Friday, February 28, 2014
Courts - "Ky federal judge will decide by 4 p.m. today whether to grant a stay of his ruling requiring Kentucky to recognize same-sex marriages performed in other states" [Updated]
The Louisville Courier Journal has the preliminary story.
See earlier ILB post here, from yesterday.
[Updated March 1st] The linked LCJ story has now been updated and now begins:
A federal judge Friday gave Kentucky officials 20 days to figure out how to implement his ruling that requires the state to recognize same-sex marriages legally performed elsewhere.Via the Kentucky Divorce Law Journal, here is a link to Bourke v. Beshear, the Feb. 12th WD Ky opinion recognizing same sex marriages performed in other states.
U.S. District Judge John G. Heyburn II said that while the delay extends “an unconstitutional policy,” it allows the state “proper time to administratively prepare for compliance.”
Environment - "Coal Ash Spill Shows How a State Watchdog Was Defanged"
RALEIGH, N.C. — Last June, state employees in charge of stopping water pollution were given updated marching orders on behalf of North Carolina’s new Republican governor and conservative lawmakers.
“The General Assembly doesn’t like you,” an official in the Department of Environment and Natural Resources told supervisors, who had been called from across the state to a drab meeting room here. “They cut your budget, but you didn’t get the message. And they cut your budget again, and you still didn’t get the message.”
From now on, regulators were told, they must focus on customer service, meaning issuing environmental permits for businesses as quickly as possible. Big changes are coming, the official said, according to three people in the meeting, two of whom took notes. “If you don’t like change, you’ll be gone.”
But when the nation’s largest utility, Duke Energy, spilled 39,000 tons of coal ash into the Dan River in early February, those big changes were suddenly playing out in a different light. Federal prosecutors have begun a criminal investigation into the spill and the relations between Duke and regulators at the environmental agency.
The spill, which coated the river bottom 70 miles downstream and threatened drinking water and aquatic life, drew wide attention to a deal that the environmental department’s new leadership reached with Duke last year over pollution from coal ash ponds. It included a minimal fine but no order that Duke remove ash — the waste from burning coal to generate electricity — from its leaky, unlined ponds near drinking water. Environmental groups said the arrangement protected a powerful utility rather than the environment or the public.
Current and former state regulators said the watchdog agency, once among the most aggressive in the Southeast, has been transformed under Gov. Pat McCrory into a weak sentry that plays down science, has abandoned its regulatory role and suffers from politicized decision-making.
The episode is a huge embarrassment for Mr. McCrory, who worked at Duke Energy for 28 years and is a former mayor of Charlotte, where the company is based. And it has become yet another point of contention in North Carolina, where Republicans who took control of the General Assembly in 2011 and the governor’s mansion last year have passed sweeping laws in line with conservative principles. They have affected voting rights and unemployment benefits, as well as what Republicans called “job-killing” environmental regulations, which have received less notice.
Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)
For publication opinions today (2):
In Mary L. Anderson v. Wayne Post 64, American Legion Corp., a 16-page opinion, Judge Najam writes:
Mary L. Anderson appeals the trial court’s order setting aside its default judgment against Wayne Post 64, American Legion Corporation (“American Legion”). Anderson raises two issues for our review, but we address only the following dispositive issue: whether the trial court erred when it set aside its default judgment against the American Legion as void because the method employed by Anderson to serve process on the American Legion was not the method best calculated to inform the American Legion of Anderson’s lawsuit. We affirm. * * *In Kenneth Seales v. State of Indiana , a 10-page opinion, Judge May writes:
Considering all the facts and circumstances, we agree with the trial court that Anderson did not adequately serve process on the American Legion. We hold that Anderson’s attempt to serve process on the American Legion was inadequate as a matter of law and, thus, that the trial court did not have personal jurisdiction over the American Legion and its default judgment was void. Accordingly, we affirm the trial court’s order setting aside its default judgment.
Kenneth Seales appeals the denial of his motion to remove him from the sex offender registry and his motion to correct error. As the additional registration requirements imposed on him after a 2006 change in the law do not amount to an impermissible ex post facto law, we affirm. * * *NFP civil opinions today (5):
[In Gonzalez] [o]ur Supreme Court held the ex post facto clause of the Indiana Constitution prohibited retroactive application of the lifetime registration requirement. The Gonzalez facts are similar in most respects to those in the case before us. However, because of one significant distinction, we cannot reach the same result. * * *
It is with the seventh factor, whether the statute appears excessive in relation to the alternative purpose assigned, that our facts diverge significantly from those in Gonzalez, where the Court noted “previous cases have reached differing results based on the outcome of this final factor.” Id. There, the seventh factor was found to be punitive for a defendant convicted and released before passage of the Act in 1994. Id. (citing Wallace, 905 N.E.2d at 384). In Wallace, it was significant that “the Act provide[d] no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure. Offenders cannot shorten their registration or notification period, even on the clearest proof of rehabilitation.” Wallace, 905 N.E.2d at 384. * * *
The effects of the Act were seen differently in Jensen, where such a mechanism was in place. * * *
As Seales, like Jensen, has available to him avenues of relief related to his future dangerousness “in relation to the alternative purpose assigned, protection of the public,” id. at 321, we find the seventh factor weighs in favor of treating the lifetime registration requirement as non-punitive, and we therefore cannot say it was error for the trial court to deny Seales’ petition to be removed from the sex offender registry. Affirmed.
NFP criminal opinions today (13):
Courts - Flurry of federal court same-sex marriage opinions continues
From a story today by Richard Wolf in USA Today (included in today's Star), a few quotes [ILB emphasis]:
WASHINGTON -- Some of the nation's most conservative states are propelling the same-sex marriage juggernaut back toward the Supreme Court.ILB: No federal lawsuit has been filed in Indiana, yet. Could that be changing?
Judges in Texas and Kentucky this week added their endorsements to those voiced in the last three months by colleagues in New Mexico, Utah, Oklahoma, Ohio and Virginia.
No state or federal judge has opposed gay marriage since the Supreme Court in June allowed gay men and lesbians to marry in California and struck down the Defense of Marriage Act's ban on federal benefits to legally married same-sex couples.
In addition, attorneys general in Pennsylvania, Virginia, Nevada and Oregon have quit defending their states' bans — a stance that U.S. Attorney General Eric Holder took last year and this week endorsed for his state colleagues.
And the trend shows no signs of abating. State and federal district court cases could be decided soon in Arkansas, Idaho, Michigan, North Carolina, Oregon, Pennsylvania, Tennessee and West Virginia. Appeals are pending in Virginia, Nevada, Ohio, Oklahoma and Utah. In all, nearly 50 cases are pending in 26 states.
Ind. Courts - "Family of woman shot outside day care fear suspect's bond is too low"
Jill Disis reports today in the Indianapolis Star [ILB Emphasis]:
The family of a woman shot 13 times in a day-care parking lot worry that the bond amount set for her ex-husband, the suspected attacker, is too low — and that he could come after her if he leaves jail.For background, see this Feb. 19th ILB post, this one from Feb. 21st, and this one from Feb. 24th.
Shirley Justice, 31, is recovering at IU Health Methodist Hospital more than a week after she was shot in the parking lot of the Eagle View KinderCare Learning Center, 6750 Eagle View Drive.
Her ex-husband, Christopher Justice, 33, has been charged with attempted murder in connection with the shooting. On Thursday, a Marion County Superior Court judge set his bond at $25,000. * * *
A preliminary surety bond was set at $100,000, before the final $25,000 was set Thursday. * * *
Marion Superior Court Judge Grant Hawkins, who set the bond amount and conditions of release, said Thursday's hearing was not a matter of lowering an already existing amount — it was about finding a starting point and setting an appropriate set of conditions.
"The $100,000 was really to get him here," Hawkins said.
Once Christopher Justice was extradited to Indianapolis, attorneys agreed on a $10,000 bond starting point. Hawkins raised that to $25,000 Thursday.
Justice is expected to return to court April 8 for a pre-trial conference hearing. His attorney in the criminal case did not return a phone call Thursday.
Meanwhile, the status of the couple's child is unclear. Though Christopher Justice was granted custody, the judge who handed down the decision was removed from the case the same day. Both parents disagreed over what the ruling meant for the child's custody status.
Davina Curry, an attorney for Shirley Justice, said the judge's removal voided the order, though in the wake of the shooting, the child has been given to Christopher Justice's parents.
"It's quite a tangled mess," Curry said. "We're still in the process of reviewing everything at this time."
The Indiana Supreme Court appointed a special judge in the custody case last week. Curry said a custody hearing is expected next week.
Ind. Courts - "Nominations due April 18 to fill Lake County judge vacancy "
Ruth Ann Krause reports in the Gary Post-Tribune:
The Lake County Judicial Nominating Commission on May 7 will begin interviewing applicants seeking to be nominated for judge of the Superior Court-Civil Division.
Interviews will be conducted in the hearing room of the Lake County Board of Commissioners in the Lake County Government Center and are open to the public. Indiana Supreme Court Justice Robert D. Rucker is chairman of the Lake County Judicial Nominating Commission.
Anyone who lives in Lake County, is a U.S. citizen and admitted to practice law in Indiana is eligible for nomination. Applications are available at all offices of the clerk of the Lake Circuit and Superior Courts.
Ind. Courts - "Federal lawsuit targets online sex registry"
Bob Kasarda reports today in the NWI Times:
HAMMOND | Seven Lake County men have filed a class-action lawsuit on their own seeking millions in compensation from the Lake County Sheriff's Department, Google and others alleging they were wrongly posted online as sex offenders.The ILB has located the 6-page pro se complaint.
The group claims the sex and violent offender registration law in question does not apply to their cases and thus they are each entitled to $3.5 million over each of the next seven years.
Ind. Courts - "Fate of participants in suspended Clark County Drug Court in question until State acts"
Charlie White reports in a long Louisville Courier Journal story today - some quotes:
Two weeks after the Clark County Drug Court was suspended indefinitely, county officials are still unsure of the futures for those in the now defunct treatment program.The lengthy LCJ story fills in the background for those who have not been following this issue. It also includes an audio, that comes on automatically, with this caption:
County officials hope a decision will be made soon, fearing the estimated 75 defendants in limbo could relapse on heroin, methamphetamine or other drugs in anticipation of being sent to prison. * * *
The program was suspended by the Indiana Supreme Court and Indiana Judicial Center following allegations of unlawful conduct by drug court staff and practices harmful to participants.
The agreement signed by eachdrug court participant allowed most of them to avoid prison time for offenses related to their addictions, but also required submitting to frequent drug tests, counseling and having their homes searched at any time by drug court staff.
Any new violations of the conditions of drug court agreements signed by defendants likely would result in cases being put back on the criminal court docket, Stewart said.
But the question is how many people currently in drug court will be permitted to continue with their treatment, he added.
“We fear it could be destroying a viable program,” said Larry Wilder, the attorney defending Clark Circuit Judge Jerry Jacobi and other county defendants named in a federal civil-rights lawsuit with ties to drug court.
Clark County Drug Court Judge Jerry Jacobi sentenced Destiny Hoffman to 48 hours in jail on August 22, 2013, pending evaluation for her second diluted drug test. She ended up spending about five months in jail and the evaluation never happened.Finally, the story includes a link to the 46-page class-action complaint filed in federal court, against against the Defendants, Judge Jerome F. Jacobi, Susan Knoebel, Jeremy Snelling, Henry Ford, Clark County Sheriff Danny Rodden, and others.
Here is a list of earlier ILB entries on the Clark County drug court.
Ind. Law - More on: HB 1006 on its way to passage
Today Niki Kelley of the Fort Wayne Journal Gazette has a story, headed "Senate panel OKs grants to offset sentencing guideline changes," that explains:
A key Senate panel tried to address fiscal concerns of a criminal sentencing overhaul Thursday.From later in the story, discussing this second session look at HB 1006 (assigned the same number in both 2013 and 2014), which goes into operation on July 1st:
The Appropriations Committee created a mechanism that would allow up to $11 million to be funneled back through grants to local community corrections or probation services.
But the money is not guaranteed. It materializes only if the Indiana Department of Correction reaps expected savings from a reduced prison population.
The legislature could provide more solid funding next year when crafting a new two-year state budget.
“The language is not a direct appropriation,” said Sen. Luke Kenley, R-Noblesville. “That’s probably the best we can do this year.”
The legislation passed committee 9-2 and heads to the full Senate.
That bill isn’t effective until July 1 of this year. That left lawmakers more time over the summer to grapple with funding questions.
And now they are back with House Bill 1006 Part 2.
It has been a constant balancing act of trying to increase sentences for serious crimes while putting fewer low-level offenders in prison.
The biggest problem has been conflicting projections on how the measure will affect the prison population for the Indiana Department of Correction.
In addition to the tentative funding mechanism, Kenley’s amendment to the legislation decreased maximum sentences for four of the felony classifications. For instance, a Level I felony would have a maximum of 40 years in prison instead of 50 years.
The fiscal effect is still unclear, something Sen. Brent Steele, R-Bedford, said is to be expected.
“Until it actually hits the ground we won’t know how judges and prosecutors use it and how it performs,” he said. “Keep your eye on it as it plays out in the future. I hope it does what we think it will do.”
Thursday, February 27, 2014
Ind. Courts - Check out the newest 2014 summaries of bills of interest to the judiciary
(The ILB messed up and neglected to post this on Monday. A newer one from the Judicial Center, the eighth will come out soon, maybe tomorrow.)
Check out the seventh weekly installment of the valuable Legislative Update for the 2014 legislative session, from The Indiana Judicial Center.
This week's reports are dated Feb. 21. The "summaries of bills of interest to the judiciary heard this week in committee" are now of the second week of bills being heard in second house committee. Be aware that bills that are reported out of these second house committees are quite likely to become law in the coming weeks.
Ind. Decisions - 7th Circuit decides one Indiana case today
In U.S. v. John A. Peters III (SD Ind., Magnus-Stinson), a 10-page opinion, Judge Rovner writes:
ROVNER, Circuit Judge. John A. Peters, III, pled guilty to one count of conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He reserved his right to appeal the district court’s denial of his motion to suppress evidence discovered during the search of a car in which he was a passenger. We affirm. * * *
We have held that a police officer “who smells marijuana coming from a car has probable cause to search that car.” United States v. Franklin, 547 F.3d 726, 733 (7th Cir. 2008). The judgment of the district court is therefore AFFIRMED
Courts - More on: Kentucky seeks delay in implementing order requiring recognition of SSM performed in other states
At least for now, Kentucky must recognize same-sex marrriages performed in states where it is legal.
U.S. District Judge John G. Heyburn today made final a ruling issued earlier this month in which he found that Kentucky’s marriage amendment and statutes violate the right to equal protection under the law.
“Those laws ... are void and unenforceable,” he said in a one page order.
Earlier today, Attorney General Jack Conway’s office asked Heyburn to stay enforcement of his ruling, but Heyburn did not address that motion and for now his ruling goes into effect.
Ind. Gov't. - "Indiana and the NRA, a love story"
Dan Carpenter, formerly of the Indianapolis Star, has a commentary today in The Statehouse File ($$), the publication of Franklin College journalists. It begins:
INDIANAPOLIS – It’s high time the National Rifle Association held its annual convention in Indianapolis. Lord knows the Indiana General Assembly, with encouragement from the governor’s office and little resistance from cautious public officials in the Circle City, has earned the honor.
Long ranked as one of the loosest states for gun traffic by federal authorities and firearms control advocates, Indiana has widened the lanes in recent years as its Republican majority has grown more reactionary and special interests such as the NRA have ratcheted up their influence.
Good to see it’s generated tourist dollars. Hard to see much sense in it otherwise.
You’d think there might be some soul-searching from a state that’s tagged by the feds as a major exporter of guns used in crimes elsewhere, owing to its exemption of “private” sales from background checks and its lack of caps on the number of weapons that can be purchased at one time.
Ind. Courts - "Case dismissed against former Harrison County deputy prosecutor"
From a Feb. 26th story in the Corydon Democrat:
A case of alleged welfare fraud against a former Harrison County deputy prosecutor has been dismissed by a special prosecutor and signed by a special judge.
According to court documents, Shawn Donahue was charged with Class C felony welfare fraud and Class D felony theft in February of last year.
On Jan. 1, 2011, after being fired from his position under former prosecutor Dennis Byrd after current prosecutor J. Otto Schalk took office, Donahue began applying for and receiving unemployment benefits through the Indiana Dept. of Workforce Development and continued to do so until August of that year.
In a document signed by Special Judge Curtis Eskew, the case was dismissed by special prosecutor Barry Brown of Monroe County after Donahue paid $7,478.25, which represented a civil penalty and fine, as well as a 25-percent penalty.
"The State has reviewed the factual scenario and, while there appears to be substance to the allegations, on balance the State does not believe that the totality of circumstances rise to the level of criminal conviction for which the defendant would be subject to potential disciplinary action by the Indiana Disciplinary Commission and Indiana Supreme Court and, further, would also be exposed to potential criminal penalties," the dismissal document reads. "The defendant's conduct is mitigated by his willingness to reimburse the Workforce Development Agency." * * *
On Jan. 1, 2011, the Harrison County Plan Commission and Board of Zoning Appeals entered into a contractual agreement with Donahue for part-time legal services that would continue until Dec. 31, 2011. Terms of the contract were that Donahue would be paid $8,000, in 12 equal monthly payments, for the calendar year of the contract.
Court documents alleged Donahue did not report these earnings to the Workforce Development Agency when applying for and/or receiving unemployment benefits as required.
Court records went on to say that records obtained through the Harrison County Economic Development Corp. indicated that Donahue had billed/invoiced them for legal work, where he claimed to have completed 3.75 hours of services on March 7, 2011, at $125 hourly, totaling $468.75 that he allegedly did not report as income.
In addition, Donahue allegedly entered into a contract with the Town of Palmyra for part-time legal services for $1,400 in 12 equal payments. Based on this contract, each monthly payment would be approximately $116.
Court documents said Donahue reported only a partial amount of these earnings. Records obtained from the Town of Palmyra indicate that Donahue had billed/invoiced for legal work in which he claimed to have earned a total of $968.75 during eight different occasions between May 20 and Aug. 2 of 2011. The amounts from Palmyra were not reported to the Workforce Development Agency, according to court documents.
In all, Donahue allegedly profited a minimum of $5,000 of Harrison County tax dollars as a result of not reporting income to Workforce Development.
Ind. Courts - More on "Tippecanoe Superior Court judge regrets sending campaign email on work computer, account"
Indiana State Police have been asked to review the campaign email Tippecanoe Superior 4 Judge Gregory Donat sent out from his taxpayer-owned computer earlier this week.
Tippecanoe County Clerk Christa Coffey asked the state police to review the matter late Wednesday on the advice of counsel.
Donat, who is seeking re-election on the Republican ticket and faces Laura Zeman in the GOP primary, emailed the campaign material Tuesday morning around 10 a.m. from his publicly owned email account on the computer owned by the taxpayers.
He admitted Wednesday that he had sent the email, calling it a mental lapse. Another judge brought the lapse to his attention a short time later, he said. He said he was sorry and that he wouldn’t do it again.
Ind. Law - HB 1006 on its way to passage [Updated]
Maureen Hayden reports today for CNHI:
INDIANAPOLIS — Judges who’ve been clamoring for more control over prison sentences may be exercising some of that discretion this summer.HB 1006 was voted out of Senate Appropriations this morning, to which it had been recommitted. Hayden's story, which was written before that happened, continues:
A long-in-the-making rewrite of Indiana’s felony criminal code removes some mandatory sentences added during decades of tough-on-crime policies, which led to higher prison costs.
The updates, passed last year, take effect July 1 and give judges more leeway by removing the binding, “non-suspendable” sentences for many low-level drug and property crimes.
“If somebody deserves to go to prison for 80 years for the crime they’ve committed, we’ll still be sending them there,” said Superior Court Judge Robert Freese, of Hendricks County. “But sending people to prison when it’s not appropriate isn’t justice.”
Like many of his colleagues, Freese says minimum sentences handcuff judges from doling out appropriate punishment — such as assignments to community-based treatment programs. * * *
The criminal code reform passed last year repealed many of mandatory minimum sentences.
As legislators revised the bill this year, adding new sentencing guidelines, they kept mandatory sentences for high-level crimes such as murder, rape and drug dealing. But they left intact language that eliminated mandatory terms for lower-level crimes including theft and drug offenses.
John M. Marnocha, a St. Joseph County judge who spent three years on the commission that helped rewrite the criminal code, said increasing judges’ discretion can reduce recidivism and bring down the prison population.
Judges may dole out alternative sentences to low-risk defendants who’d benefit, for example, from drug or alcohol treatment, he said. They could also start using options such as house arrest or work release.
But, Marnocha cautions, multiple factors are at play. Prosecutors and judges may risk being seen as “soft on crime” if they opt for prison alternatives. All of Indiana’s county prosecutors and most state judges are elected.
“It’s almost too early to tell what’s ultimately going to happen,” Marnocha said. “It’s still a work a progress.”
Larry Landis, head of the Indiana Public Defender Council, worries the increased judicial discretion will be offset by other changes made to the criminal code this year. Under pressure from prosecutors, legislators increased advisory sentences for some crimes, mandated minimum sentences for some habitual offenders and jacked up penalties for gun-related crimes.
“You can’t call this criminal code ‘reform’ anymore,” Landis said.
The impact all of the changes will have on the prison population remains in dispute. Last summer the state Department of Correction predicted an increase in the prison population while the Legislative Services Agency — the research arm of the General Assembly — forecast an eventual drop.ILB: I can't right now determine what the Senate Appropriations Committee did this morning to solve the funding issues, other than pass the bill out. Here is their report.
The biggest unresolved issue remains funding. The General Assembly has yet to allocate money for communities to expand local programs that judges would use as part of new sentences.
The Senate Appropriations Committee is expected to take up the issue Thursday. Reps. Greg Steuerwald, R-Avon, and Jud McMillin, R-Brookville, are expected to argue for local funding.
Both may cite a recent study that says the new criminal code, once in effect, will drive down the projected state prison population. They’ll argue that the resulting savings should be passed on to communities for programs that offer sentencing alternatives.
“We’re so close to getting this done,” Steuerwald said. “We know there are too many people in prison who don’t need to be there.”
[Updated at 4:10 PM] Here are links to the text of the two amendments made to HB 1006 in Senate Finance this morning:
- Amendment 10. The digest:
Adds the provisions of SB 43 as passed by the senate. Makes it child seduction, a Level 6 felony, for a law enforcement officer who is at least five years older than a child who is: (1) at least 16 years of age; and (2) less than 18 years of age; to fondle or touch the child with the intent to arouse or satisfy the sexual desires of either the child or the law enforcement officer, if the law enforcement officer's contact with the child occurred in the course of the officer's official duties. Makes it child seduction, a Level 5 felony, if the law enforcement officer engages in sexual intercourse or other sexual conduct with the child.
- Amendment 13. The digest of the 8-page amendment:
Provides that before March 1, 2015, the
department of correction (department) shall estimate the amount of any operational cost savings that will be realized in the state fiscal year ending June 30, 2015, from a reduction in the number of individuals who are in the custody of the department of correction that is attributable to the sentencing changes made under the bill. Specifies that if the department estimates that such operational cost savings will be realized, the department may, after review by the budget committee and approval by the budget agency, do the following: (1) Make additional grants to counties for community corrections programs from funds appropriated to the department for the department's operating expenses. (2) Transfer funds (from funds appropriated to the department for the department's operating expenses) to the judicial conference of Indiana to be used by the judicial conference of Indiana to provide additional financial aid for the support of court probation services. Provides that the maximum aggregate amount of these additional grants and transfers may not exceed the lesser of the amount of operational cost savings or $11,000,000. Reduces the sentence for: (1) arson with intent to defraud; (2) institutional criminal mischief; (3) an offense against intellectual property; and (4) auto theft; from a Level 5 to a Level 6 felony. Reduces the maximum penalties for certain felonies as follows: (1) Level 1 felonies, from 50 to 40 years; (2) Level 3 felonies, from 20 to 15 years; (3) Level 4 felonies, from 12 to 10 years; and Level 5 felonies, from six to five years. Reduces the advisory sentence for Level 3 felonies from ten years to eight years. Provides that a person less than eighteen years of age who possesses an indecent image of another person less than eighteen years of age commits a Class A misdemeanor if: (1) the persons are in a dating relationship; (2) the age difference between the persons is not more than four years; and (3) the person acquiesced in the taking or transmission of the indecent image. Specifies that a person who is eligible to be prosecuted for possession of an indecent image as a misdemeanor may not be prosecuted for possession of child pornography or child exploitation.
Ind. Gov't. - "Indianapolis Public Schools to boost girls sports" and comply with Title IX
Ken Kusmer of the AP reports today that begins:
INDIANAPOLIS (AP) — The cash-strapped Indianapolis Public Schools must provide more athletic opportunities for female students at six high schools to comply with Title IX, the U.S. Department of Education said Wednesday.
In an unusual move, the department's Office of Civil Rights found the district — one of Indiana's largest and one struggling with a $30 million deficit — had violated the 1972 federal law authored by former Sen. Birch Bayh, D-Ind., that requires schools to provide equal athletic opportunities to male and female students.
Girls made up half of IPS high school enrollment during the 2010-11 school year but only 35 percent of participants in athletic programs, the department said. The disparity suggested about 445 more girls should have been participating in sports.
Under an agreement with the Civil Rights Office, the 30,000-student district will take steps to ensure equal athletic opportunities for girls enrolled at six high schools: Arsenal Tech, Broad Ripple, Crispus Attucks, Northwest, Shortridge and Washington.
The agreement requires IPS to increase opportunities for girls in high school athletics and improve the facilities, equipment and prime-time scheduling of game and practice times for girls teams. It also must survey girls' athletic interests in grades 8-12 this year; report their participation in interscholastic and club sports; and report any sports teams eliminated at any of the schools over the past 10 years.
Environment - Anti-Kiger Environmental Insurance Coverage Legislation defeated Thursday in Senate committee
Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)
For publication opinions today (3):
In In the Matter of the Termination of the Parent-Child Relationship of: J.G. and C.G. (Minor Children) and B.G. (Mother) v. The Indiana Department of Child Services , an 11-page opinion, Judge Mathias writes:
B.J.G. (“Mother”) appeals the Vigo Circuit Court’s order terminating her parental rights to J.G. and C.G., two of her seven children. Concluding that Mother has forfeited her right to appeal because she failed to file a timely Notice of Appeal, we dismiss her appeal.In State of Indiana v. Michael E. Cunningham, an 11-page, 2-1 opinion, Judge Barnes writes:
The State appeals the trial court’s granting of Michael Cunningham’s motion to suppress marijuana and a marijuana pipe. We affirm. * * *In State of Indiana v. Chad Bryant , a 13-page opinion, Judge Pyle writes:
The dispositive issue is whether Cunningham validly consented to a pat-down search that revealed the presence of marijuana on his person and further led to discovery of the pipe in his vehicle.
Although Officer Hammock was entitled to pull Cunningham over for having only one red tail lamp, the ensuing pat-down search of Cunningham violated the Fourth Amendment and the resulting fruits of that search must be suppressed. We affirm the granting of the motion to suppress.
ROBB, J., concurs.
BROWN, J., dissents with opinion. [that begins on p. 10] While I concur with the majority’s conclusion that Officer Hammock was entitled to pull Cunningham over for having only one red tail lamp, I respectfully dissent from the conclusion that Cunningham’s Fourth Amendment rights were violated when he was searched. The trial court based its decision entirely on its perceived illegality of the traffic stop and made no determination as to the validity of Cunningham’s consent to a pat-down search. The majority concludes that “Cunningham had no choice but to submit to the pat-down when he exited the vehicle . . . .” In my view, however, the circumstances did not necessitate that Cunningham exit his vehicle, and indeed he chose to do so with full knowledge that, if he exited the vehicle, it would result in a pat-down search.
The State appeals the trial court’s dismissal of its charges against Chad Bryant (“Bryant”) for Class D felony operating a vehicle as an habitual traffic violator (“HTV”). We reverse and remand. * * *NFP civil opinions today (4):
In the instant case, Bryant has not challenged his HTV determination, either through the BMV or judicial review. Accordingly, in line with the preceding judicial precedent, we need not address whether the BMV’s erroneous listing of Bryant’s charges was a material error because we must consider his suspension valid until he directly challenges it. See id. at 815. As a result, we conclude that the State properly charged Bryant with Class D felony operating a vehicle as an HTV as a matter of law and that the trial court abused its discretion when it granted Bryant’s motion to dismiss. We reverse the trial court’s dismissal and remand for further proceedings.
MATHIAS, J., concurs.
BRADFORD, J., concurs in result with opinion. [which begins at p. 12, and concludes] Because Bryant has not established material error in any of the convictions underlying his HTV determination, he cannot successfully challenge his suspension on that basis. Because Bryant cannot establish that his suspension was invalid, he cannot successfully challenge his operating a vehicle as an HTV conviction on that basis. I would dispose of Bryant’s appeal on that ground, and therefore respectfully concur in result.
NFP criminal opinions today (8):
Courts - Kentucky seeks delay in implementing order requiring recognition of SSM performed in other states
LOUISVILLE, Ky. (AP) — Kentucky's attorney general asked a federal judge on Thursday to delay by 90 days an order requiring the state to recognize same-sex marriages performed in other states and countries.
The two-page filing says the delay is sought to give the attorney general time to decide whether to appeal the Feb. 12 ruling and would give the state an opportunity to prepare to implement the order.
The request came as parties in the case awaited a final order from U.S. District Judge John G. Heyburn II overturning part of Kentucky's same-sex marriage ban. * * *
Should Heyburn issue a final order and deny a delay, same-sex couples would be allowed change their names on official identifications and documents and obtain any other benefits of married couples in Kentucky. Heyburn's ruling doesn't affect a related lawsuit seeking to force the state to issue marriage licenses to same-sex couples.
Ind. Gov't. - "Purdue University Rejects Donor's Reference to 'God's physical laws' on Plaque Honoring Parents' Legacy"
From a news release from The Liberty Institute that begins:
WEST LAFAYETTE, Ind., Feb. 26, 2014 /PRNewswire-USNewswire/ -- Attorneys for a Purdue University alumnus, Dr. Michael McCracken, sent a letter to Purdue after the university rejected the language he had proposed for a plaque honoring his parents, in conjunction with a gift to the university. According to the letter, Purdue rejected Dr. McCracken's proposed language for the plaque because it included a reference to "God's physical laws."
"The First Amendment protects Dr. McCracken's right to refer to 'God's physical laws,' " said Dr. McCracken's attorney, Robert K. Kelner of Covington & Burling LLP. "Purdue asked Dr. McCracken to supply language of his choice in recognition of his and his wife's generous pledge to their alma mater. He chose language that honors the values instilled by his parents – Ed, also a Purdue alumnus, and Glenda, who recently passed away."
The letter sent Wednesday by attorneys from Covington & Burling LLP and Liberty Institute explains that Purdue rejected Dr. McCracken's choice of language after he and his wife made a $12,500 pledge to the university's School of Mechanical Engineering. When asked by the university to supply the language for a plaque to dedicate a small conference room, Dr. McCracken chose an inscription that would honor the legacy of his parents: "To those who seek to better the world through the understanding of God's physical laws and innovation of practical solutions." Purdue rejected that language because of its concern that the plaque "more likely than not" would be deemed a government endorsement of religion, opting instead to permit a plaque mentioning Dr. McCracken's parents without any use of the word "God."
Ind. Courts - More on "David Camm judge orders Floyd County to pay $140K in defense bills"
ROCKPORT, Ind. —David Camm's defense team scored another victory in court Wednesday.
His attorneys weren't fighting for his innocence, but to be paid by Floyd County for his defense during the last trial for his family's murders.
"We won in full because we haven't done anything wrong. We gave Dave a good defense and that's what he deserved, and the Floyd County auditor was just refusing to pay without any merit," said Camm defense attorney Stacy Uliana.
In court, Judge Jonathan Dartt ordered Floyd County Auditor Scott Clark to pay defense attorneys roughly $140,000.
That included the cost of mileage, airfare, hotels and food for experts who testified in Camm's third trial for the murders of his wife and kids. * * *
Camm's uncle, Sam Lockhart, covered his defense in the first two trials. This time the court appointed Richard Kammen and Uliana as public defenders. Lockhart was in court Wednesday for the ruling.
Ind. Gov't. - Public Access Counselor on records, emails, meetings; bill to charge for public records requests on verge of passing
Margaret Fosmoe reports in the South Bend Tribune:
ILB: House Bill 1306 is now on third reading. Unfortunately, it has received little to no coverage. The digest:
ELKHART — Many public records requests these days in Indiana aren't for budgets, minutes or agendas, but rather for the contents of e-mails between individual public officials or employees.
Those e-mails are public documents, even if a public official uses a private e-mail account, Indiana Public Access Counselor Luke Britt said during an information session held Wednesday at the Greater Elkhart Chamber of Commerce. * * *
In some ways, technology is progressing faster than laws are being crafted in response to the changes, he said.
"The legislation hasn't quite caught up to the ramifications of what technology can do as far as communication is concerned," said Britt, who provided a general overview of Indiana's public records and open door laws, and answered questions from the audience. * * *
Public officials should make every effort to make public meetings as open as possible, including moving them to a larger venue if they know a large crowd is expected when a major issue will be discussed, Britt said.
He described one Indiana town council that scheduled a meeting about a controversial issue in a small room, a space council members knew wouldn't contain the crowd that was expected. The council was urged to move the meeting to a nearby school gymnasium to accommodate the audience, but declined, he said.
"To me, that's a violation of what the open-door law is all about," Britt said. * * *
There's a bill being considered in this session of the General Assembly — House Bill 1306 — that would allow government agencies to charge a fee to members of the public, the media and anyone else for a public records request that takes more than two hours to fulfill. The measure would allow a governmental office to charge the hourly salary of the employee handling the search or $20 per hour, whichever is less.
Britt said he's concerned about the potential for abuse if the measure passes. "If it passes, I hope it doesn't discourage governmental entities from putting information online because (Bill 1306) produces a revenue stream," he said.
Britt described himself as a proponent of government placing as much public information — such as agendas, reports, budgets and meeting minutes — online as possible, so citizens can access the information without haven't to make formal requests. "If you can put it up on your web site, you should put it up on your web site," he said.
Search fee for public records requests. Allows a state orThere is more. For example, the bill includes provisions allowing an agency to charge a person using a cell phone for photographing a record (unless it contains the person's name)!
local government public agency to charge a fee for the time required by
the public agency in excess of two hours, to search for a public record.
Restricts the hourly rate charged for the search. Prohibits a public
agency from charging a fee for the public agency to: (1) transmit a
public record by electronic mail; or (2) permit a person (not including
a commercial entity) to use a cellular phone to copy a public record that
contains the person's name. Provides that if a public record is in an
electronic format, a public agency (excluding the office of the county
recorder) shall provide an electronic copy or a paper copy, at the option
of the person making the request for a public record. Provides that a
search fee collected by a department, agency, or office of a county, city,
town, or township shall be deposited in the general fund of the county,
city, town, or township.
This bill was considered last year but thankfully died. It was then numbered HB 1075. Last year the Indianapolis Star editorialized against it. Incredibly, the Hoosier State Press Assocation was for it. From last year's Star editorial:
Aside from voting, for which fees long ago were declared unconstitutional, there is no American right more basic than access to information about the actions of elected officials and their appointees. To erect a toll gate in front of that information would set a grave precedent for a state that has prided itself on open records and open meetings, however compromised those laws sometimes may have been.
Turning to practicalities, there is a need up front to differentiate between charging for copies of records – which the state allows, within limits – and charging for staff time, which House Bill 1175 would authorize. The former entails extra cost and is not an access matter; the latter does not add to personnel nor to the workday and thus is not a cost item in itself.
Given a new revenue tool, agencies may be tempted to take their time responding, perhaps to keep the meter running or to punish customers for inconvenience or bad press.
The staff is there to serve a fundamental need. Society as a whole – the taxpayers – should make sure that staff is sufficient. This point has been made by First Amendment and open government organizations large and small, and it relates to the issue of the “mere” $20-an-hour maximum fee.
For large news operations, the tab might be manageable – except that they may make hundreds of records checks in the course of a year and might be impelled to curtail their watchdog efforts in light of the budgetary burden.
And how about the little guys – independent journalists, citizen groups or the engaged individual who simply wants to know how his school board is spending his money? As John Loflin, with an Indianapolis grass-roots education coalition called Parent Power, puts it:
“Charging the public $20 an hour to search for its own records seems contradictory. After all, the taxes of citizens already provide the building and office used by researchers, and their general wages. Pool state and county taxes so no citizen is charged.
“Let’s have an open and easily accessible democracy, not one that favors persons or groups because of ability to pay.”
Wednesday, February 26, 2014
Ind. Courts - "David Camm judge orders Floyd County to pay $140K in defense bills"
As reported in earlier ILB posts, including this one from Jan. 16th, the Auditor of Floyd County has resisted paying some of the costs of the third David Camm trial, including attorney fees. A hearing was held today. Grace Schnieder reports for the Louisville Courier Journal this evening in a story that begins:
ROCKPORT, IND. — The judge in David Camm’s third murder trial ordered Floyd County government to immediately pay $140,000 in defense legal bills to resolve disputed billings from the former Indiana State trooper’s trial last fall.
Special Judge Jon Dartt angrily told Floyd County Auditor Scott Clark at a hearing Wednesday that the government couldn’t challenge claims for payment of lawyers and witnesses after the fact. He also admonished Clark and other Floyd officials for failing to pick up the phone to resolve the impasse.
“All this could have been avoided. When push comes to shove, there wasn’t much in dispute here,” Dartt said.
Ind. Courts - "Tippecanoe Superior Court judge regrets sending campaign email on work computer, account"
Reporter Ron Wilkins posted the story this afternoon to the Lafayette Journal Courier. A snippet:
Taxpayers unwittingly contributed to Gregory Donat’s re-election campaign for Tippecanoe Superior Court 4 judge.
On Tuesday, Donat used a taxpayer-owned office computer and his work email account, which is also owned by taxpayers, to send out a campaign letter for his re-election bid.
“It wasn’t anything malicious or planned ahead of time, and Judge Morrissey brought it to my attention,” Donat said Wednesday morning when asked about the email that was sent to dozens of people. Michael Morrissey heads Superior Court 6.
Ind. Decisions - David Wyser suspended by Supreme Court
Former Marion County chief deputy prosecutor David Wyser, subject of this Nov. 26, 2013 ILB post headed "David Wyser, former chief deputy prosecutor, sentenced to probation", now listed by the Roll of Attorneys as a resident of Reno, Nevada, has been suspended by the Supreme Court from the practice of law in Indiana in an order filed Feb. 26, 2014:
The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), has filed a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.Here is the Chonological Case Summary, showing that the notice of guilty finding was received Nov. 26, 2013.
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 offense under federal law: Bribery Involving Federal Programs.
IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately.
Ind. Courts - "US consumer bureau sues college chain ITT over student loans"
(Reuters) - The U.S. consumer watchdog said on Wednesday it has sued ITT Educational Services Inc for what the agency says are predatory student lending practices that could lead borrowers to default on their loans.
The U.S. Consumer Financial Protection Bureau (CFPB) said the Indiana-based for-profit college chain exploited students and pushed them into "high-cost private loans" that leave them strapped with debt.
The agency, in a complaint filed in U.S. District Court in Indianapolis, Indiana, said it is seeking restitution for victims, a civil fine, and an injunction against the company. * * *
The CFPB said that ITT used high-pressure tactics to push students into taking out loans without enough time to understand the details, misled students about future job prospects, and coaxed students into taking out more loans, while knowing they would not be able to pay them back.
Courts - "Federal judge strikes down Texas gay marriage ban"
Here is the AP report, beginning:
AUSTIN, Texas — A federal judge declared Texas' ban on gay marriage unconstitutional Wednesday, but left it in place until an appeals court can rule on the case.Emma Margolin has this story for MSNBC. Some quotes:
Judge Orlando Garcia issued the preliminary injunction after two gay couples challenged a state constitutional amendment and a longstanding law. He said the couples are likely to win their case and the ban should be lifted, but said he would give the state time to appeal to the 5th Circuit Court of Appeals before do so.
"Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution," Garcia wrote. "These Texas laws deny plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex."
The ruling is the latest in a series of victories for gay rights activists following similar decisions in Utah, Oklahoma and Virginia.
But this was the first time a court in the conservative 5th Circuit has reached such a decision. Texas Attorney General Greg Abbott was expected to file an expedited appeal.
Marriage equality has officially infiltrated the deep South.Here is the opinion.
Texas moved to join 17 states and the District of Columbia on Wednesday in allowing gay couples to legally wed, after a federal judge struck down the state’s nine-year-old amendment banning same-sex nuptials. U.S. District Judge Orlando Garcia, an appointee of President Clinton, issued a preliminary injunction on the ban, then suspended his ruling, meaning gay couples won’t be able to marry in the Lone Star State until the case is heard by a higher court.
Environment - The Duke coal ash spills in North Carolina and the West Virginia water contamination
While many have been focusing on the same-sex marriage issues, major environmental disasters have been happening in two eastern states known for their pushback against government regulation. The states are West Virginia, home of mountain top mining, and North Carolina, home of many large, intensive hog and poultry operations, as well more than a dozen large coal ash lagoons. [ILB: Both North Carolina and Indiana have a number of Duke coal-ash ponds/lagoon.]
Duke Energy had a massive coal ash spill in North Carolina that began on Feb. 2nd. As Michael Biesecker reported in this Feb. 19th AP story:
On Feb. 2, a pipe running under a coal ash pond collapsed at Duke's Dan River Steam Station, spilling up to 82,000 tons of coal ash mixed with 27 million gallons of contaminated water. The spill coated the bottom of the Dan River, near the Virginia border, with toxic ash up to 70 miles downstream.There have been daily stories about the spill since it happened in early Feb., focusing on the federal investigation, the Governor's connections with Duke, and the State's interventions cutting off citizen suits.The NY Times had a Feb. 16th editorial headed "Regulatory Favoritism in North Carolina" that began:
State environmental Sec. John Skvarla refused to answer Wednesday when asked at a media briefing if he had been served with a subpoena. His agency also declined to say whether it had received other subpoenas it had not yet made public.
Skvarla was appointed last year by Gov. Pat McCrory, a Republican who worked for Duke Energy for more than 28 years. Josh Ellis, McCrory's spokesman, confirmed the governor had not been subpoenaed.
The 20 subpoenas disclosed by the state environmental agency were issued on or since Feb. 11. They follow two Feb. 10 subpoenas, which were issued the day after a story by The Associated Press raised questions about a proposed deal between state officials and Duke that would have fined Duke $99,111 to settle violations over toxic groundwater contamination at two facilities. * * *
When citizen groups tried to use the U.S. Clean Water Act to sue Duke in federal court last year, the state agency intervened three times to use its authority to issue violations over the pollution. The citizens groups opposed the state's deal, saying it shielded the company from far harsher penalties it might have faced in federal court had the state not intervened.
After negotiating with the company's lawyers behind closed doors, the state proposed a settlement that would allow Duke to settle violations at facilities near Asheville and Charlotte for $99,111. That deal, which the state put on hold the day after the AP reported on it, included no requirement that Duke clean up its pollution.
Skvarla said he briefed McCrory before making the decision to intervene, but that he never discussed the terms of the deal with the governor. Environmental groups have suggested Skvarla shepherded a "sweetheart deal" with the governor's former employer to shield Duke from harsher penalties it might have faced had the citizens been allowed to sue in federal court.
Since his first unsuccessful campaign for governor in 2008, campaign finance reports show Duke Energy, its political action committee, executives and their immediate families have donated at least $1.1 million to McCrory's campaign and affiliated groups that spent on TV ads, mailings and events to support him.
After his successful 2012 campaign and subsequent inauguration, McCrory disclosed on state ethics forms that his investment portfolio includes holdings of Duke stock valued in excess of $10,000. He is not legally obligated to reveal the specific amount and has refused to do so voluntarily.
The governor said last week he sees no conflict of interests between his role as elected official and remaining a shareholder in the company regulated by his appointees.
North Carolina citizens have good reason to wonder just whom their environmental regulators are trying to protect. The state’s Department of Environment and Natural Resources has engaged in a series of maneuvers that seem designed to protect the state’s largest utility, Duke Energy, from paying big fines for water pollution from coal ash ponds and meeting reasonable requirements that it move toxic coal ash to lined landfills away from rivers and lakes used for drinking water and recreation.A chemical spill in West Virginia in January continues to have repercussions. A Jan. 16th editorial in the NY Times begins:
Meanwhile, the rest of the country — having heard of the damaging North Carolina coal ash spill this month — must be wondering why the federal government has yet to move against a serious pollution problem it has known about for years.
One answer is the political power of the utilities. In North Carolina, a coalition of environmental groups, led by the Southern Environmental Law Center, tried three times over the past year to sue Duke Energy in federal court for violating the Clean Water Act, only to be pre-empted by the state regulatory agency, which asserted its authority to protect the public through enforcement actions in state courts. Once in control of the litigation, the state regulators quickly proposed a sweetheart settlement of suits against two Duke Energy plants. It would have imposed total fines and costs of about $99,000, a pittance for a company with operating revenues of $19.6 billion in 2012, plus a cleanup plan riddled with loopholes.
Critics blamed the new Republican governor, Pat McCrory, who had worked at Duke Energy for 29 years, and the businessman he appointed to head the environmental department, John Skvarla. Federal prosecutors have opened a criminal investigation into the Dan River spill and issued subpoenas for the records of Duke Energy and the environmental department.
The third suit was still pending when coal ash spilled on Feb. 2 into the Dan River, near the Virginia border, through a ruptured pipe at another Duke Energy plant that is no longer in use.
The chemical spill that cut off water to more than 300,000 people in West Virginia for several days has exposed serious defects in state and federal environmental protections that allow many facilities and chemicals to escape scrutiny.The Washington Post had a good story on Jan. 21st headed "Five big questions about the massive chemical spill in West Virginia."
Investigators are still trying to figure out exactly how an estimated 7,500 gallons of a chemical used to clean coal called 4-methylcyclohexane methanol, or MCHM, leaked from a storage facility into the Elk River. But state and federal agencies clearly should have done more to limit the risks. For starters, the state failed to adequately inspect how the facility stored chemicals, though it did send inspectors there to check on air quality. The chemicals were kept in tanks on the riverbank, upstream from a large water-treatment plant that supplies Charleston.
The spill is the third major chemical accident in the region in five years. State lawmakers and regulators in West Virginia have a long history of coddling the coal and chemical industries, which dominate the state’s economy. According to a 2009 investigation by The Times, companies that pollute state waters are rarely fined. And state officials have so far ignored a 2011 proposal from the federal Chemical Safety Board urging new rules to prevent industrial accidents and spills. That recommendation came after an explosion at a chemical plant near Charleston that killed two people in 2008.
From a Feb. 25th story by Katie Valentine in Thin Progress, headed "More Than 60 West Virginia Facilities Could Contaminate The Elk River’s Water Supply, Report Finds," some quotes:
The leak from a Freedom Industries chemical storage facility in West Virginia may now be contained, but according to a new report, that plant was just one of many potential sources of pollution along the Elk River, which supplies water to 300,000 West Virginians.
The report, published by West Virginia’s Downstream Strategies, found that there are 62 facilities along the Elk River that are “potential significant contaminant sources” (PSCSs) — facilities that, if they experience a spill, would contaminate the Elk River’s water supply. * * *
The report isn’t the only one to call for tougher regulations on the chemical and coal industries in West Virginia. A recent poll released by the Sierra Club found that most West Virginians polled think the January spill should serve as a “wake up call” for the state to re-evaluate its environmental laws. The poll surveyed 504 registered voters in the state and found that 73 percent of them thought that “West Virginia has paid too little attention to addressing threats to air and water,” and that 69 percent of them thought disasters like the Elk River spill were likely to occur in the future unless the state takes action to prevent them. The poll also found that 97 percent of respondents would support a proposal that would require facilities that could contaminate water supplies to be inspected regularly.
And though West Virginians are often painted as staunch coal supporters, 40 percent of respondents said the coal industry bears “a lot or some” of responsibility for the spill, and 65 percent said the coal industry bears a lot or some responsibility for the overall contamination of West Virginia’s air and water.
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Robin Harper v. State of Indiana , a 10-page opinion, Judge Mathias writes:
In emergencies, law enforcement officers are often called upon to make splitsecond judgments as they do the dangerous work of protecting us all, judgments that we in a civil society endeavor to support as much as possible. But when, without any exigent circumstances, and after being denied consensual entry, a law enforcement officer lies to gain entry into someone’s home, is that officer “. . . lawfully engaged in the execution of the officer’s duties . . .” so as to justify the arrest of the owner or renter of the home and to charge her with the crime of resisting law enforcement? We answer this question in the negative and reverse Robin Harper’s Class A misdemeanor resisting law enforcement conviction. * * *In Chad E. Hucker v. State of Indiana , a 6-page opinion, Judge Robb writes:
So, even though Harper expressly told the officers that they could not enter her home and had no reason to be inside her house, when Harper took Officer Gillespie’s clipboard, the two officers entered the home. After Harper returned the clipboard to the officers, Officer Gillespie immediately placed her in handcuffs, with her hands behind her back. * * *
[T]he State urges us to conclude that the “ruse” perpetrated by Officer Gillespie to gain entry to Harper’s home is not significant to the outcome of this appeal. We do not agree. Indeed, the manner in which the officers gained entry to Harper’s home is at the core of our concern and holding. Public trust and confidence in law enforcement officers would surely be eroded if we were to sanction an officer’s fraudulent statements or activity in order to enter a residence when there were no exigent circumstances to justify such conduct. Implicitly acknowledging this public policy concern, our courts have held that “[c]onsent to entry is generally valid except when it is procured by fraud, duress, fear, intimidation, or when it is merely a submission to the supremacy of the law.” * * *
Although Officer Gillespie’s purpose for entering Harper’s home was to arrest her, he was still required to obtain an arrest warrant before entering her private residence. This was not a situation of hot pursuit or a crime committed in the presence of the officer. The State does not argue any other exigent circumstances, or any reason at all, that would have made it impracticable for Officer Gillespie to obtain an arrest warrant. * * *
For all of these reasons, we conclude that Officers Gillespie and Hartman unlawfully entered Harper’s residence, and therefore, the officers were not engaged in the lawful execution of their duties at the time they arrested Harper and then attempted to remove her wedding ring in preparation for booking. Accordingly, the evidence is insufficient to support Harper’s conviction for Class A misdemeanor resisting law enforcement, and we reverse that conviction.
Chad E. Hucker appeals his convictions for operating a vehicle while intoxicated and operating a vehicle with a schedule I or II controlled substance, both Class C misdemeanors. Hucker raises a single issue for our review: whether Indiana Code section 9-30-5-1(c), which proscribes the operation of a vehicle with a schedule I or II controlled substance, violates Article 1, Section 23 of the Indiana Constitution (the “Equal Privileges and Immunities Clause”). Concluding the statute does not violate the Indiana Constitution’s Equal Privileges and Immunities Clause, we affirm.NFP civil opinions today (3):
NFP criminal opinions today (2):
Ind. Law - Two low-cost CLE opportunities at IU McKinney
This one is not only free, but includes a free lunch! A 1.0 credit CLE titled "Judicial Selection: Thinking Outside the Box."
Judicial Selection can be, and is, more than just slating, elections, or nominating commissions of attorneys and lay people. Come hear three law students from the judicial selection seminar at the Indiana University McKinney School of Law address unique ways of thinking about judicial selection. Lunch is included! It is Friday, March 7th.This one is 6.0 CLE (including 1.0 hours ethics) and is $75. It is this Friday, Feb. 28th. It is IU McKinney School of Law's Seventh Annual Environment, Energy & Natural Resources Symposium - Indiana Rivers: Water Access, Water Quality, & Water’s Future. The intro:
Indiana’s Rivers are indeed a treasure as well as a resource that the state is bound to protect and conserve. Through a complex system of laws and regulations at the state and federal level, the rivers that flow through the state and define some of its borders are monitored, protected, assessed, and conserved and activities on their shores, and in their watersheds, that can affect water quality are likewise monitored and regulated. Recent events in West Virginia – where over 300,000 people lost access to basic drinking water for over a week following a chemical release into the Elk River – demonstrate that even the most complex and carefully-managed regulatory system can still fail. And recent experience in Indiana – where almost two-thirds of state waters that have been assessed for quality have been designated as “impaired” under the Clean Water Act – shows that more can be done.View the program, it sounds excellent. And lunch is included, the luncheon speaker is Carol Comer, General Counsel, Indiana Dept of Environmental Management.
Environment - AG Zoeller co-authors amicus brief challenging Chesapeake Bay cleanup
Although Attorney General Zoeller is concerned about Asian Carp in the Wabash, he is challenging a plan crafted by US EPA and the Chesapeake Bay watershed states to save the Bay.
Zoeller, on behalf of the State of Indiana, joined the states of Missouri and Kansas as authors of an amicus brief supporting the plaintiffs in a case in the Third Circuit: American Farm Bureau Federation, et al v. US EPA (13-4079). The "et al" are Penn. Farm Bureau, Fertilizer Institute, US Poultry & Egg Assn., National Pork Producers Council, National Corn Growers Assn., and National Assn. of Home Builders.
Here is a copy of the 41-page amicus brief.
The lawsuit by the big agricultural interests challenges the joint US EPA/state plan to save the Bay by limiting the total maxiumum daily load, under the Clean Water Act, of nitrogen, phosphorus and other pollutants, mostly agricultural runoff, that enters the Chesapeake Bay's waters. The District Court found in favor of the plan.
Dave Stafford of The Indiana Lawyer has extensive coverage in a story today headed "Indiana joins suit seeking to halt EPA-led plan to clean up Chesapeake Bay." The introduction:
Decades of squabbles over cleaning up one of America’s most historic but polluted waters resulted in an agreement between states and the federal government that supporters say could restore the Chesapeake Bay to a swimmable, fishable national treasure.
But if Indiana and other states without a direct stake in the Chesapeake have their way, the cleanup hashed out between bay states and the Environmental Protection Agency will be stopped.
“To have states outside the bay region file briefs to oppose how we’ve resolved this historic and very thorny problem, I have to say, is a little surprising,” said Jon Mueller, vice president of the Chesapeake Bay Foundation. “It’s a little short-sighted in my view.”
Environment - "Wayne County might add manure rules"
Pam Tharp reports in the Richmond Palladium-Item:
Wayne County planning officials got a green light Monday to move forward with new county rules for smaller manure storage facilities. * * *
Residents and planning officials in Wayne and other adjoining counties heard firsthand from state and university experts on manure and fertilizer regulations and home rule opportunities.
The Indiana Department of Environmental Management regulates manure storage that exceeds 5,000 cubic yards, but Indiana has no regulations governing smaller amounts, said Matt Pearson of the Indiana State Chemist Office.
“So home rule would allow regulation of lesser amounts, since the state is asleep?” Wayne County Commissioner Mary Anne Butters asked.
Some Indiana counties already have passed regulations on agricultural issues unregulated by the state, said Jennifer Thum, district support specialist at the Indiana State Department of Agriculture. * * *
Last year, Wayne County residents presented a petition asking county commissioners to adopt rules governing manure storage facilities that weren’t controlled by state or federal rules. They asked for setbacks, a public hearing for each facility and soil testing to establish a baseline prior to the manure storage, Higinbotham said.
Neuman Lake Road resident Mahlon Whitaker said his knowledge about chicken manure increased after he learned a storage facility was to be built across the road from his house in southwestern Wayne County.
The manure is likely to come from Ohio’s Great Lake St. Mary area, which is exporting the fertilizer to protect its lake, he said.
“County officials were caught flatfooted on this,” Whitaker said. “Ohio is taking a dump on us. When you’re training farmers, can you tell them to think about their neighbors? I want to be farmer-friendly.”
Former state representative Phil Pflum said government intervention is needed because too many farmers have forgotten their neighbors.
“There are probably 3,000 people who live within a mile of the chicken manure storage,” Pflum said. “In my view, too much has been delegated to the state. Unfortunately, we have a lot of farmers today who are bad neighbors.”
Environment - "Fish farm plans $30 million expansion: But neighbors raising a stink"
ALBANY — Bell Aquaculture, the nation’s largest yellow perch farm, is planning a $30 million expansion that would create 75 jobs as it diversifies into cultivating trout and coho salmon.More from the long story:
But the farm, which will produce about 2.5 million pounds of yellow perch, rainbow trout and steelhead trout this year, as well as 300,000 pounds of salmon, is facing a potential roadblock.
Bell’s neighbors Tony and Amy Evans hosted a meeting Monday night to organize opposition to Bell’s application for a zoning variance that would allow Bell to construct a feed mill, which the company says is needed for the farm to grow.
Odor from Bell’s manure lagoon last summer made it impossible for the Evanses to enjoy their garden, patio, summer breezes coming in through their windows and numerous family get-togethers, the couple say.
Bell currently employs more than 50 people at its fish farm on the outskirts of Albany and at its processing facility in Redkey.
The company says a building expansion will increase production to 7.5 million pounds of perch, trout and salmon a year.
Bell already raises fish in two dozen tanks each containing 70,000 gallons of water that is recirculated.
The company just built a $1 million-plus wastewater treatment plant and installed a quarter-acre lagoon last year. Prior to that, its fish feces was treated in a three-acre, man-made wetland.
Tony Evans says the odor problem began last year after the lagoon and treatment plant were added. “We did not used to have this problem,” he said.
Bell has been in business since 2005-06.
Bell president Norm McCowan says the Indiana Department of Environmental Management required the company to add the treatment plant and lagoon to reduce total suspended solids being discharged into a receiving stream.
The Metropolitan Board of Zoning Appeals will conduct a public hearing on the variance application at 6:30 p.m. on Thursday.There is much more in the story.
The feed mill requires a variance because the county zoning ordinance does not allow manufacturing in a farming zone.
Courts - "SCOTUS Opens Door To Easier Police Searches"
Here is Nina Totenberg's NPR report on Tuesday's SCOTUS opinion that:
... police may search a home without a warrant if one person who lives there consents, even if another occupant has previously objected. The 6-3 decision would seem to seriously undercut a 2006 high court ruling that barred warrantless searches of a home where the occupants disagreed on giving consent.SCOTUSblog has a longer analysis here, by Rory Little.
In 2006, the justices, by a close vote, ruled that when two occupants of a home disagree about whether to allow police to conduct a warrantless search, the police must defer to the person who objects. But now the court has ruled that when the objecting occupant is no longer there, his objections are no longer valid.
Ind. Gov't. - "Legislature rejecting Pence's wish list"
That is the headline to Rich James' column this morning in the NWI Times. A taste:
The Republican-controlled Indiana General Assembly and Gov. Mike Pence aren’t on the same page.
Shoot, they aren’t even reading the same book.
If Democrats think they are getting the short end of the stick this session, they might ask to borrow Pence’s crying towel.
The governor has been battered by his own party at every turn.
What’s surprising is that Pence continues to turn the other cheek. * * *
With the session winding to a close, Pence is on the verge of suffering a major legislative embarrassment.
That’s not terribly good for someone still harboring thoughts about running for president.
Environment - "Bill would eliminate Daniels’ clean-energy program"
From John Russell's IndyStar story last evening:
Indiana’s flagship clean-energy program, launched by then-Gov. Mitch Daniels and hailed by environmentalists as a way to cut costs and clean the air, would be scrapped at the end of the year under a last-minute amendment passed Tuesday by the House of Representatives.The bill is SB 340.
The House voted 66-30 to shut down the program that requires all electricity customers to pay a monthly fee to promote energy-efficiency programs.
Since 2012, the state has used the funds to conduct energy audits and weatherization programs and to provide energy-saving light bulbs and other energy-saving programs.
The measure also would prohibit the state from forcing utilities to meet efficiency goals. The program had been set up to produce energy savings of 2 percent by 2019, cut air pollution and reduce the need to build additional power plants.
Environmentalists said the program saved enough energy each year to power 64,000 homes. But some critics said the program amounted to executive overreach, because the legislature never approved it or got a chance to set up any reviews. They said it costs $2 to $3 a month for the average homeowner and much more for factories and other big users.
Rep. Heath VanNatter, R-Kokomo, introduced a wide-ranging amendment that would do away with the program. He attached it to a less sweeping energy bill that would have exempted utilities and other big users from paying the monthly fees.
ILB: I've highlighted the claim of "executive overreach." The story also notes that the program was set up by the IURC in 2009. Apparently it has taken 5 years for the General Assembly to object to the "overreach." Daniels joins President Obama, who has been attacked by these buzzwords, "executive overreach" and "regulatory overreach", since the State of the Union.
Ind. Gov't. - "What’s a new hospital worth? In Porter County, it’s debatable"
Amy Lavally, of the Gary Post-Tribune, reports today:
VALPARAISO — The value of Porter Regional Hospital was up for debate again before the Porter County Property Tax Assessment Board of Appeals on Tuesday.Bob Kasarda has this story in the NWI Times:
This time, the issue was the hospital’s value last year.
Assessor Jon Snyder said the value of the hospital on March 1, 2013, was $244.5 million, far greater than the $39 million hospital officials claim.
“The taxpayers of Porter County would suffer a severe injustice” in lost tax revenue with a $39 million assessed valuation, Snyder said. “Hence the debate over what the value of the hospital should be.” * * *
Hospital officials already are appealing the board’s ruling on the hospital’s value for 2012 to the Indiana Board of Tax Review. That followed a December ruling by the property tax appeals board that set the new hospital’s assessment at $117 million.
Snyder had set the hospital’s value at $34 million and hospital officials appealed, at which point the property tax appeals board determined that the hospital’s value should have been $117 million as of March 1, 2012.
This time around, Don Feicht, vice president of taxation for Uzelac and Associates, which is representing the hospital, said the assessment was not done under the guidelines established by the 2011 Real Property Assessment Manual and Guidelines, drafted by the Indiana Department of Local Government Finance.
Snyder also went beyond the scope of those guidelines by hiring an independent appraiser to determine the hospital’s value.
“True tax value does not mean fair market value,” Feicht said.
But Snyder said the guidelines, which include a property’s cost, sales comparison with similar structures, and income, also can include an outside appraisal.
VALPARAISO | Representatives of Porter Regional Hospital accused Porter County Assessor Jon Snyder of going outside state guidelines when hiring an independent appraiser to assess the new hospital and outpatient building at Ind. 49 and U.S. 6.
"We don't know what his methodology was," said Donald Feicht Jr., vice president of taxes at Uzelac & Associates.
The hospital representatives appeared Tuesday morning before the Porter County Property Tax Assessment Board of Appeals to challenge the $244.5 million assessment, arguing the figure should be $39.3 million.
The lower figure was arrived at using an assessor manual and guidelines provided by the state, Feicht said. He cited other examples of hospitals assessed at lower values and accused Snyder of being the only assessor in the state to go outside the guidelines in this type of work.
Snyder provided the PTABOA members with a copy of the privately-done appraisal, saying it used approaches involving cost, sales comparisons and income. Each approach came to a value that is far closer than 1 percent of one another, he said.
Feicht questioned why the independent appraisal was labeled confidential and kept out of the hands of the public and himself.
"We are the hospital," he said.
Snyder said the confidential status was ordered by the court that forced the hospital to release information said to be needed for the assessment.
Tuesday, February 25, 2014
Courts - "Administrative judge was disbarred in 1998 but continued to work"
He had been disbarred in Indiana, but continued to work as an administrative law judge in the District of Columbia, "even though municipal regulations required workers' comp judges in Washington, D.C., to have a law license," reports the ABA Blog. Anand Verma was disbarred by the Indiana Supreme Court in 1998.
The entire report can be found in a very long Feb. 21st story by Jeffrey Anderson in the Washington City Paper, headed "Why did D.C. let a disbarred lawyer serve as a workers' comp judge?" A quote from about half-way through the story:
In 1984, Anand K. Verma was admitted to the Indiana State Bar Association [ILB - sic] under the name Anand K. Rajan. The next year, he submitted a job application to an insurance company, in which he falsified his date of birth and the dates he attended undergraduate and graduate school in India and the United States, according to the Indiana court’s 1998 ruling.
Verma also submitted a letter from the National Law Center at George Washington University that was altered to incorrectly state his dates of attendance, and a purported transcript that misrepresented his dates of birth and attendance at other universities, the court found.
The court suspended Verma’s bar license for one year, but his problems weren’t over.
In 1998, the same court found that Verma made false statements on bar applications in Pennsylvania and Maryland. On the Pennsylvania application, court records show that Verma falsely claimed to have practiced law in Indiana from 1985 to 1992, though he actually lived in California, Pennsylvania, and D.C. during that time.
On his Maryland application, the court ruling states, Verma “procured or forged” a signature of a “David Rivera,” allegedly a member of the Minnesota bar who claimed Verma practiced law in D.C. in 1993. On Verma’s own application, however, he states that he did not practice law in D.C. during that period, the court found. The Minnesota Bar shows no record of a “David Rivera.”
A 1994 letter Verma sent to Maryland bar officials also misrepresented the extent of his prior discipline in Indiana and falsely stated that he never had a formal hearing there, the court found.
In disbarring Verma, the Indiana justices said, “We view him as unable, truthfully and within the bounds of basic precepts of professional ethics, to represent the causes of others as an officer of this court.”
Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)
For publication opinions today (1):
In James Kindred, Thomas Kindred, and Sam Kindred v. Betty Townsend and Harmon Crone , a 7-page opinion, Judge Mathias writes:
James Kindred, Thomas Kindred, and Sam Kindred appeal the interlocutory order of the Owen Circuit Court denying their motion to dissolve a preliminary injunction requested by Betty Townsend and Harmon Crone (collectively “the Defendants”). Concluding that the Kindreds’ appeal is an untimely attack on the trial court’s earlier order granting the preliminary injunction, we dismiss. * * *NFP civil opinions today (1):
Because the Kindreds did not perfect an interlocutory appeal within thirty days of the trial court’s order entering the preliminary injunction, their right to appeal this order has been forfeited. They cannot revive this right by filing a motion to dissolve the preliminary injunction entered against them based on claims, evidence, or alleged facts that were available to them at the time the preliminary injunction was tried. We therefore dismiss this interlocutory appeal as untimely.3 Dismissed.
Our holding should not be taken to mean that the Kindreds have forever waived any issue with regard to the trial court’s interlocutory order(s). To the contrary, our supreme court has held that “[a] claimed error in an interlocutory order is not waived for failure to take an interlocutory appeal but may be raised on appeal from the final judgment.” Bojrab v. Bojrab, 810 N.E.2d 1008, 1014 (Ind. 2004) (citing Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind. 2003)). Thus, the Kindreds may attack the trial court’s interlocutory orders on appeal from the final judgment. See id. But we hold that they have forfeited their right to an interlocutory appeal by failing to timely appeal the trial court’s entry of the preliminary injunction.
NFP criminal opinions today (6):
Ind. Law - "Reveal properties’ meth-related past"
[Rep. Wendy ] McNamara’s bill requires that property used for meth production or as a dumping ground for the drug be listed on a website for at least 90 days after it is certified as decontaminated by an approved inspector. Responsibility for the online registry is transferred to the Indiana State Police from the state’s Criminal Justice Institute, which never received funding to create the registry.
The state police already have a database of meth lab seizures, according to First Sgt. Niki Crawford, commander of the agency’s methamphetamine suppression section. State Police will format the information to post online.
“The new disclosure part allows a purchaser to know what they’re getting into,” Crawford said. “It’s simply a public safety tool.”
Current law allows property owners time to decontaminate a residence before an address is listed on a registry. The legislation would require properties be listed immediately and also removes a provision that makes records related to a property’s removal from the registry confidential.
Indiana would join a handful of states that have now passed meth-lab disclosure laws, including Ohio. Once a rural scourge, meth production has moved to cities and suburbs so homebuyers or prospective tenants might not be aware of the risk.
The bill doesn’t address the root of the problem, but it goes a long way in protecting unsuspecting Hoosiers. It passed the House with a 95-0 vote and deserves the same unanimous support in the Senate.
Environment - "Right to farm" bill on its way to the Governor
Niki Kelly's story today in the Fort Wayne Journal Gazette reports:
A bill recognizing agriculture and farmers’ rights passed the House 67-30 Monday.Re the last paragraph, that objective, "to encourage the production of food," could have been accomplished with the passage a simple or concurrent resolution. Rather, look at one of the quotes in the Jan. 15th ILB post:
Senate Bill 186 now heads to the governor for final approval.
The legislation says it is state policy to conserve, protect and encourage agriculture. But a second sentence construing the Indiana code to protect the rights of farmers has caused some concern.
Rep. Patrick Bauer, D-South Bend, said many family farms, doctors and environmentalists oppose the bill.
“I think this bill is going much too far,” he said, saying it encourages judges to have a bias for farmers in lawsuits. “You already have a right to farm.”
But he and others don’t think that should mean a right to pollute the air and land.
Rep. Don Lehe, R-Brookston, said the bill simply encourages the production of food in a world where the population is growing and cost is a key concern for consumers.
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.”
Monday, February 24, 2014
Ind. Gov't. - More on: Ways & Means amendment to SB 367 allows state contracts to discriminate on the basis of religion
House Speaker Brian Bosma put the brakes on a measure that would allow some state contractors to discriminate against employees based on religion.Tom LoBianco of the AP reports:
Republican state lawmakers slipped the provision into an unrelated bill during a House Ways and Means Committee meeting earlier today.
But within a few hours, Bosma announced that the measure would be re-committed to the Ways and Means Committee for further discussion.
“There was a lot of confusion about the purpose and intent of the amendment, so I thought it best for it to come out so it wasn’t a distraction,” he said.
Bosma said the measure was intended to address a state contracting issue with Indiana Wesleyan University, but that some people felt it went beyond that purpose.
The change to Senate Bill 367, a property tax bill, would allow any school, college, or religious institution affiliated with a church to hire employees based on religion, even if they have a contract with the state.
INDIANAPOLIS (AP) — A measure designed to restore Indiana Wesleyan University's workforce training contract with the state unexpectedly raised debate in a General Assembly already energized by this year's gay marriage debate.
Republican State Rep. Eric Turner proposed amending Indiana's civil rights law to allow religious institutions doing business with the state to employ people based in part on their religious affiliation.
Turner filed the measure shortly after the state rejected a longstanding workforce training contract with Wesleyan. A lawyer with the attorney general's office determined language allowing the Christian university to hire in part based on religion violated state law.
The measure narrowly passed the House Ways and Means Committee Monday but Republican House Speaker Brian Bosma spiked the measure shortly after the issue erupted into a heated religion debate on Twitter.
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal re hair length
In Patrick Hayden v. Greensburg Community School Corp. (SD Ind., Young), a 39-page, 2-1 opinion, Judge Rovner writes:
On behalf of their son, A.H., Patrick and Melissa Hayden challenge a policy which requires boys playing interscholastic basketball at the public high school in Greensburg, Indiana, to keep their hair cut short. The Haydens make two principal arguments: (1) the hair-length policy arbitrarily intrudes upon their son’s liberty interest in choosing his own hair length, and thus violates his right to substantive due process, and (2) because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination. The district court rejected both claims and granted judgment to the defendants. Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 2013 WL 1001947 (S.D. Ind. Mar. 13, 2013). We reverse in part. Because the hair-length policy on its face treats boys and girls differently, and because the record tells us nothing about any comparable grooming standards applied to girls playing basketball, the evidence entitles the Haydens to judgment on their sex discrimination claims. * * *Judge Manion's dissent begins on page 28:
For the reasons discussed in this opinion, the district court’s judgment in favor of the defendants on the Haydens’ substantive due process claim is affirmed. However, the judgment in favor of the defendants on the equal protection and Title IX claims is reversed. On the record presented to us, the Haydens have established that the hair-length policy applicable to boys wishing to play basketball impermissibly discriminates based on sex. The case is remanded to the district court to determine appropriate relief on these claims. The parties shall bear their own costs of appeal. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Having ruled against A.H.’s primary argument, the court decides this case on equal protection arguments that A.H. did not make, rooted in authority he did not cite. However, the court does not actually tell us why the policies here are not comparable under the correct standard. Rather, the court decides that the school loses by default because the record is missing some of the grooming provisions that are applicable to female athletes. But there is enough in the record to compare the grooming policies applicable to male and female athletes, and if anything that is missing were included, it would only make the burden of the grooming policy applicable to male athletes even more clearly balanced out by the burden on female athletes. Although I agree with the court’s general summary of the law of equal protection, I write separately because the record does not establish any violation of the Equal Protection clause or Title IX.
Ind. Law - More on: The mysterious LSA memo on amending the Indiana Constitution
From the Feb. 2, 2014 ILB post:
Back on the November 26, 2013 edition of Indiana Week in Review I heard a mention that Senator Long had received an LSA memo addressing whether a constitutional amendment had to pass two General Assemblies in the same form and that the memo cited two authorities, presumably cases, that said no. I tried but couldn't turn up a copy of the memo. * * *After HJR 3 passed the Senate without the second sentence, there was talk, by a disabused out-of-state group, of an effort to put HJR 3, with both sentences, on the ballot this year through court action. They said they believed they had the law on their side. Most recent reports are that the effort has been abandoned. As Dan Carden reported today in the NWI Times:
The Sunday issue of the now $$ Evansville Courier & Press boasts of a story by Chelsea Schneider titled "Amendment process not always by the book." Because of the paywall, all I can access of the story is:Amending Indiana’s constitution is a multi-year process. But twice in the state’s history the General Assembly cut that process short.
In one of several bizarre postscripts to the Indiana marriage debate, the Washington, D.C.-based National Organization for Marriage announced last week it was considering legal action to force the marriage amendment on the ballot in 2014, and was looking for Hoosier lawmakers to help. * * *Recently, the ILB has obtained, not the actual LSA memo, but the $$ story reported by Chelsea Schnieder. A few quotes:
Brian Brown, president of the National Organization for Marriage, backed down Friday and instead vowed to punish lawmakers who refused to support putting the marriage amendment on the ballot this year.
"While we believe a strong legal case can be made that the amendment could appear on the ballot this year, we think that the time and expense of such an effort would be better devoted to holding legislators accountable for their votes, and to preparing to elect a strong pro-amendment Legislature to pass the pending amendment in 2015," Brown said.
Amending Indiana’s constitution is a multi-year process. But twice in the state’s history the General Assembly cut that process short.The tax amendment. Well, after researching the Acts of Indiana for 1963(SS) and 1965, it turns out that in fact, an amendment to Article 10 of the Indiana Constitution did pass in two different General Assemblies in two different forms. Here is the 1963(SS) version; it amends Art. 10, Section 1 (re exempting certain property from the property tax), and then continues on in another section to amend Art. 10, Section 10, to prohibit a graduated income tax.
Indiana’s constitution requires two, separately-elected state Legislatures to approve the same wording of a constitutional amendment before the measure goes to voters. If the General Assembly changes the wording as will be the case if the Indiana Senate agrees to the House’s decision to strike the proposed civil unions ban from House Joint Resolution 3 the process restarts.
Yet in 1965 and 1969, the General Assembly changed the wording of proposed constitutional amendments, and sent the proposals to voters on the following year’s ballot anyway. In both cases, no records exist that court challenges took place.
Because they were never challenged, no precedent exists for what would happen if the General Assembly decided to skip the process and send the amended HJR-3 to voters in 2014. * * *
The 1965 amendment eliminated the household goods and intangible tax and provided for an excise tax on motor vehicles. The General Assembly first approved the changes in 1963, but the House Ways and Means Committee deleted a part of the proposal dealing with income tax in 1965.
The later amendment overhauled Article 7 of Indiana’s constitution establishing the state’s judicial branch. The General Assembly first approved the amendment in 1967, and the only changes lawmakers made in 1969 were for misspellings and minor copy editing errors.
Both amendments won the approval of Indiana voters in 1966 and 1970.
In the 1965 session, the amendment to Art. 1, Sec. 1 was again adopted, but the second provision, the amendment to Art. 10, Section 10, was dropped from the resolution.
The proposed constitutional amendment, as it passed in 1965, was presented to the voters on the 1966 ballot and it was adopted. There was no court challenge at the time.
Since the 1965 change to Art. 10, Section 1, the provision has been amended by the voters two additional times, in 2004 and 2010.
What are the differences between this 1965 tax amendment, and the 2014 marriage amendment?
- There was no court challenge to the amendment.
- Because of the different subject matters of the two sections, the 1965 General Assembly may have been trying to comply with Art. 16, Sec. 2, which requires:
If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.
- Any issue with the version ratified by the voters in 1965 has been obliterated by the subsequent ratification of two further amendments to the same section.
- The 2014 amendment to the marriage amendment was the excision of a sentence from a paragraph, not the elimination of a section on a different subject, as in 1965.
Although the story reports that the changes to Article 7 were not challenged, in fact they were. As the ILB reported on Dec. 15, 2013:
I've just looked at our Supreme Court's 1972 opinion in Roeschlein v. Thomas (Feb. 24, 1972). The new Judicial Article had been challenged, and the Supreme Court in Roeschlein upheld it (granting transfer and adopting the COA opinion), despite challenges to the procedures followed by the House and Senate in passing it. The challengers' assertions included: "the House and the Senate in voting upon the proposed Judicial Amendment did not vote upon the same 'proposed amendment or amendments' as required by the language of Article 16, § 1." However, the Court said:Finally, in this Feb. 13, 2014 post, the ILB pointed out that neither the implementary language in the version of HJR 3 passed by the House, nor that passed by the Senate, would permit the amendment to be submitted to the voters. Rather, it reads:In view of the decision we reach, the character of the changes does not constitute a material issue of fact and therefore we do not need to determine whether the changes are substantial or unsubstantial.The Court's reasoning was that the resolutions had been authenticated by the presiding officers of the House and Senate, and the Court, deferring to the separation of powers, would not look beyond this.
SECTION 1. The following amendment to the Constitution of the State of Indiana is proposed and agreed to by this, the One Hundred Eighteenth General Assembly of the State of Indiana, and is referred to the next General Assembly for reconsideration and agreement.In sum, it does not appear that the law is at all on the side of those who would attempt to obtain a court mandate to send the original language (or even the amended language) of HJR 3 to the voters in 2014.
Environment - Senate committee chair kills "no more stringent" bill
The AP has a brief report here.
For background on HB 1143, see this Feb. 10th ILB entry.
Ind. Courts - "Purdue Women Feature: Loretta Rush worked her way up from Purdue to Indiana Supreme Court Justice"
The Exponent has a feature story, dated Feb. 21st, on Purdue alumna Loretta Rush, reported by Taylor Carlier. A few quotes:
She is the only woman in the Indiana Supreme Court, only woman that was elected as a judge in her county and one of the few women to study at West Point Military Academy.
Loretta Rush, who graduated from Purdue’s College of Liberal Arts in 1980, understands what it’s like to achieve her goals in a male-dominated industry.
“There were moments in the process that weren’t easy,” she said. “I was always really grateful of the people that came before me, for the work that they had done. Women weren’t allowed to practice law in Indiana until 1893.”
Rush didn’t intend to work in law until she enrolled at Purdue and took interest in a specific constitutional law class. Her decision to work in that field was sealed when one of her friends was going to Indianapolis to take the LSAT, and she decided to tag along to take it for fun.
Ind. Gov't. - Ways & Means amendment to SB 367 allows state contracts to discriminate on the basis of religion
That is the gist of this preliminary story this afternoon from Tony Cook of the Indianapolis Star, who reports:
The change to Senate Bill 367, a property tax bill, would allow any school, college, or religious institution affiliated with a church to hire employees based on religion, even if they have a contact with the state. * * *Here is the language of the amendment.
The change was offered by Rep. Eric Turner, R-Cicero, who also authored the much-debated constitutional same-sex marriage ban. * * *
Those voting against the religious discrimination provision included all of the Democrats present and Republican Rep. Dan Leonard of Huntington.
ILB: The change makes an exception to the general requirement that every contract by any level of government shall contain a provision requiring the contractor and any subcontractors not to discriminate against any employee or applicant for employment to be employed in the performance of such the contract, with respect to the individual's hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of the individual's race, religion, color, sex, disability, national origin, or ancestry.
The new exception approved today would say that such a covenant, or assurance, is NOT required:
with respect to the individual's hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of the individual's religion.Indianapolis attorney Bill Groth points out that such discrimination is prohibited by Title VII.
Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)
For publication opinions today (3):
In In Re: Paternity of J.M.; C.M. v. T.S., a 13-page opinion, Judge Brown concludes:
Based upon the record, we conclude that the trial court abused its discretion in denying Father’s motion for a hearing to determine the amount of his child support arrearage and the propriety of the garnishment of his inmate trust fund account. We reverse and remand with instructions to conduct an evidentiary hearing for the purpose of determining Father’s child support arrearage and his ability to pay, a determination of a reasonable arrearage payment schedule, and the entry of an income withholding order consistent with and subject to the limits set forth at Ind. Code § 24-4.5-5-1057 and other limits imposed by law. Reversed and remanded with instructions.Shawn Blount v. State of Indiana
BARNES, J., concurs.
ROBB, J., concurs with separate opinion. [that begins, on p. 9] I concur in substance of the majority’s opinion, but write separately to note that the order purportedly being appealed was signed only by a magistrate. * * * By statute, the magistrate lacked authority to enter a final appealable order on his own. * * *
However, since the resolution of this case, in essence, provides the same result as suspending this appeal pending the regular trial judge’s review of the magistrate’s recommendation, I concur with majority’s resolution of the issue.
NFP civil opinions today (2):
NFP criminal opinions today (1):
Ind. Decisions - Transfer list for week ending February 21, 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, February 21, 2014. It is one page (and 8 cases) long.
One transfer was grant last week:
- In the Matter of Mental Health Actions for A.S. Sarah Townsend - this was an Oct. 11, 2013 COA opinion (ILB summary here, 2nd case).
Ind. Decisions - Still more on: Supreme Court appoints special judge in Justice v. Justice case
Updating this ILB post from Friday, Feb. 21st, re the Feb. 18th pleading which the "Court has declined to make public because of concerns regarding Adm.Rule 9", the ILB has asked the Court's press officer:
I understand that the 18th filing has to be redacted before filing to take out minors' names to comply with Adm. Rule 9.The answer:
But some of us are confused as to who is the "the Petitioner" on the filing - Mr. or Mrs. Justice? Could you clarify please?
The filing on the 18th (which has not been made public due to AR 9) was made by Mr. Justice’s attorney.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 23, 2014:
- Law - "Fraternities and Lawsuits"
- Courts - Federal trial begins Tuesday in Michigan same-sex marriage challenge
- Law - "The Hefty Yoke of Student Loan Debt"
- Courts - "Where the courts are on Nevada’s same-sex marriage ban"
- Courts - More on "Six attorneys general won’t defend their own state’s gay-marriage bans"
- Law - "Religious Right in Arizona Cheers Bill Allowing Businesses to Refuse to Serve Gays"
- Ind. Gov't - "Intrigue is rampant behind the curtain of HJR-3 debate"
- Ind. Decisions - Still more on "Lake Co. judge rules Indiana's right-to-work law unconstitutional "
- Courts - SCOTUS Monday: "Challenges to the government’s authority to regulate the emission of greenhouse gases from industrial facilities"
From Saturday, February 22, 2014:
- Law - "FAA risks losing drone war"
- Ind. Decisions - More on: 7th Circuit decides one Indiana case Friday, Notre Dame v. Sebelius
- Courts - More on "Gay marriages in Cook Co. Illinois, don’t have to wait, judge rules"
From late Friday afternoon, February 21, 2014:
- Ind. Decisions - 7th Circuit decides one Indiana case today, Notre Dame v. Sebelius [Updated]
- Ind. Gov't. - More on: "Group may [attempt to] force HJR-3 on 2014 ballot"
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/24/14):
- No arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 3/3/14):
Thursday, March 6
- 9:00 AM - Seth Miller v. State of Indiana (63A01-1210-CR-475) Following a jury trial in Pike Circuit Court, Miller was convicted of Corrupt Business Influence, IC 35-45-6-2, and other offenses. The Court of Appeals reversed this conviction on grounds there was insufficient evidence to establish the element of an “enterprise” within the meaning of the statute. Miller v. State, 992 N.E.2d 791 (Ind. Ct. App. 2013), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a July 31, 2013 COA opinion (see ILB here, 4th case).
- 9:45 AM - Shannon Robinson, et al. v. Erie Insurance Exchange (49S02-1311-PL-733) The Robinsons filed a complaint seeking uninsured coverage after their car was damaged in an accident caused by a Jeep that fled the scene. Erie Insurance Exchange defended on grounds its policy's definition of "uninsured motor vehicle" provides for coverage only where a hit and run vehicle causes bodily injury. The Marion Superior Court entered summary judgment for Erie Insurance. The Court of Appeals reversed. Robinson v. Erie Ins. Exch. , 991 N.E.2d 961 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted transfer and has assumed jurisdiction over this appeal.
ILB: This is a June 28, 2013 COA opinion (see ILB here, 2nd case).
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 2/24/14):
Tuesday, February 25
- 11:00 AM - Nathan Wertz v. Asset Acceptance, LLC (71A03-1305-CC-175) Nathan Wertz appeals the trial court’s judgment dismissing his counterclaim against Asset Acceptance, LLC, pursuant to Indiana Trial Rule 12(B)(6) for failing to state a claim upon which relief can be granted. In his counterclaim, Wertz alleged that Asset, a Delaware limited liability company with its principal place of business in Michigan, had attempted to collect a debt from Wertz, which it had purchased from the original lending institution, in Indiana without first having obtained a license from the Department of Financial Institutions pursuant to Indiana’s Uniform Consumer Credit Code. The parties also dispute whether Asset was required to obtain a license under the Indiana Collection Agency Act, whether Wertz’s counterclaim sufficiently pleaded a claim under the Indiana Deceptive Consumer Sales Act, and whether Wertz’s counterclaim entitled him to relief under the federal Fair Debt Collection Practices Act. The Scheduled Panel Members are: Judges Baker, Najam, and Crone. [Where: Court of Appeals Court Courtroom (WEBCAST)]
- 3:00 PM - In Re: The Matter of the Supervised Estate of Mildred Borgwald, Deceased vs. Old National Bank and Raelynn Pound ( 84A01-1302-ES-80) This appeal involves the review of an order and judgment of foreclosure of an equity line of credit and mortgage against the Supervised Estate of Mildred Borgwald. The Appellant, the Supervised Estate of Mildred Borgwald (Estate), presents this court with several evidentiary issues pertaining to the competency of ninety-five year old Mildred Borgwald to execute an equity line of credit. Specifically, the Estate asserts the following errors:
- Whether the trial court abused its discretion when it excluded the testimony of the Estate’s proffered expert witness, a gyneacologist who had never treated Mildred;
- Whether the trial court abused its discretion when it admitted redacted certified copies of medical records containing the observations of nurses and physicians regarding Mildred’s mental and physical status;
- Whether the trial court improperly denied the Estate an opportunity to make an offer of proof; and
- Whether Old National’s Mortgage was invalidated by failure of the closing agent to read the loan documents to Mildred in violation of Indiana Code section 33-42-2-2(4).
The Scheduled Panel Members are: Judges Riley, May, and Robb. [Where: Wabash College, 301 W. Wabash Avenue, Crawfordsville, Indiana]
Friday, February 28
- 12:00 PM - Geoffrey A. Gilbert v. Melinda J. Gilbert (57A03-1308-DR-312) This appeal involves the review of an Order denying the modification of a child custody order and granting Mother, the Appellee, permission to relocate from Albion to Goshen, Indiana. Father, the Appellant, presents this court with issues concerning the evidence required under Indiana Code section 31-17-2.2-5(c)-(d) in order for one parent to move the children away from the other parent. Specifically, Father asserts that the trial court abused its discretion by: determining that a larger home and a better school district constitute a legitimate purpose for Mother’s relocation; and determining that the relocation would be in the children’s best interests. On cross-appeal, Mother asserts that she is entitled to appellate attorney’s fees because Father’s appeal is frivolous and in bad faith. The Scheduled Panel Members are: Judges Riley, Robb, and Barnes. [Where: Culver Cove Resort and Conference Center, 319 East Jefferson, Culver Cove, Indiana ]
Tuesday, March 4
- 1:00 PM - Dustin Lee Jarrell v. Billie Jo Jarrell (42A01-1308-DR-381) This appeal involves the review of an Order modifying a child custody order in favor of Mother, the Appellee, following her relocation from Vincennes, Indiana to Carterville, Illinois. Father, the Appellant, presents this court with issues concerning the obligations of a non-relocating parent to timely object to a relocation where the relocating parent has failed to provide notice pursuant to Indiana Code section 31-17-2.2-1(a) and Indiana Code section 31-17-2.2-3, as well as issues regarding the factors a trial court must consider in determining whether to modify a custody order. Specifically, Father asserts that the trial court erred by: considering only the best interests of the child rather than the factors specifically enumerated for relocation cases under Indiana Code section 31-17-2.2-1(b); failing to find there had been a substantial change to at least one of the factors used in ascertaining the child’s best interests during the initial custody determination pursuant to Indiana Code section 31-17-2-21; and concluding that it was in the child’s best interests to award physical custody to Mother. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Riley and May. [Where: Court of Appeals Courtroom (WEBCAST)]
- 10:20 AM - J.K. v. State of Indiana (66A03-1306-JS-220) J.K was adjudicated delinquent for acts of illegal possession and illegal consumption of an alcoholic beverage and aiding illegal consumption of an alcoholic beverage. J.K. argues the juvenile court admitted evidence obtained in violation of his rights under the Fourth Amendment to the United States Constitution. Police received a complaint regarding juveniles making noise in the neighborhood and arrived at J.K.’s residence at approximately 1 a.m. Two officers went around each side of the residence while a third officer remained at the front, knocking on the door. Believing that underage drinking was taking place inside, the officers remained at the residence for over an hour until two juveniles, including J.K., eventually opened the front door. An officer spoke with J.K.’s mother via telephone, and the officers entered the residence without a warrant.. J.K. argues any consent to enter was tainted by an unconstitutionally lengthy “knock-and-talk.” The State contends exigent circumstances allowed for the warrantless entry, regardless of consent. The Scheduled Panel Members are: Judges Robb, Crone, and Sr. Judge Shepard. [Where: Walden Inn and Conference Center, DePauw University, Greencastle, Indiana]
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.
Sunday, February 23, 2014
Law - "Fraternities and Lawsuits"
Post by the State Bar of Michigan Blog (SBMblog); includes reference to the Feb. 13th Indiana Supreme Court Wabash College hazing opinion, and Tim Evans Feb. 23rd coverage in the Indianapolis Star, which begins:
The Indiana Supreme Court has ruled that a former Wabash College student can move forward with a lawsuit against the fraternity where he was seriously injured during a night of horseplay that may have crossed into hazing.
The ruling sets the stage for what could be the first Indiana trial to address a fraternity’s civil liability in connection with alleged hazing.
Courts - Federal trial begins Tuesday in Michigan same-sex marriage challenge
Brian Dickerson, columnist for the Detroit Free Press, has a long story today headed "Will Michigan's same-sex marriage showdown be a historical footnote?" It begins:
Just last October, when U.S. District Judge Bernard Friedman set Feb. 25 as the trial date for a legal showdown between state Attorney General Bill Schuette and a lesbian couple challenging Michigan’s constitutional ban on same-sex marriage, it looked as if DeBoer v. Snyder might become the decisive battleground in the nationwide campaign for marriage equality.From later in the lengthy column:
But what a difference four months has made.
While lawyers for both sides have been preparing for the trial that begins in Friedman’s Detroit courtroom this Tuesday, federal judges elsewhere have struck down all or parts of state laws banning same-sex marriage in Ohio, Utah, Oklahoma, Kentucky and Virginia.
Meanwhile, state supreme courts in New Jersey and New Mexico have rejected challenges to laws permitting same-sex couples in those states to marry.
By the time a new law permitting gay marriage in Illinois takes effect June 1, same-sex couples will be free to marry in at least 17 states. Four more states either recognize civil unions between gay couples or honor same-sex marriages consecrated elsewhere.
Facing similar legal challenges, attorneys general in other states have been reluctant to defend state bans like Michigan’s. Many legal scholars believe such prohibitions are constitutionally doomed in the wake of the 5-4 ruling that U.S. Supreme Court justices issued last June in Windsor v. United States. The landmark Windsor ruling struck down the Federal Defense of Marriage Act (DOMA), which had barred the federal government from recognizing same-sex marriages even if they were consecrated in one of the states that explicitly authorizes them."Opponents of Same-Sex Marriage Take Bad-for-Children Argument to Court" is the headline of a Feb. 22nd NY Times story by Erik Eckholm. The long report begins:
A tortured interpretation
[Michigan Attorney General Bill] Schuette contends that the Windsor ruling protects every state’s right to decide for itself who can marry within its borders. But that argument represents a willful indifference to the essence of Windsor, in which a majority of justices concluded that the primary (and constitutionally forbidden) purpose of DOMA was “to impose inequality” on gay citizens for no legitimate government purpose.
To defend Michigan’s untenable discrimination against gay people, Schuette has been reduced to arguing that Michigan’s ban on same-sex marriage serves the legitimate governmental purpose of promoting “responsible procreation.”
Never mind that many couples, heterosexual and gay, get married with no intention of having or adopting children. It’s within the state’s right to reserve marriage to heterosexuals, Schuette argues, because children have better outcomes when they have two parents of opposite genders.
The main problem with this argument — which the Windsor majority and innumerable lower court judges have already rejected — is that it flies in the face of virtually every reputable study comparing children raised by same- and opposite-sex couples.
As they reel from a succession of defeats in courtrooms and legislatures, opponents of same-sex marriage have a new chance this week to play one of their most emotional and, they hope, potent cards: the claim that having parents of the same sex is bad for children.Here is the docket in DeBoer v. Snyder as of 2-23-14.
In a federal court in Detroit starting Tuesday, in the first trial of its kind in years, the social science research on family structure and child progress will be openly debated, with expert testimony and cross-examination, offering an unusual public dissection of the methods of sociology and the intersection of science and politics.
Scholars testifying in defense of Michigan’s constitutional ban on same-sex marriage aim to sow doubt about the wisdom of change. They brandish a few sharply disputed recent studies — the fruits of a concerted and expensive effort by conservatives to sponsor research by sympathetic scholars — to suggest that children of same-sex couples do not fare as well as those raised by married heterosexuals.
That view will be challenged in court by longtime scholars in the field, backed by major professional organizations, who call those studies fatally flawed. These scholars will describe a near consensus that, other factors like income and stability being equal, children of same-sex couples do just as well as those of heterosexual couples.
Law - "The Hefty Yoke of Student Loan Debt"
Some quotes from Floyd Norris' finance column in the NY Times in Friday:
More than five years after the binge of irresponsible lending led to the credit crisis and Great Recession, the amount of consumer debt in the United States has begun to rise again, but with an important difference. This time the credit standards appear far tougher. Those who should not borrow generally do not.Norris continues that "the most important lesson of the credit crisis — that those who make loans need to have good reasons to care if they are repaid — was not extended to the student loan market."
Fewer consumer loans became seriously delinquent last year than in any recent year, the Federal Reserve Bank of New York reported this week.
Except, that is, for one type of debt: student loans.
There delinquencies continue to rise, and loans continue to be made without regard for the ability to repay.
At one time, student loans were a clear way to provide economic opportunity to people who might not have been able to attend college otherwise. In many cases, they still are. But increasingly it is becoming obvious that student loans are creating large problems that may persist for decades to come. They will impoverish some borrowers and serve as a drain on economic activity. * * *
Until 2009, young adults with student loan debt were more likely to own homes and were more likely to have car loans outstanding than were people of the same age without student loans. Those loans had enabled many of them to obtain college degrees and earn more money, qualifying them for mortgages. Those with student loans generally had better credit scores than those who did not.
But now the opposite is true. “Young people with student loans are less likely to buy a house,” said Wilbert van der Klaauw, a senior vice president of the New York Fed’s research and statistics group.
Those with student loan debt also are less likely to have taken out car loans. They have worse credit scores. They appear to be more likely to be living with their parents.
The article discusses programs that lead to conventional degrees and those that do not - "the training programs pushed by for-profit private schools." It talks at length about how "the Department of Education has been trying to come up with a rule to exclude [from federal loans] programs that have a clear history of not producing people who can earn enough to repay their loans: a “gainful employment” rule."
The long article concludes:
More also needs to be done to regulate the companies that service the student loans. “There are uncanny resemblances between issues faced by student loan borrowers and struggling homeowners,” Mr. Chopra, the Consumer Financial Protection Bureau official, told me.ILB: One thing the article does not mention is the problem of young people with the obligation to pay hundreds of dollars a month toward student loan debts also having to meet the monthly insurance premium requirements imposed by the Affordable Health Care Act.
In the servicing of government-guaranteed student loans, Mr. Chopra said in a speech at the Federal Reserve Bank of St. Louis, “incentive misalignment may be acute. A default may sometimes be more beneficial and less costly for the servicer, compared to enrolling a borrower in a loan modification program.”
One thing the federal student loan program does not lack is ways to collect the money. Bankruptcy will usually not cancel student loans, and the government has the power to seize income tax refunds and garnishee wages as needed. Some parents who guaranteed student loans that have defaulted find the money taken out of their Social Security checks. For a student, a default can destroy a credit record, making it hard even to rent an apartment, let alone buy a home.
Courts - "Where the courts are on Nevada’s same-sex marriage ban"
That is the headline to Karoun Demirjian's long story today in the Las Vegas Sun. The story ends by noting that because state officials have declined to defend the case, it will end up like the California Prop. 8 case, with an outside group doing the defense, which could likely result in standing issues in any SCOTUS review.
Courts - More on "Six attorneys general won’t defend their own state’s gay-marriage bans"
Don't look for Indiana Republican Greg Zoeller to join the growing number of attorneys general refusing to defend their states' laws prohibiting same-sex marriage and denying recognition of valid gay marriages performed elsewhere.ILB: The ILB had a long post on Sept. 9, 2012, headed "Indiana legislators ask federal judge to allow them to defend state's immigration law," discussing AG Zoeller's decision not to continue to defend "an Indiana immigration law he believes is unconstitutional."
"Not only is it a dereliction of duty, but to decide to walk into the courtroom and go to the other table and argue against your state client -- I can't explain it," Zoeller said. "I think I have an obligation to defend every statute passed and the authority of the men and women who were elected to do that job."
Over the past two years, the attorneys general of Illinois, California, Pennsylvania, Virginia, Nevada and Oregon have refused to defend their state gay marriage bans in court because they believe denying marriage to same-sex couples runs afoul of the equal protection guarantees of the U.S. Constitution and some state constitutions. * * *
Zoeller acknowledged his actions are more limited than most state attorneys general because his office only exists through state law and his authority could be reduced at any time by legislative action.
Therefore, he must always be mindful of his "client" —- the state and its laws — and can't freelance like officeholders in other states whose positions and powers are guaranteed by their state constitutions. * * *
Zoeller said he never complains when he has to defend laws passed by the Indiana General Assembly that are challenged in court, because it is an appropriate test of the state legislature's power.
"This is part of our constitutional checks-and-balances," Zoeller said. "It's all done with a very intricate design based on this premise that we don't trust government."
This Feb. 11, 2014 ILB post contains discussion of the basis for the Nevada AG's decision to stop defending that state's marriage amendment.
Law - "Religious Right in Arizona Cheers Bill Allowing Businesses to Refuse to Serve Gays"
That is the headline to this Feb. 21st story by Michael Paulson and Fernanda Santos on the front page of my Saturday NY Times. The lengthy story begins:
In New Mexico, a photographer declined to take pictures of a lesbian couple’s commitment ceremony. In Washington State, a florist would not provide flowers for a same-sex wedding. And in Colorado, a baker refused to make a cake for a party celebrating the wedding of two men.Some later quotes:
The business owners cited religious beliefs in declining to provide services celebrating same-sex relationships. And in each case, they were sued.
Now, as states around the nation weigh how to balance the rights of same-sex couples with those of conservative religious business owners, Gov. Jan Brewer of Arizona must decide whether to sign legislation that would allow business owners to cite religious beliefs as a legal justification for denying service to same-sex couples.
The legislation, approved by lawmakers on Thursday, immediately attracted national attention, with conservative religious groups welcoming it as a necessary form of protection for objectors to same-sex marriage, and gay rights groups denouncing it as a license for discrimination. The measure comes at a time when the courts are grappling with how to define the religious rights of private businesses.
“It sounds like it’s opening the door to hate and bigotry of all stripes,” said Rocco DiGrazia, a Tucson pizzeria owner, who on Friday attracted national attention via social media because he had posted signs on the restaurant’s doors declaring, “We Reserve the Right to Refuse Service to Arizona Legislators.”
“I make dinner for a living — I’m not a social activist,” Mr. DiGrazia said in a telephone interview. “But I do have a lot of gay customers and employees, and why are you trying to alienate these people?” * * *
Most states where same-sex marriage is legal have exemptions for religious organizations, but not for private businesses or individuals, according to the National Conference of State Legislatures. * * *
“There is significant fear it will undermine local nondiscrimination laws,” said Sarah Warbelow, the state legislative director for the Human Rights Campaign, a gay rights advocacy organization. “This is not about the freedom of individuals to practice their religion, this is about a license to discriminate against individuals.”
Ind. Gov't - "Intrigue is rampant behind the curtain of HJR-3 debate"
That is the headline given to the lengthy story today by IndyStar's Tony Cook and Barb Berggoetz, here in the Lafayette Journal Courier. The story goes through this session's consideration of HJR6/HJR3 step-by-step, in a manner for which they will be thanked by future researchers, and they include a timeline. A sample:
It all began with what has become known in conservative circles as “The Promise.”ILB: The Bosma/Long letter also said [ILB emphasis]:
In November 2012, Indiana voters swept a super majority of Republicans into both chambers of the General Assembly and elected a governor with social conservative bona fides.
Having already passed the constitutional same-sex marriage ban in 2011, lawmakers seemed poised to pass it for the required second time during the 2013 General Assembly and send it to the voters for a final vote in November 2014.
But [Senate President Pro Tempore David] Long and House Speaker Brian Bosma put on the brakes. They wanted to wait for a U.S. Supreme Court decision in July 2013 that had the potential to make moot any effort in Indiana to strengthen the existing state law prohibiting gay marriage with a constitutional amendment.
What most people didn’t know is that in March 2013, Bosma and Long sent a letter explaining the situation — and making a promise — to the state’s three most influential pro-amendment lobbyists: Curt Smith of the Indiana Family Institute, Micah Clark of the American Family Association, and Eric Miller of Advance America.
“If the Supreme Court’s holding does not adversely impact Indiana’s proposed Constitutional Amendment, we will allow the Amendment to be heard next year,” Bosma and Long promised, “and we believe it will pass both the Senate and the House, thus placing it on the ballot for the 2014 general election.”
Given the GOP supermajorities in the House and Senate and the support of Gov. Mike Pence, Bosma and Long may have felt such a promise would be fairly easy to uphold.
They were wrong.
We wanted to clarify for each of you our recently announced decision not to hear HJR6, the Defense of Marriage Amendment during this year's session of the 1181h General Assembly. As we have shared with you individually our reason for this delay is the concern that the US Supreme Court is scheduled to rule in July upon two distinctive same sex marriage laws which could impact Indiana's proposed Constitutional Amendment. As you know, if the Supreme Court rules adversely on these provisions, we would be placed in the position of having an unconstitutional amendment on the ballot with no means to remove it. Since we have the luxury of waiting until next year's session to pass the Marriage Amendment it seems prudent to wait for the Court's ruling.
Ind. Decisions - Still more on "Lake Co. judge rules Indiana's right-to-work law unconstitutional "
In Dec. 2013 AG Zoller had filed an appeal of the Lake County trial court ruling holding parts of the 2012 right-to-work law unconstitutional. Earlier this month, the union filed its reply. Carden's story links to all the documents. Some quotes from the story:
The International Union of Operating Engineers, Local 150, is urging the Indiana Supreme Court to uphold Lake Superior Judge John Sedia's ruling that portions of the state's 2012 right-to-work law are unconstitutional.
Sedia declared Sept. 5 that because federal law requires unions provide certain bargaining and grievance services to all employees at a unionized workplace, forcing unions to give nonmembers those services free — as mandated by the right-to-work law — violates the Indiana Constitution's guarantee of compensation for services.
In its 52-page written argument submitted Feb. 14 to the high court, the union said Sedia got it exactly right and asked the Supreme Court to restore the union's ability to charge "fair share" fees to nonmembers for union services they receive.
"Provided unions could collect fair share fees, the statute would not force unions to perform their particular services — representational services — entirely for free," said union attorney Dale Pierson. "If unions are not forced to perform services for free, then the statute would no longer violate ... the Indiana Constitution."
Republican Attorney General Greg Zoeller submitted his argument in December defending the law to the Supreme Court. He claimed the right-to-work law should be restored because it's not the state compelling exclusive-agency unions to provide bargaining services to nonmembers.
"The right-to-work law imposes no demands on unions," Zoeller said. "It merely gives employees in Indiana the choice whether to join a union (or otherwise pay dues) — a choice that is specifically authorized by federal law." * * *
Sedia's order finding the right-to-work law unconstitutional is suspended while his decision is under appeal. The Indiana Supreme Court directly reviews all judicial declarations of unconstitutional laws
Courts - SCOTUS Monday: "Challenges to the government’s authority to regulate the emission of greenhouse gases from industrial facilities"
Lyle Denniston of SCOTUSblog has the overview here, at length.
David G. Savage of the LA Times has this story this weekend headed "Supreme Court to weigh EPA move to regulate greenhouse gases: Industry groups and Republican-led states are asking justices to block what they call a 'brazen power grab' by the president's environmental regulators."
How Appealing has collected some links here.
Here is the SCOTUSblog casepage for Utility Air Regulatory Group v. Environmental Protection Agency, with links to many, many documents.
Saturday, February 22, 2014
Law - "FAA risks losing drone war"
Politico Pro this morning has a long article by Kevin Robillard on drones and the FAA.
Ind. Decisions - More on: 7th Circuit decides one Indiana case Friday, Notre Dame v. Sebelius
Courts - More on "Gay marriages in Cook Co. Illinois, don’t have to wait, judge rules"
CHICAGO | Same-sex couples in Illinois' largest county began receiving marriage licenses immediately after a federal judge's ruling Friday that some attorneys said could give county clerks statewide justification to also issue the documents right away.
Illinois approved same-sex marriage last year; the new law takes effect June 1. However, U.S. District Judge Sharon Johnson Coleman ruled Friday that same-sex marriages can begin now in Cook County, where Chicago is located.
"There is no reason to delay further when no opposition has been presented to this Court, and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry," she wrote in the order.
The decision stemmed from a lawsuit filed against Cook County Clerk David Orr, who supports gay marriage. Coleman already ruled in December that same-sex couples did not have to wait until June to marry if one or both partners had a life-threatening illness. Several same-sex couples married after that ruling. * * *
But gay Hoosier couples who cross the state line into Cook County to get married will not be considered legally wed when they cross back into Indiana.
That's because Indiana law not only prohibits same-sex couples from marrying in the state, it also declares, "A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized."
Friday, February 21, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today, Notre Dame v. Sebelius [Updated]
In University of Notre Dame v. Sebelius (ND Ind., Simon), a 44-page, 2-1 opinion, Judge Posner affirms the district court's denial of preliminary relief. His opinion, joined by Judge Hamilton, concludes:
On January 28 the university filed a renewed motion for an injunction pending appeal—it had filed such a motion on December 23, but we had denied that motion a week later when we ordered expedited briefing of the appeal. The sole ground for the renewed motion was the Supreme Court’s order of January 24 in the Little Sisters case, 2014 WL 272207. That ground was an odd one for Notre Dame to assert, because the university disagrees with the Court’s order. The Court’s order conditioned the injunction pending appeal in that case on the Little Sisters’ sending a letter to the government declaring its opposition to paying for contraceptive services—and at the oral argument of our case Notre Dame told us that it would consider sending such a letter an infringement of its religious freedom. Another distinction between that case and this one is that unlike Meritain, Little Sisters’ third‐party administrator, Christian Brothers, is a “church plan” administrator and so wouldn’t provide contraceptive services anyway, or be required to do so. We now deny the renewed motion for an injunction pending appeal as moot because the appeal has been resolved.
Judge Flaum's dissent begins on p. 31:
While Notre Dame’s appeal from the district court’s denial of a preliminary injunction was pending before this court, we granted the students’ motion to intervene. Notre Dame then moved to dismiss the appeal in order to conduct additional discovery in the district court. Dismissal would not prejudice the government or the student‐intervenors. Nor would it inhibit this court’s review of the ultimate issues at a later stage in the proceedings. Because I see no reason not to “accept plaintiffs’ decision to proceed to trial without interim relief,” Creaton v. Heckler, 781 F.2d 1430, 1431 (9th Cir. 1986), I would grant Notre Dame’s motion and dismiss this appeal.[Updated at 7:30 PM] Here is good coverage of the decision from Josh Gerstein of Politico. A quote:
The majority does not agree, however, and so the appeal remains before us. Faced with the merits, I conclude that Notre Dame has made out a credible claim under the Religious Freedom Restoration Act. I therefore would grant the university a preliminary injunction forbidding the government from penalizing Notre Dame for refusing to comply with the self‐certification requirement.
"If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to 'trigger' the provision of female contraceptives," Posner wrote in an opinion joined by Judge David Hamilton.
Posner also noted that the university submitted the form late last year, albeit unwillingly, so it was unclear what precisely the court was being asked to do about it.
Ind. Gov't. - More on: "Group may [attempt to] force HJR-3 on 2014 ballot"
Updating this post from Feb. 19th, the ILB has been in the library stacks this afternoon and should have a very interesting, and comprehensive, post sometime this weekend.
Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)
For publication opinions today (0):
NFP civil opinions today (5):
NFP criminal opinions today (3):
Courts - "Gay marriages in Cook Co. Illinois, don’t have to wait, judge rules"
Stefano Esposito and Becky Schlikerman of the Chicago Sun-Times report this afternoon:
Same-sex couples don’t have to wait until June to get married in Cook County under a federal judge’s ruling issued Friday.ILB: Here is the 4-page opinion, via the Huffington Post.
“There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry,” U.S. District Judge Sharon Johnson Coleman said in her ruling.
Friday’s ruling in the class-action lawsuit against the Cook County Clerk’s office affects only same-sex marriages in Cook County.
Cook County Clerk David Orr said his office will issue licenses immediately at the downtown office, and couples can get married as soon as Saturday. * * *
In December, Coleman ruled that same-sex couples in which one or both partners has a life-threatening illness don’t have to wait June to get married, when Illinois’ gay marriage law take effect statewide.
Before that ruling, Vernita Gray, 64, and Patricia Ewert, 65, became the first same-sex couple to wed in Illinois in November after they asked a federal judge for an expedited license because Gray has inoperable brain tumors and breast cancer that had spread to her bones.
Illinois became the 16th state to legalize same-sex marriage, but the law was not to have taken effect until June 1.
Ind. Decisions - More on: Supreme Court appoints special judge in Justice v. Justice case
Updating this ILB post from Wednesday, where the ILB reported that Judge David A. Shaheed had been appointed by the Supreme Court as special judge to replace Judge Patrick L. McCarty, the ILB has now obtained a copy of an order, file-stamped as of today, Feb. 21, 2014. This is NOT:
- the Feb. 13 notice from State Court Administration withdrawing the case from Judge McCarty, as of Feb. 10, 2014 at 8:20 am, or
- the Petitioner's Feb. 18th "pleading titled "Verified Response To Trial Rule 53.2 Motion and Motion Expedited Ruling Due to Child Endangerment" [Which is, by today's order, returned to the petitioner for lack of compliance with Ad.Rule 9] or
- the Feb. 19 order appointing Judge Shaheed
Here is a note Kathryn Dolan, the Court press officer, has sent out this afternoon:
Many of you have asked me for a copy of the Feb 18th filing in the Justice case. The Court has declined to make that document public because of concerns regarding AR 9. AR 9 is the rule that governs access to court records.ILB: For some of the background, see this Feb. 19 ILB post.
The document is NOT being made public today. See the attached order. The document is being returned to the petitioner with instructions.
In short, that means I cannot (according to rule) provide the public with a copy of the Feb 18th filing.
Ind. Gov't. - "Judge green lights 2nd BMV overcharging lawsuit "
Troy Kehoe had a good story last evening at WISHTV8. It begins:
INDIANAPOLIS (WISH) — Indiana drivers who were overcharged by millions of dollars in fees could see additional refunds after a Marion County judge ruled that a second lawsuit against the state’s Bureau of Motor Vehicles can move forward.WISH's story includes a link to the complaint. The ILB has taken the complaint, with attachments, totaling 54 pp., and downloaded and OCRed it, because it includes a trove of information. Access it here.
The ruling, issued Wednesday in Marion Superior Court by Judge James Osborn, denies a request from the BMV to dismiss the lawsuit, and requires the agency to respond to claims it systematically overcharged drivers for a wide variety of fees. The ruling also requires the BMV to produce evidence sought by public records requests.
Last August, millions of Hoosier drivers were issued small refunds as part of a $30 million settlement where the BMV admitted it had overcharged drivers under the age of 75 who obtained or renewed a driver’s license between 2007 and 2013. The overcharges averaged around $3.50, according to court documents.
Then, in September, the BMV announced a commissioned review by an outside law firm had also identified other fees being charged at rates higher than allowed by state law. The agency declined to identify which fees those were, but a lawsuit filed by Indianapolis-based law firm Cohen and Malad alleges they include everything from vehicle registrations to motorcycle endorsements to chauffeurs licenses.
Last fall, the BMV began lowering those fees and issuing credits. Drivers who wished to obtain a refund check for the amount of their overcharges were asked to fill out an online form. Checks were mailed.
But, Irwin Levin, who filed the lawsuit, says the issue hasn’t been fully resolved.
“The BMV was essentially saying ‘just trust us’ to Hoosiers,” Levin, of Indianapolis-based Cohen and Malad, LLP, told 24-Hour News 8 by phone Thursday. “Some of the charges were OK, but many weren’t. We need to hold them accountable for those.”
Levin’s lawsuit seeks unspecified damages, plus interest, for all fees overcharged by the BMV.
“We don’t know how much money that is, but I would say it’s certainly well into the 8-figure realm,” Levin said. “And, this occurred both before and after 2007.”
Ind. Courts - "Clark Co. Drug Court participants in state of limbo"
CLARK COUNTY, Ind. (WHAS11) -- One day after the state of Indiana suspended the operations of Clark County’s Drug Court program those who brought the issues to light are speaking out.
Those that were in the drug court program are in a state of limbo now and so is some of the court’s staff. Since the court can’t collect money for services from participants that could impact some staff that was being paid with those funds.
“I really was shocked. I didn't understand what was really going on at first and hearing it's been suspended has just been definitely brings light to the subject,” Ashleigh Hendricks Santiago, a drug court participant, said.
She is one of the drug court defendants that filed a lawsuit against Clark County after she was kept in jail months longer than her sentence without a hearing.
Cody Hendricks says he was arrested at his job at Rocky's by drug court staff that didn't have arresting power.
Now that the court is suspended those who brought the claims forward say they are glad action has been taken, but say the court and the drug treatment did give them stability.
“Just hoping that it can get taken care of to be a better drug court for the future because it did help me,” Santiago said.
Courts - "Six attorneys general won’t defend their own state’s gay-marriage bans"
Niraj Chokshi has the story today in the Washington Post. A few quotes:
The attorneys general of at least six states have in recent years said they won’t defend their states’s bans on same-sex marriage because they violate the federal or state constitution.
Oregon Attorney General Ellen Rosenblum became the latest to join that group on Thursday when, in a filing challenging Oregon’s ban on same-sex marriage, she said the state “cannot withstand a federal constitutional challenge under any standard of review.”
Here’s how these attorneys general — the states’ top law enforcement officers — explained their refusal to support their state’s ban on gay marriage: [ILB: you'll have to check the story, but the states are Oregon, Nevada*, Virginia, Pennsylvania,California, and Illinois.]
*In Nevada, however, Ind. AG Zoeller has filed an amicus brief on behalf of the State of Indiana defending Nevada's same sex marriage prohibition.
Ind. Gov't. - "Governor Pence Names Angela Weber, Carol Stephan to Indiana Utility Regulatory Commission"
From a news release just received:
Indianapolis – Governor Mike Pence today named Angela Weber and Carol Stephan to the Indiana Utility Regulatory Commission (IURC). Stephan’s appointment will be effective March 3, and Weber’s appointment will be effective March 10.Indiana Legislative Insight predicts these selections in its just-received issue, adding that this would result in a female-majority IURC.
More from the Governor's news release:
“As evidenced by her service to both her country and state, Angela Weber has demonstrated time and again her dedication and passion for serving Hoosiers,” said Governor Pence. “Her past experience will serve her well as a member of the Indiana Utility Regulatory Commission, and I am grateful for her willingness to serve.”
Angela Weber, of Franklin, currently works for Ice Miller LLP. Prior to this role, Weber served in a variety of roles including as Staff Attorney in the Indiana Department of Education, Administrative Law Judge for the IURC, and Deputy Prosecuting Attorney for the Marion County Prosecutor’s Office. From 1996 to 2000, she served as a Russian Linguist/Voice-Intercept Operator for the United States Army. Weber is a graduate of Indiana University and the Indiana University Maurer School of Law.
“Carol Stephan’s extensive legal experience and background with the Indiana Utility Regulatory Commission allow her to bring invaluable insight to the table,” said Pence. “I am confident she will work tirelessly to ensure reliable services and reasonable prices for Hoosier utilities customers.”
Carol Stephan, of Indianapolis, currently serves as Assistant General Counsel for the IURC. Stephan has previously served within State Government as General Counsel for the Indiana Office of Utility Consumer Counselor, Interim Deputy Commissioner and Director of Partner Services for the Indiana Department of Workforce Development, and Deputy Attorney General in the Bankruptcy/Inheritance Tax Division the in Office of the Attorney General of Indiana. She earned her undergraduate degree from Indiana University and her law degree from the Indiana University Robert H. McKinney School of Law.
Ind. Law - Attorney General Greg Zoeller addresses the Federalist Society
The Indianapolis Lawyers Division of the Federalist Society has a luncheon Thursday on "The Role of State Attorneys General in Addressing Federal Overreach," featuring Greg Zoeller, Indiana Attorney General. Justin L. Mack of the Indianapolis Star reports:
During the address, Zoeller highlighted what he considered to be recent examples of overreach and explained how his office responded.
Among the topics discussed was the Environmental Protection Agency’s power to regulate greenhouse gas emissions from stationary sources such as power plants and manufacturing facilities. According to the EPA, heat-trapping gases may be a greater threat to public health and welfare than other pollutants it regulates.
But since 2010, Indiana and other states have been challenging the regulations.
In U.S. Supreme Court filings, opposing states accuse the EPA of “one of the most brazen power grabs ever attempted by an administrative agency.” Arguments will be heard in court Monday.
“If you read the paper or if you follow these cases … you would think that we’re for pollution,” Zoeller said. “Well, I’m challenging whether the EPA can assume authority not granted. The attorneys general are the only ones left standing to raise these claims.”
Zoeller also touched on Indiana joining 25 other states in 2010 to challenge the Affordable Care Act. The U.S. Supreme Court in June 2012 upheld the act’s individual mandate but struck down a portion of the federal health care law that would have required states to dramatically expand Medicaid or forgo the program entirely.
Ind. Gov't. - IndyStar reports "Delph sanctioned for criticizing Senate leaders on HJR-3"
Barb Berggoetz has posted the story this morning on IndyStar. Some quotes [ILB emphasis] :
Sen. Mike Delph’s public criticism of Senate leadership over handling of the same-sex marriage ban has led to strong disciplinary action against him by Senate President Pro Tempore David Long. * * *
• Delph will lose his leadership position as the Senate’s assistant majority floor leader of communications.
• Delph will not retain his title as ranking member of the Senate Judiciary Committee.
• He will lose his press secretary.
• Delph will be given a new seat in the Senate chamber, along side Democrats — in the minority in the House — and across the aisle from Republican leadership.
Thursday, February 20, 2014
Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP)
For publication opinions today (4):
In Magic Circle Corporation, d/b/a Dixie Chopper, The Kelch Corporation, et al. v. Kris Schoolcraft as Personal Representative of the Wrongful Death Estate of Rickie D. Schoolcraft, Deceased, a 7-page opinion, Judge May writes:
Kris Schoolcraft brought a wrongful death action against Magic Circle, and moved to amend the complaint to add new defendants. The trial court granted the motion. On appeal, the new defendants argue the amendments were outside the limitations period. We affirm. * * *In Michael W. Stevenson v. County Commissioners of Gibson County, Indiana, Bob Townsend, Don Whitehead, Gerald Bledsoe, County Council of Gibson County, Indiana, Tony Wolfe, Jermey Overton, et al , a 9-page opinion, Judge May writes:
Schoolcraft filed her motion to amend and her amended complaint during the limitations period but the trial court did not grant the motion until after the period had expired. If we were to apply the rule from A.J.’s to those facts, we “would punish plaintiff and other similarly situated plaintiffs for the court’s unavoidable delay in issuing an order granting leave to amend a complaint.” Wallace v. Sherwin Williams Co., Inc., 720 F. Supp. 158, 159 (D. Kan. 1988) (holding Wallace’s amended complaint was effectively filed when he filed his motion for leave to file an amended complaint). We accordingly decline to follow A.J.’s and we instead apply the majority rule articulated in The Children’s Store. The denial of the new defendants’ motions to dismiss or for judgment on the pleadings is therefore affirmed.
Michael W. Stevenson appeals a judgment for the Gibson County Commissioners and County Council (collectively, “the County”). We consolidate and restate the issues he raises as: 1. Whether Stevenson was paid the correct salary as the County Surveyor; and 2. Whether Stevenson was entitled to additional compensation for referencing corners in Gibson County. We affirm.In Clark's Sales and Service, Inc v. John D. Smith and Ferguson Enterprises, Inc., a 23-page opinion, Judge Crone writes:
The trial court did not err when it determined Stevenson was not entitled to additional salary or to additional compensation for corners he allegedly referenced. Accordingly, we affirm the decision of the trial court. * * *In Jonathan D. Carpenter v. State of Indiana, a 9-page opinion, Judge May writes:
Here, Clark’s had a fair opportunity to draft a reasonable and enforceable restrictive covenant yet failed to do so. The overly broad and unenforceable covenant that Clark’s did draft is not clearly separated into divisible parts or severable in terms such that we can mechanically strike unreasonable restrictions and enforce reasonable ones. The restrictions are unreasonable as a whole. Therefore, we conclude that the blue pencil doctrine is inapplicable, as it would subject the parties to an agreement that they did not make.10 Accordingly, we agree with the trial court that Clark’s has failed to establish by a preponderance of the evidence its likelihood of success at trial. The trial court’s denial of Clark’s motion for preliminary injunction is affirmed.
Jonathan D. Carpenter appeals the admission of evidence obtained from a warrantless search of his house. He argues the initial warrantless search of his house violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We affirm. * * *NFP civil opinions today (7):
Trimble and Davis dealt with whether the conditions of animals could constitute exigent circumstances justifying warrantless searches of areas outside of the homes. In the case before us, the investigation extended into the house only when one of the dogs, which was covered in blood, entered the home through an open door and would not come out.
Exigent circumstances permitted the police to execute a warrantless search of Carpenter’s home. On arrival at Carpenter’s home, officers observed four dogs covered in blood; three of them were attacking the fourth and acting aggressively. The three dogs ran in and out of the house via an open sliding door. One of the dogs entered the house and would not come out. Officer Miller testified he entered Carpenter’s house through the open door because “due to the staining, possible blood on this animal, I didn’t know if I had a victim or not inside the residence or other dogs who were victims inside the residence . . .” The trial court did not err when it denied Carpenter’s motion to suppress the evidence against him because the officers had reasonable suspicion to believe a violent crime might have occurred, properly executed a search of the premises for that purpose, and the search did not violate Carpenter’s Fourth Amendment rights. * * *
Based on the totality of the circumstances, we cannot say the warrantless search of Carpenter’s house violated his rights under Article 1, Section 11 of the Indiana Constitution because the officers had reasonable suspicion there was an injured person inside the house. Therefore, the trial court did not err when it denied Carpenter’s motion to suppress the evidence.
NFP criminal opinions today (13):
Ind. Decisions - Supreme Court suspends Goshen attorney for 2 years, without automatic reinstatement
In In re Joseph C. Lehman, a 4-page, 5-0 disciplinary order, filed Feb. 19th, the counts take up the first 2 pages. From the order:
The hearing officer found the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) he has represented many clients to a successful completion. The hearing officer found the following facts in aggravation: (1) Respondent has refused to acknowledge his misconduct; (2) Respondent has engaged in a pattern of misconduct over an extensive period of time; (3) he apparently does not feel it necessary to show up for court hearings; (4) the sheer volume of the repeated violations, apparent dishonesty, and lack of any effort to address or apologize for the problems indicate unfitness to practice; and (5) he has a contemptuous disregard for the most basic professional obligations. * * *
Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, beginning April 3, 2014.
Ind. Decisions - Supreme Court decides one today
In James T. Mitchell v. 10th and The Bypass, LLC and Elway, Inc., a 10-page, 5-0 opinion, Justice Rucker writes:
In this appeal we address whether evidence obtained after entry of an order granting a motion for partial summary judgment may form the basis for vacating that order on grounds that a non-final order is subject to revision at any time before entry of a final judgment. We conclude it may not. We also address whether relief from judgment under our Trial Rules is limited only to final judgments. We conclude it is not. * * *
This case requires us to explore the interplay between Trial Rule 54(B) – Judgment upon multiple claims or involving multiple parties and Trial Rule 56 – Summary judgment, when new evidence is submitted to the trial court following entry of partial summary judgment. * * *
We reverse the judgment of the trial court and remand this cause for further proceedings.
Ind. Law - Question about HB 1009 - restricting digital surveillance
"Indiana legislature on verge of restricting digital surveillance" is the heading of this IndyStar story by Barb Berggoetz on the bill, which is currently in Senate Judiciary.
See also this article dated Feb. 18 in Government Technology, reported by Rachel Bunn of McClatchy News Service.
ILB: Question about HB 1009: On p. 10-11:
SECTION 26. IC 35-46-8.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2014]:My question is about the new (b). Does this prevent me from installing a security camera on my own property that may also pick up a neighboring property? The wording appears to be ambiguous.
Chapter 8.5. Unlawful Photography and Surveillance on Private Property
Sec. 1. (a) This section does not apply to a law enforcement officer who has obtained a search warrant or the consent of the owner of private property to place a camera or electronic surveillance equipment on private property.
(b) A person who knowingly or intentionally places a camera or electronic surveillance equipment that records images or data of any kind while unattended on the private property of another person without the consent of the owner or tenant of the private property commits a Class A misdemeanor.
Ind. Courts - "Woman Detained at Airport Files Suit" [Updated]
From an ACLU of Indiana news release:
Indianapolis - A woman who was detained without cause at Indianapolis International Airport has filed suit saying federal officials violated her constitutional rights.ILB: Here is the 7-page complaint.
The case was brought by the American Civil Liberties Union of Indiana on behalf of Christine Von Der Haar, a senior lecturer in the Department of Sociology at Indiana University. In June of 2012, Von Der Haar accompanied a friend to the airport's office of Customs and Border Protection to pick up computer equipment he had shipped separately when he flew to Indianapolis a few days earlier. The customs agent, after asking the couple if they were planning to marry, questioned them separately about email communications and the nature of their relationship, and confined Dr. Von Der Haar in a guarded room for more than 20 minutes.
The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures.
"This case raises troubling issues about the power of the government to detain and question citizens," said ACLU of Indiana Legal Director Kenneth Falk, who represents Von Der Haar.
The lawsuit, Christine Von Der Haar v. Sherlana Lieba, Mr. Combs, Cause No. 1:14-cv-247, was filed in the U.S. District Court for the Southern District of Indiana on Feb. 19, 2014.
[Updated at 2:15 PM] The IndyStar now has a story, reported by Bill McCleery.
Ind. Gov't. - "Right to farm" bill on second reading today in House
Also on the House 2nd reading calendar today is SB 101 (the legislation formerly known as the "ag-gag" bill).
Environment - "No more stringent" bill - hearing set for Monday
"Groups unite against environmental rules bill" is the headline to this AP story by Rick Callahan. Some quotes:
A coalition of 16 environmental, health and citizens groups urged Indiana lawmakers Wednesday to reject legislation that would prevent state regulators from adopting environmental rules tougher than federal standards, warning that it would “handcuff” the state in its effort to protect the public health and environment.Dan Carden, reporting for the NWI Times, writes:
A wide range of groups oppose the bill, which passed the Indiana House last month and is scheduled to be heard Monday by the Senate Environmental Affairs Committee.
They include the Hoosier Environmental Council, the Indiana Wildlife Federation, the American Lung Association of Indiana, the Indiana State Medical Association and the nonpartisan League of Women Voters of Indiana.
The bill would hamper the state’s response to coal ash sludge lagoons from Indiana’s coal-fired power plants and large factory-style livestock farms, said Jesse Kharbanda, head of the Hoosier Environmental Council, during a news conference outlining the groups’ opposition.
Kharbanda said the bill “would handcuff” the Indiana Department of Environmental Management by preventing it from enacting safeguards more protective than U.S. Environmental Protection Agency standards.
He said the legislation is based on the incorrect assumption that the EPA has “uniformly overreached” on environmental policy. Kharbanda said that in fact, federal environmental policy has big gaps, and some federal regulations are weaker than what Indiana might need to protect public health and the state’s air, water and land.
“This bill weakens the state’s rights. It unilaterally gives up the ability of Indiana’s executive branch to act on areas of environmental law where the EPA has acted inadequately,” he said. * * *
Rosemary Spalding, a former IDEM general counsel who’s now board chair of Earth Charter-Indiana – one of the groups opposing the legislation – said the bill would eliminate Indiana’s flexibility to address public and environmental health concerns “in a way that’s appropriate for Indiana.”
She said it’s unclear whether the measure would apply only to federal regulations and standards or would extend to federal guidance on environmental rules. Spalding predicted it could lead to legal battles over state environmental policy.
Sixteen Hoosier environmental and social justice organizations called Wednesday for state Sen. Ed Charbonneau, R-Valparaiso, to kill a proposal that could significantly reshape Indiana's environmental laws.ILB: For background, start with this Feb. 10 ILB post.
Charbonneau, chairman of the Senate's Environmental Affairs Committee, is set Monday to hear House Bill 1143, mandating that Indiana environmental requirements "may not be more stringent than" federal law.
Rosemary Spalding, chairwoman of Earth Charter-Indiana and former lead counsel to the Indiana Department of Environmental Management, said if the House-approved measure becomes law, Hoosier businesses and residents face significant risks.
"Despite its simple and straightforward language and intent, if this bill is enacted it will result in uncertainty, disagreement and yes, litigation," Spalding said. "The procedures we have in place right now make certain that (state environmental law) is what's in the best interest of Indiana citizens."
Dennis Shock, a United Methodist minister formerly of Crown Point and board member of Hoosier Interfaith Power and Light, said people of faith have a special obligation "to take the lead in caring for the earth, and not just doing the bare minimum."
Charbonneau was coy but seemed unlikely to permit a committee vote on the proposal, which has advanced out of the Republican-controlled House numerous times but repeatedly died in the Republican-controlled Senate under his predecessor as chairman, former state Sen. Beverly Gard, R-Greenfield.
"I haven't made the ultimate decision yet on that. It would be a stretch, I think, to leap to that step in a short session on a bill of this magnitude," Charbonneau said. "It is not a small change to our policies in this state. I just want to get a debate going, to get a discussion going."
Ind. Courts - Allen County historical court documents go digital
Rebecca S. Green of the Fort Wayne Journal Gazette reports:
Allen County Clerk Lisbeth Borgmann announced a plan Wednesday to review and digitize hundreds of boxes of the county’s historical court documents.
Partnering with FamilySearch, historically known as the Genealogical Society of Utah, the process will make a number of these documents available to the public through the organization’s Web-based genealogical search system.
Many of the documents the organization will work with date from the 1800s and are housed in the Courthouse’s basement, where they have been for decades.
The records, which are considered permanent, must be maintained in their paper form, so the county isn’t freeing up any storage space with the digitization project.
It is not the first time the group has been in Fort Wayne, Borgmann said. FamilySearch’s volunteers were in Allen County in the mid-1990s. FamilySearch, the largest genealogical organization in the world, is affiliated with the Church of Jesus Christ of Latter-day Saints, also known as the Mormon Church.
The last time the group was in Allen County, they stayed for about a year and put a number of documents on microfilm, Borgmann said. The plan this time is for them to work on the project for about two years, and it will cost the county nothing, she said.
“It’s going to be a really big long-term project,” she said.
Though the organization is scanning the documents for its own online database, which contains more than 3 billion names from around the world, according to its website, the county will also be able to put the documents online.
“We want to make the information available to people,” Borgmann said. “I think it’s a really great project.”
Ind. Courts - More on: Valpo attorney charged in theft of $1.64 million
Updating this Feb. 15th ILB entry, James D. Wolf Jr. of the Gary Post-Tribune, in a story today headed "Attorney accused of stealing from business clients also faces civil lawsuit over conduct," reports that the Supreme Court will have to appoint a special judge for the civil action because all eligible Porter County judges have disqualified themselves. Porter Superior Court Judge Mary Harper will deal with the criminal case.
Wednesday, February 19, 2014
Ind. Decisions - Supreme Court suspends troubled Clark drug court [Updated Twice]
The AP has a brief story:
JEFFERSONVILLE, Ind. (AP) — The Indiana Supreme Court has suspended a troubled southern Indiana drug court that's facing a federal lawsuit over the mistreatment of participants including some left incarcerated for months more than their sentences.The ILB is looking for the letter.
The immediate suspension ordered in a letter dated Friday and made public Wednesday bars the Clark County Drug Court from accepting new participants and to develop a plan for the future supervision of current participants.
At least four participants in the Jeffersonville drug court spent months in jail despite being ordered to serve only days or weeks behind bars. Indiana State Police and a special prosecutor are investigating its operations.
An attorney representing the court said it is cooperating with the investigation. He had no comment on the federal lawsuit filed Tuesday that claims the court mistreated participants.
[Updated at 6:25 PM] Gary Popp has this report in the News & Tribune. Some quotes:
IJC Executive Director Jane Seigel recently drafted a letter addressed to Clark Circuit Court No 2. Judge Jerry Jacobi — who oversees drug court — regarding the suspension.The story also references the federal lawsuit:
“We have been made aware of the recent allegations of unlawful conduct by drug court staff and drug court practices harmful to participants,” the letter reads. “Regretfully, the seriousness of these allegations necessitates an immediate suspension of Clark County Drug Court operations.”
The suspension will remain in effect until further notice from the IJC.
During the suspension, the court is not permitted to accept any new participants, according to the suspension notice.
In the letter, Seigel requests that Jacobi works with the IJC to develop a plan for the supervision of those who remain in the drug court program.
The IJC has “ ... an interest in the welfare of current drug court participants ... ,” Seigel wrote in the letter.
She also asks Jacobi provide a list of all participants in Clark County Drug Court to the IJC within 10 business days to organize how their future supervision will be administered.
Seigel said the IJC will keep updated with the validity of the claims of mistreatment, “Should the allegations involving drug court practices prove to be unfounded, the Judicial Center will lift the suspension and work with you to restore drug court operations.”
The class action civil complaint filed by a Louisville attorney in a federal court names 10 Clark County employees — including Jacobi — as the defendants, stemming from claims of mistreatment to Clark County Drug Treatment Court participants and those placed on work release.[Updated 2/20/14] Here is the Louisville Courier Journal story, from Charlie White.
Ind. Decisions - Supreme Court appoints special judge in Justice v. Justice case [Updated]
The Supreme Court late this afternoon filed this order appointing a special judge in the case of Christopher Justice v. Shirley Justice.
For background, see this Indianapolis Star story from this morning, reported by Jill Disis, headed "Police seek ex-husband in shooting outside day care." Some quotes from the long story:
The custody case came to a head in September 2012 when the Department of Child Services started investigating a possible neglect and abuse case involving the couple's daughter while she was in the mother's care.Paul Ogden had a post about this case this morning.
Four months later, after the DCS investigation concluded, Christopher Justice was awarded temporary custody of his daughter. He'd soon try to make it permanent.
After more than a year of court appearances and DCS investigations, Christopher Justice appeared to get his wish.
Marion County Superior Court Judge Patrick McCarty issued an order Feb. 10 handing sole custody of the child to Christopher Justice. The judge cited the DCS investigation that not only found evidence the child was abused by her mother and another unknown person, but also that Shirley Justice had made up accusations that her ex-husband has abused the child.
Psychological testing revealed Shirley Justice "appears to be suffering from serious untreated psychological issues and may be suffering from deficiencies in reality testing, judgment, emotional control and interpersonal relationships," according to the custody order.
Despite the order, the battle for custody continued.
Shirley Justice challenged Judge McCarty's decision to hand custody to her ex-husband. She filed a request that he be removed from the case, claiming he took too long to make his decision. That order was granted the same day McCarty's custody order was filed in Marion County Superior Court, though both sides disagreed over what that meant for the child's custody status.
The case continued to drag on — even as Christopher Justice was allegedly shooting his ex-wife outside the day care center.
According to the motion filed Tuesday by Christopher Justice's attorney, Jennifer Bays Beinart, Shirley Justice had refused to acknowledge the new court custody order.
After Christopher Justice dropped the child off at his ex-wife's house last Friday for visitation, she refused to return her.
"This is a child who has been the subject of a (Child In Need of Services investigation) who we believe to be in grave, serious, physical danger with this woman," Beinart told The Indianapolis Star by phone Tuesday.
[More] For background, see this Nov. 18, 2011 post headed "Ind. Courts - 'Lazy judge' rule changed, effective Jan. 1st." See also this April 2, 2011 post quoting a Bloomington Herald-Times story headed "What happens when cases get bogged down in court? ‘Lazy judge motions’ have been filed 11 times in Monroe since 2000."
[Updated] Something that is not clear to me from the Court's order is whether it voids Judge McCarty's order by virtue of withdrawing his jurisdiction.
Law - "Unsealed email ties Wisconsin Gov. Scott Walker to secret email system"
A lengthy, newly-posted story in the Milwaukee Journal Sentinel, reported by Patrick Marley, Daniel Bice and Bill Glauber, begins:
Madison — Included in more than 27,000 emails unsealed Wednesday is one that for the first time directly ties Gov. Scott Walker to a secret email system used in his office when he was Milwaukee County executive.[h/t Election Law Blog]
"Consider youself now in the 'inner circle,'" Walker's administration director, Cynthia Archer, wrote to Walker aide Kelly Rindfleisch just after the two exchanged a test message.
"I use this private account quite a bit to communicate with SKW and Nardelli. You should be sure you check it throughout the day," she wrote, referring to Walker by his initials and to Walker's chief of staff, Tom Nardelli.
Court documents have previously showed Walker's aides set up a secret wireless router in the county executive's office and traded emails that mixed county and campaign business on Gmail and Yahoo accounts. The email from Archer made public Wednesday is the closet link yet between that system and Walker.
The exchange was included in the raft of documents unsealed Wednesday as part of Rindfleisch's appeal of her 2012 conviction of misconduct in office for doing campaign work on county time.
Environment - More on: Anti-Kiger Environmental Insurance Coverage Legislation to be considered Thursday in Senate committee
Updating this ILB post from last evening, the ILB has just learned that the Senate Insurance Committee hearing on HB 1241 has been postponed until Thursday, Feb. 27th at 10:00.
Ind. Gov't. - A least one state senator is unaware of Governor's non-role in constitutional amendments
A reader received this note from a state senator and has sent it on to the ILB [ILB emphasis]:
Thank you for contacting me about Indiana's consideration of a constitutional amendment defining marriage. This measure recently passed both houses and is now on its way to the Governor's office for his consideration. Because the amendment was not passed in the same form as in 2011, the earliest the measure will be on the ballot is 2016. If you have any other concerns, please do not hesitate to contact me.ILB: Here is Article 16, Sec. 1 of the Indiana Constitution:
Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.
(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election. (c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.
(History: As Amended November 3, 1998).
Ind. Gov't. - "Group may [attempt to] force HJR-3 on 2014 ballot"
That is the headline to Rafael Sanchez's story at noon on WTHR6. The bracketed insert is from the ILB. A few quotes:
INDIANAPOLIS - A national pro-marriage group is considering whether to take legal action to force HJR-3 on the Indiana ballot in November 2014. * * *Hmmm, national group (that means out-of-state license plates) believes it has Indiana law on its side. It will be interesting to see what it might be.
The National Organization for Marriage tells RTV6 that they met with the House Speaker Brian Bosma on Wednesday.
"We are building a coalition of the willing and looking for legislators who are willing to join in this task," said Chris Plante, regional director of NOM.
"We understand it will be heavy lifting, but if we all work together, we believe we have the law on our side. And we believe HJR-3 should go to the people in November 2014 as was promised by legislature on multiple occasions," said Plante.
Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (4):
Ind. Gov't. - "Move to drug-test welfare recipients scaled back"
HB 1351 was heard in the Senate this morning and Niki Kelly was there. Here is her Fort Wayne Journal Gazette report on committee changes to the bill, affecting the requirement for drug testing of welfare recipients, and limitations on the use of food stamps. Note also:
Sen. Patricia Miller, R-Indianapolis, said she still expects a substantial cost and the bill might have to be referred to the Senate Appropriations Committee. Lawmakers this year have punted any bills that would open up the state budget by spending money.[Updated at 1 PM] The FWJG headline has now been changed to "Committee all but guts welfare drug testing bill."
Ind. Gov't. - "Post-Tribune loses Statehouse office"
Dan Carden reports in the NWI Times:
The governor's office has reclaimed the unused Statehouse workspace of the Post-Tribune.ILB: On the other hand, the Evansville Courier & Press does have a statehouse reporter, but the paper is totally paywalled and thus only informs and impacts monthly subscribers. [For example, access is blocked to this story today headed "Lawmakers moving forward with cell data tracking legislation."]
That leaves The Times Media Co. as the only Northwest Indiana news source providing daily, on-site coverage of the Indiana General Assembly and state government.
The Post-Tribune has not stationed a reporter at the Statehouse since the 2013 legislative session ended in April. * * *
According to Kara Brooks, spokeswoman for Gov. Mike Pence, Post-Tribune officials weren't even aware the Chicago-based newspaper, which used to have offices in Gary and Merrillville, had reserved workspace in the Statehouse.
Brooks said the space has been cleaned and will be reissued to another media outlet.
Tuesday, February 18, 2014
Environment - Anti-Kiger Environmental Insurance Coverage Legislation to be considered Thursday in Senate committee
HB 1241, which passed the House 57-36, will be heard in Senate Committee at 10 a.m. on Thursday, February 20, 2014. The bill digest:
Environmental coverage. Specifies the manner in which the meaning of "pollutant", as used in certain liability insurance policies, must be construed.The bill would add a new chapter IC 27-7-14 to the Indiana Code, setting by statute how the term "pollutant" shall be construed in insurance policies in the future.
Put more bluntly, the bill would eliminate insurance coverage for environmentally contaminated properties. The bill is being referred to by industry and local government as "The Anti-Kiger Environmental Insurance Coverage Legislation," referring to the 1996 Indiana Supreme Court decision, American States Insurance Co. v. Kiger and the long line of cases following it. This case law is what sets the standard for the insurance recovery rights Indiana property owners possess in remediating contaminated sites.
Opponents of the bill point out that:
- Insurance companies who have issued policies since 1996 have incorporated these potential environmental risks and exposure into their premiums which their policyholders have paid for the past 18 years. The proposed legislation would provide an improper windfall to these insurers who have included these potential risks in the premiums they have collected but would now be given a free pass by the legislation.
- The Indiana courts have made it clear that if an insurance company wants to exclude coverage for environmental liabilities they can draft specific language to do so, with both the Indiana Supreme Court and the 7th Circuit Court of Appeal upholding specific language chosen by two insurance companies to exclude coverage. Thus the insurers know that they do not need the Indiana General Assembly to write private contracts for private parties.
Ind. Decisions - "Lawsuit accusing Fatheadz CEO of fraud reinstated by COA"
A Not for Publication opinion today by the Court of Appeals, Jonathan "Slade" Taylor and Mark A. Casey v. Eric "Rico" Elmore and Fatheadz, Inc. (NFP), is the subject of a story this evening by Jeff Swiatek of the Indianapolis Star that begins:
The Indiana Appeals Court has reinstated a fraud lawsuit against the founder and CEO of the Fatheadz sunglasses company, citing his partners’ claims that he bought them out in 2010 just before the company’s fortunes turned around.The opinion is authored by Sr. Judge Shepard.
Eric “Rico” Elmore, whose pricey oversized sunglasses perch on the faces of Indianapolis Colts players, MMA fighters and other large-noggined users, had reason to think that the 2010 lawsuit by former partners Jonathan “Slade” Taylor and Mark Casey was behind him.
But the Appeals Court on Tuesday found that a Hendricks County judge erred in dismissing the lawsuit last year and ruled that Taylor and Casey have a valid complaint against Elmore and his Brownsburg company.
The two former partners with Elmore allege he pulled off a shady repurchase of their devalued shares in 2010, telling them he intended to sell the struggling company and needed to get all the shares under one name.
Ind. Courts - "Tippecanoe files civil forfeiture lawsuit against El Rodeo, others for $3.4M"
Ron Wilkins has the long story this evening on the Lafayette Journal Courier site. A few quotes:
Police confiscated more than $3.4 million during their November raids at El Rodeo restaurants and other eateries throughout the state, and now Tippecanoe County wants to keep that money.ILB: This sounds similar to this post from Feb. 7, 2013. A quote:
In a civil forfeiture lawsuit filed Friday, the Tippecanoe County prosecutor’s office accuses El Rodeo’s owners and other parties in the businesses of obtaining the money illegally. Therefore, the suit claims, the defendants should forfeit the money.
Tippecanoe County Prosecutor Pat Harrington said in a written response to the Journal & Courier that the suspects in the Nov. 18 raids have not been criminally charged and the cases are under investigation. They, therefore, should be considered innocent until proven guilty in court. * * *
In order to win a civil forfeiture case, the prosecutor must prove through a preponderance of the evidence that the gains were illegally attained, [Attorney General] Zoeller said.
The suit names at least 25 restaurants and several individuals associated with the restaurants of operating criminal enterprises and engaging in money laundering for concealing the proceeds of criminal activity. Specifically what criminal activity allegedly took place is not mentioned in the lawsuit.
The lawsuit also accuses the restaurants of theft, alleging that the businesses failed to report the correct amount of money they owed the state in taxes.
Harrington said Marion County prosecutors have filed a similar civil forfeiture suit there.
A lawsuit seeks to allow the State of Indiana to keep millions of dollars and property seized during an investigation into Acapulco Mexican Restaurants.Related posts here.
The Dearborn County Prosecutor’s Office recently filed the lawsuit on behalf of the State of Indiana against the owners of the southeast Indiana restaurant chain which was raided by Indiana State Excise Police in September.
Ind. Decisions - Supreme Court decides one today
In State of Indiana v. William Coats, a 12-page, 5-0 opinion, Justice David writes:
Following his arrest for class D felony sexual battery, sixty-seven-year-old William Coats filed a motion for a competency determination. Doctors evaluating Coats diagnosed him with dementia, concluded he was not competent to stand trial, and predicted he could not be restored to competency. Based on the doctors’ reports, the trial court found that Coats was not competent to stand trial and that Coats could not be restored to competency. Subsequently, the State moved to commit Coats to the Division of Mental Health and Addiction (“DMHA”) pursuant to Ind. Code chapter 35-36-3, Indiana’s Comprehension to Stand Trial statutes. The trial court denied the State’s motion, and this interlocutory appeal ensued. Because we hold that Ind. Code § 35-36-3-1(b) requires trial courts to commit defendants found not competent to stand trial to the DMHA for competency restoration services, we remand this case to the trial court with an order to commit Coats to the DMHA. * * *
In all likelihood, the trial court here was motivated by the probability that Coats, at the time nearly seventy years old and suffering from Alzheimer’s disease, is unlikely to ever be competent to stand trial. Although the trial court had the best of intentions, it was bound to follow Ind. Code chapter 35-36-3 and had no discretion to substitute its determination as to whether Coats would eventually attain competency for that of the superintendent of the state institution where he should have been committed. Only by following the strict statutory framework set forth by the legislature in Ind. Code chapter 35-36-3 can both the interests of the State and Coats be protected.
Conclusion. We therefore remand this case to the trial court with an order to commit Coats to the DMHA for competency restoration services.
Dickson, C.J., Rucker, Massa, and Rush, J.J., concur.
Ind. Decisions - Another Indianapolis attorney disciplined; more on the two earlier actions this month disciplining Indianapolis attorneys
Today the Supreme Court has posted this disciplinary order, dated Feb. 14, 2014:In the Matter of: Jennifer F. GRAHAM
However, there is no Jennifer F. Graham in the Roll of Attorneys.
I anticipate the Supreme Court order will be corrected.
From the 3-page, 5-0 Court order:
Respondent admits that she suffers from a compulsive gambling addiction (involving slot machines) which began around July 2010. She has taken a number of steps to address her gambling addiction, and other than one relapse in April 2013, Respondent has abstained from playing slot machines since November 2012. * * *On Feb. 14th the ILB posted an order indicating that Indianapolis Attorney Terrance L. Kinnard has been suspended for 6 months, without automatic reinstatement. On Feb. 12th, Gary L. Dilk, also of Indianapolis, was also suspended for 6 months, without automatic reinstatement.
Violations: The Court finds that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:
Rule 8.4(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, i.e., conversion.
Rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning the date of this order, all stayed subject to completion of at least two years of probation on the following terms and conditions: * * *
The Indianapolis Star today has a story by Tim Evans on the two suspensions:
The Indiana Supreme Court has suspended Indianapolis attorneys Gary L. Dilk and Terrance L. Kinnard for “a period of not less than six months” in unrelated disciplinary cases. * * *The Star story appears to miss the significant consequences of suspension "without automatic reinstatement," something that the ILB looked at in depth in this Feb. 14th post headed "How bad is 'suspension without automatic reinstatement' by the Supreme Court; can it be the kiss of death for an attorney?"
Once they have served the six-month suspensions, both attorneys can petition the court for reinstatement. The orders issued Feb. 10 explain that reinstatement “is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law.”
As attorney Craig Smith's research for the ILB indicated, of 119 attorneys since 2000 who were given suspension without automatic reinstatement, only 22 attorneys have been reinstated, and "after applying for reinstatement, it usually took 8 to 16 months for those attorneys to be reinstated."
Note: The Star story has subsequently been updated to reflect the ILB research.
Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)
For publication opinions today (4):
In Robert Durall v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC, involving an interlocutory appeal, Sr. Judge Darden writes:
Durall challenges the trial court’s November 19, 2012 order. Although neither party presents the timeliness of this discretionary interlocutory appeal as an issue, timeliness is a jurisdictional matter which we should raise sua sponte if the parties do not. * * *In In the Matter of the Adoption of J.L.J. and J.D.J., Minor Children; J.J. and T.H. v. D.E., a 21-page opinion, Judge Riley writes:
Here, the trial court’s chronological case summary does not show that Durall filed a motion, belated or otherwise, for certification of an interlocutory order. Durall’s Motion to Reconsider does not request certification of the November 19, 2012 order. The first reference in the record to an interlocutory appeal is in the transcript of the hearing on Durall’s Motion to Reconsider. Thus, Durall failed to comply with Rule 14(B).
In addition, the trial court did not comply with Rule 14(B)’s requirements for belated certification of appeals. Specifically, neither the trial court’s March 4, 2013 order nor its April 3, 2013 order states that there is good cause for belated certification of the November 19, 2012 order or sets forth the basis for such certification. Without proper certification, we have no jurisdiction to entertain an interlocutory appeal. Wise, 997 N.E.2d at 414.
CONCLUSION. For the reasons stated above, we dismiss this interlocutory appeal without prejudice to Durall’s right to appeal after the entry of a final judgment. Dismissed.
Father raises two issues on appeal, one of which we find dispositive and restate as the following: Whether the trial court erred in finding that Father’s consent to Guardian’s adoption of the Twins was not required based on Father’s failure to provide support.In Tanner Piotrowski v. State of Indiana, a 12-page opinion, Judge Brown writes:
Grandmother raises three additional issues, which we restate as the following:
(1) Whether the trial court erred in concluding that Grandmother was not entitled to receive notice that Guardian had filed petitions for guardianship;
(2) Whether the trial court erred in failing to comply with the Interstate Compact on the Placement of Children (ICPC); and
(3) Whether the trial court abused its discretion in denying Grandmother’s petitions for appointment as the Twins’ guardian and for their adoption. * * *
Based on the foregoing, we conclude that the trial court did not err in concluding that Father’s consent to the Twins’ adoption was not required. Neither did the trial court err in denying Grandmother’s petitions to adopt the Twins, nor did it abuse its discretion in denying Grandmother’s petitions to remove Guardian as guardian in exchange for her own appointment because the evidence is sufficient to establish that it is in the Twins’ best interests to be adopted by Guardian. Affirmed.
In this interlocutory appeal, Tanner Piotrowski challenges the trial court’s denial of his Motion to Exclude Any Evidence or Testimony from the State Department of Toxicology. Piotrowski raises one issue, which we revise and restate as whether the court erred in denying his request to exclude evidence. We affirm. * * *In Segun Rasaki v. State of Indiana, an 8-page opinion, Judge Mathias writes:
Piotrowski argues that it is clear the legislature intended to “rescind the Title 21 Department’s regulatory authority,” and that the Title 10 Department “had a mandate to promulgate toxicology regulations . . . .” Id. Piotrowski suggests that the sunset provision contained as Ind. Code § 10-20-2-7(d) established a deadline whereby the rules promulgated by the Title 21 Department would expire, and that as of July 1, 2012, because the Title 10 Department did not promulgate its own regulations, no legal regulations were in existence, and that accordingly the evidence at issue should have been excluded. * * *
Specifically, we find that Piotrowski’s suggestion that the sunset provision contained in Section 7(d) has the effect of causing rules established by the former Title 21 Department to expire and no longer be enforceable is erroneous as it is contrary to Ind. Code § 1-1-5-5. Subsection 5(b)(3) provides that the any repeal or expiration of a statute authorizing the transfer of rules does not affect the validity of the transfer of such rules occurring before the effectiveness of the repeal or the date of the expiration. Ind. Code § 1-1-5-5 is precisely on point under these circumstances and operates to continue the enforceability of the rules at issue, codified at 260 IAC 1.1. In this regard, we agree with the State’s argument that taking Piotrowski’s argument at face value, the expiration of Section 7 on July 1, 2012 would also affect the transfer of toxicology department property, obligations, and monies to the Title 10 Department from the Title 21 Department, which could not have been the legislature’s intent. * * *
After reviewing the relevant statutes, we find that the legislature intended Ind. Code § 10-20-2-7 to effectuate a transfer of control of the Department of Toxicology from the Indiana University School of Medicine to the State of Indiana. Although the legislature transferred rulemaking authority to the State, it did not specifically require the State to promulgate a new set of rules regarding breath testing and gave the State discretion to rely upon the rules previously in existence. Accordingly, we conclude that the court did not err when it denied Piotrowski’s Motion to Exclude.
Following a bench trial, Segun Rasaki (“Rasaki”) was convicted of Class D felony sexual battery and Class B misdemeanor battery in Marion Superior Court. On appeal, Rasaki claims that the State failed to produce evidence sufficient to support his convictions. Concluding, sua sponte, that Rasaki’s appeal is untimely, we dismiss. * * *NFP civil opinions today (4):
Accordingly, if Rasaki wished to bring a petition for post-conviction relief prior to pursuing a direct appeal, the proper course of action would have been to timely file his notice of appeal, then file a Davis/Hatton motion to suspend his direct appeal during the post-conviction process. But he did not do this. Instead, he improperly sought to extend the thirty-day deadline of Appellate Rule 9(A) by filing a motion for enlargement of time under Trial Rule 6(B), and the trial court improperly granted these motions. But as noted above, Trial Rule 6(B) applies only to time limits imposed under the Trial Rules. Under Appellate Rule 9(A), Rasaki’s notice of appeal was due not later than thirty days after the trial court’s February 15, 2013, ruling on his motion to correct error, i.e., March 18, 2013. Rasaki’s notice of appeal was not filed until July 10, 2013, well beyond this deadline. Accordingly, Rasaki forfeited his right to appeal.
This is not a mere technicality. Because Rasaki’s notice of appeal was untimely, we are without jurisdiction to hear his appeal. See Jernigan, 894 N.E.2d at 1046. We must therefore dismiss Rasaki’s appeal as untimely.
NFP criminal opinions today (1):
Ind. Law - "The fight goes on" warns FWJG editorial
Just a few quotes from today's editorial on the Fort Wayne Journal Gazette:
Start with the good news. The effort to put HJR 3, the anti-gay-marriage amendment proposal, on this year’s ballot appears to have failed.
This will spare Indiana the ignominy of becoming the national crossroads of the gay-marriage debate in the fall election season.
Information and enlightenment are more accessible than ever, but troglodytical ideas can still find a toehold almost anywhere. With luck, the spotlight will soon land on some other struggle in some far-away state.
That doesn’t mean the rainbow coalition of people, companies and institutions to fight this can rest on its laurels. There is important work yet to be done if Indiana is to permanently avoid, and not just delay, this assault on the basic rights of some of its citizens.
We have to build on the positives. * * *
It’s a moment not for complacency, but for those who value the American tradition of freedom and respect for diversity to fight back at the ballot box – or resign themselves to years more of self-righteous intolerance at the state legislature.
Courts - "Searching a cell phone incident to arrest"
The Volokh Conspiracy had a long post yesterday by Prof. Orin Kerr, beginning:
The Supreme Court recently granted cert on two cases about how the Fourth Amendment applies to the search incident to an arrest of a cell phone found on a person arrested. In textual terms, when is a search of a cell phone incident to arrest constitutionally “reasonable”? In this post, I want to lay out some of the possible Fourth Amendment rules that the Court might consider to answer that question. I’ll start with a basic introduction to the rationales of the search incident to arrest exception. I’ll then offer a few possible rules the Court might adopt to answer when a cell phone can be searched under the exception. Next, I’ll turn to possible rules for how broadly a search should extend under the exception if/when such searches are allowed. In future posts, I’ll offer some thoughts on how the Court might choose among the rules.Meanwhile, HB 1384, re downloading of cellular telephone information by police, is being considered this morning in the Senate Corrections & Criminal Law Committee
Courts - "SCOTUS could decide legality of poker games"
That is the headline to this story in the Atlanta Journal Constitution, reported by Justin Gray. (h/t/ How Appealing) A quote:
Robert Costner regularly hosts poker parties for as many as 100 people in Virginia, a state where it's legal to play for cash at home.Whether to take the case is being considered by the SCOTUS in conference Friday, according to the story.
“Why does the federal government care?” said Costner. “It's not organized crime. It's not the mob, it’s just some guys getting together having fun.”
But the Supreme Court could soon step in. The feds busted and convicted a New York man for running a poker game in the back of his bicycle shop. He's now appealed to the nation's highest court.
The case could impact everyone who likes to play a little poker with friends.
“I would hate to have what I’m doing here, playing poker, determined to be a federal crime,” Costner said.
The bike shop owner's attorneys claim poker shouldn’t be classified as illegal gambling because it's a game of skill.
“The only way you can consistently win money is by skill,” Costner said.
But Justice Department lawyers don't buy that argument, saying in their brief to the Supreme Court, "Courts have long held that poker contains a sufficient element of chance to constitute gambling."
The ILB has a long list of posts dealing with poker, many of them on this very issue.
Ind. Law - "Houses where methamphetamine labs are found would be listed in an online registry"
Summer Ballentine reports this morning in the NWI Times:
Houses where methamphetamine labs are found would be listed in an online registry under a proposal being considered by Indiana lawmakers.The bill is HB 1141.
The state Senate Civil Law Committee discussed the measure Monday. The bill also would transfer control of the reporting website from the Indiana Criminal Justice Institute to the state police.
Properties could be taken off the list 90 days after they are cleaned and declared habitable.
The proposal earlier passed the Indiana House unanimously.
State police say about 1,800 meth labs were found across Indiana last year. The Indiana Department of Environmental Management reports contaminated homes pose health hazards, particularly for children.
The Criminal Justice Institute currently has the authority to create the online registry but never received funding from the state to follow through with the measure, said Indiana State Police First Sgt. Niki Crawford, commander of the methamphetamine suppression section of the Indiana State Police.
Indiana State Police already has a database of meth lab seizures, Crawford said. Police now plan to begin formatting the information to move online.
"The new disclosure part allows a purchaser to know what they're getting into," Crawford said. "It's simply a public safety tool."
Current law allows property owners time to decontaminate a residence after a meth lab is found before the property is listed on a registry.
The new legislation would require properties be listed immediately, which raised concerns from members of the Indiana Apartment Association.
BTW, here is an 8-page calendar of this week's Senate committee meetings (as it existed late Sunday, 2/16) - I have highlighted some bills of interest.
Ind. Gov't. - "In Diluting Measure to Ban Gay Marriage, Indiana Shows a Shift"
The story by Monica Davey is on p. A13 of my NY Times this morning. It includes a color photo. Some quotes:
It was a choice expected to come and go with little debate. Indiana, a conservative state controlled by Republicans, wanted to do what plenty of other states did long ago: add an amendment to its Constitution defining marriage as between a man and a woman. The notion had sped through Indiana’s legislature a few years ago, the first of two required votes.
In Indianapolis, lawmakers on Monday again pushed forward a constitutional amendment, but, in a sign of the rapidly shifting political dynamics over same-sex marriage around the nation, the process turned unexpectedly rocky. In the end, the measure was changed, removing language some supporters considered essential, almost certainly delaying a statewide vote on the matter for at least two years, and leaving the fate of a constitutional ban on same-sex marriage in Indiana uncertain. Amendment opponents declared success. * * *
In states like Oklahoma, Utah and Virginia, federal judges have struck down laws banning gay couples from marrying, seemingly pressing the question ever closer to the Supreme Court. And in states controlled by Democrats, like Illinois and Minnesota, lawmakers have legalized same-sex marriage. But Indiana offers a look at a different side of the nation’s shifting landscape — a glimpse at a growing struggle for Republican politicians over how to satisfy a conservative base that now finds itself at odds with some business leaders and a changing electorate.
“You start to get the feeling a lot of people in the legislature just don’t want to deal with this again — don’t have the appetite,” said Megan Robertson, campaign manager for Freedom Indiana, an anti-amendment group supported by business interests like Eli Lilly and Company and Cummins. “We wanted to defeat this thing outright of course, but getting it pushed down the road is a huge victory.” * * *
“With the way things are changing, with all the court cases, one after another, there’s a good chance that we never even reach 2016 without the Supreme Court having weighed in on this issue,” said Sarah Warbelow, the state legislative director of the Human Rights Campaign, a gay-rights group.
Advocates of the amendment said they were surprised by what had transpired in Indiana. “The decision to dilute and delay the marriage amendment and deprive voters of the chance to consider it this year is very disappointing,” said Curt Smith, president of the Indiana Family Institute, which pushed for the amendment. “I expected it to go forward,” he added, “and I expected to have a vote this year.”
Monday, February 17, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today
In UNITED STATES OF AMERICA v. TYLER SANDERS (SD Ind., McKinney), a 7-page opinion, Judge Easterbrook writes:
Tyler Sanders pleaded guilty to possessing more than 50 grams of cocaine base with intent to distribute. At sentencing, the district judge found that he possessed more than 500 grams of cocaine or cocaine base and calculated an offense level of 26, producing a recom-‐‑ mended range of 110 to 137 months’ imprisonment. The judge sentenced Sanders to 120 months. Most of the cocaine that was included as relevant conduct for the purpose of cal-‐‑ culating the offense level had been seized from Sanders’s home, which the police searched with a warrant following his arrest. The district judge concluded that the warrant was invalid and ruled that the evidence seized from Sanders’s home could not be used against him at trial. 710 F. Supp. 2d 821 (S.D. Ind. 2010). Sanders contends that the judge should have prohibited use of that evidence at sentencing too. * * *
The exclusionary rule does not apply at sentencing. An “egregious violation” exception is not necessary to deter violations, as long as damages are available. The district judge did not err in following §3661 and considering the evidence found during the search of Sanders’s home. The judgment therefore is AFFIRMED.
Ind. Decisions - "Supreme Court decides not to hear Holiday World case"
Among the cases denied transfer today by the Supreme Court was Koch Development Corporation and Daniel L. Koch v. Lori A. Koch, as Personal Representative of the Estate of William A. Koch, Jr., Deceased. The appellant's request for transfer was denied 5-0, allowing the Oct. 3, 2013 Court of Appeals opinion to stand.
Jeff Swiatek, Indianapolis Star business writer, has the story here. Some quotes:
The appeal was requested by Dan Koch, Will’s brother, who came out on the losing end of the Appeals Court ruling and now appears to have reached the end of his legal fight to gain control of the family owned park from his sister-in-law.
In an email, however, Dan Koch gave no indication that he will sell his 40 percent minority ownership interest in the park now that his three-year legal fight against Lori appears over. She owns the other 60 percent.
“The courts have spoken and I respect the rule of law. I have tremendous legacy knowledge of where Holiday World has been and where we are going,” said Dan Koch, a Florida attorney who filled in as park president after his brother’s death by drowning in 2010. He was later fired by Lori. * * *
The legal fight centered on the price that Dan Koch should pay to buy his sister-in-law’s inherited shares in the park.
Lori Koch argued that Dan Koch's $27 million offer undervalued her husband's shares by at least $5 million. A Vanderburgh County judge, who first heard the case, agreed, saying Dan's offer was invalid because it breached a family agreement that outlined the procedures for buying shares if a family shareholder died.
The appeals court upheld the Vanderburgh judge's ruling, saying that Dan Koch not only offered too little for the shares, but failed to raise his price when Lori asked. “Dan ... stubbornly stood by (his) initial low-ball offers,” the court said.
The park is one of the state’s top tourist destinations, drawing 1 million people a year to Spencer County.
Environment - "Right to farm" bill close to passage
Rick Callahan's AP story Saturday begins:
An agricultural bill that opponents warn would undermine Indiana residents' legal challenges against large livestock farms is moving closer to passage in the General Assembly.
The bill's author, state Sen. Carlin Yoder, R-Middlebury, says Indiana farmers need protection from animal rights activists and others he said are attacking the farming profession in courts.
His measure states, in part, that Indiana's policy is "to conserve, protect, and encourage" the development and improvement of agriculture for the production of food, fuel and other products. But it also contains language that opponents argue would unfairly favor farmers in lawsuits targeting industrial-scale livestock farms called concentrated animal feeding operations, or CAFOs, that raise thousands of animals and produce large amounts of manure, dust and strong odors.
The Indiana Senate approved the bill last month by 40-8 vote and the House Agriculture and Rural Development Committee endorsed it on a 12-1 vote Thursday, sending it to the full House for consideration as early as this week. * * *
The earliest the House will hear Yoder's bill on second reading is Thursday, said Tory Flynn, a spokeswoman for Indiana House Speaker Brian Bosma.
Ind. Gov't. - Commission on Improving the Status of Children will meet Wed., Feb. 19th
See details here.
Ind. Decisions - FWJG opines on lessons of welfare debacle. Lessons learned? Are they transferable?
It’s been a costly lesson, but Indiana’s long and troubled experiment with welfare privatization will be even more costly if lawmakers don’t take its message to heart. Outsourcing key state functions to private businesses can ultimately come at greater expense and, most important, cause irreparable harm to some Hoosiers.The editorial continues, warning:
Here’s the takeaway from an Indiana Court of Appeals ruling in the state’s suit against IBM, the lead partner in a $1.3 billion deal to administer welfare services: “In the most basic aspect of this contract – providing timely services to the poor – IBM failed,” wrote Chief Judge Nancy H. Vaidik.
The words can’t begin to describe the suffering the botched deal caused for the state’s most vulnerable residents. The poorest Hoosiers, seniors and people with disabilities depend on assistance for food and medical care, but vital services were interrupted when a paper-based caseworker system was replaced by an automated system. Problems surfaced almost immediately when clients were directed from county welfare offices to online applications and phone interviews conducted by call-center workers.
Thursday’s ruling overturns an earlier decision but still awards the company $50 million in fees the state had agreed to pay. The decision allows the state to go after as much as $177 million in a breach of contract suit, but the real winners will be the outside counsel hired to pursue the case. The state hired Barnes & Thornburg, the same law firm that represented ACS, IBM’s partner in the privatization fiasco, to handle the case. As of mid-2012, the state already had paid the law firm $9.6 million. Contract amendments since that time have added another $2.1 million to the legal tab.
ACS, of course, was the former employer of Mitch Roob, the Family and Social Services Administration secretary who oversaw the privatization mess. This page warned in 2006 that the murky process that created FSSA’s deal with IBM and ACS would “grease the skids on the road to debacle.”
The General Assembly continues to expand Indiana’s private-school voucher program, siphoning nearly $135 million away from public schools in just three years. When problems arise, they won’t be concentrated within one giant corporation, but failure by even a handful of voucher schools will result in harm to students. The case for negligence will be even tougher to prove.
As the welfare privatization lesson shows, costs weren’t so much contained as made less transparent. In extolling the IBM contract in 2006, state officials claimed taxpayers were in line for $1 billion of savings and that recipients would see better service.
The savings and better performance now promised by school voucher proponents sounds suspiciously like the bill of goods sold eight years ago with the FSSA deal.
Ind. Decisions - "State wrong to take 5 children from mom, Indiana Supreme Court says"
In the Matter of S.D., Alleged to be a Child in Need of Services, J.B. v. Indiana Department of Child Services, the Supreme Court opinion issued Feb. 12th, was the subject of this Feb. 13th story by Charles D. Wilson of the AP:
The Indiana Supreme Court ruled that the state’s child welfare agency went too far when it took custody of a woman’s five children when she had trouble making ends meet during one child’s medical crisis.
“We are unwilling to say that every special needs child of a low-income parent is necessarily `in need of services,”’ Justice Loretta Rush wrote in the unanimous decision that reversed a Court of Appeals ruling.
The opinion issued Wednesday said there was no evidence the Department of Child Services had to take the children. * * *
The case began 2012, when the single mother of five relocated from Gary to Indianapolis to be with her gravely ill special needs child, who was on a ventilator in Riley Hospital for Children. Initially, the mother left her other four children with relatives in Gary, but the entire family later moved to Indianapolis.
The ruling said the children may have needed the state to step in at first, but by the time the department held its hearing on the case, the family no longer needed it to.
The department stepped in and took custody of all five children, holding that while the mother had done her best, she had “received a lot of help and still needs a lot of help,” court records said.
“DCS’s desire to help the family was understandable, but the facts simply do not justify subjecting the family to State compulsion,” Rush wrote.
The Supreme Court said that the woman “had difficulty meeting the demands of a situation that would test the mettle of any parent,” but she might have been able to overcome those obstacles if the state had not intervened. In fact, Rush wrote, the department added to the delay in the child’s return home from the hospital.
The children were later released from the state’s custody.
The 10-page opinion held that the state is justified in intervening only when parents cannot meet the needs of their children, not when they merely have difficulty taking care of them.
“When ... coercion is not necessary, the State may not intrude into a family’s life,” Rush wrote.
Ind. Courts - SD Indiana testing documents with live internal links
The SD Ind. has posted a notice, dated Feb. 10, 2014, regarding:
... a pilot program that will allow inclusion of active hyperlinks within e-filed and Court-issued documents. Hyperlinks will allow immediate access by the reader to the referenced materials, i.e., CM/ECF filings, case and statute citations, attachments, and exhibits.
During the initial phase of the pilot program, the Court will be issuing a limited number of entries and orders containing hyperlinks. The hyperlinks may be page-specific. For instance, an order may contain a hyperlink to a specific page of a specific affidavit - accessible with one click. Access to Court-issued documents will continue to be available via the Notice of Electronic Filing ("NEF") email system. NOTE: Even though attorneys can utilize the one “free look” to the e-filed documents associated with the NEF – accessing other CM/ECF hyperlinked documents contained within the main document will be subject to normal PACER fees, and any hyperlinks to Westlaw or LexisNexis citations will require attorneys to login to those services.
The next, and most important, phase of the pilot program will involve a small group of attorneys e-filing documents with hyperlinks. When utilized by attorneys, hyperlinks in briefs and other court filings will provide quick, easy, and pinpoint access to particular sections of a case, or to specific filings in the court's record, adding another level of persuasion to their writing. Hyperlinking will also be a great benefit to the Court, allowing Judges to quickly and easily review case-supporting materials.
Once this pilot program has been tested and meets the Court’s expectations, detailed information will be available for all attorneys to use in future filings.
Environment - "Don’t let legislators decriminalize poaching"
That is the headline to this letter that appeared Sunday in the Indianapolis Star, signed by Jeff Wells, President, Indiana Conservation Officers Organization. It begins:
A bill is moving through the Indiana General Assembly to decriminalize the unlawful taking of our fish and wildlife resources. Senate Bill 52 would reduce the majority of fish and wildlife crimes to mere civil infractions. Our natural resources deserve better protection. Hoosiers of all backgrounds hold these resources in much higher esteem. Poachers are thieves who steal our property out of greed and financial gain. An act of theft warrants appropriate punishment.ILB: There is not only this concern, but that of SJR 9, the constitutional amendment on "Right to hunt, fish, and harvest wildlife." - Both are authored by Senator Steele. An untrammeled right?
Ind. Decisions - Greenwood attorney suspended upon guilty finding
In the Matter of: Robert B. BUSH, filed Feb. 13, 2014:
The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), has filed a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.
The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following felonies under Indiana law: Stalking and Invasion of Privacy.
IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately.
Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)
For publication opinions today (2):
In Northen Indiana Public Service Company v. Edward A. Sloan, Dashawn L. Cole , a 13-page opinion, Judge Barnes writes:
Northern Indiana Public Service Company (“NIPSCO”) appeals the trial court’s orders reinstating the driving privileges of Edward Sloan and Dashawn Cole (collectively “the Appellees”). We affirm. * * *In Rakiea McCaskill v. State of Indiana , an 8-page opinion, Judge Pyle writes:
NIPSCO has not made a prima facie showing that the trial court erred in its interpretation of Indiana Code Section 9-25-6-6 or that equity requires the continued suspension of the Appellees’ driving privileges. NIPSCO waived its argument regarding the trial court’s contacting the BMV by failing to object to that procedure during the hearing. We affirm.
Rakiea McCaskill appeals her conviction for Class A misdemeanor intimidation. We reverse and remand with instructions.NFP civil opinions today (5):
ISSUE. Whether there was sufficient evidence to support McCaskill’s conviction for Class A misdemeanor intimidation beyond a reasonable doubt. * * *
In the instant case, McCaskill made several threats to Matlock through telephone and Facebook that she was going to “beat [her] ass” and that “everybody in the city [knew she would] beat [her] ass.” (Tr. 7). These statements were clearly intended to harass, annoy, or alarm Matlock and were not intended to result in legitimate communication. Additionally, McCaskill does not deny that she made these threats. As a result, we conclude that the State did produce sufficient evidence that McCaskill committed Class B misdemeanor harassment. We remand to the trial court with instructions to vacate McCaskill’s judgment of conviction for intimidation and to enter a judgment of conviction for McCaskill for Class B misdemeanor harassment.
NFP criminal opinions today (9):
In $2,500.00 In United States Currency, 2002 Chevrolet Avalanche, and 1970 Chevrolet El Camino (Demarco D. Hawkins) v. State of Indiana, et al. (NFP), a 7-page opinion, Judge Kirsch writes:
Demarco D. Hawkins (“Hawkins”) appeals the trial court’s order granting forfeiture of a 2002 Chevrolet Avalanche (“the Avalanche”) and a 1970 Chevrolet El Camino (“the El Camino”) (together, “the Vehicles”) that were seized when he was arrested for suspicion of dealing in marijuana. He raises the following restated issue for our review: whether the evidence presented was sufficient to support the trial court’s grant of forfeiture of the Vehicles. We reverse.Aaron M. Fellows v. State of Indiana (NFP)
Ind. Decisions - Transfer list for week ending February 14, 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, February 14, 2014. It is one page (and 11 cases) long.
No transfers were granted last week.
Ind. Gov't. - "About 150 attend meeting on possible immigrant detention center in Hobart"
The ILB tries to spot and track what may turn out to be important legal/governmental stories from the beginning. This long story today in the Gary Post-Tribune, reported by Karen Caffarini, caught my attention. A few quotes:
HOBART — About 150 people attended an educational forum Sunday to learn about a Florida-based company that might want to build a for-profit immigrant detention center in the city.
A number of those attending the forum at Augustana Lutheran Church left vowing to do what they can to make sure the center never opens. * * *
Members of Concerned Citizens of Hobart passed out pamphlets listing the phone numbers of Mayor Brian Snedecor and City Council members, urging people to contact those officials, as well as Board of Zoning Appeals members, all of whom would ultimately decide whether the GEO Group, a for-profit prison builder, could build a detention center on the former St. Sava Serbian Orthodox Church property it purchased last year. * * *
Sister Persch said the detainees would be released at the Homeland Security building in downtown Chicago, usually just with the clothes on their back.
“Once a prison town, always a prison town. That’s probably why CCA, a GEO competitor, thought Joliet (Ill.) would be easy pickings,” Tsao said.
An immigrant detention facility proposed for Joliet was derailed, however.
Ind. Gov't. - "Indiana Senate vote on HJR-3 planned for Monday"
From Barb Berggoetz's story this morning in the Indianapolis Star:
After hours and hours of testimony, legislative maneuvering and intense lobbying, Monday is expected to be the final day of debate about the now-weakened constitutional amendment that would ban same-sex marriage in Indiana — at least for this legislative session.See also this ILB post from Feb. 13th.
The Indiana Senate is scheduled to vote on House Joint Resolution 3, without the portion that would have banned civil unions, during its session beginning at 1:30 p.m. * * *
But unless there are many last-minute changes of heart, the outcome appears to be clear: The revised HJR-3 will pass the Senate with a majority of Republicans supporting it and nearly all Democrats opposing it. The Senate has 37 Republicans — only two of whom have publicly said they oppose HJR-3 — and 13 Democrats. * * *
If the Senate approves the revised amendment already passed by the House, the three-step process of amending Indiana’s constitution restarts.
Amendments must be approved, in the same form, by two separately elected legislatures before going to voters. That means November 2016 is the earliest the measure could be on the ballot. * * *
After the Senate’s expected approval Monday, can a legal case be made that the first sentence of the amendment has passed twice?
Theoretically, Long said, one could say it has passed twice. But he said this premise has never been tested in the courts, and legal opinions from the Legislative Services Agency, a legal advisory body to the legislature, and others suggest they would be “playing with dynamite” to try to put the amendment on the ballot this November.
“Why would we send something to the voters that’s constitutionally questionable?” Long said. “It’s the right thing to do to send it to another vote before the General Assembly. If it passes again, it will be put before the voters in 2016.”
Courts - "Same-sex marriage moving swiftly back toward Supreme Court"
Here is David G. Savage's story today in the LA Times. Some quotes:
WASHINGTON — The legal campaign for marriage equality is picking up speed, moving at a pace that has surprised even longtime advocates and increasing the likelihood of a definitive Supreme Court test as early as next year.More from the long story:
Efforts by some lawyers to plan a careful strategy for which cases to push forward to the high court have largely been put aside amid a rush of lower-court rulings striking down bans on same-sex marriage. The most recent came Thursday in Virginia, the first such ruling in the South.
"I don't think there is any way to predict" which case will arrive at the Supreme Court first, lawyer David Boies said Friday following the Virginia ruling.
In the last eight weeks, in addition to the Virginia decision, federal judges in Utah and Oklahoma have struck down laws limiting marriage equality. A federal judge in Kentucky ruled the state must recognize same-sex marriages from other states. And in Ohio, a federal judge issued a more narrow ruling that cast doubt on the state's ban.
Increasingly, the judges are saying they can see no legitimate justification for denying marriage licenses to same-sex couples. With the Supreme Court having said that states cannot validly base marriage laws on traditional religious disapproval of homosexuality, the remaining justifications offered to defend the laws fail to pass muster, the judges have ruled. * * *
The sequence of rulings amounts to "a fundamental shift in the legal landscape," said Evan Wolfson, president of Freedom to Marry. Jurists increasingly are saying that "marriage discrimination against loving and committed gay couples is indefensible under our Constitution," he said.
That shift is not limited to judges. The chief state attorneys in Virginia, Pennsylvania and Nevada refused to defend the constitutionality of their long-standing laws forbidding gay marriage.
So far, the recent rulings on marriage have come from federal district courts. Before any case gets to the Supreme Court, the intermediate level appeals courts will weigh in.
The U.S. 10th Circuit Court of Appeals in Denver will go first, with oral arguments scheduled for April on the cases from Oklahoma and Utah. The Virginia ruling will go to the U.S. 4th Circuit Court of Appeals in Richmond, Va., and the Kentucky case will go to the U.S. 6th Circuit Court of Appeals in Cincinnati. The U.S. 9th Circuit Court of Appeals, based in San Francisco, has a pending appeal from Nevada but has not scheduled arguments.
Once an appeals court hands down a decision, the losing side will have 90 days to file an appeal in the Supreme Court. As a result, a ruling that comes this summer could easily reach the justices in time for a decision in 2015.
Ind. Courts - Check out the newest 2014 summaries of bills of interest to the judiciary
Check out the sixth weekly installment of the valuable Legislative Update for the 2014 legislative session, from The Indiana Judicial Center.
This week's reports are dated Feb. 14. The "summaries of bills of interest to the judiciary heard this week in committee" are now of the first week of bills being heard in second house committee. Be aware that bills that are reported out of these second house committees are quite likely to become law in the coming weeks.
Look particularly at the discussion regarding HB 1006.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 16, 2014:
- Ind. Gov't. - "Indiana marriage debate hashed out in private before lawmakers delivered answer to public"
- Ind. Gov't. - Legislative prayer delivered before Senate consideration of HJR 3 "shocked those in the chamber and outside"
- Environment - "Hoosier to play key role in regulating climate change"
- Ind. Law - "Indiana case spotlights rape statute of limitations" [Updated with reader comment]
From Saturday, February 15, 2014:
- Law - "Gay-marriage foes scrambling after court setbacks"
- Ind. Courts - Valpo attorney charged in theft of $1.64 million
- Courts - "A Steady Path to Supreme Court as Gay Marriage Gains Momentum in States"
From late Friday afternoon, February 14, 2014:
- Ind. Decisions - 7th Circuit decides one Indiana case today
- Ind. Courts - How bad is "suspension without automatic reinstatement" by the Supreme Court; can it be the kiss of death for an attorney? [Must read]
- Ind. Decisions - Another Indianapolis attorney suspended without automatic reinstatement
- Ind. Gov't. - More on: Nevada Attorney General stops defending the state's marriage amendment; where does that leave our Attorney General Zoeller in Nevada?
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/17/14):
- No arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 2/24/14):
- Court calendar currently not available.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 2/17/14):
Tuesday, February 18
- 1:30 PM - Thomson Inc., n/k/a Technicolor USA, Inc. v. Insurance Co. of N. America n/k/a Century Indemnity Co., et al ( 49A05-1109-PL-470) This appeal arises from a declaratory judgment action filed by Thomson against its liability and umbrella insurers to obtain insurance coverage for a class action tort case pending in Taiwan. At issue here are several partial summary judgment orders regarding coverage issues and defense costs, from which Thomson and the insurers have appealed and cross-appealed. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Crone and Bradford. [Where: Court of Appeals Court Courtroom (WEBCAST)]
- 1:00 PM - State Bd. of Funeral and Cemetery Service vs. Settlers Life Insurance Company (49A05-1307-PL-365) In this case, the State Board of Funeral and Cemetery Service appeals the trial court’s grant of summary judgment in favor of Settlers Life Insurance Company. The Board argues that a product sold by Settlers, comprised of an insurance policy with an option to assign the policy to a trust that funds funeral and burial goods and services purchased after death, falls under the Pre-Need Act, Indiana Code section 30-2-13-1 et seq., and that Settlers was selling this product in violation of the Act. The Scheduled Panel Members are: Judges Baker, Najam, and Crone. [Where: Court of Appeals Court Courtroom (WEBCAST)]
- Court calendar currently not available.
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.
Sunday, February 16, 2014
Ind. Gov't. - "Indiana marriage debate hashed out in private before lawmakers delivered answer to public"
From the AP's Tom LoBianco's report today:
INDIANAPOLIS — Over the past week, Indiana's senators debated a proposed constitutional ban on gay marriage extensively, going over the merits for hours at a time, before deciding a ban shouldn't appear on the ballot in November. But their reasoning remains largely a mystery to the public, which heard from only one senator during public deliberations.
The gay marriage fight has illuminated one of the less-reported aspects of Indiana's General Assembly: Debate on the toughest of issues often happens in private caucus meetings of state lawmakers, with much left unsaid in public.
The Senate's decision not to debate the issue publicly — only Senate Minority Leader Tim Lanane, D-Anderson, spoke publicly — leaves a cloak of secrecy that only makes residents more wary of politicians, said Micah Clark, executive director of the American Family Association of Indiana, which fought to get the ban placed on the ballot in November.
"I think it makes people more cynical of politics," Clark said. * * *
But not all of the debate occurred behind closed doors.
House Republicans spent much of January in private meetings debating a second sentence to the proposed amendment that barred civil unions and raised questions about whether employers would be prohibited from offering benefits to same-sex couples.
While they didn't comment on those discussions, House lawmakers did hold an impassioned public debate during which many spoke of their personal faith and struggles with the issue before voting to strip that sentence from the amendment.
The Senate, which supported the House's version, will still have a shot to lay out its reasoning Monday, when the ban comes up for a final vote in that chamber. But if senators follow last week's example, the public may never know what happened to sway them.
Senate President Pro Tem David Long, R-Fort Wayne, isn't shedding any light on the caucus discussions. He even took Sen. Mike Delph to task for tweeting about the meeting.
"We can't talk about caucus," Long said. "Just so you know on this one thing, it's our rule that we don't discuss what goes on in caucus. You know, that's private, and to the extent that anything was said today, that's a breach of our normal protocol."
Ind. Gov't. - Legislative prayer delivered before Senate consideration of HJR 3 "shocked those in the chamber and outside"
Niki Kelly reported Feb. 14th in the Fort Wayne Journal Gazette in a story about the Senate's second reading consideration of HJR 3:
The Rev. Andrew Hunt III of Indianapolis shocked those in the chamber and outside when he delivered a prayer urging the members to support the amendment in its original form.You won't find the prayer on the General Assembly's video archives. From a 2006 ILB post, quoting a story from the AP on the General Assembly's video record:
He spoke of “allowing the majority to rule” and not lowering moral standards to appease a few. Hunt also focused on God judging their actions.
[Senate President Pro Tem David] Long said he was invited by a legislative chaplain last week, and clearly broke Senate protocol.
“That was a surprise,” he said. “I already apologized to anyone who was offended, as far as the fact that it was a political prayer.”
Last year, the American Civil Liberties Union of Indiana used the House's online video archives to review daily prayers before filing a federal lawsuit accusing the state of unconstitutionally endorsing a particular religion.Since that time, the General Assembly videocasts have begun after the prayer.
Environment - "Hoosier to play key role in regulating climate change"
Maureen Groppe of the Gannett Washington Bureau has this lengthy story today on Janet McCabe, acting head of the Environmental Protection Agency’s Office of Air and Radiation. Groppe writes that this is the national equivalent of McCabe's long-time job in Indiana, as Indiana's top air regulator until Gov. Daniels took office in 2005. A few quotes from the story:
And that puts her at the center of creating the first national limits on greenhouse gas emissions from power plants -- rules that will have more of an impact on Indiana than nearly any other state.The ILB has a long list of entries referencing Janet McCabe, dated back to 2004. This post, from Oct. 29, 2009, read:
“It’s the best job she’ll ever have,” said Bill Wehrum, who had McCabe’s job at the Environmental Protection Agency during the George W. Bush administration. “If you care about air issues and climate issues, there’s no better place to be.”
The pending power plant rules McCabe is crafting are historic and controversial.
They could be a major part of President Barack Obama’s legacy, making the U.S. an international leader in addressing climate change.
But Republicans hope that what they call Obama’s “war on coal” will help them win this year’s midterm elections. * * *
In Indiana, state officials and business groups have been sounding the alarm.
McCabe, 55, who declined an interview request, came to Indiana after earning her law degree from Harvard in 1983 and working on environmental issues for the state of Massachusetts. Raised in Washington, D.C., McCabe became a Hoosier because of her husband, Indianapolis attorney Jon Laramore.
After she joined the EPA in 2009, the couple kept their home in Indianapolis. McCabe travels back most weekends.
“I know it’s a significant burden to do that every weekend,” said Tom Neltner, who worked with McCabe at IDEM and founded the Indianapolis-based advocacy group Improving Kid’s Environment. “My guess is it keeps her grounded.”
“Her roots are here,” said Beverly Gard, a Republican and former state senator — she was the longtime chairwoman of the Senate’s Energy and Environmental Affairs Committee — who still keeps up with McCabe.
'Takes the time to understand'
McCabe worked at IDEM under Democratic governors, rising to head of the air quality office from 1998 to 2005.
Gard said McCabe knew that to get regulations through the legislature where the Republicans controlled the Senate and sometimes the House, she had to work with the GOP.
“We would sit down and figure out what we agreed on. And then the things that we didn’t agree on, we would work through those,” Gard said. “I found her very approachable. She’s very bright. Extremely bright. Extremely hardworking.”
Wehrum, who represented industry clients with IDEM during McCabe’s tenure, said McCabe is very pragmatic and knows the law well.
“She takes the time to understand the issues and makes informed decisions,” Wehrum said. “We don’t agree with everything she does, but it’s not because she doesn’t understand.” * * *
McCabe became the acting head of the office last year when her boss, Gina McCarthy, was tapped to lead the EPA. Obama has nominated McCabe to officially head the air office, and her confirmation is pending in the Senate.
The position is one of the most powerful at the EPA because of the office’s wide portfolio.
“The air administrator is almost the first among equals of the EPA’s assistant administrators,” said Scott Segal, a partner at the law firm Bracewell & Guiliani who works on clean air issues for power and refining companies. “People always talk about energy policy in the United States. I’ll let you in on a little secret. The United States has no energy policy. The United States has a Clean Air Act. The Clean Air Act impacts almost every element of the manufacturing economy and of energy.”
That was the case when the EPA was just handling such major issues as smog, regional haze, cross-state pollution, toxic air pollutants, acid rain and pollution from mobile sources such as cars. Now greenhouse gas emissions have been added to the plate after efforts to pass new rules through legislation failed in Congress.
Obama announced last June that he was directing the EPA to impose emissions limits as the key part of a larger strategy to address climate change. Power plants are the largest single source of greenhouse gas emissions, accounting for about one-third of U.S. carbon pollution.
“There’s no more important work for us to be doing here at the EPA than addressing the threat of climate change to all the people in this country and indeed across the world,” McCabe told the EPA’s Science Advisory Board in December.
Obama gave the EPA a very ambitious timeline for getting the rules finished by the time he leaves office.
The proposed rules governing future power plants were reissued Sept. 20 which, McCabe told the Science Advisory Board, “I will never forget that date because it’s my son’s birthday.” * * *
In addition to revising those rules, McCabe also has to put out by June draft guidelines for emissions controls for existing power plants.
“So June is like tomorrow in my dreams. … I regularly have dreams about this,” McCabe told the Science Advisory Board.
A coalition of national and state business groups, including the Indiana Chamber of Commerce and the Indiana Manufacturers Association, recently launched a campaign to fight the rules, including through Congress and, if necessary, in the courts. The coalition said the rules will affect every aspect of the economy and are some of the most complex and far-reaching regulations in history.
Janet McCabe, the highly-regarded, long-time head of IDEM's Air Office until the politics changed with Gov. Daniels' election, has accepted the position of chief deputy to the head of U.S. EPA's Air Office. McCabe, a Harvard Law graduate, will have the official title of Principal Deputy to the Assistant Administrator for Air and Radiation.
Ind. Law - "Indiana case spotlights rape statute of limitations" [Updated]
Tim Evans of the Indianapolis Star writes today:
A man walks into the Marion County Sheriff’s Department and confesses to raping a young woman in 2005.This June 3, 2006 ILB post, along with this one from June 5, 2006, deal with the Indiana statute of limitations in civil abuse cases, where "state law requires the plaintiffs to have filed suit within two years after turning 21."
In Illinois, Ohio, Michigan and Kentucky — as well as 28 other states across the U.S. — he would have been arrested and prosecuted.
But in Indiana, Bart Bareither walked out a free man.
Why? Because in this state, rape charges no longer can be filed if the incident took place more than five years ago.
Indiana is among just seven states with a statute of limitations of five years or less for filing rape charges. In 11 states, the statute of limitations is from six to 9 years. In 12 others, it ranges from 10 to 20 years. And 20 states have no limit at all. * * *
Ryan W. Scott, a law professor at the Indiana University Maurer School of Law in Bloomington, said the traditional rationale for time limits is tied to the two basic concerns acknowledged by Holmes.
“One has to do with repose. At a certain point, a person should no longer have to fear they will be charged with a crime that occurred years ago,” he explained. “The other has to do with difficulty of proof. After a certain time, it becomes harder to get reliable evidence, physical evidence deteriorates and the memories of witnesses fade.”
The passing of time can be as troubling for a defendant as for a prosecutor, Scott said, citing as an example the death of a potential alibi witness.
Still, Scott said, the law places no limit on murder and some other serious crimes.
In Indiana, for instance, there is no statute of limitations on Class A felony charges, what the state deems the “worst of the worst” criminal offenses. That includes murder, as well as other charges such as dealing in more than three grams of cocaine, methamphetamine or a narcotic drug, armed robbery resulting in injury and child neglect resulting in death.
State lawmakers also saw fit to include in that category aggravated rape, which involves the use of a deadly weapon or serous injury to the victim. But if neither circumstance applies, rape is a Class B felony with a five-year limit on bringing charges. * * *
Anita Carpenter, CEO of the Indiana Coalition Against Sexual Assault, said there has been no real outcry about the five-year limit on rape charges.
“The only thing we’ve been having discussion on, and they have been very preliminary, is eliminating the statute of limitation for child sex abuse cases because children are often afraid to come forward,” she said.
This Oct. 19, 2009 ILB post, quoting a NY Times story, is headed "Prosecutors in Manhattan — aware that the legal clock for bringing a case was running out — devised the novel strategy of indicting the rapist’s DNA."
[Updated] The ILB did not quote then end section of the Star story, headed "Victim's story". Indianapolis attorney Cara Wieneke did read it and sent these comments:
Fascinating read on the rape case today in the Star. But I had a problem with the article. I agree with the underlying premise that a 5-year statute of limitation seems too short. But I thought the example they used doesn't really highlight the problem.
The woman in the article, while I feel great empathy for her suffering, has known for years who raped her. Yet she never reported it, likely for a myriad of reasons. But an important justification for a statute of limitation is so that people do not have to live in constant fear that they will someday be held accountable for their actions.
Had this woman not known who raped her and only recently learned of his identity, then it would seem unjust for there to be a limitation period. But that was not the case here. She knew and chose not to report it. To suggest that we should eliminate a limitation period for rape because a victim chooses not to report it to authorities for several years, but someday changes her mind, seems illogical.
Saturday, February 15, 2014
Law - "Gay-marriage foes scrambling after court setbacks"
David A. Lieb, David Crary, and Rachel Zoll of the AP have this lengthy story today - a few quotes:
JEFFERSON CITY, Mo. (AP) — Opponents of same-sex marriage are scrambling to find effective responses, in Congress and state legislatures, to a rash of court rulings that would force some of America's most conservative states to accept gay nuptials.
Some gay-marriage foes are backing a bill recently introduced in both chambers of Congress that would leave states fully in charge of their marriage policies, though the measure stands little chance of passage. In the states, they are endorsing a multitude of bills — some intended to protect gay-marriage bans, others to assert a right, based on religious freedom, to have nothing to do with gay marriages should those bans be struck down. * * *
The demand for religious exemptions ... is widespread. Gay marriage opponents have fought for strong exemptions in every state where lawmakers have already decided the issue. In New York, for example, gay marriage was recognized only after Gov. Andrew Cuomo and the state's top two legislators struck an 11th-hour compromise on religious accommodations.
However, the resulting exemptions have generally been limited in scope — and haven't come anywhere near to what gay marriage opponents sought. In Massachusetts and Iowa, where same-sex marriage won recognition through the courts, there are no religious exemptions related to the rulings.
In light of this track record, opponents in red states have been proposing pre-emptive bills with broad accommodations for religious objectors. Most of the bills aim to protect individuals or businesses who, for religious reasons, don't want to serve same-sex couples. * * *
The Kansas House passed a measure last week providing a faith-based legal shield for people who refuse to provide services to gays and lesbians. It details which services would be exempted — ranging from bakeries to adoption agencies to government clerks — and allows faith-based refusal of services to gay couples in any domestic partnership. But the top Republican in the state Senate put a quick stop to the bill's momentum, declaring that a majority of GOP lawmakers in that chamber don't support it.
"A strong majority of my members support laws that define traditional marriage," said Senate President Susan Wagle. "However, my members also don't condone discrimination."
Posted by Marcia Oddi on Saturday, February 15, 2014
Ind. Courts - Valpo attorney charged in theft of $1.64 million
Bob Kasarda's story in the NWI Times begins:
Local attorney Clark Holesinger is charged with stealing $1.64 million while working for four related local businesses.
Holesinger, 52, of Valparaiso, faces four C felony counts of theft, each of which carry a potential sentence of two to eight years behind bars.
He is accused of stealing $817,963 from North Star Stone Inc., where he had been hired to calculate and pay the company's taxes, according to charging information.
The company received word in December that a levy had been placed on its account as a result of delinquent taxes, police said. An investigation reportedly revealed Holesinger had not paid state and federal payroll taxes or state sales taxes.
Police said they learned Holesinger obtained money from family members that he transferred to North Star Stone as partial restitution.
Courts - "A Steady Path to Supreme Court as Gay Marriage Gains Momentum in States"
Adam Liptak writes on the front-page of the NY Times today, in an analysis that begins:
WASHINGTON — A sweeping decision on Thursday night struck down Virginia’s ban on same-sex marriage and continued a remarkable winning streak for gay rights advocates, putting new pressure on the Supreme Court to decide the momentous question it ducked last summer: whether there is a constitutional right to same-sex marriage.
Since June, when the Supreme Court ruled that same-sex couples are entitled to equal treatment in at least some settings, federal judges in Oklahoma, Utah and Virginia have struck down laws barring same-sex marriages. In state legislatures and state courts, too, supporters of same-sex marriage have been winning.
“The pace of change has perhaps outstripped the Supreme Court’s preferences, but the momentum is tremendous,” said Suzanne B. Goldberg, a law professor at Columbia.
Rapid changes in public opinion are also playing a part, said Andrew M. Koppelman, a law professor at Northwestern. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he said.
Friday, February 14, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today
In USA v. Steven Perry (ND Ind., Miller), a 9-page opinion, Judge Bauer writes:
In 2004, Steven Perry (“Perry”) was charged with four counts relating to the possession and transportation of child pornography. He pleaded guilty to two counts and was sentenced by the district court to concurrent 46- and 60-month terms of imprisonment to be followed by three- and five-year terms of supervised release. In 2009, Perry violated the terms of his supervised release and was sentenced to three months’ imprisonment and four years of supervised release. In 2013, Perry violated the terms of his supervised release once again. The district court sentenced Perry to a five-year term of imprisonment as well as a ten-year term of supervised release. In its written judgment, the court imposed four new conditions of supervision. Perry now appeals the five-year sentence imposed by the district court as well as the additional conditions of supervision. * * *
[A] The current version of 18 U.S.C. § 3583(k) states, “[i]f a defendant required to register under the Sex Offender Registration and Notification Act (SORNA) commits any criminal offense … the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment … . Such term shall not be less than 5 years.”
This version of the statute, however, did not take effect until July 27, 2006, and nothing in the language of the statute indicates that Congress intended the statute to apply retroactively. When Perry committed his initial offense in 2003, § 3583(k) stated, “[A] defendant whose term [of supervised release] is revoked under this paragraph may not be required to serve on any such revocation … more than 2 years in prison if such offense is a class C or D felony … .”
Perry argues, and the government concedes, that since Perry committed his original offense in 2003 and the offense constituted a class C felony, he was subject to the statutory two-year maximum term of imprisonment outlined in the 2003 version of § 3583(k). We agree, and so vacate Perry’s fiveyear term of imprisonment and remand with instructions to the district court to sentence Perry to no more than two years’ imprisonment pursuant to the 2003 version of § 3583(k). * * *
[B] Perry acknowledges that he is subject to the maximum twoyear term of imprisonment allowed by § 3583(k) for violating the terms of his supervised release. He contends, however, that he should be credited for time served. Since he served three months in prison in 2005 for a prior violation of his supervised release, Perry argues that his new sentence should be, at most, twenty-one months.
Perry’s case presents an issue of first impression in this circuit—whether a defendant’s past time served due to a prior revocation of his supervised release should count towards and so limit the maximum sentence the district court can impose for a subsequent violation of his supervised release under 18 U.S.C. § 3583(e)(3). Though Perry now claims that this issue is not ripe for our review, Perry squarely placed the issue before this Court when he argued that “the correct statutory provisions provide that Mr. Perry may serve no more than 21 months’ imprisonment on the revocation.” We now turn to the statute at issue. * * *
We agree with the reasoning of our sister circuits and hold that prior time served for violations of supervised release is not credited towards and so does not limit the statutory maximum that a court may impose for subsequent violations of supervised release pursuant to § 3583(e)(3). As such, Perry’s three months’ time served for a prior violation of his supervised release will not be credited towards or limit the statutory maximum the district court may impose for his most recent violation of supervised release. On remand, the district court may impose up to two-years’ imprisonment for Perry’s latest violation of the terms of his supervised release. * * *
[C] Perry also contests the four special conditions of supervised release the district court added in its written judgment. Perry asks this court to vacate those conditions and to replace them with the conditions the court orally imposed at his revocation hearing.
“The rule in such situations is clear: ‘if an inconsistency exists between a judge’s oral and the later written sentence, the sentence pronounced from the bench controls.’”
For the reasons mentioned above, we VACATE Perry’s sentence and the additional conditions of supervision imposed by the district court in its written judgment. We REMAND with instructions to the district court to sentence Perry to no more than two years’ imprisonment for his latest violation of supervised release, and to determine Perry’s conditions of supervision.
Ind. Courts - How bad is "suspension without automatic reinstatement" by the Supreme Court; can it be the kiss of death for an attorney?
This week we have seen two Supreme Court disciplinary orders containing the statements:
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement.The details required for reinstatement are spelled out in the orders:
At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).The requirements of Rule 23(4)(b) are long and include requirements such as:
(9) The petitioner has taken the Multistate Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled score of eighty (80) or above.At the end of this Feb. 12th post the ILB wrote:
ILB Comment: "Without automatic reinstatement" - one wonders over a period of time, such as the past 10 or 20 years, how many attorneys have received such a discipline, how many of them (or how few) have been reinstated, and how long it has taken.Craig Smith, an Indiana attorney currently doing a federal clerkship in Texas, undertook to find the answers, which as it turned out involved quite a lot of research. Here are his results:
I found 119 attorneys since 2000 who were given SWAR (suspension without automatic reinstatement). I did not include attorneys who were given probation and told that violations would result in SWAR. However, I did include attorneys who were given SWAR after being found to have violated that probation.ILB note: This information is current as of 2/13/2014, and is based on reported court data. Notify us of any errors.
For a majority of the attorneys, SWAR is de facto disbarment simply because they have not applied for reinstatement. By using the Roll of Attorneys and the appellate docket, I was able to check the status of their disciplinary cases and 68 of the 119 attorneys simply have not filed a petition for reinstatement.
There have been 22 attorneys who have been reinstated after being given SWAR. The total time those attorneys spent on suspension was almost always at least double the amount of time listed on the Supreme Court's order. After applying for reinstatement, it usually took 8 to 16 months for those attorneys to be reinstated (a hearing officer is appointed to hear evidence and make a recommendation to the Supreme Court). I found only six attorneys who have had the Supreme Court outright deny their petition for reinstatement.
Ind. Decisions - Another Indianapolis attorney suspended without automatic reinstatement
In In the Matter of: Terrance L. KINNARD, a 3-page, 5-0 order filed Feb. 10, 2014, the Court concludes:
Discipline: Even if Respondent's failure to serve Mother was due to confusion about the prosecutor's role in the Title IV-D proceeding, the ethical mandate that documents filed in a court proceeding contain only truthful allegations is a bedrock legal principle. Respondent's most serious misconduct is his calculated filing of a baseless and vexatious defamation action against the grievant who reported his misconduct. We note that there is no finding regarding whether Respondent made any attempt to reimburse Mother for any monetary damages she incurred due to his misconduct.
Respondent suggests that he be suspended for a period of time followed by probation during which he would be under the supervision of JLAP and an attorney mentor. Similar discipline was earlier proposed by a conditional agreement, which this Court rejected. Respondent did not accept the Court’s counterproposal for suspension of six months without automatic reinstatement. See Admis. Disc. R. 23(11)(c). Now, upon consideration of the fully developed record, the Court again concludes that the discipline proposed by Respondent is inappropriate and insufficient for Respondent's misconduct, which included the deliberate and vindictive abuse of the legal system in an attempt to thwart the disciplinary process. The Court again concludes that Respondent should be suspended for at least six months and should then be permitted to resume practice only after obtaining approval for reinstatement.
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning March 24, 2014. Respondent shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4) and (18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).
Ind. Gov't. - More on: Nevada Attorney General stops defending the state's marriage amendment; where does that leave our Attorney General Zoeller in Nevada?
Also from the upcoming issue of Indiana Legislative Insight ($$$):
The Indiana Law Blog broke the news that the State of Indiana late last month was the lead state on an amicus curiae brief filed with the U.S. Court of Appeals for the Ninth Circuit in Sevcik v. Sandoval, No. 12-17668, a case involving a challenge to a Nevada prohibition against same-sex marriage.For more, start with this Feb. 11th ILB post.
The State of Indiana is joined on the brief by the states of Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina, and Utah.
The brief, authored by Indiana Solicitor General Tom Fisher, concludes:“Marriage is not a device that governments generally use to acknowledge acceptable sexuality, living arrangements, or de facto parenting structures. It is a means to encourage and preserve something far more compelling and precise: the relationship between a man and a woman in their natural capacity to have children. It attracts and then regulates couples whose sexual conduct may potentially create children, which ameliorates the burdens society ultimately bears when unintended children are not properly cared for.But a funny thing happened on the way to the Ninth Circuit. In this case, the individual plaintiffs lost in U.S. District Court and appealed. But Nevada’s attorney general explained that “the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case,” the Ninth Circuit issued a new ruling [SmithKline Beecham] that “appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of [this] decision these arguments are likely no longer tenable in the Ninth Circuit,” she concludes, and on Monday she filed a motion to withdraw the State of Nevada’s brief supporting the same-sex marriage ban, leaving the Indiana-led brief dangling.
Neither same-sex couples nor any other social grouping presents the same need for government involvement, so there is no similar rationale for recognizing such relationships.”
“The move means the Silver State will no longer argue to uphold the constitutional ban on same-sex marriage passed by voters in 2002,” reports United Press International.
Ind. Gov't. - More on the finalists for the Indiana Utility Regulatory Commission
The Indiana Utility Regulatory Commission Nominating Committee picks six nominees from which the Governor will make two appointments to the Indiana Utility Regulatory Commission. The nominating panel chooses:
None of the three ex-legislators who applied were selected for the Governor’s consideration, despite one being a former commissioner and another a finalist for the last IURC post that was open.
- Carol A. Drake of Whitestown, a former Parr Richey Obremskey & Morton attorney prosecuting a high-profile personal civil cause of action against Duke Realty;
- Frost Brown Todd attorney Robert L. Hartley of Indianapolis;
- Cuban-born Michael Musa, Jr. of Indianapolis, a former Ameritech executive who served as president of its international long-distance group;
- former IURC director of integrated resource planning Jim Ray of Fishers, who has decades of experience with Bechtel Power Corporation;
- IURC Assistant General Counsel Carol A. Stephan of Indianapolis; and
- Angela Rapp Weber of Indianapolis, an Ice Miller attorney who spent four years as an IURC administrative law judge and has engineering experience with telecom and tech firms.
Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)
For publication opinions today (1):
In Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education, a 9-page opinion, Judge Barnes writes:
Teaching Our Posterity Success, Inc., (“TOPS”) appeals the trial court’s dismissal of its petition for judicial review challenging a decision by the Indiana Department of Education and Indiana State Board of Education (collectively “the DOE”). We reverse and remand.NFP civil opinions today (2):
The issue before us is whether the trial court properly dismissed TOPS’s petition for judicial review because of TOPS’s failure to file the agency record with the trial court. [ILB: this is an interesting administrative law case] * * *
Thus, in the present case, we are faced with a final agency order that is defective on its face for lacking any statutorily-mandated findings of fact and conclusions of law, as consistently argued by TOPS. Although the better practice would be to timely file the agency record, we conclude that it was not necessary here, where the order was facially defective. The trial court erred in dismissing TOPS’s petition for judicial review.
TOPS also argues that, because of the DOE order’s lack of findings, it should be set aside. We disagree with TOPS on this point. In cases where an agency has failed to enter sufficient findings and conclusions with its final order, the proper procedure is to remand to the agency to provide it the opportunity to make the necessary findings. See Pack, 935 N.E.2d at 1227-28; Stokely-Van Camp, Inc. v. State Bd. of Tax Comm’rs, 182 Ind. App. 91, 94, 394 N.E.2d 209, 211 (1979). We therefore direct that this case be remanded to the DOE to make the necessary findings and conclusions related to TOPS’s removal from the list of approved SES providers.
Conclusion We reverse the dismissal of TOPS’s petition for judicial review and direct that this case be remanded to the DOE for the entry of statutorily-mandated findings and conclusions to accompany its final order regarding TOPS. Reversed and remanded.
NFP criminal opinions today (5):
About this Blog - ILB trying out new stat counter
On Nov. 21, 2013 the ILB removed its SiteMeter counter, and has since been looking for a replacement.
So far, StatCounter.com seems to be doing a reliable job. Here is a screenshot of this past week that I made very early this morning:
Ind. Decisions - Still more on: 7th Circuit hearing appeal of Notre Dame ACA challenge
Prof. Will Baude of The Volokh Conspiracy has a good post this morning on the oral argument earlier this week before the 7th Circuit in Notre Dame v. Sebelius.
For more, start with this ILB post from Feb. 12th.
Courts - 9th Circuit rules "it is unconstitutional to confine the 'right to bear' arms solely to the home."
Lyle Denniston reported last evening in SCOTUSblog in a post that begins:
The U.S. Court of Appeals for the Ninth Circuit — the first to rule, ahead of the Supreme Court, that the Second Amendment right to have a gun extends nationwide — today issued the most sweeping decision yet on the right to carry a gun in public places. The amendment means, the panel ruled in a two-to-one decision, that it is unconstitutional to confine the “right to bear” arms solely to the home.See also this ILB post from Feb. 10th.
Such a limitation, the panel ruled, would amount to a complete destruction of Second Amendment rights and cannot be justified on any constitutional reasoning. Thus, it said, while government might forbid carrying a concealed gun in public, or carrying a gun openly in public, it cannot do both. The right to have a gun for self-defense clearly exists beyond one’s home and hearth, the majority said. And, it added, it has always existed, since the Second Amendment was put into the Constitution in 1791.
Only one other federal appeals court — the Seventh Circuit — has ruled that the right to have a gun for personal use continues when one leaves home, but its ruling on the point was notably more narrow than the new Ninth Circuit decision. Other appeals courts have refused to assure protection for carrying a gun beyond the home — a split that might enhance the prospects that the Supreme Court would ultimately settle the question.
Courts - "Virginia’s same-sex marriage ban falls"
Late last evening U.S. District Judge Arenda L. Wright Allen in Norfolk Virginia struck down Virginia's prohibition against same sex marriage. The decision is on hold pending appeal. Lyle Denniston of SCOTUSblog has a report, plus a link to the opinion - don't miss the opening quotation, which as Denniston writes, is "a quotation from Mildred Loving on the fortieth anniversary of the Supreme Court decision in 1967 striking down Virginia’s ban on interracial marriages."
Here is Josh Gerstein's story this morning in Politico. A quote:
Allen's decision is in line with similar rulings in recent weeks from federal judges in Oklahoma and Utah, who ruled that bans on same-sex marriage in those states were unconstitutional. The judge in Oklahoma stayed the ruling pending appeal. The judge in Utah did not, allowing same-sex marriages to begin immediately, but the Supreme Court stepped in a couple weeks later and suspended the ruling.
Allen, who sits in Norfolk, is an Obama appointee confirmed to the bench in 2011. She's a former Navy JAG corps officer, federal prosecutor and federal defender.
Thursday, February 13, 2014
Ind. Gov't. - " Gay Marriage Amendment Advances Without Civil Union Ban: State Senate gives up on effort to reinsert HJR-3 sentence"
Eric Berman reports for WIBC reports:
Two weeks after the House deleted language banning not only same-sex marriage but civil unions, supporters in the Senate let the last opportunity to alter the amendment slide past, abandoning plans to try to add the provision back in. Opponents of the amendment who had packed the hall outside the Senate chamber erupted in cheers as Lieutenant Governor Sue Ellspermann gaveled the resolution closed to further changes.
President Pro Tem David Long (R-Fort Wayne) declined to discuss why the provision wasn't called for debate, but Carmel Republican Mike Delph, one of two senators who had filed motions to restore the clause, tweeted that supporters didn't have the votes.
The non-vote means a Senate vote Monday on what now is a one-sentence amendment which echoes state law in defining marriage as between one man and one woman. Supporters who had hoped to send the amendment to voters this fall after 12 years of trying will have to wait until 2016, and will have to persuade the House and Senate to pass the slimmed-down amendment one more time, either next year or the year after. * * *
Opponents plan to keep working phone banks over the weekend in hopes of killing the amendment entirely. Long says the amendment will definitely be called for a vote Monday, and says he expects it to pass.
Ind. Law - "Kokomo attorney's practice wiped out from within"
Pat Munsey had this Feb. 6th story in the Kokomo Perspective. Some quotes from the long, must-read story:
Michael Krebes has been an attorney, a prosecutor, and a judge. Now he’s a victim.
The lawyer discovered late last year that tens of thousands of dollars had been siphoned out of his private practice, allegedly by his secretary, Lacee Garber. Now he’s working to repay every client who was harmed in the process, no matter how long it takes.
“It came to my attention at the beginning of December,” said Krebes. “The following week, when I got to the office, what I had feared turned out to be much worse. On Dec. 13, I changed the locks on the office and fired her. I couldn’t take chances of her having access to the office to destroy records. She had the garage door opener to my house, so I had to lock the kitchen door to the garage to make sure she didn’t get into my house where I had files.”
The following week, Krebes went to KPD and opened a case report. The detective was given the business’ bank records. Krebes posted his cell phone number on the door of his office, “and the floodgates opened.”
“I started meeting with clients, and it got progressively worse,” he said. “I heard from clients who had paid for bankruptcies that had never been filed. They came into the office and told me I wouldn’t know anything about it. They at least suspected a problem before I did.”
Krebes indicated that more than 40 of his clients had been victimized between 2011 and 2013. Some paid for representation and received none. Others who had entrusted money to the attorney found that the trust fund had been raided. He estimates that as much as $80,000 was removed from the business without his knowledge and permission. His personal finances also were affected.
The attorney was devastated. As he explained, Garber was more than just an employee to him; he considered her family. * * *
Howard County Prosecutor Mark McCann confirmed that he expected a request for charges against Garber from the Kokomo Police Department, and upon receipt, he will assign a special prosecutor to the case. The need for outside counsel stems from the fact that Garber was an employee of the prosecutor’s office for a number of years.
Krebes professional future is filled with questions. While he has been retained as a deputy prosecutor for Howard County, his private practice is all but ruined. He expects that the U.S. Trustee will bar him from ever handling a bankruptcy case, and he may face disciplinary action from the state.
Ind. Gov't. - HJR 3 not amended on second reading, will not be on 2014 ballot
HJR 3 just just passed 2nd reading in the Senate without amendment, meaning without the second sentence which was stripped out in the House.
That means if HJR 3 is passed on 3rd reading next week by the Senate, it has to be considered to have been a NEW effort to amend the Constitution, and must be adopted again without change by the first or second session of the new General Assembly to be elected in November of 2014 to go on the 2016 ballot.
I've written in the past that the Republican leadership might try to place HJR 3 on this fall's ballot even with the omission of the 2nd sentence, saying that the remaining portion of the resolution had in fact passed two separate General Assemblies.
However, that will no longer fly because this language of SECTION 1 in the resolution, which was changed when the House stripped out the second sentence of SECTION 2, remains now to bar that possibility [my emphasis in the following examples]:
SECTION 1. The following amendment to the Constitution of the State of Indiana is proposed and agreed to by this, the One Hundred Eighteenth General Assembly of the State of Indiana, and is referred to the next General Assembly for reconsideration and agreement.By that language the resolution "is referred to the next General Assembly," rather than to the voters, as it would have been via the language in the original House version:
SECTION 1. The following amendment to the Constitution of the State of Indiana, which was agreed to by the One Hundred Seventeenth General Assembly and referred to this General Assembly for reconsideration and agreement, is agreed to by this the One Hundred Eighteenth General Assembly of the State of Indiana.Neither this wording nor the second sentence of SECTION 2 was inserted by 2nd reading today in the Senate, and that ends the opportunity.
Courts - "Kentucky gay marriage ruling looks to precedents"
Excellent story today by Brett Barrouquere of the AP. The long story begins [ILB emphasis]:
LOUISVILLE, Ky. (AP) -- A federal judge has ruled that Kentucky must recognize same-sex marriages performed in other states, pointing not only to recent decisions that have struck down bans in other states but also to older rulings on a person's right to marry.
The state's ban treated "gay and lesbian persons differently in a way that demeans them," U.S. District Judge John G. Heyburn wrote Wednesday. While the case dealt with out-of-state marriages, it does not require the state to perform same-sex marriages.
Heyburn cited a long line of cases going back to the legalization of mixed-race marriages and mentioned recent same-sex marriage decisions in nine other states, including Hawaii and Utah. But he mainly relied on the U.S. Supreme Court's 2013 ruling striking down a section of the federal Defense of Marriage Act, on which Kentucky's same-sex marriage amendment had been based.
The judge also pointed to older rulings dealing with race and gender, noting that bans on interracial marriage, segregation and restrictions on women had been cited in the past as keys to a more stable society. But courts gradually did away with those restrictions.
"Each of these small steps has led to this place and this time, where the right of same-sex spouses to state-conferred benefits of marriage is virtually compelled," wrote Heyburn, who took a seat on the federal bench in 1992 after being appointed by President George H.W. Bush with the backing of U.S. Sen. Mitch McConnell, both Republicans.
The ruling comes on the heels of decisions by federal judges in Utah and Oklahoma that struck down gay marriage bans in those socially conservative states. A case is also awaiting a federal judge's decision in Virginia. A victory there would give gay marriage supporters their first foothold in the South. * * *
It was unclear Wednesday evening if the state would appeal the decision to the U.S. 6th Circuit Court of Appeals, which has never been asked to directly rule on whether a state must recognize a same-sex marriage from another state.
Ind. Decisions - Court of Appeals rules in IBM contract case
In State of Indiana, acting on behalf of the Indiana Family & Social Services Administration v. International Business Machines Corporation, a 93-page, 2-1 opinion, Chief Judge Vaidik writes [emphasis by ILB]:
Indiana’s poorest residents live hand-to-mouth trusting that they will receive food stamps to eat and Medicare or other state health insurance in order to receive basic medical care. These citizens do not have the luxury of being able to wait to eat or go to a doctor while a phone goes unanswered, an appointment cannot be scheduled, or an application sits on a desk. The needs of the poor are immediate.
Indiana entered into an arrangement with the federal government to distribute federal funds to those in greatest need. Part of the State’s responsibility was to make certain that only the poorest received aid and to help welfare recipients find work. If the State failed to comply with federal guidelines, then it would be penalized by the federal government, resulting in less federal aid for our citizens.
By all accounts, the State was failing in performing its duties. As a result, in December 2006, the State, on behalf of its agency the Indiana Family and Social Services Administration (FSSA), entered into a ten-year, $1.3 billion contract with International Business Machines Corporation (IBM) to modernize and improve the State’s welfare system. IBM agreed to the State’s proposal, although it argues that the system design was doomed to fail. Nonetheless, IBM received $437 million while assuring the State that it was up to the task. Less than three years into the ten-year contract, the State terminated the contract citing IBM performance issues, and the parties sued each other for breach of contract on the same day in Marion Superior Court. The State sought over $170 million in damages, and IBM sought almost $100 million. Appellant’s App. p. 239-40. The trial court granted IBM summary judgment for $40 million in assignment fees and, after a six-week bench trial in 2012, found no material breach on IBM’s part and awarded IBM an additional $9,510,795 in Equipment fees, $2,570,621 in Early Termination Close Out Payments, and $10,632,333 in prejudgment interest, totaling $62,713,749.
While IBM’s software, computers, and employee training aided in delivering welfare services, the primary focus of the contract was to provide food and medical care to our poorest citizens in a timely, efficient, and reliable manner within federal guidelines, to discourage fraud, and to increase work-participation rates. In the most basic aspect of this contract—providing timely services to the poor — IBM failed. We therefore reverse the trial court’s finding that there was no material breach.
Despite finding a material breach on IBM’s part, we affirm the trial court’s award of $40 million in assignment fees and $9,510,795 in Equipment fees to IBM. We do so because the State and IBM agreed under the terms of the contract that the State would pay these fees. Further, the State would be unjustly enriched if it were to keep IBM’s equipment and to assume IBM’s subcontracts without paying IBM. We further affirm the trial court’s denial of Deferred Fees to IBM, reverse the trial court’s award of $2,570,621 in Early Termination Close Out Payments and $10,632,333 in prejudgment interest to IBM, and remand the case to the trial court to determine the amount of fees IBM is entitled to for Change Orders 119 and 133. Finally, we remand the case to the trial court to determine the State’s damages for IBM’s material breach of the contract and to offset any damages awarded to IBM. We therefore affirm in part, reverse in part, and remand the case to the trial court. * * *
BAKER, J., concurs.
FRIEDLANDER, J., concurs in part and dissents in part with separate opinion. [which begins on p. 85; here from p. 86] My primary point of disagreement with the Majority concerns the standard to be employed in deciding whether IBM’s breach was “material”.
Ind. Decisions - Supreme Court issues opinion in Wabash College hazing case
In Brian Yost v. Wabash College, Phi Kappa Psi Fraternity- Indiana Gamma Chapter at Wabash College, Phi Kappa Psi Fraternity, Inc., and Nathan Cravens, a 19-page, 4-1 opinion, Chief Justice Dickson writes:
The plaintiff, a college freshman and fraternity pledge, filed this personal injury action seeking damages from his college, his campus fraternity, its national organization, and a student
fraternity member for personal injuries sustained in an incident at the fraternity house. We re-verse the trial court's grant of summary judgment for the campus fraternity but affirm the grant of summary judgment for the college and the national fraternity organization.
The plaintiff, Brian Yost, as an 18-year-old freshman at Wabash College and a pledge at the Phi Kappa Psi fraternity, suffered injuries in an incident at the fraternity house in September 2007. Contending that his injuries resulted from a fraternity hazing incident, the plaintiff initiated this action seeking damages from Wabash College (the owner and landlord of the fraternity house), the campus local fraternity (Phi Kappa Psi Fraternity – Indiana Gamma Chapter at Wa-bash College, hereafter the "local fraternity"), the national fraternity (Phi Kappa Psi Fraternity, Inc.), and Nathan Cravens, one of the fraternity members. Further details are provided below as needed and are more fully summarized in the opinion of the Court of Appeals. See Yost v. Wabash Coll., 976 N.E.2d 724, 728–29 (Ind. Ct. App. 2012). The college and the two fraternity defendants sought summary judgment, which the trial court granted and then ordered entry of final judgments thereon. The plaintiff appealed, and the Court of Appeals affirmed. Id. at 745. We granted transfer. * * *
We hold that the designated evidence shows that there is no genuine issue as to any material fact and that Wabash College and the national fraternity (Phi Kappa Psi Fraternity, Inc.) are each entitled to summary judgment as a matter of law, but that as to the local fraternity (Phi Kappa Psi Fraternity – Indiana Gamma Chapter at Wabash College), there remain genuine issues of material fact that preclude summary judgment. The judgment of the trial court is thus affirmed in part and reversed in part. This cause is remanded to the trial court for further proceedings.
David, Massa, and Rush, JJ., concur.
Rucker, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 18] I concur with that portion of the majority opinion reversing the trial court’s grant of summary judgment in favor of the local fraternity, as well as affirming the trial court’s grant of summary judgment in favor of the national fraternity. However, I disagree with my colleagues in affirming the trial court’s grant of summary judgment in favor of Wabash College. * * *
It bears repeating that as a landowner Wabash owed Yost—an invitee—“a duty to exercise reasonable care for his protection” while on Wabash’s premises. Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind. 2011) (quotation omitted). And this duty includes “tak[ing] reasonable precautions to prevent foreseeable criminal acts against invitees.” L.W. v. W. Golf Ass’n., 712 N.E.2d 983, 985 (Ind. 1999). A landowner is relieved of this duty where it “gives a tenant full control and possession of the leased property[.]” Olds, 857 N.E.2d at 1044. Because Wabash in my view has not carried its burden of proof on this outcome-determinative issue, the trial court’s grant of summary judgment cannot be sustained on grounds that Wabash owed Yost no duty. On this point I respectfully dissent and would reverse the judgment of the trial court. In all other respects I concur with the majority opinion.
Ind. Decisions - "Casino exemption costs Evansville smoking ban"
Evansville officials can’t spare a casino from the city’s smoking ban, the Indiana Supreme Court ruled Tuesday.
The justices voted 3-2 to throw out the part of the ban that prohibits smoking in taverns and private clubs but exempts the riverboat casino that’s docked at the Ohio River city.
Leaving the casino out of the ban violates the Indiana Constitution’s equal privileges and immunities clause, which prohibits giving any citizen or class of citizen privileges or immunities not extended to everyone, the justices said.
They reversed an appeals court ruling that upheld the ordinance.
Chief Justice Brent Dickson wrote that granting the casino an exemption was “tantamount to the government selling exemption ... for the bonus of anticipated financial benefits.”
But Justice Loretta Rush said those very benefits were part of what made the casino unique and entitled it to an exemption.
Rush wrote in her dissent that the casino had “inherent characteristics” that set it apart from other local businesses.
Among those were the fact that most of its customers come from out of town, and that including the riverboat in the ban could cost Evansville more than $4.3 million in lost tax revenue and $6.3 million in lost wages of casino employees. Justice Robert Rucker agreed. * * *
The ruling puts the city’s 2006 smoking ban back into effect. That ban prohibited smoking in workplaces and other public places but exempted bars, private clubs and riverboats.
It was an amendment in 2012 that extended the smoking ban to all businesses, including taverns and clubs, but still exempted the Tropicana Evansville casino.
Tavern owners and club officials challenged the ordinance, arguing that it treated their operations unfairly.
The Indiana Alcohol & Tobacco Commission [ILB: see news release] said establishments that are no longer prohibited from allowing smoking as a result of the ruling must still follow the state smoking law, which requires the posting of signs and filing for exemptions with the Indiana Excise Police.
Ind. Law - "The Indianapolis Bar Association and HJR-3"
The Indianapolis Bar Association has today posted a message from IndyBar President Jeffrey A. Abrams, detailing how it came to take its public stance in opposition to HJR-3, the constitutional amendment to ban same-sex marriage and civil unions, and HB1153, its companion legislation. A quote:
You will note that we opposed it primarily on how it may affect lawyers and the practice of law. We also discussed the need to provide education, and we will continue to discuss how that can be achieved.
The board knew that when taking this public position, not all of our members would agree. We respect our members’ views on these important matters even if they weren’t the views of the majority of members. However, the board felt comfortable taking this position as a result of the strong statement from our members in the survey overall. I hope that all members will appreciate the time spent to clearly understand exactly the opinions of our members and to draft a response appropriately, even if it did not conform with the view of all 4,928 of our members.
I would only ask that all of our members clearly understand why the board took the position it did, respect the process that we went through and ultimately the decision we made. Many members of the board received emails from IndyBar members expressing their opinions on the issue, and I encourage those emails and discussions to continue so that we may continue to better serve our membership.
Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)
For publication opinions today (3):
In Larry Edward Flick v. Jewell Reuter , an 18-page opinion, Chief Judge Vaidik writes:
Jewell Reuter lived in a mobile home on a small portion of her family’s land for more than twenty years. For simplicity, we refer to that small portion of land as Reuter’s land. Reuter made a home for herself; she tended the land, gardened, and installed a septic system and water lines to access a nearby well. Unbeknownst to Reuter, her land was never deeded to her. In 2010, Larry Flick, a non-relative, purchased 2.28 acres of the family land in a foreclosure sale. When the parties learned that Flick’s 2.28 acres included nearly all of Reuter’s land, part of her septic system, and the well she used, a bitter quarrel over ownership of the land ensued.In Wendy Thompson v. State of Indiana , a 19-page opinion, Chief Judge Vaidik writes:
While the parties were litigating the issue of ownership, Flick tried to drive Reuter from her home. He removed the underpinning of her mobile home and severed the water lines accessing the well. A short time later, he entered Reuter’s land with a large rotary mower, destroyed her plants, and erected an electric fence around her home.
Although we ultimately conclude that Reuter’s adverse-possession and prescriptive-easement claims fail, we affirm the trial court’s $29,487.70 judgment against Flick for damages he caused by attempting to eject Reuter without court authorization. Indiana Code section 32-30-2-1 provides that a person having a valid interest in real property and a right to the possession of that property may recover it and take possession by bringing an action against a person claiming the title or interest in the real property. Flick disregarded the statute and engaged in unconscionable self-help; he must pay for the damage he caused by taking the law into his own hands. We reverse in part, affirm in part, and remand. * * *
Finally, we address Reuter’s request for appellate attorney’s fees. * * *
To prevail on her claim, Reuter must show that Flick’s arguments on appeal are “utterly devoid of all plausibility.” Bergerson v. Bergerson, 895 N.E.2d 705, 716 (Ind. Ct. App. 2008) (citations omitted). As Flick’s appellate arguments have prevailed, we cannot say Reuter has met her burden. We therefore deny her request for appellate attorney’s fees.
Reversed in part, affirmed in part, and remanded for further proceedings.
Wendy Thompson appeals her sentence for four counts of Class D felony operating a motor vehicle with a blood-alcohol concentFration of at least 0.08 causing serious bodily injury. She raises two issues on appeal. First, she argues that her sentence exceeds the maximum sentence allowable under the consecutive-sentencing statute because Class D felony operating a motor vehicle with a blood-alcohol concentration of at least 0.08 causing serious bodily injury is not a “crime of violence” within the meaning of Indiana Code section 35-5-1-2(a). Second, she argues that her sentence is inappropriate in light of the nature of the offenses and her character. Finding that Class D felony operating a motor vehicle with a blood-alcohol concentration of at least 0.08 causing serious bodily injury is a “crime of violence” and that Thompson’s sentence is appropriate in light of the nature of the offenses and her character, we affirm.In Rodregus Morgan v. State of Indiana , a 15-page opinion, Judge Riley writes [ILB emphasis]:
Appellant, Rodregus J. Morgan (Morgan), appeals his conviction for public intoxication, a Class B misdemeanor, Ind. Code § 7.1-5-1-3, and disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a). * * *NFP civil opinions today (2):
[Issues] (1) Whether Indiana’s public intoxication statute is unconstitutionally vague; and
(2) Whether there is sufficient evidence to sustain Morgan’s conviction for disorderly conduct. * * *
Morgan claims that Indiana Code section 7.1-5-1-3, which states that it is a Class B misdemeanor if an individual is intoxicated while in a public place and “harasses, annoys, or alarms another person[,]” is unconstitutionally vague. I.C. § 7.1-5-1-3(a)(4). Specifically, Morgan argues that “the statute fails to define ‘annoys,’ and there is no objective standard for evaluating what ‘annoys’” constitutes. (Appellant’s Br. p. 7). Morgan also contends that the statute encourages arbitrary and discriminatory enforcement. In response, the State contends that Morgan has waived the issue on appeal by failing to challenge the statute’s constitutionality through a pre-trial motion to dismiss. * * *
Yet, even in cases where the defendant has failed to file the necessary motion to dismiss, Indiana’s appellate courts have, at times, considered claims that a statute is unconstitutional. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). In fact, our supreme court has previously determined that “the constitutionality of a statute may be raised at any stage of the proceeding.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992). * * *
Comparing our prior decisions to the case at hand, we find the challenged portion of Indiana’s public intoxication statute to be unconstitutionally vague. Namely, the statute neither requires that a defendant have specifically intended to annoy another, nor does it employ an objective standard to assess whether a defendant’s conduct would be annoying to a reasonable person. Furthermore, the statute does not mandate that the defendant have been first warned that his behavior was considered annoying conduct. Instead, this section of the statute enables arbitrary and discriminatory enforcement because the illegality of any conduct—no matter how trivial or how substantial—is based solely on the subjective feelings of a particular person at any given time. * * *
The record reveals that, despite numerous warnings from Officer Garner, Morgan yelled and made unreasonable noise, even threatening to “to kick [Officer Garner’s] ass.” (Tr. p. 30). We therefore find that there was sufficient evidence for the State to determine that Morgan had abused his right to speak.
CONCLUSION. Based on the foregoing, we conclude that Section (a)(4) of the public intoxication statute is unconstitutionally vague and cannot be the basis of Morgan’s conviction. We also conclude that there is sufficient evidence to uphold Morgan’s conviction for disorderly conduct.
Affirmed in part and reversed in part
NFP criminal opinions today (4):
Wednesday, February 12, 2014
Ind. Courts - More on "Parents of Lauren Spierer ask judge to seal information in lawsuit"
Updating this ILB post from Jan. 30th, Laura Lane reports today in this freely available Bloomington Herald-Times story:
Here is Tim Evans' story in the Indianapolis Star. A quote:
Two men accused by Lauren Spierer’s parents of contributing to her intoxication and being responsible for the 20-year-old’s disappearance and likely death say there is no legal reason to keep information that might surface in the federal lawsuit against them confidential.
Last month, Robert and Charlene Spierer asked Judge Tanya Walton Pratt to impose a protective order to seal sensitive information from the public “to prevent the harm that would result from the unnecessary public dissemination of private information relating to the parties and nonparties and ongoing criminal investigations,” their motion reads.
But in responses filed this week in U.S. District Court in Indianapolis, lawyers representing Corey Rossman and Jason “Jay” Rosenbaum argue the Spierers have not met the legal standard for sealing court documents from the public. * * *
[Attorney Dane] Mize argued there is no expectation for privacy in such investigations that end up in court, and cited case law that restricts the withholding of information in cases such as this.
John Trimble, one of the lawyers representing Rosenbaum, also is fighting the protective order. He said there is no legal basis for the request, and that the Spierers have to do more than allege there could be an issue.
He said the request to seal court documents and testimony “seeks to prohibit public dissemination of information obtained during discovery in this case and to bar the public from accessing such information when filed with the court.”
Rosenbaum and Rossman both contend the Spierer’s request is too vague, premature and fails to demonstrate a legitimate reason for keeping information under seal. They also note the request does not meet the requirements for such a protective order set out by the 7th Circuit Court of Appeals.
The “case does not involve any trade secrets or the identity of undercover agents,” Rosenbaum said. His motion also notes the Spierers “fail to identify any specific types of information the disclosure of which would jeopardize ongoing investigations.”
Ind. Law - Still more on "Kentucky ban on gay marriages from other states struck down by federal judge"
A federal judge in Louisville ruled Wednesday that same-sex couples living in Kentucky who were married elsewhere have a constitutional right to official acceptance of their marriages and to equal access to marital benefits. While the judge limited his ruling to that specific issue, he predicted that the analysis he used would eventually mean that same-sex couples will gain the right to marry across the nation.ILB: Something that confuses me. Windsor was about Section 3 of federal DOMA, which defined marriage for federal law as being between a man and a woman. But Section 2 of DOMA, about which Denniston says in this 2012 post:
The ruling by U.S. District Judge John G. Heyburn II, in a twenty-three page opinion, was another indication that equal access to marital benefits is becoming increasingly an approach used by courts leading toward full recognition of equal marital rights for gays and lesbians.
In fact. the judge suggested that it may take just one more Supreme Court ruling “in the next few years” to complete “the judicial journey” toward full equality for gays and lesbians in American law.
The judge wrote that the Supreme Court’s ruling last June in U.S. v. Windsor “would seem to command that a law refusing to recognize out of state same-sex marriages has only one effect: to impose inequality.” The Windsor decision struck down a part of the federal Defense of Marriage Act that barred equal federal benefits related to marriage to same-sex couples who are legally married.
... carved out an exception to “full faith and credit,” excusing states from their obligation to honor the laws of other states “respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.”was, as I understand it, not impacted by Windsor.
So how is it that decisions such as this one today from Kentucky can throw out a state's limitation on the recognition of out-of-state same sex marriages on the basis of Windsor?
After that aside, back to Denniston's post today, from the conclusion:
A noteworthy part of Judge Heyburn’s opinion was a studied effort to explain to those who would be offended by his ruling, especially on the basis of their religious or cultural beliefs, why he was led to his decision as a constitutional matter. That section of the ruling read very much like a basic civics lesson about the way that the Constitution’s protection of individual rights may sometimes override traditional moral and political preferences, and even trump the expressed wishes of a political majority.
Since 1998, Kentucky has had state laws against same-sex marriage and against recognizing out-of-state same sex marriages. And, in 2004, Kentucky became one of a lengthy list of states to put a ban on same-sex marriage into the state constitution, in the wake of the first state supreme court ruling in favor of same-sex marriage — in Massachusetts. Kentucky’s amendment was approved at the polls with more than 74 percent in favor.
The laws and that amendment were challenged by four same-sex couples living in the state, each of whom had been married in places allowing such marriages – in California, Connecticut and Iowa or in Canada. Their lawsuit did not challenge the ban on such marriages in Kentucky, but only that state’s refusal to recognize their existing marriages as equal to those of opposite-sex married couples in the state.
7th Circuit - Oral argument today in 2012 challenge to involving Marion County slating statute
Also today at 7th Circuit:
13-3027 | Zachary Mulholland v. Marion County Election Board | oral argument
Discussion at beginning about audience from Notre Dame case leaving, followed by much discussion between the ACLU's Ken Falk and Judge Posner. Involves Indiana slating statute, judge asks whether Indiana AG had been notified since he did not appear and Mr. Falk answers in the affirmative.
Ind. Decisions - More on: 7th Circuit hearing appeal of Notre Dame ACA chellenge this morning [Updated]
[Updated] Here is the link to the audio of today's oral argument in 13-3853 | University of Notre Dame v. Kathleen Sebelius.
CHICAGO — A panel of federal appellate court judges Wednesday morning vigorously questioned an attorney arguing Notre Dame’s case that asks for relief from an Affordable Care Act provision that requires the university's health plans to cover contraceptives.
Notre Dame's attorney Matthew Kairis argued in front of a panel of three judges that the school's contractual agreement with Meritain Health Inc., a third-party health insurance administrator, involves it in the process of providing coverage for birth control, even if the university isn't paying for it.
In questioning that grew contentious at times, the judges repeatedly asked Kairis to explain why Notre Dame objects to what they said was essentially letting the government know they will not pay for the birth control coverage.
"The role seems so trivial," Judge Richard A. Posner said.
The university is fighting the mandate in an ongoing federal lawsuit that argues the provision in the health care legislation violates Notre Dame's right to religious freedom.
Ind. Law - More on "Kentucky ban on gay marriages from other states struck down by federal judge"
Updating this post from earlier today, the federal judge's opinion re Kentucky states:
In the end, the Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional.What would this mean if there were a similar decision in an Indiana federal court? Indiana's statute, IC 31-11-1-1, reads:
Sec. 1. (a) Only a female may marry a male. Only a male may marry a female.It is subsection(b) of the Indiana statute that would fall under the theory of the federal opinion, if applied to Indiana.
(b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.
As added by P.L.1-1997, SEC.3. Amended by P.L.198-1997, SEC.1.
Ind. Decisions - More on: Henry County's electronic record of judgments and orders
This appears to be the model developed by JTAC and approved by the Supreme Court for not only Henry County, but all future counties. As far as the ILB has been able to determine, the Henry County project has not been reviewed by the Judicial Technology Oversight Committee (JTOC), created by the last General Assembly.This afternoon the ILB has received a note from Henry Circuit Court 1 Judge Mary Willis, pointing out re the Henry County project:
This project started about 18 months ago through some grant funding and predated the formation of JTOC.Judge Willis also helfully pointed me to this story today by Bill Hyden in the New Castle Courier Times. Some quotes:
Imagine a world without the headache of stopping by the clerk's office to pick up a court document. * * *
As a joint collaboration between the Henry County judges and the clerk's office, a demonstration is at 11 a.m. Friday, Feb. 14 in Henry Circuit Court 1 that will include a tutorial on obtaining county court records through the web. The public is invited to attend the "Cookies in Court" event as refreshments will be provided.
Henry Circuit Court 1 Judge Mary Willis said that Henry County is the first in the state to use the digital records retrieval program as grant was obtained for the software.
"We are a pilot program for this as we have authority from the Indiana Supreme Court to make records, judgments and orders available to the public," said Willis. "Now that we use the Odyssey program, there is a policy to scan documents and make them available for purchase. You will be able to pull up a document online, pay for it and print it in the comfort of your home."
Willis pointed out that some categories of documents remain unavailable for public inspection at the program rollout.
"The Indiana Supreme Court is reluctant to scan and release charging information pertaining to an alleged criminal act," said Willis. "However, it wouldn't surprise me if we eventually shift to making everything available online."
Willis said online document retrieval is another step in adapting the court system to new technology. * * *
Debbie Walker, the Henry County Clerk, said that making some court records available online will ease the burden on her staff.
"We just kept talking to representatives with Odyssey and everyone agreed that this is a good thing to do," said Walker. "I tested the new system and I paid $1 to purchase a document and had to pay a $2 credit card fee. I think it will also reduce the number of phone calls we receive at the clerk's office."
Ind. Decisions - Gary L. Dilk, Indianapolis, suspended for 6 months, without automatic reinstatement, for misconduct in many foreclosure cases
In In the Matter of Gary L. Dilk, a 4-page, singe-spaced, 5-0 just-posted order, filed Feb. 10th, the Court issues a 6-month suspension, without automatic reinstatement. The details are complex, here are some quotes:
Between 2005 and 2008, Respondent accepted approximately 2,675 referrals from Foreclosure Solutions, a for-profit Ohio LLC, at a standard rate of compensation of $125 to $150 per case, receiving approximately $380,100 during those years. In these actions, pursuant to instructions from Foreclosure Solutions, Respondent would typically enter an appearance, request an extension of time, file a general answer, provide updates and forward documents to Foreclosure Solutions or the clients by use of form letters, and refer any inquiries from the clients back to Foreclosure Solutions. His typical practice was to allow judgment to be entered without opposition or hearing. He would often advise the courts that he would not be attending the hearing and did not object to entry of judgment.ILB Comment: "Without automatic reinstatement" - one wonders over a period of time, such as the past 10 or 20 years, how many attorneys have received such a discipline, how many of them (or how few) have been reinstated, and how long it has taken.
Respondent had no direct contact with many of his clients. If contacted by a client, he would advise them that his role was limited to monitoring and delaying the legal proceedings and keeping the parties and Foreclosure Solutions advised about what was occurring in the case. If not contacted by a client, he would not advise the client about his limited role. If a client contacted him about potential defenses, he would not accept the case or would take steps to withdraw his appearance. He followed the course of action decided upon by Foreclosure Solutions and rejected any clients who wished to divert from that course.
In one case that differed from the typical, the clients told Foreclosure Solutions that they were not behind in their mortgage payments and believed that their payments had been misapplied to another account, providing a detailed list of the payments. Foreclosure Solutions provided this information to Respondent, who requested documentation from the clients. After the clients provided partial documentation, Respondent made no attempt to conduct formal discovery to obtain further documentation. In response to the mortgage holder's summary judgment motion, he did not attempt to present the clients' testimony regarding their payments via affidavit. He testified that he did not believe his clients' statements and thought it would be improper to file an "unsubstantiated statement" in response to the summary judgment motion. On May 1, 2006, he sent a form letter to the clients informing them that summary judgment had been entered and that a sheriff's sale would be scheduled. His file contained bank statements and Western Union receipts substantiating the clients' list of payments, which he received and faxed to Foreclosure Solutions on May 17, 2006.
In representing clients referred to him by other Foreclosure Assistance Entities and in serving as "of counsel" in foreclosure actions for the Ohio law firm, Respondent essentially followed the same pattern as he did in representing clients referred by Foreclosure Solutions.
Without the involvement of Respondent, the Foreclosure Assistance Entities could not have provided the services they offered to homeowners. Selling the assistance of an attorney to defend a foreclosure action was a necessary part of their business model.
The decision as to whether to attempt to negotiate with a mortgage lender, to file bankruptcy as early as possible, or to pursue another course of action is a complex matter. A debtor benefits from early advice from counsel in making this decision. The homeowners represented by Respondent did not receive early advice regarding available options but instead purchased the course of action offered for sale by the Foreclosure Assistance Entities. Through the use of form letters, Respondent raised the possibility of bankruptcy after a foreclosure judgment had been entered. * * *
Respondent's misconduct was not an isolated, inconsequential lapse. By the end of 2008, foreclosure defense referrals constituted about half of his practice. According to the evidence, Respondent's misconduct affected close to 4,000 clients from 2005 through 2009. With a typical fee of $150 per case, it appears he received close to $600,000 from these clients over this five-year period. It appears that in many, if not most, of the cases, the Foreclosure Assistance Entity simply needed someone with a law license willing to enter an appearance and stall the foreclosure for a while. It is unclear how many clients might have been able to save their homes if they had engaged an attorney to give them individualized legal advice (e.g., whether the home could be retained under a Chapter 13 bankruptcy plan). The parties cite to no evidence regarding whether Respondent has made any restitution of the fees he received for his extensive involvement in the practices he now does not dispute were prejudicial to the administration of justice.
Courts - "Kentucky ban on gay marriages from other states struck down by federal judge"
Here is Andrew Wolfson's story, posted at 12:55 PM in the Louisville Courier Journal. Some quotes:
A federal judge Wednesday struck down Kentucky’s ban on recognizing valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.BuzzFeed has the 23-page opinion. The opinion begins:
U.S. District Judge John G. Heyburn II joined nine other federal and state courts in invalidating such bans.
Ruling in a suit brought by four gay and lesbian couples, Heyburn said that while “religious beliefs ... are vital to the fabric of society ... assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.”
Heyburn said “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them.” * * *
Heyburn struck down the portion of Kentucky’s 2004 constitutional amendment that said “only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.”
Heyburn did not rule that Kentucky must allow gay marriages to be performed in the state. * * *
Heyburn also rejected the arguments of the Family Foundation of Kentucky — that recognizing same-sex marriages would undermine the fundamental role of marriage in ensuring procreation.
Heyburn said there is no requirement that opposite-sex couples agree to procreate to get married.
He also said “no one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages.” * * *
The suit was filed on behalf of Gregory Bourke and Michael Deleon of Louisville, who were married in Ontario, Canada, in 2004; Jimmy Meade and Luther Barlowe, who live in Bardstown and were lawfully married in Davenport, Iowa, in 2009; Randell Johnson and Paul Campion, who live in Louisville and were married in Riverside, Calif., in 2008; and Kimberly Franklin and Tamera Boyd, who live in Cropper and were married in Stratford, Conn., in 2010. The complaint also named their children.
Four same-sex couples validly married outside Kentucky have challenged the constitutionality of Kentucky’s constitutional and statutory provisions that exclude them from the state recognition and benefits of marriage available to similarly situated opposite-sex couples.
While Kentucky unquestionably has the power to regulate the recognition of civil marriages, those regulations must comply with the Constitution of the United States. This court’s role is not to impose its own political or policy judgments on the Commonwealth or its people. Nor is it to question the importance and dignity of the institution of marriage as many see it. Rather, it is to discuss the benefits and privileges that Kentucky attaches to marital relationships and to determine whether it does so lawfully under our federal constitution.
From a constitutional perspective, the question here is whether Kentucky can justifiably deny same-sex spouses the recognition and attendant benefits it currently awards opposite-sex spouses. For those not trained in legal discourse, the questions may be less logical and more emotional. They concern issues of faith, beliefs, and traditions. Our Constitution was designed both to protect religious beliefs and prevent unlawful government discrimination based upon them. The Court will address all of these issues.
In the end, the Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional.
Ind. Decisions - Supreme Court decides one today, re CHINS
In In the Matter of S.D., Alleged to be a Child in Need of Services, J.B. v. Indiana Department of Child Services, a 10-page, 5-0 opinion, Justice Rush writes:
Child in need of services (CHINS) cases aim to help families in crisis—to protect children, not punish parents. Our focus, then, is on the best interests of the child and whether the child needs help that the parent will not be willing or able to provide—not whether the parent is somehow “guilty” or “deserves” a CHINS adjudication. But that help comes not by invitation, but compulsion—imposing the court’s “coercive intervention” into family life. And a CHINS adjudication may have long-lasting collateral consequences for the family. The intrusion of a CHINS judgment, then, must be reserved for families who cannot meet those needs without coercion—not those who merely have difficulty doing so.
Here, the evidence reflects that Mother had difficulty meeting the demands of a situation that would test the mettle of any parent—but not that she would be unable to correct her one lingering issue without the “coercive intervention of the court.” DCS’s desire to help this struggling family was understandable, but the facts simply do not justify subjecting this family to State compulsion. We therefore reverse the trial court. * * *
S.D. and her siblings were legitimately in need of services when DCS filed its petitions. But by the fact-finding hearing, Mother had voluntarily addressed all but one of those concerns to the trial court’s satisfaction. In view of that judgment, the remaining evidence fails to show that Mother was likely to need the court’s coercive intervention to complete that final item—and when that coercion is not necessary, the State may not intrude into a family’s life. We therefore reverse the trial court’s judgment that S.D. was a child in need of services.
Ind. Gov't. - "Cash-poor Carmel Redevelopment Commission has $200M in real estate"
A reader sent me this post from Current in Carmel, written by Karen Kennedy, relating to the CRC's real estate holdings. From the story: "The CRC is currently accepting bids on two properties"
It is unclear whether the CRC obtained appraisals on these properties before purchasing them. It is unclear whether the CRC obtained appraisals on these properties before purchasing them. * * *
It is also unclear whether the CRC was even obligated to obtain appraisals, as municipalities are. Indiana Code doesn’t explicitly specify that appraisals are required. * * *
The State Board of Accounts declined to address the issue and directed the question to the Indiana Attorney General.
Brian Corbin, the Indiana Attorney General’s Office’s public information officer, said, “This question is outside our jurisdiction. We do not represent local government. We represent the state. We are not here to interpret the law for you and we do not provide free legal advice. We are not the ‘ask a lawyer’ hotline.”
No further legal interpretation was available as of press time.
Ind. Decisions - 7th Circuit hearing appeal of Notre Dame ACA chellenge this morning [Updated]
Madeline Buckley of the South Bend Tribune tweets (@Mabuckley88 ) that she is at the 7th Circuit in Chicago, watching the oral argument in the appeal of Notre Dame v. Sebelius. Indiana federal district Judge Simon denied Notre Dame a TRO against application of the Affordable Care Act on Dec. 20, 2013. Buckley doesn't say who is on the panel, but from this tweet one might guess:
Hearing is a little contentious so far with judge asking counsel to stop interrupting and stop "babbling."[More] Well, my expectation was wrong, Buckley kindly responds to my Q: "Panel is Flaum, Bauer, Hamilton."
[Updated again] Hah! Buckely writes back:
@indianalawblog Apologies, correction: the panel is Flaum, Hamilton and Posner not Bauer.
Environment - "SB 186 would make it harder for local governments, state regulators and citizens to oppose giant CAFO operations such as the Steuben County site"
Steuben County residents opposed to a proposed 4,800-animal hog farm learned this month that the Indiana Department of Environmental Management has given the go-ahead to the operation, which will be located less than three miles from one of the county’s 101 natural lakes. While Indiana’s lax environmental oversight offered little hope the permit would be denied, legislation moving through the General Assembly will make it even easier to operate a concentrated animal feeding operation.
Senate Bill 186, approved by 40-8 vote, would make it harder for local governments, state regulators and citizens to oppose giant CAFO operations such as the Steuben County site. The rights of ordinary citizens and property owners would become secondary to farm owners’ rights.
Keith Werner, the third-generation farmer who has proposed the Angola project, might well have met the state’s standards for establishing the pig farm. But what about the rights of longtime Steuben County residents concerned about the threat it might present to nearby lakes and to the air quality? What about the rights of business owners who depend on visitors to Steuben County lakes?
In the push to accommodate agricultural operations, the General Assembly needs to balance the interests of all Hoosiers in setting policy. Environmental problems are easier and less costly to avoid than they are to fix.
Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)
For publication opinions today (1):
In Country Contractors, Inc., Stephen Songer, and Jahn Songer v. A Westside Storage of Indianapolis, Inc., a 30-page opinion, Judge Crone writes:
Country Contractors, Inc. (“Country”) entered into a contract to provide excavation services for A Westside Storage of Indianapolis, Inc. (“Westside”). Country subcontracted out a substantial portion of the work and eventually left the worksite without completing the job. Westside filed a breach of contract action against Country and its two shareholders, Stephen Songer and Jahn Songer (“the Songers”). Following a bench trial, the trial court entered judgment against Country and against the Songers personally for breach of contract and slander of title.NFP civil opinions today (0):
Country and the Songers (collectively, “Appellants”) now appeal, claiming that the trial court clearly erred in piercing the corporate veil as to the Songers and in finding in favor of Westside on its slander of title claim. They also challenge the trial court’s award of attorney’s fees and delay damages. Finding the evidence insufficient to support the trial court’s decision to pierce the corporate veil, we reverse the judgment as to the Songers. Finding the evidence sufficient to support the trial court’s conclusion that Country slandered Westside’s title, we affirm that portion of the trial court’s judgment. With respect to damages, we affirm the trial court’s award of attorney’s fees and reverse its award of delay damages. We remand for a recalculation of prejudgment interest.
NFP criminal opinions today (0):
Courts - Texas and Louisiana same sex marriage challenges
Two new AP stories so far this morning:
- Chris Tomlinson reports from Austin, Texas in a story headed "Judge to hear challenge of Texas' gay marriage ban ," that begins:
Two homosexual couples challenging Texas' ban on same-sex marriage will take their case to federal court on Wednesday in the wake of recent legal victories in two other conservative states.
U.S. District Judge Orlando Garcia is expected to decide whether to temporarily block the law, approved by voters in 2005, until a trial can be held in the couples' case. Similar lawsuits have been filed in 22 other states, but the Texas lawsuit is the first of its kind in the region covered by the southern and deeply conservative 5th U.S. Circuit Court of Appeals, where the case will likely end up.
- An AP story headed "Louisiana gay marriage lawsuit planned," begins:
NEW ORLEANS — A gay rights group plans a legal challenge to the Louisiana Constitution's prohibition against recognizing same-sex marriages performed legally in other states.
The Forum for Equality Louisiana and four gay married couples have called a Wednesday news conference on the issue.
A draft of the group's planned lawsuit, obtained by The Associated Press, attacks the marriage recognition ban on several fronts.
For instance, it says state revenue department policy, based on the ban, essentially requires married same-sex couples who file joint federal tax returns to falsely claim they are single on state returns — a violation, the Forum says, of free speech.
Ind. Decisions - Henry County's electronic record of judgments and orders
The ILB found this order yesterday, Feb. 11th, newly posted on the Court website. It is filed-stamped Jan. 15, 2014.
If you have been interested in seeing a PACER-like system implemented in Indiana, you may well read this and weep. This appears to be the model developed by JTAC and approved by the Supreme Court for not only Henry County, but all future counties.
As far as the ILB has been able to determine, the Henry County project has not been reviewed by the Judicial Technology Oversight Committee - JTOC [not to be confused with the Judicial Technology and Automation Committee (JTAC), part of the Division of State Court Administration], created by the last General Assembly.
Ind. Courts - Ind. Court Times reports: "Court of Appeals Selects Nancy H. Vaidik as Chief Judge"
The ILB reported on Oct. 23, 2013 that Judge Nancy H. Vaidik had been elected by the Court of Appeals judges to the three-year term, starting January 1, 2014, following the current Chief Judge, Judge Margret G. Robb. The ILB post pointed to this full biography of Judge Vaidik.
Here now is a brief Feb. 7, 2014 report on the selection from Indiana Court Times.
10 years ago this week in the ILB
Last week the ILB started this new weekly feature. Here is this week's choice.
On Feb. 12, 2004 the ILB posted a quote from an article by legal technology expert Dennis Kennedy on 2004 legal technology trends, pointing to the newfangled idea of the law blog as an example:
4. Blawgs and RSS Feeds. How many of these names are familiar to you? "Ernie the Attorney," "Bag and Baggage," "NetLawBlog," "Inter Alia," "beSpacific," "LawTech Guru," "ethicalEsq?", "tins," "My Shingle," "The Trademark Blog," "George's Employment Law Blog," "GrepLaw," "LawSites," "Stay of Execution," "How Appealing," "The Indiana Law Blog," "Copyfight," and "DennisKennedy.Blog."
These are names of a relatively small sampling of the blawgs that have given the legal profession a new and vibrant image among the growing number of influential opinion-leaders who have flocked to the world of blogging. A blog, as you may know, is a new kind of content-focused web site, typically built with blog authoring software, that displays new content as postings or articles in a reverse chronological order. They are cheaper, easier and, arguably, more effective than most standard web sites. * * *
Tuesday, February 11, 2014
Ind. Gov't. - IURC Nominating Committee Announces Nominees to Fill Two Vacancies
From the news release:
INDIANAPOLIS – The Indiana Utility Regulatory Commission Nominating Committee announced today the names of the six nominees they are submitting to Governor Mike Pence for appointment to the Indiana Utility Regulatory Commission.Here is the earlier ILB post naming the applicants.
The nominees are Carol Drake (Whitestown), Robert Hartley (Indianapolis), Michael Musa (Indianapolis), Jim Ray (Fishers), Carol Stephan (Indianapolis), and Angela Weber (Indianapolis).
The Nominating Committee has put forth these candidates to fill current vacancies on the Indiana Utility Regulatory Commission created by the resignations of Commissioners Kari Bennett and Larry Landis. Governor Mike Pence will appoint two of the nominees to fill the remainder of Bennett and Landis’ terms. Commissioner Bennett’s term expires March 31, 2014. Commissioner Landis’ term expires December 31, 2015.
Ind. Law - "IndyBar Tax Section Shares HJR-3 Concerns with Indiana Legislature"
The Indianapolis Bar Association, which as far as I know is the only Indiana bar association, state or local, to speak out on HJR 3, today has posted a long, detailed letter to the Indiana Senate from its Tax Section, stating in part:
We ask you to vote against HJR 3 because:
- HJR-3 may penalize opposite-sex married couples and provide a windfall to same-sex couples in federally recognized marriages.
- HJR-3 may undermine Indiana’s favorable tax climate for business owners.
- HJR-3 may create unnecessary red tape and added cost for Indiana businesses.
Ind. Decisions - Supreme Court decides case involing direct appeal from sentence of LWOP
In Michael Inman v. State of Indiana, a 22-page, 5-0 opinion on a direct appeal from a sentence of life imprisonment without parol, Justice David writes:
Michael Inman was convicted of murder, murder while committing or attempting to commit the offense of robbery (“felony murder”), robbery, and unlawful possession of a firearm by a serious violent felon (“SVF”) and sentenced to life imprisonment without the possibility of parole (“LWOP”). On direct appeal, he claims that Indiana Code Section 35-50-2-9(l) (2008) is unconstitutional because it does not require that the weighing of aggravators and mitigators be done beyond a reasonable doubt, and he raises issues related to the admission of evidence, the use of an exhibit, an instruction on felony murder, the provision of a definition, the denial of surrebuttal, and the sentence. We affirm Inman’s conviction and sentence. * * *
Dickson, C.J., Rucker, and Rush, J.J., concur.
Dickson, C.J., Rucker, and Rush, J.J., concur. [p. 22]
Ind. Gov't. - "State Smoke-Free Air Law Still Applies in Evansville"
From an news release just issued by the Indiana Alcohol & Tobacco Commission / Indiana State Excise Police:
EVANSVILLE, Ind. (Feb. 11) – Earlier today, the Indiana Supreme Court invalidated an Evansville ordinance that expanded the city’s prohibition on smoking to bars, restaurants and fraternal clubs.
Indiana’s statewide Smoke-Free Air Law, which took effect July 1, 2012, is unaffected by today’s ruling.
Establishments that are no longer prohibited from allowing smoking as a result of today’s ruling must still comply with the state smoking law. In particular, all of the appropriate signs must be posted, and an exemption form must be filed with the Alcohol and Tobacco Commission’s enforcement division, the Indiana State Excise Police, prior to allowing smoking. Fraternal and social clubs who want to allow smoking must first vote to allow smoking at the club.
To expedite the inspections done by the State Excise Police, completed exemption forms can be hand-delivered or mailed directly to the District 5 office at 3650 S. U.S. 41, Vincennes, Ind. 47591. Those filing the forms are asked to provide contact information to facilitate quick inspections by the State Excise Police.
Signs required by the statewide Smoke-Free Air Law can be found online.
As the enforcement division of the Indiana Alcohol and Tobacco Commission, the primary mission of the Indiana State Excise Police is to promote public safety by enforcing Indiana’s Alcoholic Beverage Code. While excise officers have the authority to enforce any state law, they focus primarily on alcohol, tobacco and related laws.
Corporal Travis Thickstun
Public Information Officer
Ind. Courts - "Howard County to develop new courthouse security plan"
This article today by Derek Jensen in the Kokomo Perspective has a lot of info new to me. Some quotes:
Howard County officials soon will undertake a project that may significantly change how citizens interact with the county courthouse.
Prompted by a rule passed by the Indiana Supreme Court last September, the county’s five judges will work with the sheriff and other officials to develop a new security plan for the facility.
In a release issued last week, the officials explained that the plan was mandated by an amendment to Indiana Administrative Rule 19, which took effect on Jan. 1. The rule now states that courthouses will develop a security plan, giving due consideration to a set of minimum security standards established in 2002. The details of the plan will not be made public.
However, the new plan may necessitate some physical changes that will be noticeable by those who visit the courthouse. Some of the minimum standards -- those which have been required since 2002 -- already have been adopted, such as the presence of uniformed law enforcement personnel and a prohibition on all weapons. Public access to private work areas also is controlled.
Other standards are optional for the courthouse unless new construction or renovation is planned. Those include the installation of bullet-resistant barriers in high-risk areas, grounds and parking security, pedestrian circulation systems, a public address system, emergency alarms and lighting, and the creation of a courthouse information desk.
Two other standards are only required in the event of a new construction project. Those include a secure sallyport area for the transportation of prisoners and the creation of at least one secure holding cell for prisoners in close proximity to the courtrooms. * * *
The details of this plan will remain confidential, and the members of the committee contacted by the Perspective declined to comment on the process.
Courts - D.C. Circuit strikes down IRS regulation of tax preparers
In this case, three independent tax-return preparers contend that the IRS’s new regulations exceed the agency’s authority under the statute. The precise question is whether the IRS’s statutory authority to “regulate the practice of representatives of persons before the Department of the Treasury” encompasses authority to regulate tax-return preparers. The District Court ruled against the IRS, relying on the text, history, structure, and context of the statute. We agree with the District Court that the IRS’s statutory authority under Section 330 cannot be stretched so broadly as to encompass authority to regulate tax-return preparers. We therefore affirm the judgment of the District Court.
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (3):
NFP criminal opinions today (4):
Ind. Decisions - Supreme Court strikes down, 3-2, Evansville smoking ordinance amendment
In Paul Stieler Enterprises, Inc., d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council; VFW Post 2953, et al. v. City of Evansville and Evansville Common Council, the two cases challenging the Evansville smoking ordinance amendment, Chief Justice Dickson writes in an 18-page, 3-2 opinion:
The Equal Privileges and Immunities Clause, Article 1, Section 23 of the Indiana Consti-tution, prohibits the "grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Today we hold that this clause invalidates an Evansville ordinance expanding the city's smoking ban to bars and restaurants but exempting its only riverboat casino ("the Casino"). * * *
Standing alone and without its exemption for riverboat casinos, the Amending Ordinance could be given legal effect; however, the evidence indicates that the City and its Council did not intend for the 2012 Amending Ordinance to stand without such exemption. The 2006 Smoking Ban contains a severability clause; but the 2012 Amending Ordinance does not, thus raising the presumption that the Council intended the latter to be effective in its entirety or not at all. Further, other evidence suggests that the invalid part of the Amending Ordinance was the inducing cause for its enactment. The City admits that the Amending Ordinance would likely not have passed without the riverboat casino exemption: "[t]he [2012 Amending Ordinance] would likely not have passed without the Casino exemption . . . ." Appellees' Brief at 12–13. This statement is bolstered by comments made by at least four (of nine) Council members at the meeting to amend the 2006 Smoking Ban, stating that they believed the Amending Ordinance would not pass without the riverboat casino exemption. Common Council of the City of Evansville, G-2012-1 Smoking Ordinance Comm. Meeting Minutes (Feb. 13, 2012) (Joint Exhibit No. 2) at 44–46. We conclude that the 2012 Amending Ordinance is not internally severable and is thus invalidated as a whole as unconstitutional. The 2006 Smoking Ban is therefore restored as it existed before the 2012 amendment.
We reverse the judgment of the trial court and hold that the 2012 Amending Ordinance violates Article 1, Section 23 of the Indiana Constitution and must be stricken in its entirety.
David and Massa, JJ., concur.
Rush, J., dissents with separate opinion in which Rucker, J., concurs.
Rush, J., dissenting. [beginning at p. 14]
I respectfully dissent from the majority opinion and would uphold the constitutionality of Evansville’s riverboat exemption under the Equal Privileges and Immunities Clause of the Indi-ana Constitution. Expanding a smoking ban to cover bars, taverns, and private clubs, but exempt-ing a riverboat, is reasonably related to a riverboat’s inherent characteristics—fiscal impact on the local economy and tax revenues, and out-of-town clientele that other local businesses lack. The Indiana Constitution does not require treating bars as equivalent to riverboats merely be-cause they both serve alcohol. Ever since Collins v. Day, we have consistently held that plaintiffs who allege unconstitutional privilege must negate “every conceivable basis which might have supported the classification.” The City’s Amended Ordinance passes under this standard because the Petitioners present no substantial reason to overturn an ordinance tailored to fit local prefer-ences. * * *
Local governments that consider the fiscal impact that public health legislation will have on landmark attractions like the Riverboat aren’t playing favorites—they’re acting responsibly by facing economic reality.1 “[T]he courts owe deference to legislative line-drawing that has fis-cal implications.” Mahowald v. State, 719 N.E.2d 421, 425–26 (Ind. Ct. App. 1999) (holding that fiscal considerations allow the General Assembly to provide better retirement benefits to some, but not all, state legislators who have served for at least ten years). Local governments cannot protect the public health in a vacuum, and city councils don’t have unlimited resources—which is why we have always given “considerable deference to the manner in which the legislature has balanced the competing interests involved.” Collins, 664 N.E.2d at 79–80 (citing Johnson, 273 Ind. at 404–05, 404 N.E.2d at 604). The fiscal impact of the Riverboat is an inherent characteris-tic that distinguishes it from other venues the City didn’t exempt. * * *
In conclusion, Evansville’s only riverboat is inherently distinct from bars, taverns, and private clubs, and not just because it floats. It significantly impacts the local economy and at-tracts mostly out-of-town visitors—visitors who are not the primary focus of the City’s effort to expand its public health law protecting its residents from second-hand smoke. The City’s exemp-tion of the Riverboat from its public smoking ban does not violate the Equal Privileges and Im-munities Clause because the exemption is reasonably related to those inherent characteristics. Holding otherwise would prevent cities like Evansville from acting incrementally to protect the public health and would unnecessarily encroach upon legislative prerogative. For these reasons, I respectfully dissent from the majority opinion.
Ind. Gov't. - How to find roll call votes online
Thanks to the Indiana Senate Republican staff for creating a tutorial on "Finding Roll Call Votes Online." It is only 12-pages long!
Without it, you might spend a great deal of time in a frustrating attempt to navigate the "new and improved" Indiana General Assembly website.
As the ILB has noted before, there was nothing wrong with the old website. It was quick and clean. You went to the bill page, looked down the list, and the roll calls were right there.
If one put last year's longtime website, and the "new and improved" version side-by-side, and asked people to work with them a while and then answer the question, "Which one is new and improved?" I'd guess the old website would win hands down!
Ind. Gov't. - Nevada Attorney General stops defending the state's marriage amendment; where does that leave Attorney General Zoeller?
The ILB's first hint came in this Jan. 25th post from Lyle Denniston of SCOTUSblog, which began:
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).Denniston notes that "In adopting a 'heightened scrutiny' standard for sexual orientation cases, the Ninth Circuit became the second federal appeals court to do so", the Second Circuit was the first.
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 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.
Yesterday evening the announcement came. As Matt Pearce reports today in the LA Times:
[T]he attorney general and governor announced that the state would no longer defend its 2002 ban on same-sex marriage in federal court.BuzzFeed's coverage last evening, by Chris Geidner, reports:
The law had been challenged by an LGBT legal advocacy group, Lambda Legal, which appealed after a federal judge upheld the law in 2012.
"The state's argument cannot withstand legal scrutiny," Catherine Cortez Masto, Nevada's attorney general, said in a motion filed with the U.S. 9th Circuit Court of Appeals in San Francisco, asking to withdraw Nevada's legal argument against same-sex marriage. * * *
"The governor frankly made the only call he could," Lambda Legal Senior Attorney Tara Borelli said in a statement Monday, citing a January ruling by the appeals court that raised the standards the marriage ban would have had to meet in court.
The Nevada ban has yet to be struck down or removed from the books, however, and remains in effect.
“After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” Cortez Masto said in Monday’s statement.As the ILB reported on Saturday, Feb. 8th:
In the filing, the state discussed the effect of the Supreme Court ruling in United States v. Windsor striking down part of DOMA on the Nevada case. The state argues that “in all candor it appears that Windsor, viewed through the SmithKline lens, is dispositive” — meaning that the Supreme Court’s decision striking down DOMA, if sexual orientation classifications now receive heightened scrutiny, also means that state amendments like the Nevada marriage amendment are unconstitutional. * * *
The status of the Nevada challenge differs from other marriage suits because the plaintiffs here lost at the trial court, so they — and not the state — brought the appeal. As such, their appeal would continue at this point.Buzzfeed links to the Nevada Attorney General's "motion for leave to withdraw brief".
[T]he State of Indiana late last month filed an amicus brief with the 9th Circuit in Beverly Sevcik v. Brian Sandoval, a case involving a challenge to a Nevada prohibition against same-sex marriage.The 49-page brief was submitted Jan. 28, 2014 by Gregory F. Zoeller, 3 days after the SCOTUSblog story that the Nevada Attorney General was reconsidering because of the new standard of review adopted by the Ninth Circuit in SmithKline Beecham. The brief, authored by the State of Indiana, however, summarily dismisses application of that ruling on p. 14, stating:
The State of Indiana is the lead counsel on this brief in support of the Nevada same-sex marriage prohibition. Indiana is joined on the brief by the States of Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina, and Utah.
Hence, even by the terms of SmithKline Beecham and Windsor, there is no call to search for illicit motives. More fundamentally, these technical, doctrinal inquiries only confirm what common sense tells us: traditional marriage arises from concern for opposite-sex couples, not same-sex couples.Remember that in this Nevada case, the plaintiffs challenging the Nevada marriage amendment lost in the district court. They are appealing. The State of Nevada has now decided not to defend the amendment.
As the ILB reported last Friday, Feb. 7th, Attorney General Zoeller has also notified the 10th Circuit that the State of Indiana intends to file an amicus brief in the cases involving same-sex marriage appeals from Utah and Oklahoma. The Utah case is Kitchen v. Herbert. The stance is difference in the 10th Circuit from that of Nevada: in Kitchen the trial court judge struck down the Utah prohibition, and in Oklahoma, in Bishop v. Smith, there was a similar result.
[More] Maureen Hayden of CNHI has a survey story this morning headed "Legal landscape rapidly changing on gay marriage bans." However, near the end the story confusingly mixes together facts about Utah and Nevada, cases in different circuits, with, as we've discussed above, different outcomes at the trial level.
Monday, February 10, 2014
Courts - "Michelle Olsen: The Supreme Court’s Social Media Maven"
A great article this evening in Ms. JD, written by Julie Silverbrook, about how Michelle Olsen "left her job as a staff attorney with Jones Day’s appellate team in Washington, D.C., to search for new career opportunities."
Michelle's blog, Appellate Daily, notes that "She launched the Appellate Daily blog in May 2010 and its companion Twitter feed in June 2010."
As the story tonight details:
The week her first post went live, SCOTUSblog, which many, including myself, view as the preeminent law blog, linked to Michelle’s writing. From that moment on, Michelle’s blog and, later, Twitter feed were considered one of the most reliable sources for judges, appellate attorneys, legal journalists, government leaders, law schools, and others with a passion for appellate law.Michelle's Twitter feed, which the ILB follows closely, is @AppellateDaily.
Shortly after Appellate Daily launched, Tony Mauro of the National Law Journal reached out to Michelle first to profile her in a piece titled: “Courtside: An Appealing Alternative to Practice,” and then to bring her on as a freelance Supreme Court columnist with the National Law Journal.
As Michelle continued to write pieces for the National Law Journal, she moved from blogging every day to using Twitter almost exclusively as a way of effectively tracking and sharing information about appeals and appellate issues. On her blog, you can now find a reprint of her National Law Journal columns, which are always informative, entertaining, and well written. On her Twitter feed, you can find everything you need to know about appellate law and the Supreme Court.
Ind. Courts - Above the Law Disses 7th Circuit; and the Kicker!
This Joe Patrice post today in Above the Law is headed "Seventh Circuit Thinks Its Lawyers Are Really Stupid." The post talks at length about:
.... the court’s new guide to typography. The federal rules say remarkably little about typeface, and the Seventh Circuit was having none of that vagueness. But instead of making a simple, concrete rule to guarantee that lawyers submit something that won’t make the judges — or their clerks — bleed profusely from the eyes, they churned out seven pages of pedantically detailed instructions. They even explain the difference between 12-point and 14-point fonts using many more words than “the second one is bigger.” Apparently the Seventh Circuit cares more about encouraging clean typefaces than efficient writing. [ILB emphasis]The post goes on and on and on, quoting at length from the 7 pages of instructions. But there is no link to the document.
I expect the writer is referring to the "Guidelines for Briefs & Other Papers," a link found here, in the column headed "Guides" on the 7th Circuit homepage, and titled "REQUIREMENTS AND SUGGESTIONS FOR TYPOGRAPHY IN BRIEFS AND OTHER PAPERS." This document IS indeed 7 pages long and contains the information quoted in the blog post. I believe, however, that it is NOT new, but has been available on the 7th Circuit homepage for quite some time. (Another useful document found there is a 45-page article titled "Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents.")
The Kicker. Thinking that much of this seemed familiar, I searched the ILB and found that on Oct. 5, 2012, the ILB wrote: "Joe Palazzolo of the WSJ Law Blog quotes today from the 7th Circuit's guidance for what fonts to use in briefs." Palazzolo was also quoting from the 7-page document, which seems to have been around for at least that long, if not much longer.
Courts - "Registered sex offender makes case against sex offender registry"
On Jan. 6th the ILB posted an entry quoting from a story headed "Sex offender seeks admission to Kentucky bar."
Today Sentencing Law Blog quotes from an op-ed in the Lexington Herald-Leader by the sex offender. A sample:
But the point I want to make is not about me. It isn't about my case. I am not here to say whether the court's decision was right or wrong. The principles at play are much larger than me. * * *
I am sensitive to the fact that my crime, and the crimes of others on the sex offender registry, are serious. I do not mean to denigrate the plight of victims, as I was also a victim at one point in my own childhood.
My point, rather, is simply this: punishment that becomes unmoored from considerations of proportionality, redemption and reintegration becomes poison, and we — society, victims and perpetrators — become diminished by it.
Nowhere is this more evident than the sex-offender registry. Those who find themselves constituents of the registry are routinely and uniformly denied the same second chance afforded to so many other criminal defendants after they have served their sentences.
The impetus behind the registry is the popular belief that sex offenders always commit new sex crimes. That view, however, is at odds with data from the Department of Justice and others....
I know that I am not a sympathetic figure by virtue of my crime. I know that I can never change the past or undo the things that I have done. My hope here is that we can have a discussion in this country that is long overdue — namely, what it is that we hope to achieve from our system of criminal justice.
Courts - Ohio lawsuit: "Gay parents want names on birth certificates"
H/T to How Appealing for collecting these links.
Kimball Perry reports at the Cincinnati Enquirer that:
Cincinnati is once again the center for Ohio’s battle over gay rights as four couples filed a federal court suit Monday seeking to list both parents on their children’s birth certificates.The story links to the complaint, which was filed Feb. 10th in the USDC, SD Ohio.
While Cincinnati and Ohio allow both married parents of opposite sexes to be listed on their children’s birth certificates, only one of the married parents of the same sex can be listed.
“They seek to be treated the same as opposite-sex couples in their situations,” the suit, filed by Cincinnati civil rights attorney Alphonse Gerhardstein, notes. * * *
The suit was filed against the director of the Ohio health department Theodore Wymyslo and Camille Jones, registrar of the Cincinnati health department, as the keepers of birth certificates.
The suit is the latest salvo against Ohio’s ban on gay marriage or marital rights.
Last year, in a suit also filed by Gerhardstein, James Obergefell and John Arthur won a federal court ruling that Obergefell could be listed as the surviving spouse on Arthur’s death certificate. The couple flew to Maryland, a state that recognizes gay marriage, in July to be legally married before Arthur died from ALS. Arthur, 48, died in October.
That suit forced Ohio, a state where voters approved a 2004 ban on gay marriage, to recognize gay marriage – at least for death certificates.
The new suit seeks the same recognition for birth certificates issued to the children of married gay couples.
Some quotes from an AP story by Amana Lee Myers:
The couples' attorney is the same one who represented two gay married couples in their lawsuit last year that successfully sought a court order forcing Ohio to recognize same-sex marriages on death certificates. The state is appealing the ruling, issued in December by federal Judge Timothy Black.
"At both ends of our lifespans, a marriage is a marriage. A family is a family," said the couples' lawyer, Cincinnati civil rights attorney Al Gerhardstein. "A family is a loving, nurturing group of people and the identification document when the children come along is the birth certificate, and it ought to be right."
Unlike Oklahoma and Utah, where federal judges recently struck down gay marriage bans, Gerhardstein is working to slowly chip away at Ohio's gay marriage ban through narrow lawsuits.
He referred to the Cincinnati-based 6th U.S. Circuit Court of Appeals, saying he didn't think its judges would uphold a ruling similar to the Oklahoma and Utah cases but would be more open to the argument he's making - that a state cannot disavow a marriage that was legal in the state where it took place.
Gerhardstein's tactic also will give the U.S. Supreme Court a wider variety of legal arguments to consider when appeals from various states reach their chambers.
Gerhardstein hopes his successful gay marriage lawsuit last year acts as a stepping stone to a victory in Monday's lawsuit.
In last year's case, Judge Black ruled that Ohio's ban on gay marriage demeans "the dignity of same-sex couples in the eyes of the state and the wider community."
"Once you get married lawfully in one state, another state cannot summarily take your marriage away," Black wrote, saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.
Law - "SCOTUS Asked to Clarify What it Means to ‘Bear’ Arms"
You might think the question would be settled by now, but the U.S. Supreme Court has yet to opine on whether the Second Amendment right to “bear” arms for self-defense extends outside the home. * * *
Both cases, dealing with restrictions on the ability of minors to possess weapons in public, hinge on the difference between the right to “keep” a gun and a right “bear” one. * * *
[Denniston] The Supreme Court in 2008 made it clear that the right to “keep” a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home. But it has refused repeatedly since then to take on the question of whether that right exists also outside the home. If there is a separate right to “bear” a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.
Law - "Victory, and Tax Changes, for Same-Sex Couples"
The Sunday New York Times had a special section on taxes, including a story on the impact of "the Supreme Court’s landmark June decision, in United States v. Windsor, which declared that the Defense of Marriage Act violated the Constitution. The ruling expands the rights of gay couples, but one consequence is that some couples will pay higher taxes." The report details the complexities.
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (0):
NFP criminal opinions today (7):
Ind. Decisions - Transfer list for week ending February 7, 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, February 7, 2014. It is 3 pages (and 35 cases) long.
Eight transfers were granted last week:
- Tin Thang v. State of Indiana - An Oct. 31, 2013 COA opinion: "Finding that the evidence is insufficient to establish that the intoxicated Thang alarmed another person within the mean of the statute or endangered either his life or another person’s life, we reverse."
- Eric Danner v. State of Indiana - this is an Oct. 30, 2013 NFP opinion affirming the post-conviction court's finding that Danner failed to prove his ineffective assistance of trial counsel claim.
- State of Indiana v. Molly Gray - This is a Nov. 13, 2013 opinion where the COA concluded:
Without addressing the validity of the initial stop, we conclude that the free-air canine sniff was not conducted incidental to the traffic stop and so required reasonable suspicion to justify increasing the duration of the stop. Finding that Officer Jackson lacked reasonable suspicion, we hold that the seizure was a violation of the Fourth Amendment and that the trial court did not err in suppressing the evidence. We affirm.
- In the Matter of the Termination of the Parent-Child Relationship of I.P., Minor Child and His Father, T.P. T.P. (Father) v. Child Advocates, Inc. and Indiana Department of Child Services - This Oct. 29, 2013 COA opinion is one of several:
... stemming from Magistrate Cartmel’s resignation to reach this court. Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court. As a result, the case was transferred to Magistrate Larry Bradley. Magistrate Bradley reviewed the record and reported factual findings and conclusions to Judge Marilyn Moores, who approved Magistrate Bradley’s findings and conclusions and issued an order terminating Mother’s parental rights. * * * We conclude that Magistrate Bradley’s subsequent recommended order terminating Father’s parental rights did not violate the trial rules or Father’s right to due process. Thus, we decline to set aside the order terminating Father’s parental rights and affirm the judgment of the trial court.
- Indiana State Ethics Commission, an agency of the State of Indiana, Office of Inspector General, an agency of the State of Indiana, and David Thomas, in his official capacity of Inspector General v. Patricia Sanchez - This was an Oct. 8th, 2013 COA opinion ruling:
Pursuant to Indiana Code Section 4-2-6-4(b)(2), if the OIG’s ethics complaint is not supported by probable cause the Ethics Commission may either “dismiss the complaint,” I.C. § 4-2-6-4(b)(2)(A)(iii), or “refer the alleged violation for additional investigation by the inspector general,” I.C. § 4-2-6-4(b)(2)(C). But there is nothing left for the inspector general to investigate here. As explained above, the trial court in the earlier criminal action found the information underlying the OIG’s ethics complaint to be stale and the evidence seized based on that information to be without probable cause. Those conclusions are only more true with the ensuing passage of time. Thus, the only option left for the Ethics Commission would be for it to formally dismiss the complaint. But we need not remand for mere formality. We affirm the trial court’s judgment.
- Caterpillar, Inc. v. Indiana Department of State Revenue - This is a March 28, 2013 Tax Court decision re:
... whether Caterpillar’s FSDs are deductible in calculating its Indiana NOLs, including those available for carryover as a deduction from taxable income in future years under Indiana Code § 6-3-2-2.6.1 The Court finds that they are.
- In Re: The Carroll County 2012 Tax Sale Twin Lakes Regional Sewer District v. Steven E. Hruska, Virginia Hanna, and Equity Trust Company FBO #80677 and Carroll County, Indiana, by and through the Caroll County Auditor - This is an Aug. 8, 2013 COA opinion concluding: "that the trial court properly determined that the statute prohibits foreclosure on the property at a tax sale when an unpaid sewer bill is the only lien that exists on the property. Thus, we affirm the judgment of the trial court."
- In the Matter of the Termination of the Parent-Child Relationship of: S.B., Ay.B., A.B. & K.G. (Minor Children) and K.G. (Mother) v. Marion County Department of Child Services, Child Advocates, Inc. - This is another Oct. 29, 2013 COA opinion where "Magistrate Cartmel resigned after the hearing without reporting factual findings or conclusions to the juvenile court" and the COA found "that Magistrate Bradley did not err by reviewing the record and reporting findings and conclusions to Judge Moores without holding a new evidentiary hearing. We affirm the termination of Mother’s parental rights."
Ind. Gov't. - “It’s just going to rip the heart out of local government”
That is a quote from Elkhart County Commissioner Mike Yoder in this Sunday story by Maureen Hayden in the Terre Haute Tribune Star. The reference is to Gov. Pence's:
... idea of repealing the tax on business equipment that provides $1 billion a year to schools, libraries and local governments. He’s yet to come up with a plan to replace those lost tax dollars. * * *Yoder's counter proposal, Hayden reports, is:
Yoder’s vocal disagreement with Pence is echoed by mayors and county officials – Republicans and Democrats – throughout Indiana. They can’t see how local governments will function if so much of the money they’ve relied on to pay police, pave local streets and provide other services goes missing.
The governor keeps promising those local leaders that their communities won’t be “unduly harmed” by his plan. His continued refusal to define what that means confounds them.
And it causes a loyal Republican like Yoder to fear the worst.
To replace the tax revenue lost by the locals, the state should go after dollars lost to offshore tax havens used by businesses.Read the whole story here.
“Why aren’t we recouping some of that tax revenue?” Yoder said. “The state could go after that money and turn it over to the locals as replacement revenue.”
It’s a question asked only half in jest. According to a new report published in Governing magazine, state governments failed to collect more than $20 billion in taxes in 2011 from corporations that socked away money in the Cayman Islands and other well-known tax havens.
The report, by the U.S. Public Interest Research Group, identified 31 states that saw more than $100 million in corporate tax revenue go uncollected in 2011. Indiana is one. According to the report, it lost $463 million to offshore tax havens.
Only two states, Montana and Oregon, have passed laws to recoup some of that money, by requiring companies to report profits from subsidiaries in foreign countries known for their tax-dodging loopholes. The PIRG report speculates on one reason that more states haven’t moved: Well-funded business groups employ ample resources to oppose tax reforms.
Ind. Decisions - Jefferson County loses fire insurance appeal re Courthouse fire damage
The Feb. 4th Court of Appeals ruling in The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc. and Daniel L. Gutapfel is the subject of a story by Evan Shields in the Feb. 6th Madison Courier:
The Indiana Court of Appeals has upheld a November 2012 decision that ruled against the county being able to recover some of the costs to rebuild the Courthouse after a fire.See also this Nov. 29, 2012 ILB post.
The Courthouse suffered extensive damage in May 2009 as workers were nearing completion of a remodeling project. The fire caused more than $6 million in damage.
The defendants in the case are Teton Corp., Innovative Roofing Solutions Inc., Gutapfel Roofing Inc. and Daniel L. Gutapfel.
A special judge ruled against the county because it declined to purchase a separate insurance plan for the remodeling project, meaning only the county's general insurance plan covered the building.
The defendants claimed the fire caused damage to a piece of property the county owns, which would also make the county responsible for damage to the contents of the building.
According to the contract signed by the parties, the county had to notify contractors if it chose not to purchase additional insurance to cover the project.
"While Jefferson County had the right to purchase separate 'all risk' insurance ... it breached the contract by failing to notify Teton ... of its decision to rely on existing coverage," Judge Paul Mathias wrote in the majority opinion. He was joined by Judge Edward Najam Jr.
The county requested a chance to file claims for damages to non-work property, which included desk, files and other contents of the building.
Judge Elaine Brown wrote a dissenting opinion, arguing that the county should be able to move forward with a lawsuit.
"There is no dispute that Jefferson County's property insurance policy covered the courthouse for work-related damages," she wrote. "It would have been superfluous for Teton to have purchased additional property insurance for the courthouse. Thus, any breach of the agreement by Jefferson County was not a material breach and should not dictate the outcome."
Environment - "Indiana’s legacy of environmental stewardship is decidedly poor"
That is how an editorial in yesterday's Indianapolis Star (to which I can't find a link) begins. It continues:
Most of our rivers are tainted with dangerous levels of mercury. Most of our wetlands were long ago drained to add farmland. And our air quality consistently has ranked among the worst in the nation, an unfortunate byproduct of our heavy reliance on coal-fired power plants.
So it’s discouraging — given that record and given the importance for Hoosiers’ health and quality of life to protect our air, land and water — to see what’s been happening this year in the Indiana General Assembly.
Lawmakers seem determined, for example, to further reduce already loose regulations on concentrated animal feeding operations. The Senate this past week approved legislation (SB 186) that could block local governments, state regulators and ordinary citizens from slowing the rapid growth of CAFOs in Indiana. Such farms, which raise thousands of hogs or chickens at a time, generate large quantities of animal waste that can, if not managed carefully, pollute lakes and rivers. Odor also is a frequent concern. * * *
On the House side, legislators have pushed through HB 1143, a measure that would prohibit state government from enforcing any regulations stronger than federal environmental rules. Philosophically, that’s a strange position for a legislature that often chafes against federal mandates. Practically, it could slow the ability of state agencies to respond to Indianaspecific problems, including environmental disasters.
Both of these bills, and others now before the General Assembly, stem from a mindset that state agencies and local governments can’t be trusted to take businesses’ needs into fair consideration. But regulators in Indiana never have been particularly tough on industry, and the Pence administration has followed the Daniels administration’s lead of working to further reduce state regulations.
So why would Indiana voluntarily handcuff itself with laws that could block local elected officials, the state’s environmental experts and perhaps even judges from taking the needs of all Hoosiers into proper consideration?
SB 186 and HB 1143 should not survive the second half of this year’s session.
Ind. Courts - Check out the newest 2014 list of bills of interest to the judiciary
As 1st house consideration of bills in committee is over, and 2nd house consideration had not yet begun, this week's report from The Indiana Judicial Center begins:
We have reached the mid-point of the legislative session and this week’s blog is a series of topical charts detailing the status of bills of interest to the judiciary heard on third reading. If a bill was amended at any stage in the legislative process, it is designated with an “-A” at the relevant stage.Note: The link (at least at this time) is VERY slow to load.
Environment - "A bill that has passed the Indiana House would limit the environmental rules state officials could impose"
That would be the "no more stringent" bill, HE 1143, last mentioned in this Jan. 29th ILB post.
More from Suzanna Couch's story today in the Gary Post-Tribune:
The limits would apply to any rule or standards passed by the Indiana Department of Environmental Management’s Environmental Rules Board; they could be no more stringent than any corresponding federal standard or rule set by the Environmental Protection Agency.ILB: See this Jan. 22nd ILB post that points out the fallacy of this "Emergency rule" argument.
The bill passed the House 68-28 on Jan. 28.
Jesse Kharbanda, the executive director of the Hoosier Environmental Council, opposes the bill, saying it would prevent IDEM from dealing with issues the federal government fails to adequately address.
“The state executive branch would be barred from acting in a way that is more protective of public health,” Kharbanda said.
Northwest Indiana has several coal-fired plants with coal-ash sludge lagoons. Kharbanda said federal standards and safeguards governing those lagoons are not as good as they could be. This law would keep the state from taking action.
“There’s no reason, in short, to tie the hands of the executive branch from being respondent to the environmental challenges that are not adequately addressed by the federal government,” Kharbanda said. * * *
[Rep. David] Wolkins said if there is a situation where the state needs to step in and change federal standards, IDEM can use its emergency procedures to make a new rule exceeding the federal standard. However, he said he wishes the legislature would be in charge of surpassing federal environmental standards if needed.
“If we’re going to exceed federal regulations I would just as soon the legislature make that decision rather than an unelected bureaucrat,” he said.
See also this long list of posts on "no more stringent" efforts, dating back to 2005.
Ind. Gov't. - Some bills being heard in committee today
Some Senate committee meetings today:
- Rules & Leg. Procedures (upon adjournment, Senate Chambers) - HJR 3 (marriage)
Some House committee meetings today: Nothing highlighted
(Note: Oddly, at this time the Senate link doesn't work but the House link does. How to figure?)
WATCH the HJR 3 hearing videocast live upon adjournment. Senate convenes at 1:30 and shouldn't meet for long today before adjourning.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 9, 2014:
- Ind. Courts - "Are mouth swabs, DNA collection constitutional?"
- Environment - "Lake Gage group digs in after IDEM gives" industrial hog plant OK
From Saturday, February 8
- Ind. Gov't. - AG Zoeller files brief in Nevada's same sex marriage appeal to the 9th Circuit [MUST READ]
- Ind. Gov't. - Getting a straight answer to an important question, or not
- Ind. Courts - 2014 Marion County Superior Court Democratic slate
- Law - "Same-Sex Spouses Get New Federal Rights, Holder Says"
- Ind. Law - "Indiana gay marriage foes press on as tides shift"; Tide shifts for Lafayette Republican
- Ind. Courts - More on "Special prosecutor to decide on Clark County Drug Court investigation"
From late Friday afternoon, February 7, 2014:
- Ind. Gov't. - AG Zoeller to file briefs in Utah and Oklahoma same sex marriage appeals to the 10th Circuit [MUST READ]
- Ind. Decisions - 7th Circuit decides one Indiana case today, sentencing vacated and remanded
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/10/14):
Thursday, February 13
- 9:00 AM - William Eisele v. State of Indiana (51A01-1304-PC-154) In 2004, Eisele pled guilty to burglary. Later, he filed a post-conviction petition asserting that he had been deprived of the effective assistance of counsel because trial counsel had not moved to suppress certain evidence before Eisele offered his plea. Citing Helton v. State, 907 N.E.2d 1020 (Ind. 2009), the Martin Circuit Court denied relief, and the Court of Appeals affirmed in Eisele v. State, No. 51A01-1304-PC-154 (Ind. Ct. App. Oct. 17, 2013) (NFP mem. dec), trans. pending. Eisele has petitioned the Supreme Court to accept jurisdiction over the appeal arguing that Helton and other Indiana precedent conflicts with Hill v. Lockhart, 474 U.S. 52 (1985). See also Missouri v. Frye, 132 S. Ct. 1399 (2012), and Premo v. Moore, 131 S. Ct. 733 (2011).
ILB: This is an Oct. 17, 2013 NFP COA opinion.
- 9:45 AM - Christopher Cross v. State of Indiana (73S01-1401-CR-29) Cross was convicted of several offenses arising out of a drug transaction, and was sentenced by the Shelby Superior Court to an aggregate term of 38 years. On appeal, Cross argued that convictions for carrying a handgun without a license and an enhancement for use of a firearm during the offense violated Indiana’s Double Jeopardy Clause, and other issues. The Court of Appeals affirmed in Cross v. State, 997 N.E.2d 1125 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a Nov. 6, 2013 opinion that concluded:
Moreover, we find Cross’s claim that the Class A felony classifications should be found to be disproportionate in light of the upcoming overhaul to the criminal classifications and sentencing structure, which has been approved by the General Assembly in House Enrolled Act 1006, to be unpersuasive. * * * In sum, we reject Cross’s contention that the classification of Cross’s acts of dealing in cocaine and possession of cocaine as Class A felonies was disproportionate to the nature of his offenses. With regard to his use of a handgun during the commission of the dealing offense, we conclude that Cross was not punished twice for the same act in violation of the prohibitions against double jeopardy. We also conclude that Cross’s conviction for the lesser-included offense of Class A misdemeanor carrying a handgun without a license must be vacated.
- 10:30 AM - Kenyatta Erkins and Ugbe Ojile v. State of Indiana (58S01-1309-CR-586) Police obtained a recording of a telephone conversation between Erkins and co-defendant, Ugbe Ojile, discussing their plans to rob a particular person the next day and the necessity of using violence against that person. They were each charged with one count of conspiracy to commit robbery resulting in serious bodily injury, and one count of attempt to commit robbery resulting in serious bodily injury, both class A felonies. After the jury was sworn but before opening argument, the State moved to dismiss the attempt charges and to amend the conspiracy charges by substituting Ojile’s name for Erkins’s as the person who committed the overt act of surveilling the intended victim. That motion was granted by the Ohio Circuit Court over the defendants’ objections, and the jury found the defendants guilty as charged. The Court of Appeals affirmed. Erkins v. State, 998 N.E.2d 229 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer filed by Erkins and has assumed jurisdiction over the appeal.
ILB: This was a 4/23/13 COA opinion where the panel concluded:
We conclude that (1) the amendment to the charging information was one of form, not substance, and therefore the trial court did not err in permitting the amendment; (2) the evidence was sufficient to show that Appellants intended and agreed to commit a robbery of S.M. that would result in serious bodily injury, which is all that is required to obtain a conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury; (3) the trial court did not abuse its discretion in admitting evidence gathered after Appellants left the casino; (4) most of the testimony interpreting Appellants’ conversation was helpful to the jury and therefore admissible, and any error in admitting inadmissible interpretations was harmless; and (5) the prosecutor did not present argument that was unsupported by the evidence and therefore did not commit misconduct let alone cause fundamental error. We also conclude that Ojile’s trial counsel did not render ineffective assistance. Accordingly, we affirm Appellants’ convictions.Transfer was granted to Appellant Kenyatta Erkins.
Next week's oral arguments before the Supreme Court (week of 2/17/14):
- No arguments currently scheduled.
This week's oral arguments before the Court of Appeals (week of 2/10/14):
Tuesday, February 11
- 10:30 AM - Kenneth Griesemer vs. State of Indiana (49A04-1308-CR-382) Griesemer was convicted of patronizing a prostitute. He offered a ride to a police officer who was posing as a prostitute, and the officer told Griesemer she was trying to make some money, she asked him how much he had, and she offered to perform sex for money. Griesemer raised an entrapment defense but the trial court found him guilty. On appeal Griesemer argues the State did not prove he was predisposed to commit the offense. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Riley and May.
[Where: Supreme Court Courtroom (WEBCAST)]
- 1:00 PM - David Sesay vs. State of Indiana (49A02-1305-CR-434) Following a bench trial, David Sesay was convicted of public intoxication. He appeals his conviction, contending there was insufficient evidence to prove an element of the offense, namely that he endangered his life or the life of another when he was found early in the morning standing next to his car which was in a drainage ditch off the side of the road. The Scheduled Panel Members are: Judges Riley, Robb, and Bradford. [Where: Perry Meridian High School, 401 W. Meridian School Road, Indianapolis]
Next week's oral arguments before the Court of Appeals (week of 2/17/14):
Tuesday, February 18
- 1:30 PM - Thomson Inc., n/k/a Technicolor USA, Inc. v. Insurance Co. of N. America n/k/a Century Indemnity Co., et al ( 49A05-1109-PL-470) This appeal arises from a declaratory judgment action filed by Thomson against its liability and umbrella insurers to obtain insurance coverage for a class action tort case pending in Taiwan. At issue here are several partial summary judgment orders regarding coverage issues and defense costs, from which Thomson and the insurers have appealed and cross-appealed. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Crone and Bradford. [Where: Court of Appeals Court Courtroom (WEBCAST)]
- 1:00 PM - State Bd. of Funeral and Cemetery Service vs. Settlers Life Insurance Company (49A05-1307-PL-365) In this case, the State Board of Funeral and Cemetery Service appeals the trial court’s grant of summary judgment in favor of Settlers Life Insurance Company. The Board argues that a product sold by Settlers, comprised of an insurance policy with an option to assign the policy to a trust that funds funeral and burial goods and services purchased after death, falls under the Pre-Need Act, Indiana Code section 30-2-13-1 et seq., and that Settlers was selling this product in violation of the Act. The Scheduled Panel Members are: Judges Baker, Najam, and Crone. [Where: Court of Appeals Court Courtroom (WEBCAST)]
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.
Sunday, February 09, 2014
Ind. Courts - "Are mouth swabs, DNA collection constitutional?"
LuAnn Franklin reports in the NWI Times:
CROWN POINT | DNA evidence collected from mouth swabs figures prominently in many felony cases including sexual assault and burglary.ILB: A buccal swab was the subject of a 4-1 Indiana Supreme Court ruling on June 30, 2011, Arturo Garcia-Torres v. State of Indiana. See also a COA ruling on Feb. 7, 2013, Terry Smith v. State of Indiana. The NWI Times had a story July 1, 2011, headed "Ind. Supreme Court OKs taking of cheek swab DNA sample."
A felony rape case now pending before Lake Criminal Judge Samuel L. Cappas could set a new legal precedent in Indiana regarding the procedure of obtaining a buccal swab and collecting DNA from that swab.
The defendant, Gage Patrick Ringer, 22, and his attorney, Paul Stracci, filed a motion on Jan. 30 that both the buccal swab and DNA collection violate Ringer’s Fourth Amendment rights against unreasonable search and seizure by the government.
A grand jury indicted Ringer on Aug. 29, 2013, on charges of felony A rape. The indictment states Ringer forced a woman to have sexual intercourse while he was armed with a knife on April 1, 2013. DNA evidence was collected from the victim.
Stracci asked Cappas to stay or halt the buccal swab test on Ringer until a motion could be filed with the Indiana Court of Appeals within 30 days.
During the proceedings, Cappas said taking a buccal swab “is like taking a fingerprint. It isn’t more intrusive.”
The judge also said the DNA taken in the swab is “junk DNA” and has no genetic characteristics. Indiana law permits buccal swabs as part of the discovery process, Cappas said.
“I have a victim of sexual assault,” said Deputy Prosecuting Attorney Michelle Jatkiewicz in the state’s response. “The longer it takes in sexual assault (to go to trial), the worse it gets.”
Although Cappas agreed with the state that taking a DNA sample through a buccal swap is constitutional, he gave Stracci 30 days, until Feb. 27, to file an appeal to see if the appeals court would accept the case. That ruling postponed the testing on Ringer.
The parties are due back in court on March 4.
Environment - "Lake Gage group digs in after IDEM gives" industrial hog plant OK
Updating ILB entries from Aug. 2 and Aug. 16, 2013, along with this one from Nov. 18th, headed "Hog farm decision expected by end of year," Paul Wyche reported Saturday in the Fort Wayne Journal Gazette:
A proposed Steuben County pig business continues to cause a ruckus, especially now that state officials have approved the farm where 4,800 of the animals will reside near Lake Gage.
The Indiana Department of Environmental Management earlier this week said K&D Contract Pork met the guidelines to establish the ag operation. The Angola project has been met with considerable backlash from neighbors and concerns over water and air quality, and property values.
Owner Keith Werner, who must now obtain approval at the local level, said the fervor is misguided.
“Everything will be contained and in a concrete structure, so there won’t be any runoff,” said Werner, who says he is a third-generation farmer. “We will incorporate the manure into the ground. We will till it with the dirt. We don’t want to lose nutrients.”
IDEM spokesman Barry Sneed said obtaining a permit from the state agency isn’t an easy process.
“It is a pretty rigorous review,” he said, adding that K&D’s application process went a bit longer than the normal 90-day review. “We have engineers, geologists and our inspectors who make sure that a proposal meets the proper guidelines.”
Even so, Sneed said the department was bombarded with 300 inquiries about Werner’s pig farm operations, which is classified as a confined feeding operation.
“We usually get five or 10 (inquiries),” he said.
Although Werner has initial approval from IDEM, there is at least one group challenging the agency’s decision, Sneed said.
“There is an appeal process that can take place through the Office of Environment Adjudication,” he said. “I don’t know who is trying to appeal the decision, though.”
Steuben Lakes Environmental Consortium members are considering an appeal.
Tom Danford is manager of the group. He said the group has opposed Werner’s farm since he applied for the state’s permission last May. He isn’t surprised IDEM gave K&D Contract Pork the go-ahead.
“We kind of knew all along that our push was going to have to really begin at the local level,” Danford said, adding that Werner now must gain approval from Steuben County’s Plan Commission and Board of Zoning Appeals.
“He’s less than three miles away from Lake Gage, and closer than that to another one.”
Danford said the group will continue an awareness campaign in the neighborhood of about 400 residents.
Saturday, February 08, 2014
Ind. Gov't. - AG Zoeller files brief in Nevada's same sex marriage appeal to the 9th Circuit
Yesterday the ILB reported that the State of Indiana had involved itself in the same-sex marriage appeals from the States of Utah and Oklahoma to the 10th Circuit, situated in Denver, Colorado. 17 groups "have given the 10 Circuit notice they plan to file amicus briefs in the case." The list includes the State of Indiana.
The ILB has learned today that the State of Indiana late last month filed an amicus brief with the 9th Circuit in Beverly Sevcik v. Brian Sandoval, a case involving a challenge to a Nevada prohibition against same-sex marriage.
The State of Indiana is the lead counsel on this brief in support of the Nevada same-sex marriage prohibition. Indiana is joined on the brief by the States of Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina, and Utah.
Here is a copy of the 49-page brief, submitted Jan. 28, 2014 by Gregory F. Zoeller.
Ind. Gov't. - Getting a straight answer to an important question, or not
Last Monday the ILB dissed the Indianapolis Star's "Behind Closed Doors" column.
But not this week, where reporter Tony Cook marvelously details the difficulties of getting a direct answer to a question at a Pence press conference. A must read for sure, showing what may be multiple examples of "Washington speak".
Or maybe sometime more. A tweeter mentioned the movie "Being There." Another thought of the end of the Robert Redford movie, "The Candidate."
Ind. Courts - 2014 Marion County Superior Court Democratic slate
Here, correct me if I'm wrong, is the Democratic slate for the 2014 Marion Co. Superior Court openings:
- David Dreyer (i)
- Barbara Cook Crawford (i)
- Jim Osborn (i)
- Annie Christ Garcia (i)
- Angela Davis (unopposed at slating)
- Marcel Pratt (unopposed at slating)
- Christina Klineman (had been opposed by Karen Celestino-Horseman)
- Shatrese Flowers (had been opposed by Mark Jones) [this is the seat held by Kimberly Brown, who currently is suspended, pending the results of a Supreme Court disciplinary process]
For more see this post from yesterday on Kim Brown filing for re-election, and this post from Feb. 1st with the Republican slate.
Compare these results with the Indianapolis Bar Assocation 2014 survey results for some interesting reading.
Law - "Same-Sex Spouses Get New Federal Rights, Holder Says"
Devilin Barrett reports in the $$ WSJ this afternoon:
The Obama administration will give same-sex couples who are legally married the same status as other married couples in federal legal matters—including bankruptcy proceedings, prisoner visitation and death benefits for slain police officers, Attorney General Eric Holder said Saturday.Matt Apuzzo has a similar story in the NY Times:
The Justice Department, Mr. Holder said, would issue new instructions to its employees on Monday to extend the same protections historically afforded to heterosexual married couples. * * *
Opponents of same-sex marriage have argued the Obama administration should wait for Congress to pass legislation that would allow federal recognition of gay marriages in states where it is legal to wed.
In a series of speeches, Mr. Holder has compared the current efforts to extend rights to lesbian, gay, bisexual and transgender Americans to the civil-rights struggles of African-Americans 50 years ago.
"The Justice Department's role in confronting discrimination must be as aggressive today as it was in Robert Kennedy's time," Mr. Holder told attendees at the HRC gala. "As Attorney General, I will not let this department be simply a bystander during this important moment in history."
The government estimates that more than 1,100 federal regulations, rights and laws touch on, or are affected by, marital status. With a memo on Monday, Mr. Holder plans to make several of those provisions apply equally to gay and straight couples.
In court cases and criminal investigations, for example, same-sex couples will be covered under what is known as the spousal privilege, a rule that says spouses cannot be forced to testify against each other. The Bureau of Prisons will extend the same visitation rights to married same-sex couples that it does to opposite-sex couples, Mr. Holder said.
The Justice Department will also recognize same-sex couples when determining eligibility for programs like the 9/11 Victim Compensation Fund, which pays people who were injured or made sick by the 2001 terrorist attacks. Same-sex spouses of police killed in the line of duty will also be eligible for federal benefits.
The federal rules have no effect on state laws. Seventeen states and the District of Columbia recognize same-sex marriages.
Ind. Law - "Indiana gay marriage foes press on as tides shift"; Tide shifts for Lafayette Republican
Tom LoBianco of the AP reports today on those who favor banning same sex marriage via an amendment to the Indiana Constitution. Some quotes:
Opponents of same-sex marriage have spent more than a decade working to ensure that Indiana stayed true to its conservative roots by strengthening its stance against gay unions. But in a year that was expected to bring a crucial victory, they find themselves facing a strong headwind.At the same time, the Layafette Journal Courier reports today, in a story by Dave Bangert, that State Sen. Ron Alting has announced that this time he will vote against the proposed amendment. From the long story:
Federal courts have overturned gay marriage bans in Oklahoma and Utah and the state Supreme Court did so in New Mexico. Nineteen states now allow gay marriage or civil unions.
Even in Indiana, support for a proposed amendment that would insert the state's ban on gay marriage into the constitution is wavering amid concerns about its impact on businesses' ability to attract top workers and offer domestic partner benefits.
Impassioned supporters of the ban aren't daunted. For them, the issue isn't about business needs or discrimination. It's about faith and values that they say would be compromised if Indiana doesn't take the extra step to ensure marriage can be between only a man and a woman. * * *
Religious groups pushing the amendment have used their weekends to activate digital networks of supporters. Indianapolis-based Advance America has provided phone numbers, emails and a call script, to pressure senators to restore the civil unions language that was stripped by the House when the chamber takes up the measure next week.
The Indiana Family Institute has sent out Facebook blasts urging supporters to press lawmakers. Referencing the ram's horn used to rally troops in biblical accounts, the group wrote on its page, "I'd blow the Shofar if I had one. Now is the time to act."
Opponents of the amendment, including universities, top employers and many mayors, have walked a careful line, avoiding discussions of morality while arguing that banning gay marriage in the constitution would hurt the state's pro-business image.
They claimed a victory when the Republican-controlled House voted cut out language that would also bar civil unions, a move that could restart the amendment process and delay a potential ballot vote until 2016. But they know the civil unions language could resurface before the Legislature adjourns in mid-March.
Why the change in 2014?
“The reason is quite clear. My goodness, this vote go-around, compared to years ago, probably is 10 to 1 of my constituents … that are totally against this,” Alting said. “I’m not even kidding — 10 to 1.
“Why be a senator that’s going to show, not only to your constituents that you’re voting against their will, but to the rest of the country that you believe that Indiana is one that has very little respect for diversity and tolerance of other people?”
Ind. Courts - More on "Special prosecutor to decide on Clark County Drug Court investigation"
MADISON — A special prosecutor has been appointed to determine if Clark County Drug Court employees will face criminal charges.
Jefferson County, Ind., Prosecutor Chad Lewis accepted the appointment Thursday.
Lewis said he has not received any documentation related to the investigation, which is being conducted by the Indiana State Police.
“I have not received any documentation from the court or reports from law enforcement, at this time,” Lewis said. “I will have to make a determination if the investigation needs more information, and then decide if charges will be issued.” * * *
The ISP investigation is separate from a private investigation conducted by Fleeman Investigations Inc., owned by Jack Fleeman, that was ordered by Clark County Circuit Court No. 4 Judge Vicki Carmichael at the request of Clark County Circuit Court No. 2 Judge Jerry Jacobi, who oversees the drug court program.
Fleeman’s report looked into two incidents — the home visit of a drug court participant and the arrest of another participant who was taken from his place of work.
Both incidents involved the then-drug court program director Susan Knoebel, who was terminated Jan. 28 by Jacobi, and Jeremy Snelling, a bailiff in Jacobi’s court and former drug court field officer.
Snelling remains on unpaid suspension, which Jacobi ordered Jan. 7.
While the ISP has scrutinized possible criminal conduct of drug court program employees, the actions of officials with the program and Clark County Circuit Court No. 2 may result in civil charges related to violations of drug court participants’ constitutional rights.
Louisville attorney Mike Augustus has said he will file a federal civil suit where he will represent, at least, three drug court participants.
Augustus has said drug court officials may be held civilly liable for unlawful arrest and incarceration of the program’s participants. One of Augustus’ clients is drug court participant Destiny Hoffman, who was ordered by Jacobi to be held in the Clark County Jail in 2013. Hoffman spent nearly five months behind bars without being taken before judge or provided legal counsel.
Hoffman was released only after the Office of the Clark County Prosecutor discovered her believed to be unlawful incarceration and ordered a special hearing that led to her release.
Friday, February 07, 2014
Ind. Gov't. - AG Zoeller to file briefs in Utah and Oklahoma same sex marriage appeals to the 10th Circuit
Attorney General Zoeller has notified the 10th Circuit that the State of Indiana intends to file an amicus brief in the cases involving same-sex marriage appeals from Utah and Oklahoma.
According to a Jan. 28th story in the Salt Lake Tribune:
The 10th Circuit Court of Appeals has agreed to let the same trio of judges hear same-sex marriage cases on appeal from Utah and Oklahoma.A Feb. 7th story from the same paper reports that so far, 17 groups "have given the court notice they plan to file amicus briefs in the case." The list includes the State of Indiana.
The court also agreed Tuesday that it will allow amicus briefs to be filed jointly in the cases from the two states, though the cases will have separate filing and oral argument schedules.
The Guardian had an overview of the Utah and Oklahoma cases in this Feb. 4th story by Amana Holpuch. The Utah case is Kitchen v. Herbert, here is the Dec. 20, 2013 federal DC Utah opinion by Judge Robert J. Shelby.
The Jan. 14th Oklahoma ruling, Bishop v. Smith, was decided by Judge Terence C. Kern of United States District Court for the Northern District of Oklahoma.
The U of Mich. Law School Civil Rights Litigation Clearinghouse has some of the Kitchen documents.
In 2013, the Indiana Attorney General made the State of Indiana the lead party in amicus briefs opposing marriage equality in both of the Prop 8 and DOMA cases then pending before the SCOTUS.
Ind. Decisions - 7th Circuit decides one Indiana case today, sentencing vacated and remanded
From UNITED STATES OF AMERICA v. TIMMOTHY WILLIAMS (ND Ind., Simon), a 5-page per curiam opinion:
Timmothy Williams pleaded guilty to an indictment charging him with crimes related to identity theft, and the district court used the guidelines in effect at sentencing to calculate his imprisonment range. That range was higher than it would have been if calculated under the guidelines in effect when Williams committed his crimes, but this posed no constitutional problem under our circuit’s precedent at the time of sentencing. See United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). While this case was on appeal, however, the Supreme Court held that applying the guidelines in effect at sentencing violates the ex post facto clause if it raises the defendant’s imprisonment range. See Peugh v. United States, 133 S. Ct. 2072, 2078 (2013). * * *
Accordingly, the sentence is VACATED, and the case is REMANDED for resentencing consistent with this opinion.
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (4):
NFP criminal opinions today (3):
Ind. Decisions - Supreme Court vacates transfer in Jesse Brown v. DCS case
The Supreme Court has now posted this order, file-stamped Feb. 4th:
By order dated October 4, 2013 [ILB: access here], the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. The appellant and transfer petitioner, Jesse Brown, by counsel, has filed a "Motion to Dismiss Appeal," advising that he no longer wishes to challenge the decision of the Court of Appeals. The appellee, Indiana Department of Child Services, has filed a response opposing dismissal of this appeal.ILB: Brown was a May 29, 2013 NFP opinion.
Following discussion among the Justices in conference, and being duly advised, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Brown v. Indiana Dep’t of Child Servs., 993 N.E.2d 194 (Ind. Ct. App. 2013), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. The February 13, 2014, oral argument setting also is VACATED. Pursuant to Appellate Rule 58(B), this appeal is at an end.
Note that although it was issued as a NFP opinion by the Court of Appeals, the Supreme Court says here that it "should be reinstated as Court of Appeals precedent." The COA had reclassified the opinion as "for publication" on June 28, 2013.
Ind. Courts - Breaking: Kimberly Brown has today filed for reelection
Kimberly Brown, Marion County Superior Court judge currently suspended with pay by the Supreme Court, pending final disposition of her disciplinary case, has today filed with the Secretary of State for re-election to her current seat. By statute, the deadline for filing was noon today.
A Judge Pro Tempore has been appointed by the Supreme Court "temporarily to discharge the duties of that office" until the disciplinary case is resolved.
I'm told Brown's filing will have no effect on the Democratic slating tomorrow; she did not file for slating so she will be running against the slate in the primary in May.
Ind. Courts - "Plenty of cases for Batesville city court"
Early in January Debbie Blank of the Batesville Herald-Tribune had two stories on the state court report figures relevant to the counties served by her newspaper.
Today she looks at the Batesville City Court. Some quotes:
Because Batesville is that rare city located in two counties, Batesville City Court Judge John Kellerman II hears cases from both Ripley and Franklin.
Starting his seventh year as judge, he explains, “There are no cases that come to my court automatically except if somebody is accused of violating a city ordinance.” In other cases, it's up to county prosecutors or plaintiffs whether or not they want to use the city court.
On Jan. 1, 2012, 697 cases were pending in the court, according to the 2012 Indiana Judicial Service Report and Probation Report. During the year, there were 524 new filings.
In 2012, the Batesville court disposed of 556 cases – 371 infractions, 146 civil collections, 32 ordinance violations, three civil plenary cases (a Latin term that means powerful or plenty, the dispute could involve money or an activity) and four miscellaneous civil problems. The city court doesn't have jurisdiction over felony cases.
On Dec. 31 of that year, the court had 665 pending cases.
Kellerman, who usually schedules court appearances on Wednesday afternoons because he also has a private law practice, conducted 55 bench trials in 2012. Forty-six were civil collection lawsuits. * * *
Eight infractions were diverted by the judge. He explains, “Under Indiana law, the county prosecutor, when an infraction occurs (such as no seat belt, speeding or running a stop sign) can choose to divert” it if the person has a clean record. The defendant signs an agreement with the prosecutor, admitting guilt. He or she pays a fine and court costs and must stay out of trouble for a time period. If that happens, the diverted case will get dismissed.
Two persons charged with infractions admitted they were guilty, according to the report.
By far the majority of city court cases, 329 involving infractions and ordinance violations, were handled through a violations bureau. In Batesville, that's clerk Debbie Krause. According to the report, “a defendant makes an admission, pleads nolo contendere (Latin for “I do not wish to contest”) or pays a fine ... through the clerk” or mail rather than in court. * * *
The local court spent $81,538 in 2012, $7,562 less than its $89,100 budget approved by the city council. Almost 93 percent of that was on wages and benefits. Salary expenditures totalled $75,295: $23,547 for the part-time judge's salary, $33,342 for the full-time clerk's pay and $18,406 for her benefits.
Expenses that included $2,407, rentals and technology; $1,446, miscellaneous; $1,200, other services; $500, postage; $405, printing; and $285, supplies; totalled up to $6,243.
While defendants paying fines may think the local court keeps all the dollars, that's not true. The judge reports, “A significant portion of the money we collect has to be turned over to the state of Indiana.”
Of all the fees and costs collected, Krause estimates about 20 percent goes to the counties, about 25 percent to the city and 55 percent to the state to fund Indiana State Police, highways, the general fund and other projects.
If there is a fine involved with an infraction or criminal case, 100 percent of that goes to the state, according to the judge. If the fine is for an ordinance violation, 100 percent stays with the local jurisdiction.
The Batesville court gathered up $39,366 in fees and fines in 2012 that went to three sources – state, country and local. The state received $24,339, while the counties earned $4,421. Local funding added up to $10,606, half of which came from court costs.
As mandated by state code, that $10,606 went into various funds within the city treasury, such as general, local law enforcement continuing education, court clerk and judicial salaries.
Ind. Courts - "Supreme Court considers whether jury-bias claim led to murder confession"
One of the three cases argued yesterday (Thursday) before the Indiana Supreme Court, McLynnerd Bond, Jr. v. State of Indiana, is the subject of a story today by Dan Carden in the the NWI Times. Some quotes:
On Feb. 13, 2011, McLynnerd Bond Jr., now 28, was questioned by Detective Edward Gonzalez for more than three hours about the 2007 murder of Kadmiel Mahone, 28, who was shot in the head and neck in an apartment in the 4200 block of West 23rd Place in Gary.ILB: You may view the oral argument here, as well access the Court of Appeals opinion. Of interest is that the 2-1 COA decision was designated Not for Publication by the panel, and that the dissent wrote: "Yet each time courts allow such conduct, they implicitly sanction it and encourage the next police officer in the next interrogation to go a bit further, to be more offensive, more racist and more deceptive."
According to court records, Bond repeatedly denied killing Mahone until Gonzalez told Bond, who is black, that if he went to trial there would be no one "from your part of the hood" on the jury, just 12 white or Hispanic people "from Schererville or Crown Point."
"They're not gonna put people on there who are from your neck of the woods. You know that. They're not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that," Gonzalez said. "All they’re gonna see is, oh, look at this, another young (expletive) who didn’t give a (expletive). Don’t let them see that."
Thomas Vanes, Bond's attorney, urged the state's high court to set a bright-line rule that such invidious appeals to racial prejudice during police interrogation are inappropriate, and declare anything that follows, such as Bond's confession, cannot be used in court.
Chief Justice Brent Dickson, a Hobart native, asked whether the appeal must be racial in tone, or whether any instigation by police that the judicial system is biased constitutes grounds for tossing a confession.
Vanes said the racial aspect is so offensive it must be seen as a violation of due process.
He said if a judge told a defendant considering a jury trial or bench trial that the jury would view the accused through a racial lens, that judge's actions would be condemned by the Supreme Court.
Deputy Attorney General Ian McLean, representing the prosecution, argued that Gonzalez's comments were not racist, but intended to get Bond to relate to the detective, as both grew up with friends involved in criminal activity — something people without that experience might not understand.
"It was not a threat that you will be subject to a legal lynching," McLean said. "His jury was not going to be people who dealt drugs, people who carried guns."
McLean added that no matter how the detective's remarks are understood, Bond was advised of his right to remain silent and to an attorney but still made the decision to voluntarily confess to murder.
Bond's murder trial is on hold until this appeal is resolved.
Lake Superior Judge Diane Ross Boswell and the Indiana Court of Appeals both condemned Gonzalez's comments but concluded Bond's confession was not coerced.
Thursday, February 06, 2014
Ind. Decisions - 7th Circuit decides one Indiana case today
In Gary Helman v. Steve Smeltzley (ND Ind., Lee), a 7-page opinion, Judge Rovner writes:
Gary W. Helman brought an action under 42 U.S.C. § 1983, alleging that the defendants, law enforcement officers, violated his constitutional rights under the Fourth and Fourteenth Amendments by their conduct in executing an arrest warrant for him on April 9, 2009. In the course of events, Helman was shot multiple times, and he asserts that the defendants used excessive force. The district court granted summary judgment in favor of the defendants, and Helman appeals. * * *
Helman is left, then, with an argument under § 1983 that the officers violated his Fourth Amendment rights in shooting him when he was reaching for his firearm. That claim, however, cannot survive summary judgment because such a response is objectively reasonable. In fact, Helman does not even argue that he could pursue a § 1983 claim under such scenario. The district court properly held that Helman was precluded by his conviction from pursuing this § 1983 action. The decision of the district court is AFFIRMED.
Ind. Courts - An update on Emily Herx’s suit against the Fort Wayne-South Bend Catholic Diocese
A former Roman Catholic schoolteacher who sued a northern Indiana diocese after being fired nearly three years ago for having in vitro fertilization says in court documents that church doctrine on the procedure should not be presented to the jury.
In documents filed last week in federal court in Fort Wayne, church attorneys said they want Bishop Kevin Rhoades and other officials in the Diocese of Fort Wayne-South Bend to testify and explain the doctrine in Emily Herx's sex discrimination lawsuit against the diocese and St. Vincent De Paul School in Fort Wayne.
But Herx's attorneys said in documents the doctrine is irrelevant and that the church has flipped its former position.
"Defendants have argued repeatedly that their religious teachings should not be hashed out before a secular court, and now they seek to bring religious teachings front and center," Herx's lawyers wrote.
The Roman Catholic Church shuns in vitro fertilization, or IVF, which involves mixing egg and sperm in a laboratory dish and transferring a resulting embryo into the womb.
Herx sued the diocese in April 2012, alleging the diocese violated the Civil Rights Act and the Americans with Disabilities Act by discriminating against her based on gender and on infertility, which is considered a disability.
In a letter Herx wrote to St. Vincent officials shortly after she was informed of her dismissal, she said it was terrible to be forced to choose between trying to have children and keeping her job as a language arts teacher. Herx, who is not Catholic, said in the letter that she miscarried the embryo at the end of April 2011, shortly after learning her contract would not be renewed.
Ind. Law - "Legislature hops on moped regulations"
Nick Cusack reports for the Shelby News in a story that begins:
Local law enforcement say they support a bill going through the Indiana General Assembly that would put regulations on moped drivers.
House Bill 1343 passed the House Monday. It requires registration of and a license plate for "motor driven vehicles," and attempts to clarify its meaning as mopeds, motorized scooters and motorized bicycles. Owners of this type of transportation must also pay taxes on it.
Those who drive lower powered "motor driven vehicles" must have an unexpired identification card with a Class B driven cycle endorsement. That means they must take a written driving rules test.
Similar vehicles that have a capacity over 50 cubic centimeters would have the same regulations as a motorcycle.
"I am glad to see that the legislature is making an attempt to clarify law as it applies to mopeds," said Shelby County Prosecutor Kent Apsley.
Apsley said the current law creates a lot of questions. For instance, is a particular vehicle a moped, a scooter or a motorized bicycle? Is the driver required to have a license to operate it?
"The law has simply failed to keep up with current technology," Apsley said.
He said that the vague language of the current law doesn't serve the public or law enforcement well.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (3):
Ind. Decisions - Supreme Court disciplinary order re Scott Storms, former IURC attorney
In In the Matter of Scott STORMS, a 3-page 5-0 order filed Feb. 3 but posted today, sets out on the first 2 pages the details of former IURC attorney Scott Storms' communications with Duke Energy regarding employment, and continues in part:
On October 14, 2010, the state's Inspector General filed a complaint with the Ethics Commission, alleging that Respondent had violated conflict of interest rules by participating in IURC decisions involving Duke during the Relevant Period. The Ethics Commission issued its Final Report on May 12, 2011, in which it determined that Respondent had violated Ind. Code § 4-2-6-9, imposed a penalty of $12,120.00 (triple the amount that he obtained in increased salary during his employment at Duke), and banned Respondent from future employment with the State of Indiana. Respondent filed a Verified Petition for Judicial Review in the Marion Superior Court, which affirmed on January 25, 2012. * * *
[After listing mitigating factors, the court continues] The Court also notes that Respondent has already suffered considerable penalties for his misconduct, including a fine of over $12,000 and banishment from any future state employment.
Under the American Bar Association's Standards for Imposing Lawyer Sanctions (as amended in 1992), the "imposition of other penalties or sanctions" may be considered a factor in mitigation. See Standard 9.32(k).
Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 1.11(d), which states: "Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee . . . shall not . . . negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially . . . . "
Discipline: The parties propose the appropriate discipline is a public reprimand. The discipline imposed might have been more severe had this matter been submitted without the Commission's agreement to the proposed discipline. However, in light of the substantial mitigating factors in this case and the Commission's assessment that the proposed discipline is sufficient under the circumstances of this case, the Court now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.
The costs of this proceeding are assessed against Respondent.
Ind. Decisions - Supreme Court decides one today
In Veolia Water Indianapolis, LLC, City of Indianapolis, Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc., et al, a 17-page, 5-0 opinion, Justice David writes [ILB emphasis added]:
In this case, appellants Veolia Water Indianapolis, LLC (“Veolia”); the City of Indianapolis, Department of Waterworks (the “Department”); and the City of Indianapolis (collectively with the Department, the “City”) claim sovereign immunity from liability for damages resulting from a fire that destroyed a Texas Roadhouse restaurant insured by appellees National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc. d/b/a Texas Roadhouse (the “Insurers”). This case is before us on appeal of the trial court’s denial of Veolia’s motion for judgment on the pleadings and the City’s motion to dismiss. Finding that the trial court was correct in holding that Veolia cannot claim common law sovereign immunity and that the City cannot claim statutory sovereign immunity, we affirm the trial court in these regards but reverse the trial court’s holding that the City is not entitled to common law sovereign immunity. * * *
As Judge Posner stated in Takle v. Univ. of Wisconsin Hosp. and Clinics Auth., privatization of a governmental service is not “a farce in which the privatized entity enjoys the benefits both of not being the state and so being freed from the regulations that constrain state agencies, and of being the state and so being immune from suit.” 402 F.3d 768, 770–71 (7th Cir. 2005). Because Veolia is a private entity that contracted with the City to provide a governmental service, it is not entitled to common law sovereign immunity on claims regarding the adequacy of the hydrants’ water supply.
We emphasize that our holding today does not in any way usurp the discretion and authority of the legislature. Since common law sovereign immunity is judge-made in nature, judges are responsible for its incremental development. “In the absence of a statutory directive or controlling case law, our decision rests heavily on the sort of policy considerations that have always been a part of the development of common law.” Mendenhall v. Skinner and Broadbent Co., Inc., 728 N.E.2d 140, 143 (Ind. 2000). Among other factors, our consideration of Veolia’s profit motive and status as an autonomous entity has led us to conclude that Veolia is not entitled to common law sovereign immunity from liability for damages resulting from the hydrants’ inadequate water supply.
Conclusion. We hold that a private, for-profit company under the circumstances of this case is not entitled to common law sovereign immunity from liability for damages resulting from a fire that destroyed a Texas Roadhouse restaurant. Accordingly, we affirm the trial court’s rulings that Veolia is not entitled to common law sovereign immunity and that the City is not entitled to statutory sovereign immunity from liability for damages resulting from an inadequate water supply in the hydrants near the restaurant. Only the City is entitled to common law sovereign immunity; thus, we reverse the trial court’s ruling to the contrary.
Ind. Law - More on "House sends expungement changes to Senate"
Updating this post from Jan. 28th and this one from Jan. 16th, Maureen Hayden, CNHI Statehouse Bureau Chief, reports today in the Salem Leader in a story headed "House bill loosens restrictions in order for ex-offenders to find work." Some quotes:
A bill passed last week by the House would loosen restrictions in the state's "Second Chance" law, which took effect last summer, to make it easier for ex-offenders to find employment. The new measure simplifies the process for requesting that records be erased, and it waives court fees for indigent applicants.
Those who stand to benefit most are people with an old arrest or conviction for a low-level, non-violent crime in their past.
"It's still not easy to get a criminal record erased," said state Rep. Jud McMillin, R-Brookville, the bill's co-author. "But this removes some of the unintended obstacles created by the current law."
Last year the General Assembly passed the state's first-ever expungement law for convictions of multiple types of offenses. The bill's passage came after more than a decade of debate on the issue.
Limits remain on what can be erased from criminal records, which generally are open to public view. For example, most sex and violent crimes are not eligible.
People seeking to have records expunged must show they've stayed out of trouble for a number of years. In general, the more serious the offense, the longer an offender's record must be clean.
Under last year's law, an employer can only ask applicants if they've been arrested or convicted of a crime that has not been expunged by a court. The law protects employers from being sued if they hire someone who's had their record expunged but subsequently commits another crime.
The new measure would remove what McMillin calls "poison pill" language that punishes people for making mistakes on their expungement applications.
The language of the current law leads some court officials to believe that an error-filled application forever ruins an applicant's chances to have their record wiped clean, McMillin said. House Bill 1155 would allow applicants to fix those mistakes - for example, to correct details of the charges filed against them - without risking having their request permanently denied.
"This is a 'second chance' law - not a third chance, fourth chance, fifth chance law," McMillin said. "But we also don't want to punish people for making an honest mistake on their application."
The bill changes who can access information about records that have been expunged. In certain circumstances, law enforcement and court officials could access a current defendant's past criminal record.
McMillin, who authored the original expungement law, proposed the changes after hearing from prosecutors, attorneys and other court officials concerned about the language of the complex law.
Ind. Law - "Measure targeting companies that provide cash advances — sometimes at sky-high rates of return — to people awaiting payoffs in personal injury lawsuits" advances
That is a quote from Rick Callahan's AP story today that begins:
INDIANAPOLIS — The director of a group of financing companies warned Wednesday that lawmakers "would eliminate this industry from Indiana" should they approve a measure targeting companies that provide cash advances — sometimes at sky-high rates of return — to people awaiting payoffs in personal injury lawsuits.The bill is HB 1205.
The bill sponsored by state Rep. Matt Lehman, passed the Indiana House last week on a 57-39 vote and is now before the Senate. Its key provision would cap at 38 percent the rate of return companies providing such funding to people could claim in Indiana.
Lehman, R-Berne, said he became concerned about what's often called litigation financing after hearing about cases of companies that obtained returns of up to 200 percent from people who received money for them, typically to help them make home or auto payments or foot living expenses.
He said companies providing this type of financing, usually in cases involving auto accidents, falls or product liability, need some level of regulation to prevent potential abuses.
"It really kind of came down to this, everyone agrees — everyone — that someone needs to monitor them because they've kind of been out there doing their own thing, whenever they want, however they want," Lehman said. "They have no one to report to because they're not regulated by any entity."
His measure would also create a regulatory mechanism within the state Department of Insurance that would include standardized contracts clearly disclosing the terms of the financing and fees for the financing.
Ind. Law - "Indiana bill could put bondsmen back in business"
Story and video today at WNDU South Bend, by Mark Peterson. Some quotes:
A bill before the Indiana General Assembly promises to put bail bondsmen back in business in St. Joseph County (and in other places where their services are seldom, if ever, used).Some other ILB entries on bail bonds, including this one from Sept. 6, 2013, headed "St. Joe County's bail bond system offers little incentive to appear in court."
34 Indiana counties currently do not allow surety bonds—like those provided by bondsmen.
Supporters of SB 395 say it’s a matter of public safety. “It really should be in your best interest to someone who is living in the community to know that when someone is charged with a crime and they’re released from jail pending trial that you would want to know that they, someone is guaranteeing that they appear back to court,” said Mike Whitlock with American Surety Company in Indianapolis.
Ind. Gov't. - Committee chair refuses to give marijuana bill a hearing
Suzannah Couch has the story in the Gary Post Tribune.
Courts - Will SCOTUS take up the Q of whether gun rights exist outside the home?
Lyle Denniston's post last evening at SCOTUSblog begins:
The next chance for the Supreme Court to take up the most important unanswered issue about the Second Amendment — whether gun rights exist outside the home — will come later this month, according to scheduling shown Wednesday on the Court’s electronic docket.
The Justices at their private Conference on February 21 will be examining two cases filed by the National Rifle Association, raising basic questions about the power of Congress and state and local governments to pass gun control laws. In different ways, each of those petitions seeks to draw the Court’s attention to the lingering issue of gun rights in public places. The cases are NRA v. Bureau of Alcohol, Tobacco and Firearms (13-137) and NRA v. McCraw (13-390).
So far, the Court has answered two fundamental questions about the Second Amendment: in 2008, in District of Columbia v. Heller, it ruled that the amendment protects a personal right to have a gun, at least for self-defense inside one’s home, and in 2010, in McDonald v. City of Chicago, it ruled that the amendment applies so as to restrict gun control laws at the state and local levels, as well as at the federal level.
Since then, the Court has repeatedly turned down new cases seeking to broaden the personal right to have a gun, with most of those dealing with pleas to extend the right to public settings. The Court, as usual, has given no explanation for remaining on the sidelines in those cases.
Ind. Decisions - "Feds fight Notre Dame on contraception rule reprieve"
Jennifer Haberkorn reports in Politico (h/t @AppellateDaily):
Justice Department lawyers filed a legal brief Tuesday with the 7th Circuit Court of Appeals opposing the Catholic university's latest bid to be exempted from the law's mandate on contraception coverage.The story includes a link to the DOJ 7th Circuit brief.
The school, which is complying with the coverage mandate while fighting the policy in court, was denied a similar stay by the 7th Circuit late last year. Notre Dame re-filed its petition after the Supreme Court granted an injunction to the Little Sisters of the Poor Home for the Aged last month.
The school said its case is nearly identical to the Little Sisters; the Justice Department said Tuesday that the facts are not the same.
Notre Dame "Employees and other beneficiaries are currently receiving contraceptive coverage," Justice Department officials wrote in their brief (posted here).The school "offers no reason why this Court should disrupt the status quo by entering an injunction pending appeal while it is considering the merits of the appeal on a highly expedited basis."
Ind. Gov't. - "Pension board, lawmakers hash out annuity worries"
From Tom LoBianco's AP story:
INDIANAPOLIS – The Indiana state pension system is pressing ahead with a proposal to privatize state employees’ annuity savings accounts, even as legislators consider placing a hold on the move for five years amid widespread concerns that state workers would lose valuable benefits.
The legislative battle – and concurrent push to privatize a piece of the state’s pension system – continues a long-running fight that has pitted concerns about the solvency of the state’s pension system against worries that state workers will be forced to retire early in order to collect a valuable piece of their pension.
When state workers retire, Indiana allows them to reinvest the sum of their annuity savings accounts with the state and earn 7.5 percent each year on the amount they invested. For instance, a worker that reinvests $30,000 would receive $2,250 each year. Or they can simply take the money in a lump sum.
The program is popular among state employees, in part of because of the guaranteed payouts at a good rate during a time when many states are cutting retirement benefits. The Indiana Public Retirement System (INPRS) sparked an outcry last year when it was looking at privatizing the administration of those annuity savings accounts, or ASAs, in a move that would likely cut annual payouts from 7.5 percent to roughly 4 percent.
Leaders with the state’s pension system argued the state could not sustain 7.5 percent payouts and, ultimately, voted in favor of having a private vendor control the payouts. In a Dec. 13, 2013, letter to state lawmakers announcing the privatization plan, INPRS Chairman Ken Cochran pointed out the state fund delivering those payouts already was operating $143 million in the red.
But now state lawmakers are considering a bill that would block privatization of the plan for five years. * * *
An 11th hour effort during last year’s session to scrap the annuity payouts altogether was canned by House Speaker Brian Bosma, R-Indianapolis, after concerns were raised by some lawmakers. And a legislative committee spent the summer studying the issue but ultimately declined to take action.
Ind. Gov't. - WRTV interview with DCS director Mary Beth Bonaventura
The new director of the Indiana Department of Child Services sat down with Call 6 Investigator Kara Kenney to answer tough questions about an embattled state agency, child deaths, staff turnover and violations of state law.Earlier ILB posts on Mary Beth Bonaventura.
It’s the first time Mary Beth Bonaventura agreed to a sit-down interview since taking office in March 2013. She addressed the state agency's problems some say have led to dozens of children dying from abuse and neglect.
It took Kenney months to get an appointment with Bonaventura, who said she is often in the office until 8 pm.
"My day is basically comprised of meeting after meeting after meeting," said Bonaventura.
In her candid interview, the former Lake County juvenile judge admitted she's afraid abused and neglected children will slip through the cracks.
"It scares me that I'm not going to have the right people in the right place at the right time making the right decision at the right time," said Bonaventura. * * *
"The biggest challenge facing me is trying to know what 1,833 case managers are doing every minute of the day," said Bonaventura. "There's so many moving parts out there, most of which you can’t control. You can only set the tone. You can only give the training. You can only give the guidance and sort of a philosophy and hope somebody's heard you."
Bonaventura took over for James Payne, who resigned in 2012 amid ethical questions regarding his involvement in a case surrounding his grandchildren.
"It wasn't pleasant a lot of the time," said Bonaventura when asked about her arrival at DCS. "I found myself having to defend him, having to defend myself, having to defend the agency, and it didn’t feel good."
The judge took over an agency that’s faced harsh criticism surrounding child deaths.
Records obtained by the Call 6 Investigators show between 2007 and 2011, 185 Hoosier children died due to abuse or neglect and 43 of those had a prior history with DCS.
Devin Parsons, 12, was beaten to death by his mom and boyfriend despite numerous warnings to DCS.
"(My biggest fear) is another child has to go through what Devin had to go through," said Bonaventura. "That's a huge fear, and trying to figure out how do I stop that from happening?"
Arguably, Bonaventura's job is the most important in the state of Indiana.
"The safety of children, there's probably no more important job than that," said Bonaventura.
Wednesday, February 05, 2014
Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)
For publication opinions today (3):
In H.H. v. A.A. , a 15-page opinion, Judge Bradford writes:
Appellant-Petitioner H.H. (“Mother”) filed a notice of intent to relocate from Bartholomew County to Hawaii with G.A. (the “Child”). Appellee-Respondent A.A. (“Father”) objected to the relocation of the Child. The trial court denied Mother’s request to relocate with the Child following an evidentiary hearing. Mother appeals. Upon review, we conclude that Mother has shown a good faith and legitimate reason for proposing the relocation, but that the trial court did not clearly err in finding that relocation was not in the Child’s best interests. Accordingly, we affirm.In Everett Sweet v. State of Indiana, an 11-page opinion, Judge Najam writes [ILB emphasis]:
The State petitions for rehearing following this court’s December 6, 2013, opinion, in which we affirmed the post-conviction court’s denial of Sweet’s petition for post-conviction relief. While the State prevailed in our original appeal, in its petition for rehearing the State asserts that we mistakenly relied on our Supreme Court’s opinion in Norris v. State, 896 N.E.2d 1149 (Ind. 2008), rather than our Supreme Court’s opinion in Helton v. State, 907 N.E.2d 1020 (Ind. 2009). The State is correct. Norris involved a petition for post-conviction relief filed pursuant to Indiana Post-Conviction Rule 1(a)(4), whereas Helton, like Sweet’s appeal, involved a petition filed pursuant to Rule 1(a)(1). Accordingly, we grant the State’s petition, vacate our prior opinion, and substitute our prior opinion with this opinion on rehearing. We again affirm the post-conviction court’s denial of Sweet’s petition for post-conviction relief.In Timothy Ladana Hazelwood v. State of Indiana , an 8-page opinion, Judge Mathias writes:
Timothy Ladana Hazelwood (“Hazelwood”) filed a petition in Marion Circuit Court seeking to rescind the lifetime suspension of his driving privileges. The trial court denied the petition, concluding that Indiana Code sections 9-30-10-14 and 9-30-10-15 prohibited it from reinstating Hazelwood’s driving privileges because he had been convicted of Class C felony operating a vehicle after his license had been forfeited for life. On appeal, Hazelwood claims that this statutory provision is unconstitutional as applied to him. Concluding that driving is a privilege and not a right and that the suspension of Hazelwood’s driving privileges is not punitive, we affirm. * * *NFP civil opinions today (1):
Hazelwood claims that the license reinstatement statute is not unconstitutional on its face but only as applied to him. * * *
Here, Hazelwood claims that by preventing him from ever having his driving
privileges reinstated, the State is effectively continuing to punish him for his previous traffic-related offenses. This, he claims, violates the constitutional provisions providing for rehabilitative, not retributive, justice; the provisions providing that penalties must be proportional to the crime; and the provisions prohibiting cruel and unusual punishment. * * *
Hazelwood’s arguments regarding these constitutional provisions are premised on his claim that the suspension of his driving privileges for life constitutes “punishment.” Indeed, Hazelwood argues at some length that his lifetime suspension is a punishment. However, it is well settled that the suspension of driving privileges is not a punishment. * * *
Because the suspension of Hazelwood’s driving privileges is not a punishment, his constitutional claims that the suspension is a disproportionate punishment and a cruel and unusual punishment necessarily fail. Accordingly, we affirm the judgment of the trial court denying Hazelwood’s petition for reinstatement of his driving privileges.
NFP criminal opinions today (2):
Ind. Gov't. - "House votes to limit municipal rental inspections"
Dan Carden of the NWI Times reported yesterday:
INDIANAPOLIS | The Republican-controlled Indiana House voted 67-28 Monday to limit the ability of cities and towns to regulate rental properties in their communities.ILB: See also this earlier ILB entry.
House Bill 1403, which now goes to the Senate, permits professional landlords to avoid municipal inspections and associated fees by hiring their own inspectors, who are not required to be independent. Inspections also would be limited to specific apartment features and structures; localities couldn't add items to the inspection list. * * *
Democratic Hammond Mayor Thomas McDermott Jr., blasted the House for approving what he calls "the slumlord protection act."
"What makes them think the bad landlords aren't going to get their buddies to inspect the properties, even though there might not be working smoke detectors?" McDermott asked. "This will have an effect on public safety in Hammond, Indiana, and places like Hammond."
McDermott told a House committee last month that limiting the inspection power of local governments likely will lead to more fatal fires similar to the Jan. 8 blaze that killed an adult and two children in a Hammond house that was cut into two apartments.
"When there's another tragedy, I'm going to give people these representatives' phone numbers," McDermott said. "Because they're going to call the mayor and ask how this happened and I'm going to let them know how much our state government supports us. It's a sad day."
Ind. Gov't. - "Canned hunting bill dies in Indiana Senate"
INDIANAPOLIS – A move to legalize and regulate high-fenced hunting preserves failed in the Senate Tuesday when it didn't receive enough votes to either be defeated or approved.Ryan Sabalow reports in the Indianapolis Star:
The 25-23 vote was a bit of a surprise because there was no debate on the bill and it appeared to have momentum out of committee.
It was moving in the Senate for the first time after leadership killed the measure in recent years. * * *
A Harrison County judge ruled late last year against the Indiana Department of Natural Resources, which in 2005 tried to shut down high-fenced hunting in the state. Specifically, the ruling said deer used by these facilities are privately owned and the DNR exceeded its authority trying to regulate them.
But that ruling is being appealed by the state attorney general. And another judge ruled previously in favor of the DNR.
High-fenced hunting preserves place deer with big racks in large confined spaces, and hunters can shoot them for high prices.
In 2005, the DNR determined that about a dozen facilities were operating such preserves with permits for possession, breeding and sale of white-tailed deer – not permits for hunting.
Several preserve owners sued, and remained open under an injunction. There are four currently operating in the state. * * *
Doug Allman, of the Indiana Deer Hunters Association, has fought against high-fenced hunting for years and said the vote was incredible.
"I'm ecstatic. I thought it was going to pass. I really did. It's a bill that not everyone understands completely," he said.
He noted that the Board of Animal Health still has the right to regulate the health of the deer themselves. As for the hunting, he said no regulations would make the practice ethical.
"All we are doing is legitimizing it and making it look good," Allman said. "It's still what it is – shooting penned and farm-raised deer tame to humans. It's not hunting." * * *
The bill cannot be called for another vote in the Senate due to deadlines.
A related high-fence hunting bill authored by Rep. Bill Friend, R-Macy, hasn’t advanced in the House. Friend’s spokesman said the lawmaker doesn’t have any plans to bring up the legislation as of now. * * *
Harrison Circuit Judge John Evans ruled last fall that the DNR overstepped its authority in shutting down the preserves.
Attorney General Greg Zoeller’s office is appealing the case because it would eliminate the wildlife agency’s authority to regulate hunting behind a fence.
A few months before Evans’ ruling, an Owen County judge ruled that the DNR had the right to issue permits for the preserves, further clouding the issue.
High-fence hunting’s critics in Indiana include an array of animal rights activists, wildlife groups and hunting associations. They refer to shooting farm-raised deer bred for massive antlers in fenced enclosures as “canned hunting.”
Doug Allman of the Indiana Deer Hunters Association applauded the Senate’s vote. He said the issue should be addressed by the courts.
“I think that ruling is a bad ruling, and it’s dangerous and it needs to be clarified,” he said of the fall decision.
Courts - "Drivers Allowed to Warn Fellow Motorists of Speed Traps "
From the WSJ Law Blog, a story by Jacob Gershman reported yesterday:
A trial judge in St. Louis this week held that drivers have a First Amendment right to flash their headlights to warn oncoming vehicles about speed traps ahead.The WSJ story links to the Missouri federal district court ruling, as well as a story from the St. Louis Post Dispatch headed "Is flashing headlights to warn of a speed trap protected by the First Amendment?"
The case involved a lawsuit brought by the American Civil Liberties Union of Missouri on behalf of a driver who was pulled over and ticketed in the City of Ellisville for flashing his lights after passing a radar trap. * * *
At an earlier hearing, a lawyer for the city suggested that flashing headlamps might illegally interfere with a police investigation, according to court papers.
[The ACLU's Tony] Rothert said he wasn’t sure how many other jurisdictions crack down on so-called speed trap Paul Reveres. But he said that after local press first reported on Mr. Elli’s predicament, dozens of people from around the country contacted his office with stories about how they were pulled over for warning fellow drivers.
Tuesday, February 04, 2014
Ind. Decisions - 7th Circuit decides another set of Indiana cases today
Two related cases (Nos. 12-1874 & 13-3422) are decided in Kendale L. Adams v. City of Indianapolis (SD Ind., Barker), in an opinion by Judge Sykes:
These related cases raise dozens of claims of illegal discrimination in the promotion process used by the Indianapolis Metropolitan Police Department and the Indianapolis Fire Department. The complaints are sprawling and the procedural history is a bit convoluted; we have simplified the presentation of the issues. A large group of black police officers and firefighters sued the City of Indianapolis alleging that the examination process it uses to rank candidates for promotion in the police and fire departments has a disparate impact on black candidates and is intentionally discriminatory. They filed back-to-back lawsuits targeting promotion decisions made in successive promotion cycles dating from 2002, but most of the challenged decisions were based on scores generated from testing protocols administered by the police department in 2008 and the fire department in 2007.
The plaintiffs in the first case are 36 black police officers and firefighters who were passed over for promotions between 2007 and 2009 in favor of candidates who achieved higher composite scores in the 2007 and 2008 testing sessions. The plaintiffs amended their complaint once, and the City then moved for partial judgment on the pleadings. The district court granted the motion and dismissed many of the claims as either time-barred or substantively flawed. In particular, the court dismissed the disparate-impact claims because the amended complaint alleged that the City’s promotion process was intentionally biased rather than facially neutral.
The plaintiffs sought leave to amend their complaint again and tendered a proposed second amended complaint, but the district court denied the request on grounds of untimeliness and futility. The disparate-treatment claims then proceeded to summary judgment, and the court entered judgment for the City because the plaintiffs had not produced any evidence that using the test results to make promotions was a pretext for discrimination. The plaintiffs appealed.
In the meantime, some of the plaintiffs—a group of 20 police officers—filed a second lawsuit alleging that they were passed over for promotions again in 2010 and 2011. The district court dismissed the new claims as barred by res judicata because the more recent promotion decisions were made from the same eligibility list generated by the testing process that was at issue in the first case. The plaintiffs appealed this decision as well.
We have consolidated the appeals for decision and now affirm in both cases. The plaintiffs have focused most of their appellate argument on claims of procedural error. They contend that the district court erroneously applied summary judgment standards at the pleadings stage and wrongly denied their second motion to amend the complaint. We find no procedural error. We also conclude that judgment for the City was proper in both cases.
First, although the district court mistakenly assumed that allegations of intentional discrimination necessarily defeat a disparate-impact claim, here the disparate-impact claims fail in any event because they are stated as legal conclusions, without any factual content to support an inference that the City’s examination procedures caused a disparate impact on black applicants for promotion in the police or fire departments. Second, the disparate-treatment claims lacked any evidentiary support and were properly resolved in the City’s favor on summary judgment. Finally, the claims in the second lawsuit are precluded. Although the new complaint concerns a different set of promotion decisions, it attacks the same eligibility list that was at issue in the first case. The plaintiffs’ challenge to that testing process was fully and finally resolved against them in the first suit, so their second suit against the City is barred.
Ind. Courts - All federal courts to be closed Wednesday morning
From Doria Lynch, federal courts clerk:
In anticipation of the winter storm approaching the area, all locations of the United States District Court, Bankruptcy Court, and Probation Office for the Southern District of Indiana will operate on a delayed schedule tomorrow, Wednesday, February 5. These agencies will open for business at NOON local time tomorrow.
To be clear, this delayed opening applies to all divisions and locations of the U.S. District Court and Bankruptcy Court for the Southern District of Indiana (Indianapolis, Terre Haute, Evansville, and New Albany) along with all U.S. Probation Office locations throughout the Southern District of Indiana.
Ind. Decisions - 7th Circuit decides Wisconsin deer hunting case
In Mitch Rooni v. Bradley Biser (WD Wis.), a 12-page opinion, Chief Judge Wood writes:
Deer hunting is serious business in the state of Wisconsin. Although the hunters and the state game wardens may coexist peacefully most of the time, in this case they did not. A dispute erupted between Mitch Rooni, a hunter, and Bradley Biser, a warden employed by the Wisconsin Department of Natural Resources (DNR), and it has now wended its way into federal court. According to Rooni, on November 19, 2005, Biser arrested him without probable cause and used excessive force against him both before and after the arrest. Asserting that his civil rights had been violated by these actions, Rooni brought suit under 42 U.S.C. § 1983 against Biser; Biser responded with a motion for summary judgment in his favor on all counts. The district court granted the motion with one exception, for the charge that Rooni used excessive force before the arrest. The parties then jointly filed a motion to dismiss the pre‐arrest excessive‐ force claim with prejudice. The district court agreed to do so and entered a final judgment in Biser’s favor.
Rooni contends on appeal that the district court erred by granting summary judgment on the unlawful‐arrest claim and the claim of excessive force after the arrest in connection with his handcuffing. He also argues that the court was mistaken to conclude that Biser was entitled in any event to qualified immunity. We conclude that the district court correctly granted summary judgment in Biser’s favor on the handcuffing claim; at a minimum, Biser is entitled to qualified immunity on this part of the case. Rooni’s arrest claim, however, is another matter. Taking his reasonable allegations as true, as we must, we conclude that neither probable cause nor “arguable” probable cause supported Rooni’s arrest. This means that a trier of fact could conclude (if it accepted Rooni’s evidence) that Biser violated Rooni’s clearly established constitutional rights in so arresting him. We thus affirm in part and remand in part to the district court for further proceedings on the wrongful‐arrest claim. * * *
In closing, we cannot resist commenting that it strikes us as unfortunate that the kind of dust‐up that gave rise to this case can wind up in federal court. Nevertheless, as the Supreme Court reminds us, we have an “unflagging duty” to hear cases that fall within our jurisdiction, and the broad principles that underlie the right of citizens to be free from unlawful arrests and the use of excessive force by public officers are far from trivial. We thus AFFIRM the judgment of the district court on the handcuffing and REVERSE and REMAND the unlawful‐arrest decision for further proceedings consistent with this opinion.
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In Eric Smith v. Executive Director of the Indiana War Memorials Commission (SD Ind., Lawrence),a 14-page opinion, Judge Hamilton writes:
The Indiana War Memorials Commission supervises the Soldiers and Sailors Monument at Monument Circle in Indianapolis, as well as several other monuments in downtown Indianapolis. A Commission policy requires even small groups to obtain a permit before gathering on Commission properties. Plaintiff Eric Smith and his young son were expelled from Monument Circle for protesting a proposed United Nations arms treaty without a permit. Smith claims here that the Commission’s permit policy violates the First Amendment. He appeals from the district court’s denial of his motion for a preliminary injunction against the policy’s enforcement. The defendants say little about the merits but argue that his appeal is moot because the permit policy has changed since the district court denied the motion. We conclude, however, that the new policy retains the problematic features of the old, so Smith’s appeal is not moot. Because we also conclude that Smith has met the requirements for obtaining a preliminary injunction, we reverse the judgment of the district court and remand the case with instructions to enter an appropriate preliminary injunction. * * *[Update at 4:06 PM] Tim Evans has now posted a story at the IndyStar site that begins:
We leave it to the court on remand to determine the proper scope of the injunction, including whether it should extend beyond Monument Circle to other properties the Commission administers. As we have explained, the number of people who must be allowed to gather without a permit may depend on the specifics of the space in question. We decide here only that Smith appears likely to prove at trial that fifteen is too small a number to trigger a permit requirement for Monument Circle and that he has met the other requirements for preliminary injunctive relief. In its order denying Smith’s motion, the district court expressed uncertainty over whether Smith was seeking an injunction that would protect only his right to protest or was seeking an injunction based on a facial challenge that would bind the Commission with respect to everyone. Because Smith has a reasonable likelihood of showing that the policy is unconstitutional both as it was applied to him and as it applies to individuals and small groups generally, the preliminary injunction should prohibit its enforcement against any individual or small group.
A veteran who was threatened with arrest because he did not have a permit to conduct a protest on Monument Circle has won a federal appeal that could allow other protesters to use the site without a permit.
The U.S. Court of Appeals for the 7th Circuit, in a unanimous decision today, reversed a 2013 ruling in the case by District Judge William T. Lawrence. The judge had declined to issue an injunction barring the Indiana War Memorials Commission from requiring individuals or small groups of protesters to obtain a permit to demonstrate on the grounds it controls.
In addition to the Soldiers and Sailors Monument, those sites are University Park, the American Legion Mall and Veterans Memorial Plaza.
The appellate ruling said the district court should issue a preliminary injunction prohibiting the commission from requiring individuals and small groups from obtaining permits until a permanent resolution is reached.
"One of the great freedoms given to us by the First Amendment is the ability for people to go to public places, like Monument Circle, parks and other public spaces and engage in peaceful assembly and protest free of unnecessary restrictions,” ACLU Legal Director Ken Falk said in a statement.
Courts - "Was former teacher mandated to report student-coach sexual relationship?"
From the Atlanta Journal-Constitution yesterday, a story by Maureen Downey (h/t/ How Appealing) that begins:
The state Supreme Court will hear arguments tomorrow on a case out of Cherokee: A Cherokee County high school teacher is appealing a trial court judge’s refusal to drop criminal charges against her for failing to report that the school wrestling coach was having sex with a 16-year-old student. The teacher argues the state’s mandatory child abuse reporting statute, as interpreted by the trial court, is unconstitutional and discriminates against teachers.ILB: This is reminiscent of a case in LaPorte County last year involving the failure of "two LaPorte school officials [who allegedly] failed to report their suspicions of a sexual relationship between a now former coach and player." See this March 23, 2013 ILB post.
The court is looking at two questions in this case: Under the state’s mandatory reporting statute are “school teachers” mandatory reporters in all circumstances or only when they have a relationship with the child by virtue of their employment as a school teacher; To prove that one “knowingly and willfully” failed to make a report under the statute, must the state prove that the defendant acted with an evil purpose or with the knowledge that the law required her to make a report?
Ind. Courts - More on: Daviess Superior Court holds Adm.Rule 9 hearing on unsealing of court records
The Washington Times Herald filed a brief in Daviess Superior Court on Thursday asking for records to be unsealed in the Logan Evans murder case.This secret murder case is pretty amazing to the ILB! There is more in the Times-Herald report. Apparently there are three defendants, and the paper will also ask to unseal records in the Berry and Benjamin cases.
Jan Carroll, attorney for the Times Herald and Community Newspaper Holdings Inc., said in her brief that sealing of the records in Evans’ case did not comply with the law.
Evans, 19, has been charged with murder in the Dec. 6 shooting death of Devan Burris, 17, Washington. His records were sealed at the request of the Daviess County Prosecutor’s Office and granted by Superior Court Judge Dean Sobecki.
Court information, including charges, motions, dates and even a cause number, are unavailable to the public.
“The fact that this is a pending criminal case does not constitute compelling grounds, and indeed warrants greater protections to the public and press in favor of access,” Carroll said.
Carroll argues in her brief the exceptions used by the prosecutor’s office in sealing the records does not apply with the state’s Administrative Rule 9, the guideline all courts in Indiana use dictating public access.
“That Evans is charged with murder is even a more compelling reason for his case file to be open,” Carroll wrote.
Carroll further argues in her brief that any requests to seal must have notice and interested parties have 20 days to respond, according to state rules.
A hearing must then be held to find “clear and convincing” evidence there will be harm to any of the parties or the general public if information about the case is reported.
Ind. Courts - Another: Update to the Judge Kimberly Brown disciplinary case
Updating this ILB entry from Jan. 24th, reporting the filing by Brown of a petition for review and brief thereon (the ILB has not been able to obtain copies of either document), a review of the docket today reveals a new entry dated 1-31-14:
INDIANA COMMISSION ON JUDICIAL QUALIFICATIONS' REPLY TO RESPONDENT'S PETITION FOR REVIEW
CERTIFICATE OF SERVICE BY MAIL
DATE 01/31/14 ENTERED ON 01/31/14 MS
Ind. Law - "Grandparent Rights: An Overview in Indiana"
That is the heading to this newly-posted article, authored by Andrea Ciobanu, posted on the Indianapolis Bar Association website.
Of related interest is this Feb. 3rd story from Saginaw, Michigan, reported by Brad Devereaux of Michigan Live (h/t How Appealing), headlined "Michigan Supreme Court hears case of Saginaw grandparents fighting to see grandchildren."
Ind. Law - "Marriage overshadows other legislative activity: Lawmakers moving on lots of measures"
That is the headline to CNHI's Maureen Hayden's story today, here in the Kokomo Tribune. The story discusses some of the:
... scores of bills that have been flying under the radar during the first half of a hectic legislative session dominated by the emotionally charged marriage amendment. Despite how it might seem to outsiders, legislators have been diligently debating, approving and discarding a range of measures that could impact Hoosiers.
Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP) [Updated]
For publication opinions today (4):
[2-5-14: Listed first below is a case that the ILB somehow missed yesterday]
In The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc. and Daniel L. Gutapfel, a 33-page, 2-1 opinion, Judge Mathias writes:
The Board of Commissioners of Jefferson County (“Jefferson County”) appeals the Scott Circuit Court’s entry of summary judgment in favor of Teton Corporation,In Jason A. Fishburn v. Indiana Public Retirement System, a 22-page opinion, Judge Brown writes:
Innovative Roofing Solutions, Inc., Gutapfel Roofing Inc., and Daniel L. Gutapfel (collectively “the Appellees”). The trial court determined that Jefferson County waived its right to subrogate damages pursuant to the terms of the American Institute of Architects Contract (“the AIA Contract”) it entered into with the general contractor, Teton.
On appeal, Jefferson County raises the following dispositive issue: whether the trial court erred when it determined that the County waived its right to subrogate damages to non-Work property. We conclude that Jefferson County waived its right to subrogate any and all claims covered by its property insurance, and therefore, we affirm the trial court. * * *
In support of its argument, Jefferson County relies on our court’s prior decision concluding that under the AIA contract there is a distinction between Work and non-Work property, and the scope of the waiver is limited to damages to the Work. See Midwestern Indemnity Company v. Systems Builders, Inc., 801 N.E.2d 661 (Ind. Ct. App. 2004), trans. denied. * * *
For all of these reasons, we disagree with the Midwestern Indemnity panel and hold that, under the terms of the AIA contract, Jefferson County’s claims for damages against the Appellees are barred. We therefore affirm the trial court’s entry of summary judgment in favor of the Appellees. Affirmed.
NAJAM, J., concurs.
BROWN, J., dissents with separate opinion. [which begins at p.26 and concludes:] By adopting the Majority Approach, the majority extinguishes Jefferson County’s ability to attempt to recoup damages from Teton’s liability insurer based upon alleged negligence on the part of Teton and its subcontractors. For the reasons discussed above, I believe this to be error, and I would uphold Midwestern and the so-called “Minority Approach” as valid Indiana law, and allow Jefferson County to bring suit under these circumstances to recoup liability damages to non-Work property. I respectfully dissent.
Jason A. Fishburn appeals from the trial court’s ruling affirming the determination of the Indiana Public Retirement System (“INPRS”) of his disability benefit as a member of the 1977 Police Officers’ and Firefighters’ Pension and Disability Fund (the “1977 Fund”). Fishburn raises two issues which we consolidate and restate as whether the ruling of the trial court is erroneous. We affirm the ruling of the trial court and the agency determination.In the Matter of Des.B. and Dem.B., Minor Children in Need of Services, E.B. v. Indiana Department of Child Services
[ILB - There are several interesting administrative law arguments discussed in the opinion and footnotes, including a rule of implementation (requiring promulgation) vs. a rule of administration, and the doctrine of legislative acquiescence.]
In Ruben Gonzalez v. State of Indiana, a 5-page opinion, Judge Friedlander writes:
Ruben Gonzalez was convicted and sentenced for class A felony Attempted Murder and class B felony Aggravated Battery. In this appeal, he challenges only the latter conviction, as well as an aspect of his sentence requiring him to pay restitution. Gonzalez presents the following restated issues for review:NFP civil opinions today (5):
1. Does the conviction for both attempted murder and aggravated battery constitute a double jeopardy violation?
2. Did the trial court improperly include in the restitution award the amount paid through worker’s compensation benefits for the victim’s permanent partial impairment?
We reverse and remand.
NFP criminal opinions today (5):
Ind. Gov't. - "HB 1043 – Restriction on Political Subdivision Rental Regulation"
See the post at Doug Masson's Blog.
Ind. Gov't. - "State sends mixed message through support for creationism"
Is Indiana a good place to create jobs in science, technology, engineering and math-related disciplines? The state’s investment in training and recruiting teachers in the so-called STEM fields tells prospective employers it is; spending millions in taxpayer dollars to teach creationism as science tells them it is not.Further along in the editorial:
Without the standards or accountability required of public schools attached to its voucher program, Indiana’s reputation as a state where scholarship, scientific inquiry and innovation are celebrated is threatened. Its ability to attract and retain jobs in the very fields it has targeted for expansion is compromised.
Indiana policymakers have placed virtually no requirements on voucher schools regarding instructional content. Liberty Christian School in Anderson, which has collected more than $2 million from taxpayers for its elementary and high school programs over the past three years, offers a description of a high school earth science course on its website: “Students have opportunities to gain a Biblical worldview of the creation and history of the earth and universe as contrasted with a flawed evolutionary worldview.” * * *
What biotech CEO is interested in locating his or her company in a state where a growing percentage of the state’s education dollars is invested in schools that proudly defy scientific fact? Why would a CEO want to start a science-based endeavor in a state where an increasing number of students receive instruction not only counter to accepted scientific thought but also contrary to the law? The courts have repeatedly rejected the teaching of creationism and related lessons, rightly finding that “creation science” is religion in disguise and therefore illegal to teach in publicly funded classrooms.
Indiana policymakers invite lawsuits in silently sanctioning religious instruction as science. They also threaten an academic reputation bolstered by well-respected institutions of higher learning. The state draws thousands of students from across the country and the globe to study at Indiana and Purdue universities, Rose-Hulman Institute of Technology, the University of Notre Dame and more. Will they continue to come if Indiana proudly supports K-12 instruction contrary to law and to the advancement of biomedical, life, and earth sciences?
Ind. Decisions - 7th Circuit decided one Indiana case yesterday, Feb. 3rd
In USA v. Darnell Jackson, a 9-page opinion, Judge Rovner writes:
Darnell Jackson unlawfully possessed a firearm for a period of two to three weeks before selling it to someone whose own possession of the gun was illegal. At sentencing, the district court enhanced Jackson’s offense level based on its finding that Jackson had transferred the gun with knowledge or reason to believe it would be possessed “in connection with another felony offense,” i.e., the transferee’s illegal possession of the gun. See U.S.S.G. § 2K2.1(b)(6)(B) (Nov. 2012). Jackson contends that the enhancement was improper in that it essentially penalized him a second time for conduct that was otherwise encompassed within his conviction. We affirm. * * *
By selling the Ruger pistol to Dircks, who like Jackson was prohibited from possessing a firearm, Jackson transferred the firearm in connection with a felony offense separate and distinct from the possession offense of which he was charged and convicted. Consequently, the district court properly increased Jackson’s offense level pursuant to section 2K2.1(b)(6)(B). See Jones, 528 F. App’x at 632. Finding no error in the calculation of Jackson’s offense level, we AFFIRM his sentence.
Ind. Decisions - "Strip club owners to appeal Angola zoning"
A search of the ILB reveals efforts to restrict strip clubs by communities throughout the state, including most recently Kokomo and Michigan City. this weekend Rebecca S. Green reported in the Fort Wayne Journal Gazette:
The owners of a strip club proposed for Angola are appealing a recent decision by a federal judge to allow the city to enforce its zoning ordinances against the project.[More] Here is a link to the 73-page opinion.
Last spring, owners Alva and Sandra Butler sued the city of Angola, its building commissioner, Dean Twitchell, and Vivian Likes, the city’s zoning administrator and planner. They claimed the changes to the city’s zoning ordinance, as well as the creation of a city ordinance requiring licensing for sexually oriented businesses, were developed and passed for the sole purpose of blocking the proposed development.
They asked a judge to declare the ordinances unconstitutional and to prevent the city from enforcing them against the proposed club planned for the 300 block of West Wendell Jacob Avenue.
But in a ruling on New Year’s Eve, U.S. District Judge Robert Miller ruled largely in favor of the city in a 73-page opinion. Miller upheld the city’s zoning decisions, but left open an issue of suggested alternative sites for the strip club.
On Thursday, attorneys for the strip club announced their intent to appeal Miller’s decision to the U.S. 7th Circuit Court of Appeals.
This month, attorneys for Angola asked the judge to reconsider his ruling on whether the city has enough alternative sites for the Butlers to construct their business.
Ind. Courts - "Special prosecutor to decide on Clark County Drug Court investigation"
JEFFERSONVILLE — Clark County Prosecutor Steve Stewart has deferred to a special prosecutor to determine if criminal charges will be issued against Clark County Drug Court Treatment Program personnel who are subjects of an Indiana State Police investigation.
Stewart filed a petition for the appointment of a special prosecutor with the Clark County Clerk’s Office Monday.
Before filing the petition, Stewart said his office had received a “nearly complete” investigation from ISP related to possible criminal misconduct of drug court employees. * * *
In early January, News and Tribune revealed an investigation by Fleeman Investigations Inc., a private firm hired with taxpayer dollars to look into two field visits made by Knoebel and Snelling. One of the incidents involved a visit to a drug participant’s home and the other to a participant’s place of work.
Stewart said, however, that the ISP investigation incorporates more than the two field visits cited in the Fleeman investigation that were carried out with no law enforcement officials present.
“It [the ISP investigation] definitely includes more [than the two field visits],” he said, adding that ISP has looked into alleged due process violations that include drug court program participants’ lengthy terms in the Clark County jail without being brought before a judge or provided legal counsel.
Allegations have surfaced of drug court participants being unlawfully incarcerated and stripped of their due process rights, including the case of Destiny Hoffman, who was jailed for nearly five months without seeing a judge.
Stewart said that the ISP investigation has looked into possible violations that could lead to civil actions, but those alleged violations are separate from the criminal allegations that the special [state] prosecutor would be tasked with determining whether or not to issue criminal charges.
“I think it is important to get an overall picture of the officers and the employees of the drug court and what their MO [method of operation] was in dealing with the drug court participants,” Stewart said. “That is why everything is on the table for them [the ISP].
Stewart said the appointment of the special prosecutor will be held in Judge Joe Weber’s Clark County Circuit Court No. 3.
Stewart had the option to file the petition in any of the county’s four circuit courts, excluding Judge Jerry Jacobi’s Circuit Court No. 2, because his court oversees the drug court program.
Ind. Courts - More on "The Good Wife" and a two-jury trial; three-jury trial proposed in Indianapolis
On Jan. 13th the ILB compared a recent showing of The Good Wife featuring a case with two defendants, two sets of attorneys, and two juries, all tried together in the same courtroom before one judge, with then-current talk in the Richmond Hill explosion case of a concurrent trial with three juries, one for each defendant.
Last evening, however, WISH TV's Troy Kehoe reported:
INDIANAPOLIS (WISH) — A Marion County judge has denied a request from prosecutors to try all three suspects in the 2012 Richmond Hill explosion case at the same time. That means each suspect will likely face their own lengthy trial.
Monserrate Shirley, Mark Leonard and Bob Leonard, Jr. are each accused of more than 50 counts of arson and two counts of murder in connection with last year’s deadly house explosion in the Richmond Hill subdivision.
In October, Judge Sheila Carlisle granted a request from their defense attorneys to sever their cases, allowing each to be tried separately. Prosecutors had argued since the three were arrested together that they should be tried together. Separate trials could more than triple the costs and take as much as one year to complete, they argued.
Because of that cost and time commitment, prosecutors filed a motion in late November asking for each of the suspects separate trials to be held at the same time, in the same courtroom, but with three different juries.
Defense attorneys voiced concerns that that plan could cause logistical problems, and could put the fairness of such a trial in jeopardy. They also argued that there are no legal grounds in Indiana for the request to be granted.
In a ruling issued out of court late Friday, Judge Carlisle denied the prosecution’s request, saying it could interfere with the suspects’ rights to a fair trial.
“All parties are in agreement that this is a complex case that may involve over 200 witnesses, multiple exhibits and several weeks of trial. Therefore, the State of Indiana’s concern for judicial economy is well taken. However, this must be weighed against the defendants’ right to a fair trial, which comports with due process,” Carlisle wrote in her ruling.
Carlisle also wrote that [no?] Indiana statutes explicitly authorize a trial court to order such concurrent trials, nor is there any precedent of such a request after a judge had already ruled that defendants would be allowed severed, or separate trials.
“The potential benefits of a multi-jury trial are outweighed by the significant potential for prejudice,” Carlisle went on to write in the ruling. “To ensure a fair trial for the State of Indiana and each defendant in these cases, the Court believes separate trials are necessary.”
Ind. Courts - Paul Henry Gingerich, sentenced as adult at 12, now resentenced
WARSAW, Indiana — A northern Indiana teenager who pleaded guilty for a second time to conspiring to help kill a friend's stepfather got the same sentence Monday that he received more than three years ago, but because of a change in Indiana law he could be released to a residential facility without ever serving a day in adult prison.
Judge James Heuer gave 15-year-old Paul Gingerich a 30-year sentence, with the final five years suspended, which is the same sentence Gingerich received in November 2010 in the death of Phillip Danner at his home near Lake Wawasee, about halfway between Fort Wayne and South Bend.
But the Indiana Court of Appeals threw out the first guilty plea and sentence, ruling that Kosciusko County Superior Judge Duane Huffer had rushed when he waived the case to adult court. Defense attorney Monica Foster said Gingerich agreed to plead guilty in December because a new law that went into effect July 1 allows him the chance to avoid serving time in an adult prison. Gingerich currently is being held at the Pendleton Juvenile Correctional Facility.
Foster and prosecutor Daniel Hampton disagreed on how long Gingerich will have to remain in a juvenile facility. Foster said he could be placed in a residential facility as early as this summer after receiving his high school degree, while Hampton said the earliest that could happen is after he turns 18.
Both agreed that Gingerich, who has already served more than three years in custody, will remain under state supervision in some manner, in a maximum-security facility if he gets in trouble, or in a group home, community corrections, on probation or parole if he's well-behaved. Both said there will be another hearing after he turns 18.
Gingerich apologized to Danner's family during a brief, tearful statement before being sentenced.
"If I could, I would change what was done," he said. "It is my actions that are responsible for your suffering. I'll have to live with that the rest of my life. I'm very sorry for what I've done. ... I know sorry isn't enough." * * *
Foster described Gingerich as teenager with above average intelligence who a psychologist said is less likely than the average juvenile defender to again break the law.
"He is attempting to rehabilitate himself," she said. "I think he's well on his way to rehabilitation."
Monday, February 03, 2014
Ind. Decisions - David Camm story on 2-hour NBC Dateline
As posted here last Friday, Jan. 31st, NBC Dateline had a 2-hour show on the David Camm trials. I've now finished watching it and recommend it. I believe it is available for viewing here, as "Mystery on Lockhart Road."
Ind. Gov't. - Senate committee hearing for HJR 3 set for next Monday afternoon
Niki Kelly @nkellyatJG of the FWJG reports via Twitter that the Senate rules committee will hold its hearing on HJR next Monday, Feb. 10th, upon adjournment. That would be in the afternoon, as the Senate traditionally convenes in session at 1:30.
Courts - Suit brought in Wisconsin to challenge the same constitutional language Indiana aspires to duplicate
Dee J. Hall reports this afternoon in the Wisconsin State Journal:
The American Civil Liberties Union of Wisconsin on Monday filed a federal lawsuit seeking to void the state's ban on same-sex marriage, arguing it violates the U.S. Constitution's protection of equal treatment under the law.The story includes a link to the ACLU complaint filed today in federal district court, in the WD Wis.
"Lesbians and gay men in Wisconsin are denied the freedom afforded to different-sex couples in this state to have their loving, committed relationships recognized through marriage," according to the complaint to be filed Monday morning in U.S. District Court in Madison. * * *
The complaint requests an immediate halt to enforcement of Wisconsin's ban on same-sex marriage.
The lawsuit asks the federal court to "fulfill its solemn duty of ensuring to all Americans the fundamental freedoms that the Constitution of the United States guarantees. Wisconsin’s marriage ban denies those freedoms." * * *
In 2006, Wisconsin voters ratified a constitutional amendment that banned gay marriages and civil unions by a decisive 59 percent.
The lawsuit describes the amendment as "one of the most restrictive bans on marriage for same-sex couples in the nation" because it prohibits not just gay marriage but any equivalent of marriage, including civil unions. * * *
The amendment ratified by voters in 2006 stated, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”
Three years later, in 2009, the state Legislature passed a domestic-partner law signed by Democratic Gov. Jim Doyle that allowed unmarried couples to register to qualify for some benefits normally afforded only to spouses.
Wisconsin Family Action sued the state in 2010, saying that law creates a "legal status … substantially similar to that of marriage for unmarried individuals” in violation of the state Constitution. [That] case is pending before the state Supreme Court.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (3):
In William Rinehart v. State of Indiana (NFP), a 12-page, 2-1 reversal that is designated NFP, Judge Bailey writes:
As a result of a handgun found during a police pat-down search in the course of a traffic stop for failure to use a signal, William Rinehart (“Rinehart”) was convicted of Possession of a Handgun Without a License, as a Class C felony. He presents the issue of whether the pat-down search was conducted in violation of the Fourth Amendment. We reverse. * * *Jessie L. Johnston v. State of Indiana (NFP)
Here, the testimony does not disclose specific facts that caused Officers Gedig or Norman to entertain a reasonable fear for their safety in issuing a traffic citation for failure to use a turn signal. Instead, it appears that the pat-down search was a routine matter of course when a male was asked to exit a vehicle during a traffic stop. We conclude there was not adequate justification for a pat-down search.
Conclusion. The pat-down search was conducted in violation of Rinehart’s Fourth Amendment rights. Accordingly, the trial court abused its discretion by admitting evidence obtained in that search. Reversed.
FRIEDLANDER, J., concurs.
KIRSCH. J., dissents with separate opinion. [which reads in full] I respectfully dissent.
While I agree with my colleagues that a police officer’s “standard practice” is a not sufficient basis to justify the pat down search, I believe that here there were objective factors justifying the search. The concern for officer safety, the evidence of the presence of illegal drugs in the car, and the officer’s observations are sufficient grounds for the warrantless search and the seizure of the gun.
Ind. Law - More on "How much snooping is too much?" [Updated]
Updating this post from this morning, two more items:
- Jim Shella of WISH TV has a post headed "Indiana House passes bill to restrict drones" that does not identify the bill or the author, but begins:
State lawmakers took action Monday to limit the ability of the police to conduct video surveillance using a drone.Rep. Speedy has issued this press release:
The one-sided vote in the House of Representatives was 85-to-11 for a bill that would require a search warrant for the use of a drone-mounted camera over private property.
STATEHOUSE — A bill authored by State Representative Mike Speedy (R-Indianapolis) concerning unreasonable searches and seizures by law enforcement passed the Indiana House of Representatives Thursday by a vote of 87-3.
House Bill 1384 prohibits a police officer from downloading information from a telecommunications device such as a cell phone without the owner’s consent, unless otherwise authorized by a search warrant or similar measure.
Police officers are currently prohibited from outright confiscating telecommunications devices, but there is no such provision stopping police officers from forcing citizens to turn over information on the phone without consent. Rep. Speedy has worked to make sure the liberties of Hoosiers are progressing as fast as these emerging technologies.
“Protecting the privacy of personal property should be near the top of every legislator’s list of priorities, for the price of liberty is eternal vigilance,” said Rep. Speedy. “House Bill 1384 just further enforces that Indiana has a strong interest in safeguarding its citizens against unwarranted searches and seizures.”
The Indiana House voted 85-11 Monday to curtail the use of electronic surveillance or data-collecting by police unless under a search warrant or during an emergency such as a terrorist attack.
“This bill concerns balancing privacy and security in the digital age,” said Rep. Eric Koch, R-Bedford.
He said the founders couldn’t have dreamed of circumstances where an unmanned drone could replace a police stakeout or data from cell phones could be used to build a criminal case against someone.
Privacy concerns have grown nationally since the National Security Agency’s controversial warrantless program collecting cell phone data became known.
And the Indianapolis Star reported that the Indiana State Police bought a “Stingray” – a device that can track movements of nearby cell phone users and record numbers from calls or text messages.
Sometimes law enforcement gets an overall court order to collect the data and then mine for patterns that might show a crime.
But Koch’s bill requires obtaining a specific search warrant showing belief that a crime has occurred.
House Bill 1009 also would further study the issue in an interim committee.
“This bill is really the beginning,” he said. “As technology continues to evolve faster than the law new issues will emerge.”
Rep. Matt Pierce, D-Bloomington, said it is interesting when legislation brings people from different political spectrums together.
“Here the Tea Party world meets up and shakes hands with the ACLU,” he said.
Pierce said the bill attempts to limit this type of data-mining so that it adheres more closely to the Constitution’s protections.
Ind. Decisions - Transfer list for week ending January 31, 2014
There were no transfer dispositions last week, and hence, there is no transfer list.
Law - Some looks at the gay marriage issue outside Indiana
- "‘Stunning’ shift on gay marriage is changing political landscape," a Feb. 3rd story by Sean Cockerham, McClatchy Washington Bureau.
- "Republicans Race To Get Ahead Of Gay Marriage Juggernaut," a Feb. 3rd story by Dylan Scott of TPM.
- "Analysis: Marriage shift has Kansas right scrambling, Cultural shift was already underway in 2005," a Feb. 2nd AP story by John Hanna that begins:
Religious conservatives in Kansas fear that the legal wall they built against gay marriage will soon tumble, and they are looking for legislators to help them dig a new line of defense in resisting a growing American tolerance of same-sex relationships.
A cultural shift already was underway in 2005, when 70 percent of voters in a special election approved an amendment to the state constitution to ban gay marriage. Conservative religious leaders and their legislative allies believed the amendment would prevent lawmakers or the state courts from overturning the traditional policy on marriage — perhaps long after a majority of Kansans no longer had moral objections to gay and lesbian relationships.
Gay-marriage opponents now worry that their Kansas bulwark might not hold up much longer, thanks to recent federal court decisions in Oklahoma and Utah striking down those states’ bans. The Kansas House Federal and State Affairs Committee plans to debate a bill Tuesday that anticipates a day when the state recognizes same-sex marriages.
The bill would block lawsuits or sanctions against individuals, groups and businesses refusing on religious grounds to recognize same-sex marriages or declining to provide goods, services, accommodations or benefits to gay couples.
Supporters are quick to note that the bill’s language isn’t specifically limited to same-sex relationships and describe it as an even-handed religious liberties measure. Yet Kansas lawmakers almost certainly wouldn’t be considering such a proposal at all if the legal and cultural climate surrounding gay marriage hadn’t shifted dramatically, endangering the state’s constitutional ban less than a decade after its enactment.
Ind. Gov't. - "Update of crime code fuels fears Lawmakers worry about rise in costs, who will pick up bill"
Among the bills discussed in this ILB post Sunday was HB 1006, the so-called HB 1006 cleanup bill. The summary of the committee testimony quoted indicates that the bill passed out of committee 9-1, despite much testimony against the various amendments.
Also yesterday, the Sunday Fort Wayne Journal Gazette carried a long story by their statehouse reporter, Niki Kelly, taking a hard look at the revisions. Some quotes:
INDIANAPOLIS – Years in the making, a legislative attempt to revamp Indiana’s criminal code is still plagued with financial fears.The story continues:
First, will the changes actually end up adding to the state’s prison population, meaning no savings? And if more low-level, non-violent offenders are sent to local community corrections programs, how do counties pay for it?
“We’re going to have to find an answer for that … or we may be delayed again, and I hope not. I think there are a lot of good things in this bill,” said Senate President Pro Tem David Long, R-Fort Wayne. * * *
The goals of the massive measure are to make punishment more proportional to the crime, force the most serious offenders to serve longer sentences and divert drug addicts and low-level offenders from state prisons to less expensive local treatment and supervision programs to reduce recidivism.
The bill increased the number of felony levels from four to six and spelled out new credit-time rules for early release. All felons would have to serve 75 percent of their sentences, as opposed to the current 50 percent. A few severe crimes would require 85 percent.
At the same time, the bill was designed to give local judges more discretion over when to suspend prison sentences for some crimes, which means some offenders would skip prison and stay in local community corrections programs.
The bill passed but is not effective until July 1 of this year. That left lawmakers more time over the summer to grapple with funding questions.
Now they are back with House Bill 1006 Part Two.
Applied Research Services out of Georgia found that under the bill passed last year the state DOC population would actually rise from the expected 34,120 in 2024 to 35,504.More from this important story:
That doesn’t seem like a large difference but Indiana is on the cusp of needing a new prison, several lawmakers said.
The cost of building one ranges in the hundreds of millions to build and tens of millions to run every year.
So Rep. Jud McMillin, R-Brookville, offered an amendment in committee this year to try to mitigate that.
The biggest change was to revert back to inmates serving 50 percent of their sentence for lower level crimes instead of the proposed 75 percent set to go into place.
But other modifications were made too – walking back some of what was done last year to lessen sentences. For instance, it increased advisory sentences for some crimes; increased sentences for drug crimes and mandated minimum sentences for habitual offenders.
McMillin noted that the drug sentences went up compared with the bill passed last year but are still lower than they are in current law.
“This is a comprehensive piece of work that for the most part people are happy with,” he said.
But Rep. Matt Pierce, D-Bloomington, a coauthor of the legislation, voted against his own bill last week because of the changes. He believes McMillin made too many concessions to county prosecutors “in order to keep them from beating up on us politically.”
“There are some good things in the bill but when you add it all up the negatives are now outweighing the positives,” Pierce said.
He noted a new prison is coming soon and there is still no money for the local level to make the whole program work.
“It’s going to create a huge crash-and-burn train wreck,” Pierce said.
Larry Landis, executive director of the Indiana Public Defender Council, said the bill isn’t “reform” anymore.
“We’re going in the opposite direction now,” Landis said. * * *
And the Indiana Prosecuting Attorneys Council has finally gotten on board – issuing a press release that the group supports the amended House Bill 1006.
“This bill gives prosecutors the tools necessary to keep our communities safe from violent and repeat offenders,” the release said.
But there’s still the issue of funding for local governments too.
McMillin said repeatedly that nothing in the bill “requires” judges to sentence Hoosiers to less time or to probation and home detention. But that is what lawmakers are hoping since it is the goal of the legislation.
“We have to be careful we aren’t taking on an unfunded mandate,” said Beth Lock, lobbyist for Allen County. “We want to keep people local and give them services to reduce recidivism. But we need money to expand our programs.”
Ind. Law - "How much snooping is too much?"
The ILB had three posts in December headed "Indiana State Police tracking cellphones — but won’t say how or why." Here is the most recent, from Dec. 19th. The Dec. 10th entry reported that "At least three state senators plan to introduce legislation that would ban police from gathering cell phone data without first acquiring a warrant."
Barb Berggoetz wrote Sunday in (what used to be) the Indianapolis Star's "Behind Closed Doors" column:
His anti-surveillance bill stalled in an Indiana Senate committee last week on a 5-5 vote, but [Mike Delph, R-Carmel] pledged to try to amend the language into another bill this week.
Senate Bill 231 would impose felony penalties for illegal searches and seizures of electronic communication without court-ordered warrants or under exigent circumstances.
The bill is one of three anti-surveillance measures being considered by the legislature now, one of which has passed the House. * * *
Most senators on the committee expressed support for the bill's concept of protecting citizens from an invasion of privacy. But several said they are concerned about too many unanswered questions in the bill and that Delph doesn't yet have the support of the Indiana State Police. * * *
The Indiana State Police acknowledged in December it had acquired the Stingray technology, a surveillance device which acquires cell phone data potentially from hundreds of people at once. Gov. Mike Pence has said he supports limited use of the technology, as long as it is overseen by a judge.
Delph said he was motivated to introduce the bill, primarily after reports of widespread electronic surveillance by the National Security Agency.
"If you're a bad guy, we're going to go after you," he said. "If you're a good guy we're going to respect you and not go after you."
Sen. Brent Steele, R-Bedford, who voted to approve the bill, said he's still not comfortable with it and wants Delph to be able to work out any differences with the State Police before voting for it on the floor.
"I don't want to impede the work of the State Police," he said.
Ind. Gov't. - "Can local private schools continue to teach intelligent design and creationism with state-funded voucher money flowing into the schools?"
That is the question addressed in this lengthy story by Julie Crothers in the Feb. 2nd Fort Wayne Journal Gazette. Some quotes:
Indiana’s rapidly expanding voucher program, which funnels millions of taxpayer dollars into private schools, now funds some Christian schools that teach creationism or intelligent design.See also this January 29th ILB post.
Laws and court rulings limit what the state’s public and charter schools can teach in science classes based on separation of church and state challenges. But the curricula of private schools that enroll voucher students haven’t reached the courtroom.
The rapid growth of the program opens the door to an unanswered question: Can local private schools continue to teach intelligent design and creationism with state-funded voucher money flowing into the schools?
Experts say the issue will have to be addressed in courtrooms. * * *
Five area Christian schools that confirmed students are taught creationism or intelligent design, or included curriculum information on their websites stating that they do not teach evolution, received a combined $3.9 million in state-funded vouchers.
Environment - "Department of Natural Resources OKs Americus stone quarry permit"
Updating this ILB post from July 24, 2013, titled "Environment - More on "More than 400 sign petition objecting to gravel mine north of Americus", Emily Campion reports Jan. 30 in the Lafayette Journal Courier in a story that begins:
The Indiana Department of Natural Resources issued a permit to Rogers Group Inc. for its proposed stone quarry about a mile north of Americus off Old Indiana 25.
The permit is one of the group’s final stages before beginning construction on the site. The Rogers Group, founded more than 100 years ago in Bloomington, employs more than 1,400 people and operates in nine states.
The DNR permit application included studies to indicate the quarry’s potential effect on the flood plain, water, wildlife, among other environmental factors, according to group’s press release.
The last legal hurdle is to follow up on a request made to the Tippecanoe County Board of Zoning Appeals for a conditional use permit. The BZA will weigh the request at its June meeting.
Not all are pleased with the proposed Americus stone quarry, specifically those who live in the 200 homes within a mile or so of the proposed site — 524 acres between the Wabash River and Old Indiana 25.
Ind. Gov't. - "Lawmakers advancing proposals quickly in short legislative session"
Dan Carden of the NWI Times reports this weekend with a list of some of the bills that passed the first House and " that may soon become state law, if the House and Senate both agree to them and Republican Gov. Mike Pence also signs on."
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 2, 2014:
- Ind. Law - The mysterious LSA memo on amending the Indiana Constitution [MUST READ]
- Courts - As of Jan. 27th, "Justice Samuel Alito Jr. has recused himself 52 times since the term began in October"
- Ind. Courts - Check out the newest 2014 summaries of bills of interest to the judiciary [MUST READ]
- 10 years ago this week in the ILB [MUST READ]
- Ind. Gov't. - "Nuclear power project financing option sticks ratepayers with tab"
From Saturday, February 1, 2014:
- Ind. Courts - "Fired drug court director: I am a ‘scapegoat’"
- Ind. Gov't. - "Amendment foes use language of faith to lobby lawmakers"
- Ind. Courts - "Marion County GOP Slates Judicial Candidates"
From late Friday afternoon, 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."
- Ind. Decisions - David Camm story on 2-hour NBC Dateline tonight
- Courts - "Muncie native joins U.S. Court of Appeals"
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court (week of 2/3/14):
Monday, February 3
- 9:00 AM - Fishers Adolescent Catholic Enrichment Society, Inc., v. Bridgewater (93S02-1310-EX-704) Fishers Adolescent Catholic Enrichment Society, Inc. ("FACES") provided enrichment opportunities to the homeschooled children of its member families. One family, the Bridgewaters, filed a complaint with the Indiana Civil Rights Commission ("ICRC") alleging FACES discriminated against their daughter by failing to accommodate her medical disability at a FACES sponsored dinner-dance. Thereafter, FACES expelled the Bridgewaters. The ICRC concluded that although FACES did not fail to accommodate the daughter's disability, it did commit unlawful discrimination by expelling the Bridgewaters in retaliation for their filing the complaint. The Court of Appeals affirmed, in part: Fishers Adolescent Catholic Enrichment Soc'y Inc. v. Bridgewater, 990 N.E.2d 29 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a May 29th COA opinion where the COA held: "We conclude that the nature and features of FACES make the organization sufficiently related to education such that the ICRC’s jurisdiction is proper, and we uphold the ALJ’s conclusions, with one exception. We find the ALJ’s order that FACES post its decision on all websites on which they communicated information regarding the case to be unconstitutional compelled speech, and we reverse this portion of the order. We affirm in part and reverse in part."
- 9:45 AM - Douglas A. Guilmette v. State of Indiana (71S04-1310-R-705) When Guilmette was arrested for theft, police saw what they believed to be blood on his shoes, and without obtaining a search warrant, they sent the shoes for DNA testing. Guilmette was later charged with murder, and the test results were admitted at trial. Guilmette was found guilty of theft and murder. The Court of Appeals held that testing the shoe, taken incident to the theft arrest but used as evidence of the murder, was an unconstitutional search, but that given the other evidence in the case, the erroneous admission of the DNA evidence was harmless error. Guilmette v. State, 986 N.E.2d 335 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an April 22nd COA opinion that concluded:
Guilmette contends that the trial court admitted the DNA evidence recovered from his shoe in violation of Article 1, Section 11 of the Indiana Constitution. Specifically, he argues that the shoe, taken incident to his theft arrest, was unconstitutionally searched for evidence of the murder. * * * The DNA evidence from the shoe was not the strongest evidence of guilt. It merely consisted of testimony that a small stain on Guilmette’s shoelace tested presumptively for blood and that subsequent DNA testing gave a mixture from which both Piechocki and Guilmette could not be excluded. Moreover, the testimony of four separate and independent witnesses that Guilmette admitted killing Piechocki with a baseball bat constituted overwhelming substantial independent evidence of guilt. Thus, the erroneous admission of the DNA evidence from the shoe was harmless.
- 10:30 AM - Gayle Fischer v. Michael Heymann, et al. (49S02-1309-PL-620) After the defendants were found to have breached their contract with the plaintiff, the Marion Superior Court awarded the plaintiff $93,972.18 in damages. The Court of Appeals reversed, holding that the trial court’s findings do not support that award, and remanded with instructions to award the plaintiff $117 in damages, plus attorney’s fees commensurate with that recovery, and costs. Fischer v. Heymann, 994 N.E.2d 1151 (Ind. Ct. App. 2013), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a June 7, 2013, 2-1 COA opinion, involving mitigation of damages.
Thursday, February 6
- 9:00 AM - McLynnerd Bond, Jr. v. State of Indiana (45S03-1309-CR-597) While Bond was under arrest on an unrelated charge, a Gary police detective questioned Bond about a murder. The detective told Bond it was unlikely anyone from his “part of the hood” would be on his jury. During the interview, Bond confessed to the murder. Prior to trial on the murder charge, Bond moved to suppress the interview contending that his confession had been involuntary. The Lake Superior Court “strongly discouraged” police from telling defendants they could not receive a fair and impartial jury due to location of the courthouse, but denied the motion to suppress. A divided Court of Appeals affirmed in Bond v. State, No. 45A03-1205-CR-212 (Ind. Ct. App. May 31, 2013) (NFP mem. dec.), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a May 31, 2013, 2-1 NFP COA opinion dealing with police conduct. From the dissent: "Yet each time courts allow such conduct, they implicitly sanction it and encourage the next police officer in the next interrogation to go a bit further, to be more offensive, more racist and more deceptive."
- 9:45 AM - Caterpillar, Inc. v. Indiana Department of State Revenue (49T10-0812-TA-70) In calculating its net operating losses, Caterpillar, Inc., deducted foreign source dividend income and carried back unused losses to prior tax years. The Indiana Department of State Revenue recalculated Caterpillar's net operating losses by adding back the foreign source dividend income and denied Caterpillar's protest. The Tax Court granted summary judgment to Caterpillar. Caterpillar Inc. v. Indiana Dep't of State Revenue, 988 N.E.2d 1269 (Ind. Tax Ct. 2013). The Department of Revenue has petitioned the Supreme Court for review.
ILB: This is March 28th Tax Court opinion, holding:
This matter concerns the proper calculation of Indiana net operating losses (NOLs) available for carryover when a corporation receives dividend income from its foreign subsidiaries (Foreign Source Dividends or FSDs). Caterpillar, Inc. and the Indiana Department of State Revenue are currently before the Court on cross-motions for summary judgment. While the parties offer several reasons to support their positions, the dispositive issue is whether Caterpillar’s FSDs are deductible in calculating its Indiana NOLs, including those available for carryover as a deduction from taxable income in future years under Indiana Code § 6-3-2-2.6.1 The Court finds that they are.
- 10:30 AM - Larry R. David, II v. William Kleckner, M.D. (49A02-1301-MI-13) When the defendant sought summary judgment on grounds that the Medical Malpractice Act’s two-year statute of limitations bars the plaintiff’s complaint, the Marion Superior Court granted the defendant summary judgment. The Court of Appeals affirmed, holding the trial court properly found that statute of limitations bars the malpractice claim and that the doctrine of fraudulent concealment does not prevent the defendant from asserting the statute of limitations. David v. Kleckner, No. 49A02-1301-MI-13 (Ind. Ct. App. June 14, 2013) (NFP mem. dec.). The plaintiff has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a June 14th decision that held: "The trial court properly found that the Estate’s medical malpractice claim against Dr. Kleckner was barred by the statute of limitations. Further, the trial court properly found that the doctrine of fraudulent concealment does not bar Dr. Kleckner from asserting the statute of limitations defense. The trial court properly granted Dr. Kleckner’s motion for summary judgment."
This week's oral arguments before the Court of Appeals (week of 2/3/14):
Monday, February 3
- 10:00 AM - Robin Harper v. State of Indiana (49A04-1305-CR-222) Harper appeals her conviction for Class A misdemeanor resisting law enforcement. The trial court found that the responding officer “used a ruse in his conversations with” Harper and, when Harper opened her door to the officer as a result of that ruse, the officer arrested Harper and handcuffed her. Harper argues that because of the ruse used by the officer, the officer was not “lawfully engaged in the execution of his duties” when she twisted away from the officer shortly thereafter as he attempted to remove her wedding ring prior to transporting her for booking, where accused criminals are allowed no personal jewelry. Harper’s conduct resulted in a charge of and conviction for resisting law enforcement. Harper was sentenced to 365 days, with credit for time served as a result of her conviction and the remainder of her sentence was suspended. The Scheduled Panel Members are: Judges Mathias, Bradford, and Pyle. [Where: Fishers High School Auditorium, 13000 Promise Road, Fishers]
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.
Sunday, February 02, 2014
Ind. Law - The mysterious LSA memo on amending the Indiana Constitution
Back on the November 26, 2013 edition of Indiana Week in Review I heard a mention that Senator Long had received an LSA memo addressing whether a constitutional amendment had to pass two General Assemblies in the same form and that the memo cited two authorities, presumably cases, that said no. I tried but couldn't turn up a copy of the memo.
I've researched, but only found one case that I thought might be worth considering. I've mentioned that opinion in several ILB posts recently. See this Dec. 15, 2013 ILB post, the last part of which discusses our Supreme Court's Feb. 24, 1972 decision in Roeschlein v. Thomas.
It may be a rewrite, or copy of an old LSA memo, as I've also located this interesting ILB entry from March 21, 2007, which seems to envision a doctrine of "substantial compliance" with respect to requirements for constitutional amendments (as opposed to "exactly in the same form").
The Sunday issue of the now $$ Evansville Courier & Press boasts of a story by Chelsea Schneider titled "Amendment process not always by the book." Because of the paywall, all I can access of the story is:
Amending Indiana’s constitution is a multi-year process. But twice in the state’s history the General Assembly cut that process short.Perhaps one of the times referenced resulted in the 1912 Supreme Court opinion in Ellington v. Dye, where the General Assembly unsuccessfully had attempted a wholesale rewriting of the Indiana Constitution, by statute. For more, see the latter part of this Jan. 13, 2014 ILB post.
Courts - As of Jan. 27th, "Justice Samuel Alito Jr. has recused himself 52 times since the term began in October"
So reported Tony Mauro of the The National Law Journal. A quote:
Justice Samuel Alito Jr. has recused himself 52 times since the term began in October, a pace that could exceed his roughly 70 recusals last term. Most appear to have been triggered by his inheritance of stock in companies that are parties before the court — though many of the conflicts are not obvious from his most recent financial disclosure form. In most of the recusals, Alito bowed out of decisions that denied review of petitions before the court.
"Fifty-two recusals to this point in the term is an astounding number, regardless of how many of the cases were granted," said James Sample, a judicial ethics expert at the Maurice A. Deane School of Law at Hofstra University. "While justices holding individual stocks is not new, it may be that the extent and reach of those individualized holdings, in certain instances, is now great enough to risk diminishing the finite public resource" of the court as a nine-justice institution. * * *
Alito is not the only justice stepping aside. Justice Elena Kagan has recused herself more than twice as often as Alito so far this term — 113 times — but almost all appear to be explained by her involvement in the cases as U.S. solicitor general before she joined the court in 2010. Last term, for the same reason, Kagan recused herself 220 times.
Justice Sonia Sotomayor has recused herself 31 times this term, almost all in cases that came from the U.S. Court of Appeals for the Second Circuit, where she was a judge before joining the Supreme Court in 2009.
Ind. Courts - Check out the newest 2014 summaries of bills of interest to the judiciary
Check out the fourth weekly installment of the valuable Legislative Update for the 2014 legislative session, from The Indiana Judicial Center.
This week's reports are dated Jan. 31. Keep scrolling down to see those from the earlier weeks of this year's session.
The "summaries of bills of interest to the judiciary heard this week in committee" are still of bills in the first house committee. But that changes with the coming week.
The discussion on several bills caught my attention, and the entire list deserves careful reading:
- SB 395, bail, which is on the 2nd reading calendar Monday.
- SB 109, which is on the 2nd reading calendar Monday, removes the current mandatory retirement age of 75 years for appellate judges and allows appellate judges to retire at the age that judges of the circuit and superior courts are required to retire (which currently is never).
ILB: Of interest here is this ILB post from last year when a similar effort was made. One wonders why, if the GA intends to change the age for appellate court retirements, they do not do so directly ...
- SB 366, Marion County small claims courts, which is on the 2nd reading calendar Monday. Here is part of the committee discussion:
Judge Spear of the Perry Township Small Claims Court explained that the bill will allow small claims judges administer their own courts by having the ability to adopt their own rules. Judge Rehme of the Lawrence Small Claims Court, and Judge Kitley, Franklin Township Small Claims Court, also testified in support of the bill. Mr. Stephen Lerch, a consumer collection attorney, testified in support of the bill. Mr. Jonathan Sturgill, attorney and president of the Indiana Creditors Bar Association, testified in support of the bill.ILB: This is a much clearer and more detailed report than the one the ILB gave on Jan. 30th. The bill as now amended would attempt to address the myriad problems reported with the small claims courts over the past several years simply by eliminating any supervision of these courts, other than from the small claims judges themselves. A review of the testimony above shows how the various interests line up on this approach.
Judge Rosenberg, Marion County Circuit Court, testified that he believed the bill is premature and urged the committee to have a county-wide perspective for operations regarding rules, practices and operations. Judge Rosenberg further explained that Marion County has solicited assistance from the National Center for State Courts on this issue.
Judge Baker, Indiana Court of Appeals, at the request of Chief Justice Dickson, explained that a small claims court task force has issued a report to the Indiana Supreme Court concerning the small claims court in Marion County becoming a part of the superior court. Judge Baker requested a “time out” for the bill, so that continuing processes can be addressed and expertise through the National Center for State Courts can be utilized. Judge Baker would like a summer study committee to be convened to review small claims court issues. Regarding the garnishment provisions, Judge Baker supports judges continuing to have discretion.
A second amendment was introduced, and adopted by consent, sending certain issues in the bill (while not stripping the bill) to a summer study committee related to: (1) small claims court administration; (2) the jurisdictional amount in small claims actions; and (3) venue and the distribution of judicial resources in small claims actions. Those three issues were sent to the commission on courts or another appropriate legislative committee for further review. The amended bill passed 5-4.
- The House Courts and Criminal Code Committee heard HB 1006, authored by Rep. Steuerwald, that reconciles technical and substantive conflicts between HEA 1006-2013 (the criminal code revision bill) and other bills touching on criminal law. This is the “cleanup” bill for the penal code reform legislation passed last year and going into effect July 1, 2014. (Note that the 2014 “cleanup” bill has been given the same number – HB 1006 – as the 2013 reform bill had, so that now references are being made to “HEA 1006-2013” and “HB 1006-2014.”) Author Rep. Steuerwald presented the bill. He pointed out that the cleanup bill had been approved in December by the Criminal Law and Sentencing Policy Study Committee. This bill passed the House on Jan. 28th.
[ILB: The summary then lists substantive amendments from the study committee, and the many more changes made during the course of the committee meeting. One of those was "Amendment 4". Here is the discussion.]
The fourth amendment contained changes that are more controversial and was adopted by an 8-2 vote. The amendment:
(1) reduces the “enhancing circumstance” “drug-free” zone from a 500 foot radius to a 250 foot radius but eliminates any requirement that children be shown to have been reasonably expected to be present, and restores family housing complexes and child care facilities to the list of places protected by the zones;The Indiana Prosecuting Attorneys Council and several prosecutors testified in favor of the bill provided amendment 4 was adopted.
(2) adds as an “enhancing circumstance” that the offense was committed in “the physical presence” of a child under 18, knowing the child was present and might be able to hear or see the offense;
(3) changes the penalty levels for dealing in cocaine, narcotic drugs, or methamphetamine from Level 5 up to Level 4 for under 3 grams, from Level 4 up to Level 3 for 3 to 10 grams, from Level 3 to Level 2 for over 10 grams, and eliminates the Level 2 offense category for amounts over 28 grams;
(4) amends the suspension statute to provide that the “minimum sentence” for Level 2 and Level 3 felonies for offenders with a prior unrelated felony conviction cannot be suspended, but also adds an exception to provide that sentences for Level 2 and 3 IC 35-48-4 drug offenses are fully suspendible even if the offender has a prior felony;
(5) provides that the minimum sentence for any murder or Level 1 felony cannot be suspended;
(6) reduces the “drug free” zone for specific drug offenses from a 500 foot radius to a 250 foot radius and adds child care facilities to the list of places protected by the zones;
(7) provides that persons convicted of Level 6 felonies will earn a day of credit time for each day served, instead of a day of credit time for every three days served.
The Public Defender Council said that he could not support the bill with amendment 4 due to the increases in drug crime penalties.
Chief of Staff for the DOC noted the DOC’s concern about the legislation’s credit time changes and sentence increases having the effect of significantly increasing DOC prisoner population. He presented revised DOC estimates based on the bill’s impact without including the amendment 4 drug crime penalty increases. Those estimates were that the DOC would need funding in 2017 for a new facility, and for another facility in 2019, at an estimated capital cost of 140 million for each facility and an additional operating cost per new facility of 40 million annually. He also estimated that the increases in advisory sentences would require increases in DOC appropriations next year, along with additional funds for housing increases in 2015.
Rep. McMillan observed that these DOC estimates do not contemplate a major expansion of community corrections programs for offenders, an expansion he said he would have legislators consider.
Rep. Matt Pierce observed that with these new estimates, and the amendment 4 changes, the fiscal impact of the reform legislation sentencing changes would have to be reevaluated while the bill works its way through this legislative session. Rep. Pierce said that the increases in amendment 4 for the drug crime sentences amounted to such a step backward from the original aims of the reform project that he would not support the bill with those changes.
After discussing the bill and the amendments, the Committee voted 8-2 to adopt amendment 4 and passed the bill as amended with a vote of 9-1.
ILB: There has been much press on HB 1006, nearly all of it, including this story Feb. 2 in the Muncie Star-Press, reflecting the interests of the Indiana Prosecuting Attorneys Council.
10 years ago this week in the ILB
Howard Bashman's How Appealing has a post today on 10 years ago in his blog's history, and it is such a good idea the ILB is adopting it.
On Feb. 4, 2004, the ILB had a post headed: "Indiana Law - Gay Marriage and Civil Unions Update." The post discusses the then-just decided Massachusetts Supreme Court decision in Goodridge, and then quotes from a Louisville Courier Journal story:
The Senate voted yesterday to amend the Indiana Constitution to ban same-sex marriages, but the proposal is unlikely to gain much traction in the House. The amendment, Senate Joint Resolution 7, passed 42-7. * * *
Indiana law already defines marriage as the legal union of one man and one woman. The state also passed a "defense of marriage" law in 1997 that says Indiana does not recognize same-sex marriages or civil unions that take place in other states.
But last year a group of homosexual couples sued the state, asking for the right to marry. A Marion Superior Court judge dismissed the case, saying state law defined marriage as one man and one woman, but the group has appealed. * * *
However, Democrats who control the Indiana House have refused to hear a similar proposal by state Rep. Dennis Kruse, R-Auburn, even though a majority of the chamber's members have signed on as co-authors.
House Rules Committee Chairman Scott Pelath, D-Michigan City, said the proposal "is not a priority" for the House. A handful of senators yesterday agreed.
Ind. Gov't. - "Nuclear power project financing option sticks ratepayers with tab"
John Russell of the Indianapolis Star reported again yesterday on SB 302, a bill that was withdrawn Jan. 21st and about nuclear power in Indiana. In a Jan. 16th story, Russell wrote at length about the financing option of construction work in progress (CWIP):
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.
As the ILB posted on Sept. 13, 2009:
[CWIP]was a major issue in the Marble Hill debate in the early 1980s. A rationale for its use is to prevent "rate shock," the large increase in electrical prices that occurs when a massive new electricity generating plant enters the rate base. Other alternatives to address rate shock may include joint ownership, smaller plants, rating trending, and economic depreciation. I mention this because it has been many decades since Marble Hill's construction was halted; at the time CWIP was a phrase used in everyday conversation.Mike Smith of the AP wrote on Sept. 14, 2009:
Moses pointed to Public Service Co. of Indiana's failed effort to build a nuclear plant near Madison in southeastern Indiana. [ILB - This was Marble Hill] PSI told stockholders in 1973 the plant would cost $793 million, but after a decade that saw double-digit inflation, construction delays, intensified federal regulation and high interest rates, the estimate soared to $7 billion.And from yesterday's Star story:
A task force appointed by then-Gov. Bob Orr recommended in 1983 it be canceled and PSI not be allowed to recover its costs from customers. PSI, which eventually merged with Cincinnati Gas & Electric Co. to form Cinergy Corp., abandoned the project in 1984 after spending more than $2 billion. Moses said the utility and its stockholders had to eat the costs.
Merritt said allowing utilities to recover costs from rate payers while building nuclear plants would be a "powerful incentive" for establishing them in Indiana. He supports the position of the Nuclear Energy Institute, which considers nuclear energy a source of clean-air, carbon-free electricity.
In Mississippi, the construction cost of a new coal-gasification plant has jumped from $2.8 billion to more than $5 billion. The state legislature had allowed the owner, Southern Co., to charge customers for the up-front construction costs, a move that pushed monthly bills up 15 percent this year alone.
In Indiana, the only power plant to be built under CWIP financing is Duke Energy's coal-gasification plant in Edwardsport. The cost of the plant, originally approved at $1.9 billion, has soared to more than $3.3 billion, with ratepayers picking up much of the increase.
Analyzing the track record
Some critics point to the track record and say CWIP is an open checkbook for big energy companies who can't get funding for expensive new plants from banks or Wall Street. * * *
Supporters also say CWIP is necessary because building a nuclear plant, even a small modular reactor, is so expensive that banks and Wall Street have shied away. They say they need ratepayers to help with the up-front costs that will generate benefits down the road.
But critics say the reason Wall Street won't finance nuclear power is not because it is too expensive, but because it's a losing economic proposition. Other forms of energy, including natural gas, are much cheaper today.
Wall Street, after all, invests heavily in other billion-dollar industries, from computer-chip factories to energy pipelines.
"The test that nuclear can't pass isn't how big it is, but whether energy can be generated at much lower cost in other ways," said Peter Bradford, a former member of the U.S. Nuclear Regulatory Commission and former chair of the New York and Maine utility regulatory commissions. "The answer is clearly yes."
A looming issue is how much a new nuclear project will cost — even at the small modular reactors, which are still years away from going from the drawing board to production. It's difficult to give a price for one, since a utility has yet to buy or build one.
Saturday, February 01, 2014
Ind. Courts - "Fired drug court director: I am a ‘scapegoat’"
Updating earlier ILB entries on this story, including this one from Jan. 29th, along with this one headed "Clark County judge fires drug program chief," Gary Popp reports today in the Jeffersonville News and Tribune:
Susan Knoebel says she has been put through “hell” as controversy grew surrounding the Clark County drug program she directed over the past few months.This is a very long story, the above quotes are just the beginning.
It’s that and the scrutiny of two investigations that she said led to her firing Tuesday by Judge Jerry Jacobi, who oversees the Clark County Drug Court Treatment Program. She said although she ran the day-to-day operations of the program, the blame for any issues stretches beyond her.
“For me to be used as a scapegoat — I am a single mom with two boys [8 and 13 years old] who have health problems and my insurance runs out tomorrow,” Knoebel, who until recently was Clark Circuit Court No. 2’s chief probation officer, said, adding that her firing is politically motivated. “And, for them to be worried about re-election, you know, I have been put through hell with this.
“All I have done is my job to the best of my ability and followed the direction and orders of the judge I work for,” Knoebel said of Jacobi, who she says she has worked under for 14 years.
She said signs of trouble to come were first realized after Jacobi requested a private investigation that was conducted in October. The investigation looked into a home visit of a drug court participant and the arrest of another participant at this place of work, which both involved Knoebel and Jeremy Snelling, a bailiff in Jacobi’s court and former drug court field officer.
After the News and Tribune reported on the private investigation and an second investigation began by Indiana State Police surrounding those incidents, Jacobi placed Knoebel and Snelling on unpaid suspensions Jan. 7. [see post here]
In the following weeks, allegations of participants being unlawfully incarcerated and stripped of their due process rights began to surface, including the case of a Jeffersonville woman drug court participant Destiny Hoffman, who was jailed for nearly five months without seeing a judge. The story received national and international media attention when outlets picked up the News and Tribune’s article.
Ind. Gov't. - "Amendment foes use language of faith to lobby lawmakers"
Maureen Hayden, CNHI Statehouse Bureau Chief, reports in a really excellent story today, here in the Lebanon Reporter, on how religious leaders on both side of the issue are influencing the legislative vote on HJR 3. A few quotes from the long story:
In a decade since the marriage amendment was first proposed, the conventional view has held that it pits religious forces against secular proponents of marriage equality for gays and lesbians. While religious beliefs still infuse arguments for the amendment, the changing minds of voters and some legislators may be a testament to liberal and moderate clergy — and their followers — who’ve used the language of faith to counter the moral claims of amendment supporters.Also available here via Howey Politics.
“I’d go to my son’s basketball game, and I’d have folks whom I know are Christians and leaders in their churches want to sit with me and spend an entire quarter of a basketball game in a high school gym talking about this,” [State Rep. Kevin Mahan] said earlier this week. “They’d say, ‘I used to support this but now I don’t.’ I had to listen to that stuff.”
On Monday, 51 of Mahan’s colleagues, including 22 Republicans, agreed with him. Their vote left intact the ban on gay marriage, but the change in the resolution’s language to remove civil unions could delay or derail the amendment by keeping it off the November ballot. Two separately elected legislatures must approve a proposed constitutional amendment — of the exact same wording — before it goes to voters for ratification.
Shouts of “Hallelujah!” and “Thank God!” could be heard from amendment opponents in the hallway outside the House chamber after the vote. Those religious expressions weren’t just reserved for the dramatic finish. For months, arguments of morality and belief have framed both sides. * * *
“It’s a very personal issue for many people,” said the Rev. Patricia Case, a minister in the Christian Church, Disciples of Christ.
Republican state Rep. Tom Saunders came to see it that way after he was contacted by clergy in his rural district in eastern Indiana who opposed the amendment. Saunders voted for the measure in 2011, but changed his mind after seeking out counsel from his own minister last fall.
“She said the Bible says, ‘Love thy neighbor,’” said Saunders. “Well, I live in a town of about 500 people, and my neighbor and her partner are gay and they fly the rainbow flag. You can’t love your neighbor and treat them like second-class citizens.”
Curt Smith, who heads the pro-amendment Indiana Family Institute, said Freedom Indiana’s faith organizers have had an impact on the debate in the Statehouse. The rising voice of clergy in opposition to the amendment prompted Smith’s organization to create the Indiana Pastors Alliance, which claims 600 members.
“We’ve had to be more intentional about finding voices who could testify for the amendment and contact people in their House districts,” Smith said. He credited Freedom Indiana for mobilizing an effective grassroots effort. “Clearly the other side has done a good job of putting a human face to the context of what we’re talking about.”
The faith-based opposition to HJR-3 joins a vocal coalition that includes some of the state’s biggest employers, universities and mayors of cities big and small. Ball State University political scientist Andy Downs said it adds a new element that counteracts the notion that there is only one theological view on marriage.
And it gives legislators in a conservative state some political cover to question the need to amend the constitution when there is already a law on the books that bans gay marriage.
“I think they’re hearing more people of faith question the need for a constitutional amendment,” Downs said. “More and more people seem to be asking: ‘If the law already says you can’t do it, why do we need to throw another stone on the pile?’"
State Rep. Ed Clere of New Albany agrees. In 2011, he was the only Republican in the Legislature to vote against the amendment. On Monday, 13 Republicans voted against the amendment even after it was stripped of the civil union language, along with Democrats who’d voted for the amendment the last time.
“The physical presence of clergy in the Statehouse has been a major factor,” Clere said. “I don’t think it’s something that a lot of legislators expected to see. It’s certainly added a welcome dimension.”
Still, there are questions about how many more legislators amendment opponents can convert. The stripped-down resolution is headed to the more conservative Senate, which passed the amendment on a 40-10 vote in 2011.
Ind. Courts - "Marion County GOP Slates Judicial Candidates"
Advance Indiana reports on the judicial results of this morning's Republican slating convention. Gary Welsh writes:
The following eight candidates have been nominated as the party's candidates for the eight superior court positions chosen by the Republican Party:For background, see this Jan. 10th ILB post, especially "Update #4."
Cynthia Ayers (I)
Dave Certo (I)
Kurt Eisgruber (I)
Gary Miller (I)
Marilyn Moores (I)
Tim Oakes (I)
Marc Rothenberg (I)
The sole losing candidate for slating this morning as a superior court judge was Rom Byron. The Democrats will slate their eight superior court candidates next week at their slating convention.
[More] From the Marion County Republican Party news release, just received:
The party also voted to endorse veteran Indianapolis Attorney P.J. Dietrick and all seven incumbent Superior Court Judges who are up for re-election in 2014. Therese Hannah received the party endorsement for Marion County Circuit Court. "The individuals who received party endorsements for the Marion County Circuit and Superior Courts are all extremely well-qualified and well-respected members of the legal community. They will uphold the highest ethical standards and ensure that justice in Marion County is served fairly and impartially", said Chairman Walker.
Endorsements for Superior Court Judge: