rule 25(V)(B), which states, "A judicial officer shall be suspended with pay while there is pending before the Supreme Court a recommendation from the Commission for the ... removal of the judicial officer." On January 8, 2014, the Respondent filed a response asking the Court not to impose an interim suspension.

The final disposition of this matter by this Court will occur in due course. In the interim, because the Commission has made a recommendation of removal, the Respondent "shall be suspended with pay .... " Ind. Admission and Discipline Rule 25(V)(B).

Here is Indiana Admission and Discipline Rule 25(V)- Interim Suspension:
V. Interim Suspension.

A. A judicial officer shall be suspended with pay by the Supreme Court without the necessity of action by the Commission upon the filing of an indictment or information charging the judicial officer in any court in the United States with a crime punishable as a felony under the laws of Indiana or the United States.

B. A judicial officer shall be suspended with pay while there is pending before the Supreme Court a recommendation from the Commission for the retirement or removal of the judicial officer.

C. Upon a finding of guilty, plea of guilty, or plea of no contest to a crime punishable as a felony under the laws of Indiana or the United States, or any crime that involves moral turpitude under the law, a judicial officer may be suspended without pay by the Supreme Court.

D. A judicial officer may be suspended with pay by the Supreme Court without the necessity of action by the Commission upon the filing of an indictment or information charging the judicial officer with a misdemeanor which suggests conduct that adversely affects the ability to perform the duties of the judicial office. In the event the Supreme Court suspends a judicial officer under this provision without a hearing, the suspended judicial officer shall thereafter be permitted a hearing and review of the basis for the suspension.

E. Upon petition by the Commission, the Supreme Court may impose, pending the disposition of formal charges, an interim suspension with pay if the Court deems the interim suspension necessary to protect public confidence in the integrity of the judiciary. This provision is applicable in proceedings involving the disability of the judge as well as proceedings involving discipline.

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. gov't. - "PAC: Ivy Tech wording for executive sessions 'poor practice'"

Margaret Fosmoe reported Jan. 4th in the South Bend Tribune:

Counselor Luke Britt says Ivy Tech Community College uses “poor practice” in its notices of state board of trustees’ executive sessions.

Britt was critical of the trustees’ practice of indicating they may discuss a long list of topics during executive sessions without stating which specific topics will be discussed.

Britt issued the informal opinion in response to a request filed by the South Bend Tribune.

Ivy Tech’s state board has made a regular practice of issuing notices of executive sessions stating trustees will discuss “some of or all” of many subjects listed in the notice.

The notices generally list the same nine topics: litigation, security systems, purchase of property, safety measures, prospective employees, alleged misconduct, classified records, job performances and board training. The “some or all” wording in executive session notices has been used regularly since at least early 2012.

“The troubling aspect of the notice is the inclusion of the language ‘some or all’. This indicates the College is posting notice which would capture any discussion that may come up during the meeting as long as it is under the enumerated posting. I do not believe this complies with the purpose of the executive session notice requirement,” Britt wrote, although he noted the law doesn’t specifically prohibit the practice. * * *

Britt’s opinion includes a warning to public bodies: “I would strongly caution all public agencies from using a boilerplate, generic notice for their executive sessions.” * * *

[However] It is unclear whether the Ivy Tech board will change its practice or the wording on executive session notices.

Efforts by The Tribune to reach Ivy Tech President Thomas J. Snyder for an interview on the matter were unsuccessful. The Tribune also could not reach Ivy Tech state board chair Steve Schreckengast, of Lafayette, Ind.

Ivy Tech spokesman Jeff Fanter said neither man was available for an interview, but said he was able to obtain a written statement from Schreckengast saying: “In reviewing the situation it is clear that no open door policy law has been violated with the posting and I am confident that the Board will continue to follow standardized legal posting as per state (statute). We will continue to consider the various items we include on future executive committee agendas.”

Fanter also e-mailed The Tribune a statement saying: “The College and State of Trustees has and will continue to adhere to the Open Door Law. As the Public Access Counselor stated there is no formal format under Indiana (statute) that specifies how a public notice of an executive session should look.

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Indiana Government

Ind. Gov't. - "Tony Bennett hires 2 top defense attorneys in ethics case" [Updated]

Tom LoBianco reports today for the AP:

Larry Mackey and Jason Barclay are representing [Former Indiana Schools Superintendent Tony Bennett] in his case before the State Ethics Commission. Inspector General David Thomas filed a complaint in November saying Bennett violated ethics laws by using state resources for political purposes.

Mackey built a national profile prosecuting Oklahoma City bomber Timothy McVeigh. Barclay worked with former Gov. Mitch Daniels in 2005 to rewrite some of the ethics laws Bennett is now accused of breaking. Both work for Indianapolis law firm Barnes and Thornburg.

[Updated at 2:00 PM] Here is the extended AP story.

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Wolf's Marine, Inc. v. Dev Brar, a 12-page opinion, Judge Barnes writes:

The sole issue before us is whether an Indiana court can exercise personal jurisdiction over Wolf’s. * * *

Wolf’s has a website claiming it is the “Midwest’s Largest Marine Accessory Store” and it also might advertise in Indiana phone books. Wolf’s has no physical facilities or employees in Indiana. * * *

Dr. Brar’s sole argument on appeal is that Wolf’s had sufficient contacts with Indiana to establish specific personal jurisdiction in this case; he does not argue that Wolf’s had such substantial, systematic, and continuous contacts with Indiana to establish general personal jurisdiction. In particular, Dr. Brar contends that this court has on several occasions held that a decision by an out-of-state defendant “to enter into a contract with an Indiana resident was sufficient to allow Indiana to exercise personal jurisdiction over that defendant.” * * *

Wolf’s alleged negligence or breach of contract occurred in Michigan, not Indiana. Wolf’s has no physical presence whatsoever in Indiana, in the form of facilities or employees. Also, Michigan has a greater interest than Indiana in ensuring that Wolf’s is operating its facility in a proper manner. Wolf’s deliberate contacts with Indiana were limited to general advertising, emailing a form contract to Leonard at Leonard’s request, and invoicing and receiving
payment from Leonard. We hold this was not sufficient “purposeful availment” of the privilege of conducting business in Indiana by Wolf’s so as to permit Indiana to exercise specific personal jurisdiction over it with respect to Dr. Brar’s cause of action.

Conclusion. The trial court incorrectly determined that personal jurisdiction over Wolf’s existed in Indiana, and it should have granted Wolf’s motion to dismiss. We reverse the denial of that motion.

In Joel Bowden, Ruby Bowden, Golden Companies, Inc., and Golden Purchasing and Staffing, Inc. v. E.J. Agnew and Golden-AGI, LLC , a 16-page opinion, Judge Friedlander writes:
Joel and Ruby Bowden, Golden Companies, Inc., and Golden Purchasing and Staffing, Inc. (collectively referred to as the Bowdens) appeal a multi-million-dollar judgment entered against them and in favor of E.J. Agnew and Golden-AGI, LLC (collectively referred to as Agnew). The Bowdens present the following restated and reordered issues for review:
1. Did the trial court have personal jurisdiction over Joel and Ruby Bowden?
2. Was it an abuse of discretion for the trial court to permit an accountant retained by Agnew to offer expert opinion testimony?
3. Did the trial court properly determine that the Bowdens committed criminal conversion, thus entitling Agnew to treble damages? * * *

The trial court erred in awarding treble damages under I.C. § 34-24-3-1. We, therefore, remand for correction of the judgment to award damages in the amount of $1,754,278. Judgment affirmed in part, reversed in part, and remanded.

In James Broxton v. Review Board of the Indiana Department of Workforce Development, the Department of Indiana Workforce Development, and Sodexo, an 18-page opinion, Judge Barnes writes:
James Broxton appeals the denial of his request for unemployment benefits by the Review Board of the Department of Workforce Development (“Review Board”). We affirm.
In Jeremy D. Mohr v. Virginia B. Smith Revocable Trust and Virginia B. Smith, as Trustee of the Virginia B. Smith Revocable Trust , a 15-page opinion, Judge Bradford writes:
On the evening of September 17, 2010, Appellant-Plaintiff Jeremy Mohr and his friend Mallori Kastner entered property owned by Appellee-Defendant the Virginia B. Smith Revocable Trust and controlled by Appellee-Defendant Virginia Smith (collectively, “Smith”) without Smith’s knowledge, permission, or invitation. While on Smith’s property, Mohr and Kastner lay together in a hammock that was strung between two trees. Mohr brought suit against Smith seeking damages for serious injuries he sustained when one of the two trees supporting the hammock failed and fell on him and Kastner. Smith sought and was granted summary judgment. On appeal, Mohr contends that the trial court erroneously granted summary judgment in favor of Smith. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (5):

Steven S. Satterly v. State of Indiana (NFP)

Anthony A. Outlaw, Jr. v. State of Indiana (NFP)

Anita Lopez v. State of Indiana (NFP)

Jayson Chad-Allen George v. State of Indiana (NFP)

Timothy L. Sanders, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Ind. App.Ct. Decisions

Not law - ILB caught on video yesterday

Yesterday at noon I looked out and saw that my postman was being trailed by a WTHR 13 reporter and two cameramen! Wondering what had occasioned the entourage, I stuck my head out the front door and there was Jeremy Brilliant with a mike, doing a story on mail delivery in the subzero temps. Check out the video here. My neighborhood looks good in the snow!

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to General News

Ind. Law - FWJG editoralizes against ag-gag bill

The Fort Wayne Journal Gazette has a long and strong editorial today about both this year's version of the ag-gag bill, and the efforts Tuesday "to hustle the “ag gag” bill and other proposed measures through without giving opponents, who might have still been snowbound, an opportunity to appear."

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Indiana Law

Courts - "Websites will no longer bill to remove mug shots"

John Seewer of the AP reports today in a long story that begins:

TOLEDO, Ohio – Two Internet sites that make money by posting millions of mug shots of people who’ve been arrested have agreed to stop charging them to take down their photos as part of a settlement in a federal lawsuit.

The lawsuit came about after a number of complaints from people who said the websites were charging hundreds of dollars to remove the mug shots even if the cases against those arrested had been dropped.

The settlement in U.S. District Court in Toledo doesn’t apply to all of the mug shot sites that can be found online, just two – BustedMugshots.com and MugshotsOnline.com.

Similar lawsuits have been filed in Florida, Illinois, and Pennsylvania while legislators in Georgia and Utah have passed laws aimed at stopping the sites from charging to remove arrest photos. Lawmakers in California are considering a similar proposal.

But efforts to rein in the sites have been complicated by questions about whether the attempts infringe on First Amendment rights and the difficulty of tracking down who owns the sites, some of which claim to originate from outside the country.

For background, see this long list of earlier ILB posts.

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Courts in general

Ind. Law - Bill introduced to put same-sex requirement in Ind. constitution, along with language about legislative intent [Updated]

This year's version of HJR 6 has been introduced today in the Indiana House, as HJR 3, which (the renumbering) isn't that unusual. What is unusual is the companion bill, HB 1153.

SECTION 2 of HB 1153, which sets out the phrasing of the question that would be included on the 2014 ballots if HJR #3 passes this year, is standard for constitutional amendments.

SECTION 1, however, which would add a new IC 1-1-5.6 to the Indiana Code, creating a new Chapter 5.6, "Marriage Amendment to the State Constitution," attempts to put into statutory law the intent of this year's General Assembly. (I'd include some of the language, but I'm having a frustrating time with the new GA website.)

[Updated at 10:24 AM] Masson's Blog has just posted this commentary on HB 1153.

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Indiana Law

Ind. Gov't. - IURC "exits come at busy time"

Keith Benman of the NWI Times has this story today, giving some important perspective on the upcoming vacancies on the IURC:

The Indiana Utility Regulatory Commission could soon have two new members, just as it is handling a new type of case that could lead to significant bill increases for utility customers.

Next week, Commissioner Larry Landis will step down in a previously announced resignation. That will make for the second empty seat on the five-member commission following the resignation of Commissioner Kari Bennett in November.

The earliest Gov. Mike Pence could fill the two empty seats at the IURC is in February, after a nominating committee completes its work and forwards the names of six qualified candidates to the governor, according to a statement from the governor's office.

Bennett had been presiding over NIPSCO's July request to undertake $1 billion in electric system improvements and a cumulative 6 percent rate increase by 2020 to pay for them. Upon her resignation, IURC Chairman James Atterholt took over the case.

However, the NIPSCO case was just the first in what is expected to be a steady stream of such requests from investor-owned utilities after the passage of Senate Bill 560 by the Indiana General Assembly in the spring. * * *

Commissioners make a salary of $109,830 per year, according to the State Personnel Department. The chairman makes $114,902. The application posted online for the job does not list any particular qualifications. It does ask applicants to list college degrees and any utility-related experience.

The nominating committee is now taking applications to fill the two openings. Applications must be submitted by the close of business on Jan. 21, according to the statement from the governor's office. A public meeting will be held by the committee to interview candidates on Jan. 31.

Whoever replaces Bennett would serve until the expiration of her term on March 31, unless the governor chooses to wait until that time to make the appointment. The person replacing Landis would serve until Dec. 31, 2015.

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Indiana Government

Ind. Courts - More on: Report says Clark Co. court employees are accused of arresting someone they didn't have the authority to arrest

Updating this post from yesterday, WHAS11 Louisville reported late last evening:

LOUISVILLE, Ky. (WHAS11)—Two southern Indiana court employees were suspended on Wednesday afternoon after allegations of improper actions.

Susan Knoebel, the director of Clark County Drug Court and Jeremy Snelling, a baliff, are being accused of an unlawful arrest.

Drug court defendant, Cody Hendrick, said he was taken into custody by Knoebel and snelling at his job at Rocky’s on the River.

Neither Knoebel nor Snelling have arresting powers.

Expect updates.

Posted by Marcia Oddi on Thursday, January 09, 2014
Posted to Indiana Courts

Wednesday, January 08, 2014

Ind. Decisions - 7th Circuit 2-1 ruling today in case out of Illinois has 3 opinions

In JERRY G. MARKADONATOS v. VILLAGE OF WOODRIDGE (ND Ill.), a 35-page, 2-1 opinion, Judge J.P. Stadtmueller of the Eastern District of Wisconsin, sitting by designation, writes:

Under Title 5 of its Village Code, the Village of Woodridge charges every arrestee in its custody a $30 booking fee. Indeed, after Woodridge police arrested the plaintiff-appellant for retail theft on January 8, 2011, the Village collected its $30 booking fee from him, without any opportunity to contest that collection either before or after the fee was taken. Mr. Markadonatos is not alone—Woodridge has taken the same $30 fee from each of the large number of people arrested and booked in its vicinity. Thus, Mr. Markadonatos filed the putative class action suit at hand, under 42 U.S.C. § 1983, asserting that Woodridge’s booking fee violates both the procedural and substantive due process rights of the class members. The district judge dismissed Mr. Markadonatos’ initial and amended complaints, finding that Mr. Markadonatos had not stated a claim for relief. We agree. Mr. Markadonatos’ procedural due process argument necessarily fails, and he lacks standing to seek relief under a substantive due process claim. We therefore affirm the decision of the district court. * * *

[Judge Sykes concurring, p. 15] I join Judge Stadtmueller’s opinion for the court. I write to highlight a key conceptual distinction that separates my view of this case from Judge Hamilton’s. Markadonatos argues that the Village of Woodridge ordinance imposing a $30 jail booking fee violates his right to procedural and substantive due process. The crux of his procedural due-process claim is that the fee is collected automatically, at the time of custodial arrest and booking, without any formal process at all. The crux of his substantive due-process claim is that the fee is collected from everyone who is arrested and booked into the jail regardless of whether the arrest was lawful, a criminal charge is filed, or the person is found guilty. * * *

To say that the booking fee is unconstitutional because it is collected from all arrested persons—even those who are arrested without probable cause, never charged, win a dismissal, or are acquitted—is to say that the fee ordinance is unconstitutional in substance. It is to say, as Judge Hamilton does in his dissent, that the booking fee is substantively justifiable only as a fine—that is, only as part of the substantive punishment for a crime. He may be right about that. But we cannot entertain that substantive claim here because Markadonatos lacks standing to make it. * * *

[Judge Hamilton, dissenting, p. 18] This should be a simple case. The village’s “booking fee” ordinance is unconstitutional on its face. It takes property from all arrestees—the guilty and the innocent alike—without due process of law. The deprivation occurs at the time of arrest, immediately and finally. It occurs based on only the say-so and perhaps even the whim of one arresting officer. By no stretch of the imagination can that be due process of law. The fee is in substance a criminal fine, modest but a fine nonetheless, and it is imposed regardless of the validity of the arrest and regardless of whether there is any criminal prosecution or what its outcome might be.

The case has become unduly complicated, however. First, the majority fails to come to grips with the obvious procedural due process challenge by mistakenly splitting plaintiff’s procedural claim into separate “procedural” and “substantive” due process claims and then analyzing each separately. Then, after confusing standing with the merits, the majority holds that plaintiff lacks standing to assert the “substantive” claim. The majority also seems to accept the village’s effort to justify the fee as a “user fee” to pay for the “service” of being arrested. That turns the concept of a user fee upside down.

The obvious constitutional flaw here is easy to correct: make the fee payable upon conviction of a crime, as part of the court costs authorized by law after the full procedural protections of the criminal justice system. That is not a “substantive” due process theory, as my colleagues seem to think, but a simple correction to a facially unconstitutional law. We should reverse the district court’s dismissal and remand the case for further proceedings. I therefore respectfully dissent.

[ILB: I recommend to you the rest of Hamilton's dissent, 17 pp. in all. As a reader writes: "His allusions to Orwell's 1984 and Lewis Carroll's Alice in Wonderland in taking apart the City's arguments as well as his colleagues' flawed majority opinion are brilliant, and (for Judge Hamilton) biting and bordering on sarcasm."]

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Masters Panel rejects Judge Brown's effort to by-pass the Panel

The panel of special masters in the Judge Kimberly Brown disciplinary case has, in a filing Jan. 2, 2014, stricken Judge Brown's Dec. 11, 2013 filing ("Submission to Discipline in Lieu of Submission of Finding") which also included former-Justice Frank Sullivan's vouching letter.

Here is the 3-page Jan. 2, 2014 "REPORT AND RECOMMENDATION OF SPECIAL MASTERS AS TO RESPONDENT'S SUBMISSION TO DISCIPLINE IN LIEU OF SUBMISSION OF FINDINGS." See this Dec. 21 post for background. As the panel puts it [ILB emphasis]:

On or about December 11,2013, Brown by-passed the Panel of Special Masters and tiled a document entitled "SUBMISSION TO DISCIPLINE IN LIEU OF SUBMISSION OF FINDINGS" with an affidavit by former Indiana Supreme Court Justice Frank Sullivan with the Clerk of the Indiana Supreme Court. The submission was later supplied to the Special Masters by the Supreme Court. The submission contained an apology, admitted disciplinary violations, and a limited acceptance of responsibility.
After setting out their findings, the masters conclude:
The proposal in Brown's Submission is rejected, the Affidavits submitted are stricken, and Brown's Motion for leave to file a reply to the Commission's Answer is denied. Further the Special Masters Amend their earlier recommendation to the Supreme Court, by adding that the Special Masters do not recommend the suspension of Judge Brown's license to practice law. Otherwise, the Special Master's Report to the Supreme Court stands as filed.
As discussed in this Dec. 30, 2013 ILB post, that would conform to the Supreme Court decision in the Judge Joan Kouros disciplinary case in 2004, where after removing Judge Kouros, the Court continued: "Respondent is not to be suspended from practicing law in this State and that she may practice law after her removal from office becomes effective."

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Indiana Courts

Ind. Courts - ACLU challenges Medical Licensing Board rule requiring drug testing

The ACLU of Indiana has issued this news release:

Indianapolis -- Patients prescribed certain pain medications should not be forced to consent to annual drug testing as a condition of treatment, the American Civil Liberties Union announced today in the filing of a class action lawsuit against the Medical Licensing Board of Indiana.

Kenneth J. Falk, Legal Director of the ACLU of Indiana, said, "The Fourth Amendment protects all of us from government-mandated searches unless there is cause or justification. The mandatory drug testing simply goes too far."

The lawsuit was filed on behalf of James Wierciak, a Hamilton County resident who has been prescribed pain medications for at least 18 years in order to manage the chronic pain caused by a variety of health problems.

Effective December 15, 2013, patients who receive certain levels of common pain medications from their physicians are required to sign a treatment agreement mandating the testing and are required to submit to testing at least annually. The lawsuit alleges that this required testing constitutes an unreasonable search and therefore violates the Fourth Amendment to the United States Constitution. The lawsuit seeks a court order prohibiting the Medical Licensing Board from requiring the drug testing when that testing is not medically indicated and from requiring that patients sign a treatment agreement consenting to the testing. A motion requesting that the case be certified as a class action was filed as well.

The lawsuit, Wierciak, et al. v. Individual Members of the Medical Licensing Board of Indiana, Cause No. 1:14-cv-12, was filed in the U.S. District Court for the Southern District of Indiana on Jan. 8, 2014.

For background, see this Oct. 30, 2013 ILB post quoting a story by Maureen Hayden, CNHI.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Indiana Courts

Ind. Law - Jolene Ketzenberger fired from IndyStar because of personal blog

Well darn!

Andrea Muirragui Davis reports in the IBJ:

Indianapolis Star food writer Jolene Ketzenberger has been dismissed by the state’s largest newspaper for operating a personal website featuring “back of the notebook” snippets of information about the local food scene.

Ketzenberger, 50, was fired in late December after refusing to give up EatDrinkIndy.com, a site she has been working on sporadically for more than a year.

Although the site has not accepted advertising, Ketzenberger said Star management perceived it as a conflict of interest and asked her to disable it. She declined.

“Apparently I broke a lot of rules, so they had to let me go,” she said.

What's next?
Ketzenberger, meanwhile, is “forging on into what’s next”—a full-fledged launch likely next month of EatDrinkIndy.com, which she hopes will begin to produce revenue.

“I’m going to continue to build the site and cover the heck out of local food,” she said.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Indiana Law

Ind. Decisions - "Supreme Court set to umpire RailCats foul ball lawsuit" [Updated]

The case of South Shore Baseball, LLC v. Juanita DeJesus will be argued before the Supreme Court at 9 a.m. tomorrow. You will be able to watch it here.

Today Dan Carden of the NWI Times has a great preview:

INDIANAPOLIS | In contrast to the frigid chill in the air and piles of snow on the ground, baseball -- for many, the epitome of summer -- will be the focus of oral arguments Thursday at the Indiana Supreme Court.

At issue is the extent to which baseball teams, in this case the Gary SouthShore RailCats, should be expected to protect ballpark spectators from the dangers posed by foul balls hit into the stands.

On May 23, 2009, Juanita DeJesus was sitting with three friends at a RailCats game when the second batter hit a pop-up foul that struck her in the face, fracturing several bones and causing blindness in her left eye, according to court records.

She sued the RailCats' parent company in 2011 alleging the team was responsible for her injuries because it failed to install protective netting for spectators seated between first and third bases.

Lake Superior Judge Calvin Hawkins initially allowed DeJesus' lawsuit to proceed, but he was overruled last February in a 3-0 decision by the Indiana Court of Appeals that threw out her case.

The appeals court said DeJesus received three warnings from the team about the dangers of foul balls -- on the back of her ticket, from a sign in her seating section and through a pregame announcement.

It also noted DeJesus frequently attended RailCats games so she knew foul balls regularly fly into the stands, and said she could have purchased net-protected seating behind home plate.

In its 14-page ruling, the appeals court reviewed 150 years of similar baseball decisions from around the country and found no court had ever concluded a spectator could be unaware that foul balls are part of baseball, potentially dangerous and require that fans pay attention and take steps to protect themselves.

That changed one week later when the Idaho Supreme Court declined to uphold the "Baseball Rule," where a team generally is not responsible for game-caused spectator injuries, and permitted Bud Rountree, who lost an eye after getting struck by a foul ball, to sue the Boise Hawks baseball team. [ILB: Here is the Feb. 22, 2013 Idaho decision]

In its 5-0 decision, the Idaho court determined Rountree should be permitted to sue the team because the Idaho Legislature is best suited to decide the extent to which baseball teams have a duty to protect their fans, and Idaho lawmakers have yet to limit that liability.

Rountree's lawsuit against the Boise baseball team still has not gone to trial, but the Idaho ruling could influence the Indiana Supreme Court to reach a similar conclusion.

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

Here is an earlier ILB post, quoting an Aug. 27, 2013 Carden story.

[Updated 1/14/14] Here is Dan Carden's story in the Jan. 9th NWI Times, reporting on the oral argument.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Upcoming Oral Arguments

Courts - Federal judge "scraps Chicago's ban on retail gun shops"

So reported Dahleen Glanton and Jason Meisner in the Chicago Tribune earlier this week. The story begins:

A federal judge on Monday stripped away a key element of Chicago's gun ordinance, ruling that it is unconstitutional to prohibit licensed gun stores from operating in the city.

U.S. District Judge Edmond Chang found that the city failed to convince him that banning the sale of guns by licensed dealers was necessary to reduce gun violence.

The ruling also would make it legal for individuals to transfer ownership of a firearm as a gift or through a private sale as long as the recipient was at least 18 and had a firearm owner's identification card.

Chicago, the last city to allow residents to have handguns in their homes, once had one of the strongest handgun crackdowns in the country, making it a primary target of the National Rifle Association.

Overturning the ban on retail gun stores and private gun sales was the last major hurdle gun rights groups faced in their hard-fought battle to dismantle Chicago's tough firearm prohibitions.

The latest court ruling in the long legal fight came one day after Illinois, the last state to approve a concealed carry law, began accepting applications from residents who want to carry concealed firearms in public.

But gun shops won't likely be showing up in Chicago any time soon, since Chang delayed his ruling from taking effect to allow the city time to appeal.

Here is the Jan. 6th NYT coverage by Monica Davey; it begins:
CHICAGO — This city’s ban on gun shops violates the Constitution, a federal judge ruled on Monday, dealing the latest setback to politicians here who had put in place some of the nation’s strictest limits on firearms.

“The stark reality facing the city each year is thousands of shooting victims and hundreds of murders committed with a gun,” the judge, Edmond E. Chang, of Federal District Court for the Northern District of Illinois, wrote. “But on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment.”

The judge stayed his ruling, giving the city a chance to appeal, and said it could still enact regulations on the sale and transfer of weapons if they did not amount to a complete ban.

The case is Benson v. City of Chicago, 10-cv-04184, U.S. District Court for the Northern District of Illinois (Chicago). Here is the opinion.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Courts in general

Ind. Gov't. - "Nominating committee seeking IURC applicants"

The Fort Wayne Journal Gazette published this brief item today:

INDIANAPOLIS – A nominating committee is taking applications to fill two openings on the commission that oversees utilities in Indiana.

The positions on the Indiana Utility Regulatory Commission were created by the announcement in September by Larry Landis that he would retire this month and the resignation of Kari Bennett in November. Landis was appointed to the commission nearly 11 years ago, while Bennett served three years.

Applications are being accepted through Jan. 21. The nominating committee will then hold a public meeting Jan. 31 to interview applicants. The committee will present Gov. Mike Pence a list of six candidates.

Bennett’s term expires on March 31, while Landis’ runs out on Dec. 31, 2015.

See this ILB post from Dec. 12, 2013 for background.

Fortunately, IndianaDG has posted a complete copy of the news release:

INDIANAPOLIS – The Indiana Utility Regulatory Commission Nominating Committee is soliciting applications from persons interested in filling two current vacancies on the Indiana Utility Regulatory Commission (IURC) created by the resignations of Commissioners Kari Bennett and Larry Landis.

Applications will be accepted today [Jan. 6] through close of business on January 21, 2014. Applications must be received in the Governor’s Office by close of business on January 21, 2014. After the close of the application period, the nominating committee will schedule and conduct a public meeting on January 31, 2014 to interview applicants. The committee will present Governor Mike Pence with a list of six qualified candidates from which he will select two to fill the remainder of Bennett and Landis’ terms. Commissioner Bennett’s term expires March 31, 2014. Commissioner Landis’ term expires December 31, 2015.

Members of the nominating committee include Committee Chair Gwen Horth, Eric Scroggins, John Blevins, Larry Buell, Win Moses, and Michael Mullett.

Applications for the position may be obtained by emailing boardsandcommissions@gov.in.gov, by calling 317-232-4567, by hard copy in Statehouse, Room 206, or by visiting http://www.in.gov/gov/2682.htm. Completed applications should be returned to: Gwen Horth, Chair, IURC Nominating Committee, c/o Office of the Governor, Statehouse, Room 206, Indianapolis, IN 46204.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Indiana Government

Ind. Courts - Report says Clark Co. court employees are accused of arresting someone they didn't have the authority to arrest

Here is the story by Renee Murphy from WHAS11 in Louisville.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Indiana Courts

Ind. Gov't. - FWJG calls for "candidates who look more like the districts they represent"

From a Fort Wayne Journal Gazette editorial today:

Candidate filing opens today – here’s hoping it closes Feb. 7 with a full complement of diverse, well-qualified and committed candidates. Allen County and northeast Indiana need progressive public officials to keep momentum building.

The region’s Statehouse delegation, in particular, is in dire need of candidates who look more like the districts they represent. Aside from Sen. Sue Glick, R-LaGrange, Rep. Rebecca Kubacki, R-Syracuse, and Rep. Kathy Heuer, R-Columbia City, the northeast delegation is entirely white and male. The effect is an emphasis on economic development to the exclusion of countless other issues, including poverty and children. * * *

With a more diverse legislature, perhaps a constitutional amendment banning same-sex marriage and another tax cut for businesses wouldn’t be the most pressing issues in the session ahead.

The prospects for a more diverse candidate pool don’t look encouraging, however.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Indiana Government

Ind. Gov't. - Same sex marriage issue makes Indiana a key 2014 election battleground

Larry M. Elkin has this post at the financial blog, WallStreetPit. It is headed "Indiana Marriage Measure Tests GOP Electability." Some quotes:

But Republicans everywhere ought to pay close attention to Indiana this winter, as the GOP-led Legislature deals with an anti-gay-marriage measure whose passage could hurt the party’s national brand and extinguish Republican hopes of taking the Senate. * * *

Republicans have a big problem with same-sex marriage. Social conservatives opposed to gay marriage still make up a sizable slice of the GOP base, and most Republican incumbents have longstanding histories of opposing marriage equality. But nationally, acceptance of gay marriage has grown so rapidly that the anti-marriage position, which only three or four years ago was the politically safe one, has become political quicksand. * * *

Just across the state’s western border, Illinois legalized same-sex marriage last year, with the first resulting ceremony in late November. Minnesota legalized the practice last year too. Iowa has allowed same-sex marriage since 2009. A federal judge in the state’s eastern neighbor, Ohio, found that same-sex marriages should be recognized on death certificates.

Beyond geography, courts nationwide have signaled deep skepticism over whether any state bans have a chance of surviving indefinitely, even though the U.S. Supreme Court has not (yet) struck down state constitutional bans or the relevant section of the Defense of Marriage Act. * * *

It is against this backdrop that Indiana Republicans find themselves in a dilemma. Indiana will hold its primaries in May, and Republicans could face backlash from social conservatives if they do not push the amendment forward. On the other hand, opposing same-sex marriage is becoming an increasing handicap in general elections, even in states like Indiana.

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case yesterday, with limited remand

In UNITED STATES OF AMERICA v. TONY CURRIE (SD Ind., Barker), a 14-page opinion, Judge Rovner writes:

Defendant-Appellant Tony Currie pleaded guilty to charges that he conspired to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possessed a firearm following a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The district court ordered him to serve a prison term of 121 months, at the low end of the range advised by the Sentencing Guidelines and just above what the court and the parties believed to be the statutory minimum prison term of ten years. Currie appeals, contending that the district court erroneously denied his motion to suppress evidence without conducting an evidentiary hearing and that its choice of sentence was premised on its mistaken understanding that the new, lower mandatory minimums specified by the Fair Sentencing Act of 2010 did not apply at Currie’s sentencing. We find no error in the district court’s decision to deny Currie’s motion to suppress without an evidentiary hearing. As to his sentence, we order a limited remand for purposes of ascertaining whether the district court would be inclined to sentence Currie differently knowing that Currie is subject to the lower statutory minimum term of five years as provided by the FSA. * * *

The district judge’s remarks at sentencing give us no indication that she ever considered the possibility that a lower statutory minimum might apply to Currie (recall that Currie did not challenge the applicability of the ten-year minimum term below), nor do they include an unambiguous statement to the effect that the judge would have considered the 121- month sentence it imposed reasonable even if the five-year minimum specified by the Fair Sentencing Act applied, as we now know (in hindsight) that it does.

We therefore order a limited remand so that the district judge may consider, and state on the record, whether she would have imposed the same sentence on Currie knowing that he was subject to a five-year rather than a ten-year statutory minimum term of imprisonment. We shall retain jurisdiction over this appeal pending the district court’s answer to our inquiry. AFFIRMED IN PART and REMANDED

Posted by Marcia Oddi on Wednesday, January 08, 2014
Posted to Ind. (7th Cir.) Decisions

Tuesday, January 07, 2014

Ind. Courts - SD Ind., Evansville Division, to be closed Wednesday

Doria Lynch, U.S. District Court, Southern District of Indiana:

Due to a water main break, the U.S. District Court for the Southern District of Indiana's Evansville Division will be closed on Wednesday, January 8, 2014.

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Indiana Courts

Ind. Courts - "State Representative Holli Sullivan (R-Evansville) was sworn in today by Indiana Supreme Court Chief Justice Mark Massa"

Justice Massa has been inadvertently elevated to "Chief Justice" throughout this press release

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Indiana Courts

Ind. Law - "Ag Gag" bill is on a fast track, being heard in committee today

Today is the first day of the 2014 session and this year's version of the "ag gag" bill, SB 101, is on the Senate Corrections and Criminal Law agenda.

Tom LoBianco points that out today in his good AP story headed "5 things to know about Indiana legislative session." Under the subheading "Look Sharp" he writes:

The abbreviated timetable [in the short session] also means issues will rise and fall faster than they do during longer budget-writing sessions. Hot-button issues could get quick treatment from committees and the two chambers.

One example is a measure cracking down on filming farm operations, dubbed the "Ag Gag" bill by opponents.

LoBiancco points to past effectiveness of this tactic:
An effective ban on a Lafayette abortion clinic was filed during the 2013 session and an effort to ban specialty license plates for and Indianapolis gay youth support group was pursued through amendments during the 2012 session.
Tony Cook writes reports this afternoon in the Indianapolis Star:
A new version of the so-called “ag gag” bill that limits videotaping and photography of farm activities is scheduled to be heard in a state Senate committee today, prompting outcry from opponents.

The bill would allow agricultural businesses to post a sign listing prohibited activities that could comprimise the business’s trade secrets or operations. Violators would face a level 6 felony, which carries a punishment of six to 30 months in prison and a fine of up to $10,000.

The bill also would expand the state’s criminal trespass law to include not only dwellings, but all real property.

The bill’s author, Sen. Travis Holdman, introduced a similar, hotly debated bill last year, but it failed in the final hours of the session.

Critics say the new bill is actually worse than last year’s, which would have prohibited unapproved videos and photographs of farms.

“This gives a blank check to industrial agricultural facilities to essentially define what a felony is,” said Matthew Dominguez, a spokesman for the Humane Society of the United States, an animal welfare group.

His group and others argue that the measure would make criminals out of whistleblowers who expose the truth about unethical agricultural practices.

Holdman, R-Markle, was driving to the Statehouse on icy roads and wasn’t immediately available for comment this afternoon.

The measure is scheduled for a hearing immediately following the opening meetings of the 2014 session of the General Assembly today at 3:30 p.m.

Blogger/attorney Doug Masson pointed out in this post:
SB 101, introduced by Sen. Holdman – apparently a “Son of Ag-Gag” bill – would allow agricultural operations to define their own felonies. [The bill provides "An agricultural operation (as defined in IC 32-30-6-1) may conspicuously post a notice at the agricultural operation’s locations that lists prohibited acts that may compromise the agricultural operation’s trade secrets or operations."] There is no standard or review for what acts the agricultural operation can list on its notice. If they list it and you do it; you’re a felon!
And a tweet from earlier today:
Bob Segall
‏@BobSegallWTHR
ISP: "Traveling dangerous." Hey @INSenateGOP & @INSenDems, why not resked PUBLIC hearings today so PUBLIC can actually participate--safely?
[More] Here is a list of some earlier ILB "Ag Gag" posts.

[Still more]
Niki Kelly
‏@nkellyatJG 4m
Senate set on ramming ag gag bill through tonight regardless of public participation or not.

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Environment | Indiana Law

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Anthony Barron v. State of Indiana (NFP)

Timothy Henderson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 3, 2014

[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 Dec. 20, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 3, 2014. It is one page (and 3 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Indiana Transfer Lists

Ind. Gov't. - Still more on: New Indiana General Assembly website

Updating this ILB post from Nov. 19, 2013, and this one from Dec. 16, 2013, here are my initial reactions to the new bill access system.

Where to start? Perhaps with what the General Assembly website has done best in the past, make readily accessible and useable the bills of each session.

Although the ILB has had issues over the years with the online unofficial version of the Indiana Code (more about that on Dec. 16th and in an upcoming post), it has always praised the bill access service. Once acclaimed, however, this service is now not just a disappointment, but a disaster.

And it is not just me. An aggrieved reader writes:

I've told you over the years that I really liked the availability, accessibility, usefulness, and intuitiveness of the old website . . . but they have effectively destroyed each of those elements, and it has made my job more difficult.
First, it is sloooow, and much doesn't work. Try listing bills by subject ... It took me some time to pull up that option (Legislation > By Subject), and then when I selected "environment," it simply didn't work, it simply kicked me back to the main list. Same with "elections". In contrast, here is what I could quickly pull up in 2013. (BTW, I don't know how long these back pages will be available, but they are historically invaluable. Already, it appears some links have been broken, access seems to be spotty.)

Next, I tried Legislation > Bills. I got a list of all the introduced Senate bills, no House bills. Click on SB 3, for example. Admittedly, the page is laid out cleaner than the way it was in the past - SB 3 from 2013.

One can link to this 2014 SB 3 page the same way you always have, by copying the link from the browser window. Or you can use the new "share on social media" and "permanent URL" buttons for the same result. The RSS tool doesn't seem to work.

Unfortunately, however, that appears to be the extent of the linking ability. You can't link to a specific version of 2014 SB 3, or, it seems, to any of the other documents on the page. All it appears you can do is link to the main ("index") page for 2014 SB 3.

Now let's look at the introduced version of 2013 SB 3 - Here it is, quickly pulled up from the 2013 index page in PDF form, and in HTML form.

No HTML versions are available in the new system. Worse, the PDF versions are virtually generated, meaning they are very difficult to use. To see what I mean, try copying from 2014 SB 3. Cutting and pasting is cumbersome.

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Indiana Government

Ind. Courts - More on "Online reports reveal county courts data"

Updating this ILB entry from Jan. 3rd, Debbie Blank of the Batesville Herald-Tribune presents the second part of her coverage of state court report figures relevant to the counties served by her newspaper. This story looks at personnel fees

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Indiana Courts

Law - "Access to Abortion Falling as States Pass Restrictions"

This long Jan. 3rd story in the NY Times, reported by Erik Eckholm, begins:

A three-year surge in anti-abortion measures in more than half the states has altered the landscape for abortion access, with supporters and opponents agreeing that the new restrictions are shutting some clinics, threatening others and making it far more difficult in many regions to obtain the procedure.

Advocates for both sides are preparing for new political campaigns and court battles that could redefine the constitutional limits for curbing the right to abortion set by the 1973 Roe v. Wade decision and later modifications by the Supreme Court.

From NPR on Jan. 4th, a story by Julie Rovner headed "22 States Curb Access To Abortion In 2013."

Here is the report from the Guttmacher Institute cited in both stories.

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to General Law Related

Environment - Asian carp back on the front page

Well, on p. 10 of the NY Times today. Michael Wines' story includes a great photo plus a link to the massive, multi-part Army Corps of Engineers report released yesterday. I read the introductory page, it is not encouraging, more study and more study ... The NYT story begins:

The most effective methods of keeping Asian carp from invading the Great Lakes via Chicago’s web of waterways could cost up to $18.4 billion and take 25 years to put in place, the federal Army Corps of Engineers concluded in a study released Monday.

The agency’s 210-page study, first ordered by Congress in 2007, laid out eight options to prevent the carp and other unwanted species from entering Lake Michigan, ranging from continuing existing efforts to building barriers that would seal the lake from the five Chicago-area streams that are linked to it.

Either blocking the lakefront waterways or blocking their two sources further inland would offer the greatest protection from invading species, the report said. But both options would prevent barges and other boats from using those routes, and would increase pollution in the lake and the waterways.

Most of the other options would be cheaper and would preserve some access to the lake, but would be somewhat less effective.The report arrived amid growing concern that some so-called nuisance species, led by two strains of the carp, may already have bypassed existing barriers and entered Lake Michigan. The carp, which multiply quickly and eat huge amounts of plankton, are seen as a threat to commercial and sport fish that feed on plankton during at least some stages of their lives.

NPR's Morning Edition today has a nearly 4-minute story headed "Great Lakes Solution To Asian Carp Issue Would Be Costly."

"Eagle Marsh plan not part of carp study" is the heading of a story in the Fort Wayne Journal Gazette this morning by Brian Francisco.

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Environment

Ind. Courts - "The New Juvenile Appointment of Counsel Rule"

That is the heading of a long post today at the Indiana Juvenile Justice Blog on the new Indiana Rule of Criminal Procedure Rule 25, which details certain aspects of the right to counsel in juvenile delinquency proceedings.

Posted by Marcia Oddi on Tuesday, January 07, 2014
Posted to Indiana Courts

Monday, January 06, 2014

Ind. Courts - Appellate Courts schedule tomorrow

The ILB has received this news release:

Appellate court leaders will delay the start of business hours on Tuesday, January 7th due to snow and record low temperatures. Office hours on Tuesday, January 7 will begin at 1 p.m. EST.

Acting Supreme Court Chief Justice Steven David, Court of Appeals Chief Judge Nancy Vaidik and Tax Court Judge Martha Wentworth have authorized the appellate courts and related agencies to open late on Tuesday. Justice David explained, “Governor Pence and Mayor Ballard have asked Hoosiers for continued cooperation during this difficult weather situation. We want to do our part to give road crews time to clear streets. We will delay the start of business Tuesday and expect to be back to normal hours on Wednesday.”

The appellate court offices closed Monday. Any material due to be filed with an appellate court Monday is due Tuesday. See Appellate Rule 25.

Kathryn Dolan
Indiana Supreme Court
Chief Public Information Officer

ILB: One COA oral argument had been set for 11:00 AM tomorrow, but was rescheduled on Jan. 3.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Indiana Courts

Ind. Courts - Federal Court plans for tomorow

From Doria Lynch, Federal Courts Clerk:

Good afternoon. Please inform the public as soon as possible that while all divisions of the U.S. District Court for the Southern District of Indiana will be open tomorrow, the U.S. Bankruptcy Court in Indianapolis will be closed. This includes all scheduled bankruptcy hearings scheduled for Indianapolis.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Indiana Courts

Ind. Law - More on "Supreme Court and Indiana Bar Foundation have proposed tracking the volunteer work in hopes of encouraging Indiana attorneys to do even more"

Updating this post from late this morning, a reader/attorney writes:

So what does the tracking of pro bono work consist of? Publishing it on our Roll of Attorneys page?

If so, I intend to actually use my lack of hours as a positive, if anyone asks me about it. To expect people in my area of law, who already make pennies on the dollar compared to civil lawyers, to do pro bono work is unrealistic...

To elaborate, I plan to tell any prospective clients or other lawyers who ask about my lack of pro bono hours that I have dedicated all of my time to representing the indigent by agreeing to take pauper counsel appointments that pay pennies on the dollar, and by charging my private clients a reasonable rate that they can afford.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Indiana Law

Ind. Law - " County sheriffs and prosecutors hope to stall new criminal sentences from taking effect"

That is the lede to CNHI statehouse reporter Maureen Hayden's story today in the New Albany News & Tribune.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Indiana Law

Law - Two stories on law graduates and admission to the bar

On Jan. 2nd the NY Times published this story by Jennifer Medina headed "Allowed to Join the Bar, but Not to Take a Job." The summary: "A 36-year-old brought to the country from Mexico as a child can be admitted to the state bar, the California Supreme Court said. But, under federal law, no law firm can legally hire him." The story begins:

LOS ANGELES — As a teenager in Northern California, Sergio Garcia worked in the almond fields and in a grocery store, earning his way through college and then law school. He passed the California bar exam on his first try, something just half of all candidates do.

But when it came time to apply for his law license, Mr. Garcia encountered a formidable hurdle: Because he had come from Mexico illegally, he could not become a lawyer.

That changed Thursday when the California Supreme Court ruled unanimously that a law passed last fall by the Legislature allowed Mr. Garcia, 36, to be admitted to the state bar and practice law. What it did not do is address the fact that under federal law, no law firm, business or public agency can legally hire him. * * *

Mr. Garcia, in a telephone interview, said he felt that despite the ambiguities, he would be free to open his own practice. “I can finally fulfill my dream and also leave behind a legacy so that an undocumented student 20 or 30 years from now will take it for granted that they can be an attorney,” he said. “There’s a lot to celebrate. I can open my own law firm, and that’s exactly what I intend to do. There’s no law in this country restricting entrepreneurs.”

On another note, this weekend this story from Brett Barrouquere of the AP appeared in a number of papers. The headline: "Sex offender seeks admission to Kentucky bar." Some quotes from the long story:
LOUISVILLE, Ky. (AP) - Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.

In the first case of its kind in Kentucky, the court rejected Hamilton-Smith's bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

"Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis," Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith's case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. * * *

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith's attorney, Scott White, of Lexington.

"It's a highly stigmatized thing," White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years - until 2027. * * *

White called Hamilton-Smith "a classic sex addict."

"The classic example is somebody who just downloads buckets of pornography," White said. "In that download, there just happened to be child pornography."

In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Courts in general

Courts - Court stops Utah gay marriages, pending federal appeals court ruling

Lyle Denniston of SCOTUSblog has the details this morning.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Courts in general

Ind. Law - "Supreme Court and Indiana Bar Foundation have proposed tracking the volunteer work in hopes of encouraging Indiana attorneys to do even more"

Tim Evans has this lengthy story today in the Indianapolis Star on attorney pro bono work. Some quotes:

the need for that free and low-cost legal help is growing — so much so that the Indiana Supreme Court and Indiana Bar Foundation have proposed tracking the volunteer work in hopes of encouraging Indiana attorneys to do even more. * * *

To re-emphasize the importance of the work and persuade attorneys to contribute more volunteer hours, the Supreme Court and bar foundation are finalizing details for implementing a proposed new statewide system for Indiana’s 18,000 attorneys to report their pro bono service work.

The reporting requirement, some experts say, is a simple, yet effective motivator. That’s because it keeps the topic front-of-mind and, while attorneys can’t be required to do pro bono service, few will want to be seen as slacking on the important issue. * * *

Pro bono work performed by Indiana attorneys focuses primarily on civil cases because criminal defendants who cannot afford to hire private legal counsel are guaranteed a public defender.

There are other options for Hoosiers who need free or low-cost legal services, primarily through the Indiana Legal Services Corp., a nonprofit law firm that provides free assistance to low-income Hoosiers. But demand far surpasses the group’s ability to help, Executive Director Norman P. Metzger said.

The organization has seen its funding fall by about 20 percent since 2010 while demand is up by nearly 10 percent. The result: ILS is serving fewer people — about 7,300 fewer in 2012 — at a time when demand is increasing, largely due to economic stress experienced by Hoosiers.

“Pro bono work is not going to ever fill the entire gap,” he said, “but it is one more way to get help to people who can’t afford traditional legal assistance.”

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Indiana Law

Ind. Gov't. - Previews of Upcoming Session

"State lawmakers face packed agenda" is the headline to Dan Carden's story in today's NWI Times.

"Lawmakers have more on the agenda than marriage amendment" is the heading of Lesley Weidenbener's Sunday column in the Louisville Courier Journal.

"General Assembly's 'short sessions' evolving into time when big-ticket issues get decided" is the heading to the AP's Tom LoBiano's long story today, here in the Greenfield Reporter that begins:

INDIANAPOLIS — Increasingly inside the Statehouse, "short session" no longer a term to be confused with an inconsequential gathering of the state's lawmakers.

When lawmakers return for the start of 2014's "short session" this week, they are set to take up two high-profile measures -- one to write the state's gay marriage ban into the constitution and another that would eliminate the personal property tax paid by businesses.

Lawmakers began adding a second annual meeting to each two-year term -- just like Congress' -- more than four decades ago as a means to deal with minor budget fixes that could not wait. But that budget-fixing mechanism has evolved in recent years into sessions in which elected leaders tackle some of the most high-profile and contentious measures.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Indiana Government

Ind. Decisions - More on "Huntertown seeks ‘4-mile rule’ advantage in services area dispute"

On Jan. 2nd the Fort Wayne Journal Gazette had a story, today it has an editorial on Sr. Judge Shepard's Dec. 23rd decision in Town of Newburgh v. Town of Chandler that begins:

Newburgh is a town of 3,325 souls on the shore of the Ohio River in far southern Indiana. Chandler, population 2,887, is a 15-minute drive north. The tiny towns have been at war over the rights to serve sewer customers in a portion of Warrick County. Two days before Christmas, Newburgh won.

Writing for the Indiana Court of Appeals, special Judge Randall Shepard ruled that because Chandler had passed an ordinance establishing an exclusive four-mile service area around the town, and Newburgh had not, Chandler has exclusive rights to new customers in the areas in dispute.

Yes, careful reader, you’re right – Shepard is indeed the retired chief justice of the Indiana Supreme Court, where he was an expert on matters like this, so decisions he authors for the appeals court can be presumed to be pretty much the last word. And yes, all the way up here in northeastern Indiana, this decision has big implications. Let’s just say, if Huntertown were a cat, this opinion would be catnip.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Ind. App.Ct. Decisions

Courts - Still more on "Indiana reflects contraception mandate disparity"

Updating this ILB post from Jan. 2nd, see "Analysis: The Little Sisters case and EBSA Form 700," by Lyle Denniston of SCOTUSblog, updated yesterday afternoon (h/t @AppellateDaily). The long analysis begins:

It seems like a bureaucratic thing to do, but gaining an understanding of what it means to sign government form EBSA 700 is the key to a historic religious controversy now before the Supreme Court in the Affordable Care Act case of Little Sisters of the Poor Home for the Aged v. Sebelius (docket 13A691).

Signing that form, the federal government argues, is a simple way for a religious organization like the Little Sisters to avoid what they regard as a sin: providing contraceptives and other pregnancy-related services to their female employees. But signing, the Little Sisters counter, would be the very act of violating their faith by clearing the way for such services for those employees.

In the government’s view, that is a legal issue, easily resolved by a court. To the Little Sisters, it is a religious question, and only they can decide what their faith tells them about it. The Supreme Court may have to decide which it is, and soon.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Courts in general

Ind. Courts - An Index to Prof. Joel Schumm's 2013 ILB Commentaries

The ILB has prepared an index to all of Indiana University Robert H. McKinney School of Law Prof. Joel Schumm's 2013 ILB commentaries, arranged by subject and date, to facilitate ready access.

There is now a permanent link to this index in the ILB right column, near the end, under Indiana Legal Resources.

In addition, as before, the Schumm entries to date (back through 2013) can be pulled up by using the category link: Schumm - Commentary.

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Indiana Courts

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

From Sunday, January 5, 2014:

From Saturday, January 4, 2014:

From Friday afternoon, January 3, 2014:

Posted by Marcia Oddi on Monday, January 06, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, January 9

Next week's oral arguments before the Supreme Court (week of 1/13/14):

Thursday, January 16

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, January 7

Next week's oral arguments before the Court of Appeals (week of 1/13/14):

Tuesday, January 14

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, January 06, 2014
Posted to Upcoming Oral Arguments

Sunday, January 05, 2014

Ind. Gov't. - Governor Pence Closes State Government Offices for Monday

Here is the wording of the announcement:

Indianapolis, IN – In response to severe weather and expected extreme cold temperatures, Governor Mike Pence has authorized all state government offices to remain closed on Monday. Essential personnel will report to work to ensure public safety and critical services are available.

“We want to ensure that our employees are safe and that Hoosiers have access to critical public services,” said Governor Pence. “I am limiting the number of employees who must report to work on Monday to help keep people off the roads and out of the extreme cold, even while we make sure that Hoosiers have access to necessary government services.”

The Governor had previously announced a delay for Monday office hours.

Posted by Marcia Oddi on Sunday, January 05, 2014
Posted to Indiana Government

Ind. Courts - Indiana appellate courts and offices closed Monday

Official word from the Indiana appellate courts:

Snow and record low temperatures are prompting Indiana appellate court leaders to cancel office hours on Monday, January 6, 2014.

Acting Supreme Court Chief Justice Steven David, Court of Appeals Chief Judge Nancy Vaidik and Tax Court Judge Martha Wentworth have authorized the appellate courts and related agencies to be closed Monday. Justice David explained, “We are concerned about the welfare and safety of our employees traveling in these extreme temperatures and want to do our part to keep the roads clear for snow removal and emergency personnel.”

The appellate courts previously announced a delay for Monday office hours. The decision has now been made to cancel office hours for Monday.

Because of the closure, any materials due to be filed with an appellate court Monday are not due until the next day the court opens. See Appellate Rule 25.

ILB: No oral arguments were set for Monday, January 6th. One COA argument is set for Tuesday and the Supreme Court has three oral arguments scheduled for Thursday, January 9th.

Posted by Marcia Oddi on Sunday, January 05, 2014
Posted to Indiana Courts

Ind. Gov't. - "Amazon.com begins collecting sales tax in Indiana" [Updated]

In case you hadn't noticed...

The AP has a brief story today. A quote:

Indiana was one of three states where Amazon began collecting sales taxes Wednesday on purchases made in 2014. Nevada and Tennessee are the two other states.

Former Gov. Mitch Daniels brokered a deal with Amazon in 2012 for the retailer to begin collecting Indiana’s 7 percent sales tax from Hoosier customers beginning on Jan. 1, 2014.

For background, see this ILB entry from Nov. 8, 2013.

The neighboring Illinois Supreme Court ruled Oct. 18, 2013 that an Illinois "Amazon tax" was pre-empted by federal law. See this ILB post from that date. See also this Oct. 18, 2013 column by Janet Novack of Forbes headlined "Illinois High Court Shoots Down Amazon Sales Tax Law; Will SCOTUS Step In?."

[Updated]
Alice Culp of the South Bend Tribune had this story Jan. 5th, headlined "Amazon Starts Charging Sales Taxes To Indiana Residents." Some quotes:

The new year ushered in a change for Indiana's online shoppers.

The Hoosier state was one of three states to join the 16 whose residents already pay sales tax on Amazon purchases. Nevada and Tennessee are the other two new additions. * * *

[T]he online retailer brokered an agreement with Indiana officials in 2012 to voluntarily begin collecting and remitting sales tax in the state beginning Jan. 1 of this year.

Former Gov. Mitch Daniels' office put out a news release in January 2012, when the agreement was reached, saying state officials estimated sales tax revenue from Amazon would come to about $20 million to $25 million per year. The Department of Revenue declined to comment Thursday on the current estimates, saying it cannot give out information on an individual taxpayer. * * *

In early 2013, an effort to require online-only retailers to collect sales tax in Indiana failed in the General Assembly because Senate leaders thought it would interfere with the Amazon deal.

ILB: No mention of what the "deal" entailed.

Posted by Marcia Oddi on Sunday, January 05, 2014
Posted to Indiana Government

Ind. Gov't. - "IndyStar Editorial: Say no to same-sex marriage amendment"

On the eve of the convening of the 2014 Indiana General Assembly, the Indianapolis Star has this editorial today - some quotes:

Members of the Indiana General Assembly could drag this state into an unnecessary, counterproductive argument over same-sex marriage that not only would last most of 2014 but also do nothing to confront the most pressing issues facing Hoosiers.

Or lawmakers could make a much wiser decision: Allow HJR-6 to die during this year's session, which starts Monday. * * *

What would be gained by it all? Nothing of value. Pass or fail, the amendment would not change existing law in a state where same-sex marriage already is prohibited and no serious effort is being mounted to change that fact.

And, if the amendment is passed, the argument almost certainly would not end in November. Lawsuits likely would follow, and that's a scenario that should prompt opponents of same-sex marriage to ask themselves a pertinent question: Do they really want a federal judge to determine Indiana's final position on same-sex marriage?

The U.S. Supreme Court last year overturned California's constitutional ban on gay marriage. A federal judge recently lifted Utah's ban. Opponents of same-sex marriage could inadvertently trigger the same result here if they insist on pressing ahead with an amendment.

The nearly year-long debate over the amendment also would send harmful messages to the rest of the nation and world about what Hoosiers truly value. * * *

By virtue of its late entry into the discussion of a constitutional ban, Indiana would become the subject of intense focus in the national and international media. The signals sent to potential employers and workers from outside Indiana would trumpet that we are a state that does not welcome diversity. * * *

Bottom line: HJR-6 is unnecessary; same-sex marriage is already banned by state law. The debate would be counterproductive; like it or not, the argument would define our state this year and in the future in the minds of many Americans. The legal fight would be ongoing; lawsuits and federal court rulings almost certainly would follow in the years ahead.

It's a fight we don't need. A distraction from more important issues such as education and the economy that we can't afford.

For the good of our state, the General Assembly needs to say no to HJR-6.

Also today, John Ketzenberger's Sunday Star column, Business Insider, lists the following as one of five issues at the forefront for Indiana in 2014:
Indiana also missed an opportunity to streamline tax filing for same-sex couples legally married in other states who gained access to federal tax benefits in part of the U.S. Supreme Court's ruling on the federal Defense of Marriage Act discussed in October.

Wisconsin and Michigan also bar same-sex marriages, but chose to create a simple worksheet to decouple information on federal joint returns for use on state single returns. It's an approach endorsed by the nonpartisan Tax Foundation as a way to reduce bureaucratic confusion.

Indiana, where slicing through regulations is supposedly sacrosanct, chose not to create a similar worksheet to streamline the process.

For more, start with this ILB entry from Nov. 21st, headed "Same-sex Indiana couples must file separate tax returns."

Posted by Marcia Oddi on Sunday, January 05, 2014
Posted to Indiana Government

Friday, January 03, 2014

Ind. Gov't. - State offices, including courts, won't open until 10 on Monday

From the Governor's office:

Indianapolis, IN – Due to the anticipated snow and record low temperatures, the State is adjusting its hours of operations for Monday, January 6. All Indiana State Government offices across the state where public business is conducted will open at 10 a.m. local time that morning.
From the Courts:
Acting Supreme Court Chief Justice Steven David, Court of Appeals Chief Judge Nancy Vaidik and Tax Court Judge Martha Wentworth have authorized office hours for the appellate courts and related agencies to begin at 10 a.m., Monday, January 6, 2014.

Please monitor courts.in.gov and twitter.com/incourts for follow-up information. We will post an update Sunday evening and Monday morning as weather conditions become apparent.

The General Assembly wasn't scheduled to convene until 1:30 PM on Monday.

Posted by Marcia Oddi on Friday, January 03, 2014
Posted to Indiana Government

Ind. Courts - "Online reports reveal county courts data"

Debbie Blank, an enterprising reporter at the Batesville Herald-Tribune, has taken some court reports and explained the figures relevant to the counties served by her newspaper in this long story today that begins:

In Indiana trial courts in 2012, 1.6 million new cases were filed. That’s just one of many numbers in a collection of online reports that shed light on the Hoosier justice system.

Indiana Supreme Court Chief Justice Brent Dickson pointed to their accessibility. “There are multiple volumes with more than 1,800 pages of information,” including statistics at the county level.

Readers may view the 2012 Indiana Judicial Service Report and Probation Report [here], Supreme Court Annual Report [here], and a Web site with comparative data [here].

Posted by Marcia Oddi on Friday, January 03, 2014
Posted to Indiana Courts

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

Again, after 35 on Tuesday, Dec. 31st, it appears there are no opinions today.

Posted by Marcia Oddi on Friday, January 03, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - "Well That’s A Rude Way To Welcome Your New IU Mauer Dean"

Must read Elie Mystal post for followers of IU Mauer news today in Above the Law (ATL).

[More]
A reader has sent me this link to another ATL post, this one from 2012, headed "Twelve More Law Schools Slapped with Class Action Lawsuits Over Employment Data," that also includes a mention of Southwestern Law School.

Posted by Marcia Oddi on Friday, January 03, 2014
Posted to Indiana Law

Thursday, January 02, 2014

Ind. Courts - Even more on "Indianapolis attorney-blogger Paul Ogden faces judicial disciplinary complaint"

Updating earlier ILB posts on the disciplinary hearing of Indianapolis attorney and blogger Paul Ogden, Dave Stafford of the Indiana Lawyer has posted a story this evening reporting that the hearing officer has issued a recommendation to the Supreme Court echoing that of the Supreme Court Disciplinary Commission - suspension for one year.

(Note that the Supreme Court Disciplinary Commission and the Commission on Judicial Qualifications (which brought the charges against Judge Kimberly Brown) as totally separate entities.)

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Indiana Courts

Ind. Gov't. - When is the Public Access Law not the law?

Apparently when the Public Access Counselor so determines. From p. 2 of a Dec. 30th, 2013 response to Formal Complaint 13-FC-336; Alleged Violation of the Access to Public Records Act by the City of Logansport:

By its own admission, you are correct the City failed to respond to your request within 24-hours of your in-person service. Technically, this is a violation of the letter of the APRA law because it took nearly 2 hours longer to acknowledge your request.

Similarly, I am confident traffic patrolmen on I-465 in Indianapolis regularly clock vehicles traveling 57 miles-per-hour in a 55 mile-per-hour speed zone. Indeed, this is a technical violation of the law, but rarely would such an infraction be enforced. If weather conditions were poor or if there were servicemen working on the roads near the infraction, I could postulate the offending speeder would be pulled over and perhaps given a citation. Likewise, if the information you have sought from the City was of immediate critical importance, I would also scrutinize the City’s actions more strictly. As it is, however, based on the information provided, I’m letting them off with a warning.

This is not to take lightly the crucial importance of disclosing public records in a timely fashion. In the same manner, I consider violations of the APRA to be especially detrimental to the public trust. But in this case I cannot consider the violation egregious. The Courts have spoken on similar Open Door Law issues and have used the term “substantial compliance”. While I refrain from adding that vernacular to APRA issues, this is as close as a public agency can come to being in substantial compliance with the law.

ILB: So if the statutory 24 hours does not really mean 24 hours, and 26 hours is close enough here, apparently, for government work, just when is the outer limit?

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Indiana Government

Law - "No books for you: U.S. starves public domain for another year"

A really discouraging story from Jeff John Roberts of GigaOm begins:

A new year means a new batch of copyrights expire, and works like Narnia and The Bell Jar become as free to use as Charles Dickens or Shakespeare. Unless you happen to live in the United States, that is.

As Duke University notes in its mournful annual report, no books will enter the public domain this year, or next year, or the year after that. This situation is the result of Congress’s decision to add another 20 years of protection for long dead authors, which means that no new works will become public until 2019.

As a related Duke article points out, famous 1957 titles like On the Road, Atlas Shrugged and The Cat in the Hat would have entered the public domain if the US had retained its pre-1978 copyright system, which granted protection for up to 56 years. Canada, meanwhile, has stuck with a “life of the author plus 50 years” rule, which means the public there — starting January 1 — can print or perform works by CS Lewis and Sylvia Plath (both died in 1963)

So why has the public domain dried up in the United States? The technical answer is a 1998 law that increased copyright terms to 95 years or more for works published after 1923 (you can get specifics from this excellent chart). But the more subtle answer is that the US government succumbed to lobbying efforts by Walt Disney and other powerful content owners that demanded ever-longer monopolies for their intellectual property.

The result is a copyright system that’s impossible to defend on economic or policy grounds.

Duke Law's Center for the Public Domain notes that yesterday, January 1st, was Public Domain Day.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to General Law Related

Ind. Courts - "Judge Kimberly Brown’s fate remains up in air"

Updating a long list of ILB entries on the Judge Kimberly Brown disciplinary trial, as well as this most recent post from Dec. 30th, reviewing three earlier removals, Tim Evans from the Indianapolis Star reports in a long story today:

The fate of Marion Superior Judge Kimberly J. Brown is now up to the state Supreme Court. But what punishment she will receive on allegations of judicial misconduct remains unclear.

A public reprimand or suspension without pay would keep her on the bench, and a 2014 re-election bid would remain in reach.

But permanent removal would end her judicial career in Indiana. At least one legal observer expects that outcome, saying her case, involving 46 counts, a late apology and surprising behavior, is in “a category of its own.” * * *

A three-judge “masters” panel appointed by the Supreme Court has called for Brown to be removed from the bench based on conclusions drawn from testimony during a weeklong trial in November. * * *

The few judicial disciplinary cases the state’s top court has taken up in the past decade provide few hints as to what Brown may face.

The sanction ultimately handed down could affect Brown’s ability to seek re-election in 2014. If she is reprimanded or suspended, Brown can still run for re-election. If she is removed by the high court, she cannot.

Since 2004, the Supreme Court has removed only one judge from office. Five other judicial officers facing disciplinary action agreed to resign or retired before the court issued a sanction.

Many judicial disciplinary cases never make it to the stage of a trial before a panel of masters. Twelve of the 17 other cases since 2004 were resolved with agreements between the offending judge and the commission, which were subsequently approved by the Supreme Court.

For the Supreme Court to remove Brown from office would be extreme, said Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis who has closely followed the case and written about it for The Indiana Law Blog.

Still, Schumm said, he “would not be surprised if the court ordered removal.” The law professor added he believes removal is warranted.

“The masters, all three very accomplished and respected trial judges, sat through the seven-day hearing and entered incredibly detailed and thoughtful findings,” he explained. * * *

“I suspect the two justices who formerly served as trial court judges will give quite a bit of deference to the masters’ report.”

Added Schumm: “The 46 proven allegations of misconduct in the Brown case are more pervasive than in the Hawkins case.”

Schumm also cited another potentially troubling aspect to Brown’s conduct. Something she did after the commission leveled charges against her raises concern about her fitness for office, Schumm said.

“Judge Brown’s refusal to take the oath at her deposition and odd non-explanation of it at the hearing,” he said, “puts her case in a category of its own.”

The judge’s refusal also was noted by the masters in the panel’s 107-page final report issued last week.

“A refusal to take such an oath before providing testimony,” presiding master Taliaferro wrote, “even if the witness has previously taken an oath of office in which he or she has promised to uphold the state and federal Constitutions, can only be viewed as signifying a lack of respect for the judicial process.”

If Brown is only suspended or reprimanded, Schumm said he would not be surprised to see her re-elected — even if she is not slated by the party.

“She is a woman, with a common-sounding name, and will be alphabetically first on the ballot. These things give her a strong advantage when voters are told to vote for eight candidates and most know little or nothing about them,” he explained. “The Democratic party would need to spend quite a bit of money to defeat her.”

Brown was not slated by the Democrat party when she ran and was elected to the bench in 2008.

Candidate filing for the 2014 primary starts Jan. 8 and closes Feb. 7.

The Supreme Court is under no timetable to render a decision in the disciplinary case, and it is unclear if a ruling will come before the filing period ends. As long as the case is pending, she can file as a candidate.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Indiana Courts | Schumm - Commentary

Courts - More on "Indiana reflects contraception mandate disparity" [Updated]

From this brief article by Amanda Marcotte posted today on Slate:

Late on New Year's Eve, Justice Sonia Sotomayor granted a small number of religiously affiliated groups a temporary injunction from a provision in the Affordable Care Act that allows them not to cover contraception in their health care plans if they fill out a form that states that they want an exemption from the law for religious reasons. Go ahead and read that sentence again. These Catholic nonprofits that wanted an exemption from covering their employees' contraception needs—and got an exemption from covering their employees' contraception needs—are now fighting the provision (that exempts them from covering their employees' contraception needs) simply because they don't want to have to fill out a form that states that they are exempt. * * *

Even the lawyer for one of the groups, the Little Sisters of the Poor Home for the Aged, admits that this lawsuit is about trying to weasel out of nothing more onerous than signing a piece of paper. "Without an emergency injunction," Mark Rienzi told the Associated Press, "Mother Provincial Loraine Marie Maguire has to decide between two courses of action: (a) sign and submit a self-certification form, thereby violating her religious beliefs; or (b) refuse to sign the form and pay ruinous fines." And a spokeswoman for the Becket Fund for Religious Liberty, lead counsel for the Little Sisters, said, "The government has lots of ways to deliver contraceptives to people. It doesn't need to force the nuns to participate." The problem is that the government agrees and has set up a system so that the nuns can opt out. The nuns refuse to opt out, however, because opting out on paper will allow their employees to get that contraception coverage [Because their employees need that form in order to get birth control directly from their insurers].

[Updated at 2:50 PM] Greg Stohr of Bloomberg as a new story headed "Nuns’ Top Court Contraception Objection Delays Health Law." Some quotes:
Although the regulations don’t require the nuns to provide contraceptive coverage, they can avoid the rule only by submitting a “self-certification” attesting to their objections. The self-certification form is designed to shift the responsibility for providing contraceptive coverage to the objecting group’s insurer, which could then seek government reimbursement.

The Little Sisters say the provision violates the Constitution and a federal religious-freedom law by forcing them to become complicit in providing contraceptives.

The regulations “will expose the Little Sisters of the Poor to draconian fines unless they abandon their religious convictions and participate in the government’s system to distribute and subsidize contraception,” lawyers for the nuns argued. * * *

The Supreme Court is already planning to consider religious objections to the contraceptive mandate in a different context. The justices will hear arguments in late March or early April from family-run businesses, including the craft-store chain Hobby Lobby Stores Inc., that say they shouldn’t have to provide some types of birth-control coverage to their employees.

The business cases don’t address the Health and Human Service Department rules that are at issue in the Little Sisters of the Poor dispute.

Instead, the justices will decide whether the 2010 Patient Protection and Affordable Care Act itself violates the rights of the companies or their owners. A central question is whether a 1993 religious-freedom law gives for-profit companies the same rights as people.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Courts in general

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

After 35 on Tuesday, Dec. 31st, it appears there are no opinions today.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Huntertown seeks ‘4-mile rule’ advantage in services area dispute"

The Court of Appeals Dec. 23rd decision in Town of Newburgh v. Town of Chandler (ILB summary here, 2nd case) is the subject of a story today by Vivian Sade in the Fort Wayne Journal Gazette. The long story begins:

How a recent Court of Appeals decision will affect territorial disputes between Huntertown and Fort Wayne City Utilities remains to be seen.

Officials from both entities have differing opinions on the Dec. 23 decision that involved two Hoosier towns.

Chandler and Newburgh were fighting for the right to be the primary water and sewer services provider within the same area, according to court documents.

The court ruled against the Chandler and in favor of Newburgh because Newburgh had an ordinance establishing a 4-mile rule, or boundary, and Chandler did not.

Huntertown has such an ordinance – Fort Wayne does not.

The decision is likely to be a significant factor weighing in favor of Huntertown becoming the chief supplier of water and sewer services to customers in an extended area outside its corporate limits, said Dave Hawk, attorney for Huntertown.

But City Utilities does not think Huntertown can be compared to the ruling in the Court of Appeals case, spokesman Frank Suarez said.

“Huntertown is a much different situation than Chandler and Newburgh. Both Chandler and Newburgh are systems that currently have the capabilities to serve customers immediately,” and Huntertown does not, he said.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Lawsuit challenges Porter County Council redistricting"

From the Gary Post-Tribune, some quotes from this story by Carrie Napoleon:

A lawsuit filed Monday in LaPorte Circuit Court seeks to toss out the fast-track approval of a county redistricting plan approved by the Porter County Board of Commissioners earlier this month, or to delay the primary and general 2014 elections until the matter can be resolved.

The suit, filed by attorney Edward Hearn on behalf of District 2 County Councilman Jeremy Rivas, D-South Haven, and Porter County residents Danielle Cauley, Ryan Bailey, Patrick Heeley II, and Brian Smolnicky, alleges the commissioners’ approval of the new County Council districts on Dec. 17 flies in the face of state redistricting laws by creating two noncontiguous districts.

At that meeting commissioners suspended the rules to pass the ordinance on both first and second reading. The suit alleges proper notification of that meeting was not made.

The redistricting, which is required by state law in the year following the 10-year U.S. Census, moves Rivas from the 2nd District to the 4th District. Republican Jim Polarek is the District 4 councilman. * * *

Commissioner Nancy Adams, R-Center, said she could not comment on the lawsuit because she had not yet seen it. She said commissioners tackled the redistricting this year to even out the populations as required by law. The difference in population among districts dropped from more than 10 percent to about 3 percent.

Adams said Westchester Precinct 17 has always been by itself because it is an unincorporated area inside the City of Portage. She said redistricting is a complicated process because of the many rules that apply. Commissioners did their best to follow those rules, she said.

“Whenever you redistrict, some people are not going to like it,” Adams said.

Hearn, the attorney, said the suit quoted the statute, which calls for the districts to be contiguous. He said he was unaware of how long Westchester Precinct 17 was not in a contiguous district, but according to statute it should be.

Hearn said he expects the judge to make a ruling on Jan. 7 that would allow the 2014 primary and general election to proceed as planned unless the county commissioners take steps to delay the court’s decision.

“If the commissioners try to delay the court’s decision on Jan. 7 the election may have to be interrupted,” he said.

Commissioners started the redistricting process at the end of 2011, the year after the last census, but ran out of time. The matter came up again in mid-October, after a letter from the Association of Indiana Counties warned of a potential lawsuit if the county did not redistrict. State law says district populations must be as close as possible.

According to the suit, Indiana Code requires officials “shall by ordinance divide the county into four contiguous, single-member districts ...” The redistricting plan approved by commissioners creates a 2nd District island of Westchester Township Precinct 17, which is surrounded completely in the new map by District 1.

Plaintiffs are seeking a declaratory judgment because the districts are in noncompliance as well as a permanent injunction barring the enforcement of the ordinance. If the court does not approve the injunction, plaintiffs are seeking a stay of the 2014 primary and general elections.

A hearing on the complaint is set for 9 a.m. Jan. 7 in the court of Judge Tom Alevizos.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Indiana Government

Ind. Decisions - "2 of 3 felony convictions dismissed in 2010 Lake Monroe boating death case"

Tuesday's 28-page opinion in Winston K. Wood v. State of Indiana was the subject of a story yesterday in the $$ Bloomington Herald-Times, reported by Laura Lane:

The Indiana Court of Appeals on Tuesday dismissed two of the three felony convictions against a Bloomington man whose boat collided with another in 2010, resulting in the deaths of a woman and her 8-year-old grandson.

The ruling determined that finding Winston Wood guilty of three felony charges of leaving the scene of an accident was double jeopardy, punishing him three times for one crime.

So one conviction for leaving the scene of an accident resulting in death remains. A second conviction for the same charge, plus another for leaving the scene of an accident resulting in serious injury, are to be dismissed.

Wood, who was 19 when the boating accident happened, also will receive a $2,000 refund for fines levied for those two convictions during his 2012 sentencing hearing.

In a dissenting opinion, Judge James Kirsch said the law regarding leaving the scene of a boating accident is vague. His dissent states that Wood acted “reasonably” when he drove his boat away from the scene of the fatal collision because he believed it was damaged and taking on water. Kirsch said Wood had no knowledge of the statute or what it required in an emergency situation.

Wood was not charged with causing the crash, or with being responsible for the deaths of Susan Collier and Gage Pruett and the injuries suffered by Rusty Collier. The investigation determined that the operators of both watercraft — Wood’s ski boat and the Collier’s fishing boat — were at fault because neither diverted to avoid the accident.

Katharine Liell, Wood’s lawyer, said Kirsch’s dissent will form the basis of her appeal to the Indiana Supreme Court in seeking a dismissal of the remaining conviction against her client.

“We think Judge Kirsch's dissent nailed it,” she said late Tuesday afternoon. “Even the majority opinion says the statute can lead to absurd results, and permits no consideration of what is reasonable in an emergency. This opinion begs for the Supreme Court to clarify.” * * *

The majority opinion, written by Judge Melissa May and supported by Judge John Baker, says that while there was sufficient evidence to convict Wood, he only left the scene of the accident one time and thus cannot be convicted of more than that. May cites a 1997 precedent case in which the appeals court ruled a woman who struck two motorcyclists with her car and left the scene could be charged only once for that act.

“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,” May wrote. “Wood’s three convictions …subjected him to double jeopardy, as he was punished three times for an act he committed only once.”

But May, too, raises issues with the law. “This prosecution has brought to light serious concerns about the statute that criminalizes Wood’s behavior,” she wrote. “This statute permits no consideration of what is reasonable in any given emergency situation.”

In a footnote, May said “we share the concerns articulated in Judge Kirsch’s well-reasoned dissent.”

Wood said in court he was overcome by panic the evening of June 28, 2010, after seeing Susan Collier’s dead body floating in the water after the collision at sunset on Lake Monroe. He said then that not helping the victims and speeding away from the scene was wrong.

“I certainly should have helped Mr. Collier retrieve his wife’s body. I should have helped Mr. Collier and his grandsons by getting them safely returned to shore. I failed to do so.”

There are a number of interesting reader comments to the story on the H-T website, including this one by "Bob Miller posted at 10:24 am on Wed, Jan 1, 2014":
As the prosecutor who handled the case at trial I'd like to clarify a few points from the HT story. First, it should be kept in mind that Mr. Wood remains convicted of a Class "C" felony for leaving the scene. All of the original charges were valid as were the jury's guilty findings. The Court of Appeals decision deals with the multiple conviction scenario for the first time and they held that a judgment of conviction may only be entered for one act of leaving the scene. Consequently, in the future trial courts are now informed by this decision that when a jury returns multiple verdicts of guilty for one act of leaving the scene, only one judgement of conviction may be entered. This decision does not alter the prison sentence imposed on Mr. Wood, only the fines for the other two counts.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Ind. App.Ct. Decisions

Courts - The Constitution in 2014: the state of same-sex marriage

Another overview this morning, this one by Lyle Denniston, writing in Constitution Daily. It begins:

The campaign to win marriage rights for same-sex couples that began somewhat hesitantly in Hawaii more than twenty years ago burst forth in 2013 into something close to a constitutional revolution. The year 2014 very likely will take the issue back to the Supreme Court even as efforts continue to advance the campaign at the state level.

As 2013 opened, a decade after the first definite victory in Massachusetts, a total of nine states and Washington, D.C., had opened marriage to same-sex couples either by court decision, legislation, or ballot measure. For the first time, the ballot box became a place for victory, not defeat, for same-sex marriage as the November 12 elections showed the issue could win in a popular test, and did so in three states – Maine, Maryland and Washington.

As 2013 closed, the total had reached 17 states, and there was at least a first-round court victory in an eighteenth — Utah. The pace has been more rapid than for any prior campaign to promote the civil rights of a specific group, such as racial minorities and women.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Courts in general

Courts - "Indiana reflects contraception mandate disparity"

Updating three earlier ILB entries, the most recent being this long overview from yesterday headed "Catholic groups appeal to Supreme Court re ACA contraceptive mandate", Tim Evans of the Indianapolis Star has a long front-page story today giving a comprehensive view of the issue. Some quotes:

Nonprofit organizations with religious affiliations across the country were required to begin providing contraceptive services to employees Wednesday under the Affordable Care Act.

Many did, despite ongoing objections based on tenets of their faiths.

But others caught a break, at least temporarily, as a last-minute legal fight over the controversial mandate generated a patchwork of federal court decisions late Tuesday.

The fates of two Northern Indiana schools — the University of Notre Dame and Grace College and Seminary — highlight the confusion and disparity that legal experts say is likely to land the matter before the Supreme Court of the United States.

Judges seated in U.S. District Court for the Northern District of Indiana recently issued opposing opinions in separate cases in which the two schools sought preliminary injunctions to block implementation of the mandate.

On Dec. 20, Philip P. Simon, the district’s chief judge, denied a request for an injunction sought by the University of Notre Dame.

Just a week later, on Dec. 27, district judge Jon E. Deguilio granted injunctions in two other cases, one brought by Winona Lake-based Grace College and Seminary and Biola University of La Mirada, Calif. and the other by the Catholic Diocese of Fort Wayne-South Bend, along with several other groups including Franciscan Alliance and University of St. Francis

That means Notre Dame was legally required as of Wednesday to provide the coverage, while Grace College and Seminary — as well as the Diocese of Fort Wayne-South Bend and Franciscan Alliance — were not. * * *

The three legal challenges in Indiana are among about 90 similar appeals recently filed in federal courts across the United States. More than a dozen of those cases generated preliminary rulings, with decisions running about 2-to-1 in favor of religious groups seeking temporary stays that blocked implementation of the mandate.

Only Notre Dame, among groups across the United States which were denied stays and subsequently appealed, was forced to comply Wednesday.

Paul Browne, a Notre Dame spokesman, said the third-party administrator for the university’s insurance program is notifying employees that a contraceptive program is available while the university appeals judge Simon’s denial of an injunction.

“At the same time,” he added, “we are notifying our employees that this coverage could be withdrawn if we win the appeal.”

A decision on the university’s appeal is not expected until later this month at the earliest — unless the Supreme Court steps in sooner.

If the high court takes up the case, it will be the second case on its docket challenging the mandate based on religious grounds.

The Supreme Court in November accepted a challenge to the mandate raised by Hobby Lobby. The issue in that case is whether a private company can refuse to provide the coverage based on the owners’ religious beliefs.

The new cases also oppose the contraceptive requirement but from the perspective of nonprofit organizations with religious affiliations that oppose the law based on beliefs of their faiths.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Courts in general

Ind. Gov't. - "Why Should Juvenile Advocates Care About the Criminal Code Revision?"

See the post this morning at Indiana Juvenile Justice Blog.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Indiana Government

Ind. Law - "Indy man stole brains from museum, sold them for cash"

That is the headline to Bill McClerry's front page story today in the Indianapolis Star, which begins:

The details sound like the plot of a bad horror movie: Desperate for cash, a young man breaks into a warehouse to steal the brains of dead mental patients, and the body parts are later sold on eBay.

This story line, however, is real.

Authorities say David Charles, a 21-year-old Indianapolis resident, is accused of breaking into the Indiana Medical History Museum multiple times this year and stealing jars of human brain tissue and other preserved material. A tipster who paid hundreds of dollars on the online auction site helped bring the organ entrepreneurism to an end.

A reader observes:
Too cool. In the original Frankenstein movie Fritz stole a brain from a college professor's collection for the monster's brain. He was supposed to get the genius brain but he dropped it and took one from a homicidal maniac instead.

Posted by Marcia Oddi on Thursday, January 02, 2014
Posted to Indiana Law

Wednesday, January 01, 2014

Ind. Gov't. - Two Indiana "prisons using dogs to detect cell phones"

The AP has a brief story today that begins:

INDIANAPOLIS – Two prisons in Indiana are using dogs trained to detect cell phones to try to keep the devices out of the hands of prisoners.

Posted by Marcia Oddi on Wednesday, January 01, 2014
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana case yesterday

In UNITED STATES OF AMERICA v. PHILLIP RUCKER (ND Ind., Lozano), a 14-page opinion, Judge Frederick J. Kapala of the United States District Court for the Northern District of Illinois, sitting by designation, writes:

After a jury found defendant, Phillip Rucker, guilty of one count of wire fraud in violation of 18 U.S.C. § 1343, the district court sentenced him to 30 months’ imprisonment, one year of supervised release, and ordered him to pay $73,488.95 in restitution. In this direct criminal appeal, Rucker contends that the district court erred in refusing to allow him to use a prior conviction to impeach a testifying co-defendant. We affirm.

Posted by Marcia Oddi on Wednesday, January 01, 2014
Posted to Ind. (7th Cir.) Decisions

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

Updating this ILB post from Monday (including a link to the trial court opinion), here is another story on the Long Beach dispute over who owns the Lake Michigan beachfront.

Some quotes from the Dec. 29th story by Kelley Smith of the Michigan City News Dispatch:

MICHIGAN CITY — It's official: Long Beach beach goers may continue to walk the Lake Michigan shoreline or even set up a blanket and beach chair along private lots – as long as they do so in the space between the water's edge and the ordinary high watermark (OHWM).

La Porte Circuit Court Judge Thomas Alevizos ruled Thursday in favor of the Town of Long Beach, which had been the defendant in a civil suit filed by the Long Beach Lakefront Homeowners Association (LBLHA) and two individual property owners just over a year ago.

The LBLHA, Don Gunderson and Margaret "Peg" West alleged in their Dec. 10, 2012 lawsuit the town had illegally claimed ownership rights of private lakefront properties, the boundary of which the homeowners say extends to the water's edge.

The town, however, says private property ordinances must be enforced only above the OHWM, which is 581.5 feet, making land between Lake Michigan and the OHWM available for public use.

The same story appeared Dec. 30th in the LaPorte Herald Argus.

Posted by Marcia Oddi on Wednesday, January 01, 2014
Posted to Ind. Trial Ct. Decisions

Courts - "Budget Cuts Imperil Federal Court System, Roberts Says"

Adam Liptak's story in the NY Times begins:

Budget cuts have imperiled the ability of the federal court system to deliver prompt justice and to protect the public, Chief Justice John G. Roberts Jr. wrote on Tuesday in his annual report on the state of the federal judiciary. He said the mandatory budget cuts known as sequestration had taken a disproportionate toll on the federal court system and were poised to “pose a genuine threat to public safety.”

Unlike federal agencies, the chief justice said, the federal courts do not have discretionary programs they can postpone or eliminate, “because virtually all of their core functions are constitutionally and statutorily required.”

Chief Justice Roberts said the judicial branch had worked to reduce its costs for almost a decade, “long before the talk of fiscal cliffs and sequestration came into vogue.” This included, he said, restraints on courthouse construction and hiring.

The story includes a link to the 2013 Year-End Report on the Federal Judiciary.

Tony Mauro has a story in the Blog of Legal Times.

Posted by Marcia Oddi on Wednesday, January 01, 2014
Posted to Courts in general

Courts - "Catholic groups appeal to Supreme Court re ACA contraceptive mandate"

Updating this ILB entry from yesterday, headed "Judge stalls contraception insurance mandate for diocese", which detailed ND Indiana opinions from two different judges (to quote again from Madeline Buckley of the South Bend Tribune):

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.

Today the Fort Wayne Journal Gazette has a story headed "Grace College gets temporary reprieve on birth control mandate." Brian Francisco reports:
A second religious organization in northeast Indiana has won a temporary reprieve from the contraception mandate of the federal health care law.

Grace College and Seminary of Winona Lake, along with Biola University in La Mirada, Calif., were granted a preliminary injunction they sought from a federal court against the U.S. Department of Health and Human Services.

The decision allows the schools to avoid providing their employees and students with medical insurance that covers birth-control methods and sterilization procedures. The contraception insurance requirement of the Patient Protection and Affordable Care Act is scheduled to take effect today.

U.S. District Judge Jon DeGuilio of the Northern District of Indiana in South Bend granted the injunction Friday, the same day he approved a similar request from the Catholic Diocese of Fort Wayne-South Bend and six affiliates in Indiana and Illinois.

Last night in a very brief order Justice Sonia Sotomayor blocked enforcement of the mandate against the Denver Little Sisters of the Poor. From the order (via How Appealing):
IT IS ORDERED that respondents are temporarily enjoined from
enforcing against applicants the contraceptive coverage requirements
imposed by the Patient Protection and Affordable Care Act, 42 U. S. C.
§ 300gg-13(a)(4), and related regulations pending the receipt of a response
and further order of the undersigned or of the Court. The response to the
application is due Friday, January 3, 2014, by 10 a.m.
As Steve Kenny and Robert Pear report in the NY Times:
WASHINGTON — Justice Sonia Sotomayor on Tuesday temporarily blocked the Obama administration from forcing some religious-affiliated groups to provide health insurance coverage of birth control or face penalties as part of the Affordable Care Act.

Acting at the request of an order of nuns in Colorado, Justice Sotomayor issued the stay just hours before the requirement was to go into effect on New Year’s Day. She gave the Obama administration until Friday to respond to the Supreme Court.

Justice Sotomayor’s order applies to the nuns, the Little Sisters of the Poor, and other Roman Catholic nonprofit groups that use the same health plan, known as the Christian Brothers Employee Benefit Trust. The groups’ lawsuit is one of many challenging the federal requirement for contraceptive coverage, but a decision on the merits of that case by the full Supreme Court could have broader implications. * * *

The contraception requirement has been one of the most controversial aspects of the health law since the Obama administration first announced it in mid-2011, along with other requirements it characterized as preventive care. Religious opponents of abortion have objected especially strongly to the requirement to provide emergency contraception pills, like Plan B, although most studies show that the drug works by preventing fertilization, not by inducing abortion.

In an effort to compromise, the administration said that women who work for nonprofit religious groups that object to birth control could receive separate coverage not paid for by the employers. It refused, however, to offer accommodations to secular businesses whose owners have religious objections to contraception.

That has led to a separate group of lawsuits. And last month, the Supreme Court agreed to hear a pair of cases on whether corporations may refuse to provide insurance coverage for contraception.

ILB: There is a range of challenges here, going from religious entities like the Little Sisters on the one hand (Roman Catholic universities, schools, and charity organizations) to a number of for-profit businesses whose owners are Catholic, such as Hobby Lobby and Conestoga Wood Specialties, on the other. See this Nov. 26th ILB post re the SCOTUS agreeing to hear the challenges of the two private businesses.

This story, headed "Catholic groups appeal to Supreme Court vs. ACA contraceptive mandate,"from Gant Daily (out of Clearfield, Pennsylvania), provides a good overview of the numerous challenges from Catholic groups.

Posted by Marcia Oddi on Wednesday, January 01, 2014
Posted to Courts in general