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Monday, March 31, 2014

Ind. Courts - Sarah Evans Barker Announces Decision to Take Senior Status

Sarah Evans Barker was appointed to the federal bench 30 years ago and I remember it well. There were no women on the federal courts in Indiana, and few women judges anywhere in 1984. Here is the news release:

Today, the Honorable Sarah Evans Barker, United States District Judge for the Southern District of Indiana, notified President Barack Obama of her intention to take senior status effective June 30, 2014.

Judge Barker joined the Court thirty years ago today, having been appointed by President Ronald Reagan, with the support of then-United States Senators from Indiana Richard G. Lugar and James Danforth Quayle. She was the first woman appointed to the federal court in Indiana, filling the vacancy created by the death of Cale J. Holder.

During her thirty year term as an active Judge of the Court, Judge Barker has held numerous appointments and assumed many other duties. She served as Chief Judge from 1994-2001, and has served terms on the Judicial Conference of the United States and its Executive Committee, Long Range Planning Committee, Standing Rules Committee, Budget Committee, and Judicial Branch Committee (ex-officio). She was appointed by Chief Justice William H. Rehnquist to serve on the Special Study Committee on Judicial Conduct and Disability (the “Breyer Committee”). She was a member of the Devitt Award Selection Committee and served as a member of the Judicial Fellows Commission under the aegis of the Supreme Court. She is currently serving on the Judicial Conduct and Disability Committee, having been appointed by Chief Justice John G. Roberts. She also served a two-year term as President of the 900- plus member Federal Judges Association, composed of Article III Judges from across the country, from 2007 until 2009.

Judge Barker will continue to carry a full caseload until a successor is appointed by President Obama, with the guidance of Indiana’s United States Senators Joseph S. Donnelly and Daniel R. Coats. When her successor is appointed, Judge Barker expects to cut back her caseload to 80% of that of a full draw.

Chief Judge Richard L. Young remarked on behalf of the Court, “Judge Barker has long been a trailblazer in the legal community, from her initial appointment as the first woman Assistant United States Attorney, followed by becoming the first woman Federal Judge in Indiana, continuing to her current role as a member of the Court. In her thirty years as a district judge, she has bridged two judicial generations and provided valuable leadership and guidance to the bench and bar. We are very grateful for her continued service to the Court and the citizens of the Southern District of Indiana.”

Judge Barker stated: “It has been and continues to be an extraordinary privilege to serve as a federal judge in our Southern District. I have been the beneficiary of valuable, selfless guidance and support from many wonderful, highly talented colleagues, law clerks, court staff and lawyers, and most of all from my beloved husband, Ken, and our family. Over the years, of course, I have experienced many changes in the operations of the Court, the judicial system, and in my interactions with the bar. To have been in a position from time to time to give some of those changes a little encouragement and a nudge in the right direction has been both satisfying and fun. At heart, the things that drew me to this work initially remain the things that continue to attract and deserve my interest, my time, and my devotion: the opportunity to make a difference in the quality of justice in our state and in the lives of my fellow citizens.”

[More] The ILB has located this interesting 168-page (double-spaced) interview of Judge Barker, conducted by Indiana Court of Appeals Judge Nancy Vaidik for the ISBA oral history program.

Here is a 10-page bio from the Indianapolis Bar Association.

Judge Barker was president of her dorm, Sycamore Hall, while she was at undergrad at Indiana University.

ILB: Sycamore Hall was also my dorm, and I lived there during much the same time-frame, but did not know Sarah Evans. My most vivid memory of the period was sitting in the basement of Sycamore, in the TV room with the B&W grainy reception (where we all usually watched Gardner McKay in Adventures in Paradise), watching JFK's assassin, Lee Harvey Oswald, being escorted by burly law enforcement officers, and then suddenly shot dead by Jack Ruby.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 27 NFP)

For publication opinions today (5):

In Debbie Mitchell v. Review Board of the Indiana Department of Workforce Development, and Midwest Mobile Care, Inc., an 8-page opinion, Judge Robb writes:

Debbie Mitchell appeals the decision of the Review Board of the Indiana Department of Workforce Development (“Review Board”) that she was not entitled to additional unemployment insurance benefits. Mitchell raises one issue for our review: whether the Review Board erred in affirming the findings of the Administrative Law Judge (“ALJ”) that she was not partially unemployed. Concluding the Review Board did not err in applying the unambiguous statute defining partial unemployment, we affirm.
In Victor W. Goodman and Jacquelyn C. Burke v. Steven L. Serine, Suzanne M. Serine, United States of America Department of the Treasury Internal Revenue Service, Robert J. DeGrazia, et al. , a 6-page opinion, Judge May writes:
Victor Goodman and Jacquelyn Burke (collectively, “Goodman”) appeal a summary judgment in favor of the Internal Revenue Service (IRS). The court granted summary judgment after finding tax liens remained on property Goodman bought even though a bankruptcy court had ordered the property could be sold free and clear of all liens. As the trial court was not the proper forum for the resolution of that matter, we vacate its judgment and direct it to dismiss Goodman’s complaint to quiet title. * * *

As the issues in the case before remain subject to bankruptcy court jurisdiction, we vacate the trial court’s judgment and direct it to dismiss the quiet title action.

In Dustin Lee Jarrell v. Billie Jo Jarrell , a 15-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not err in declining to consider the Relocation Factors because Father acquiesced to Mother’s relocation. Furthermore, the trial court did not err in modifying the custody order because there is evidence to support the findings that there was a substantial change in circumstance and that modification is in G.J.’s best interests.
In Jeffrey Metzger v. State of Indiana , a 6-page opinion, Judge Riley writes:
Metzger raises one issue on appeal, which we restate as: Whether the trial court abused its discretion when it concluded that Metzger’s actions amounted to a contempt of court. * * *

Specifically, Metzger maintains that because Chief Deputy McAlexander decided to call off the blood draw prior to the nurse’s arrival, he did not willfully resist, hinder, or delay the execution of the trial court’s warrant. * * *

Because of Metzger’s refusal to take the certified breath test, Chief Deputy McAlexander obtained a search warrant to have Metzger’s blood drawn. Chief Deputy McAlexander gave Metzger a copy of the warrant to read and explained to him the consequences of his refusal, including the possibility of being held in contempt of court. After Metzger was put on notice that a court order had been issued for him to submit to a blood draw and prior to the nurse’s arrival, Metzger became very anxious and started to threaten Chief Deputy McAlexander. Metzger began moving towards Chief Deputy McAlexander while holding a chair. Despite the officer’s order to stay seated, Metzger continued to advance and refused to comply. The officer subdued Metzger and handcuffed him. Based on Metzger’s uncooperative actions, it can be reasonably inferred that Metzger had no intent to comply with the trial court’s order to submit to a blood draw. * * * As Metzger’s act was clearly directed against the authority of the court and hindered the execution of the trial court’s warrant, the trial court properly held Metzger in contempt.

In Dontae M. Clark v. State of Indiana, a 17-page, 3-opinion case, Judge Bradford writes:
Appellant-Respondent Dontae Clark appeals from his conviction for Class D felony marijuana possession. Police officers working in an area known as a hotbed of illegal drug activity observed a known drug dealer walk up to a stopped vehicle and speak with someone in the passenger’s seat. When police followed the vehicle to a convenience store, they observed Clark exit the vehicle from the passenger side and enter the store. One of the officers followed Clark inside and observed him purchase a package of K-2 spice. Clark returned to the vehicle, and the vehicle returned to where it had been previously. The officers followed, but, before a traffic stop could occur, they saw Clark running up the middle of the street in their direction. The officers told Clark to stop and one of them frisked him for weapons. During the pat-down, the other officer noticed a bag of marijuana in an inside pocket of Clark’s coat. At that point, Clark fled but was quickly apprehended. Clark argues that the admission of the marijuana at his trial constituted fundamental error and that the trial court abused its discretion in admitting certain opinion testimony given by the police officers. Finding no merit in Clark’s arguments, we affirm.

[Mathias, J., at p. 13] I concur with the majority that the admission of the marijuana found on Clark during the pat-down search did not constitute fundamental error. I also concur with the majority that Clark failed to preserve for appeal his argument that the trial court erred in admitting into evidence the testimony of the police that the substance found was marijuana. But I write separately because I believe that it is unnecessary to address Clark’s evidentiary argument on the merits.

[Pyle, J., at p. 16] I concur with the result in my colleagues’ decision. However, I believe it is necessary to add an additional thought to footnote 2. In this case, the record reveals that the State sought to obtain a chemical analysis of the seized marijuana so that an expert could more conclusively identify it as such. The State was prevented from obtaining that analysis because Indiana State Police laboratory policy prohibits the testing of marijuana below a certain quantity. * * *

There is likely a rational reason behind the laboratory’s policy, but this type of administrative decision impacts prosecutors, defense counsel, judges, jurors, and defendants. For these reasons, I would respectfully submit that the laboratory’s policy decision be reconsidered by our colleagues in the executive branch.

NFP civil opinions today (5):

Lila Marquez v. Rene Kobler (NFP)

Jewel L. and John E. Johnson v. Brooks Striping, Inc., Inland Western Greensburg Commons LLC, and Inland US Management LLC (NFP)

In re the Marriage of: Tasha Bates v. Damon Bates (NFP)

Michael J. Bermes v. G.K. Cambray & Company, Inc., Gregory K. Cambray d/b/a Cambray & Associates, Inc., and Lauri Massoth (NFP)

In the Matter of the Termination of the Parent-Child Relationship of M.F., C.F. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (22):

Derrick R. Woods v. State of Indiana (NFP)

Michael Kimes v. State of Indiana (NFP)

Davonta K. Johnson v. State of Indiana (NFP)

Trenton Bolden v. State of Indiana (NFP)

Charles Gooch v. State of Indiana (NFP)

Jerry D. White v. State of Indiana (NFP)

Aadil Ashfaque v. State of Indiana (NFP)

Samuel Lewis v. State of Indiana (NFP)

Tony Dale Wilson v. State of Indiana (NFP)

Terelle Young v. State of Indiana (NFP)

Dezmont Hogan v. State of Indiana (NFP)

Ronnie Ervin Major v. State of Indiana (NFP)

Zack Hitchings v. State of Indiana (NFP)

James Edwin Gardner, III v. State of Indiana (NFP)

Robert Whipple v. State of Indiana (NFP)

Tyrone Ice v. State of Indiana (NFP)

Louis P. Fromer v. State of Indiana (NFP)

Kevin J. Mamon v. State of Indiana (NFP)

Andrew Lee Barnett v. State of Indiana (NFP)

Kenneth E. Eltzroth v. State of Indiana (NFP)

Regina Choice v. State of Indiana (NFP)

James Lohman III v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 28, 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, March 28, 2014. It is one page (and 1 case) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Indiana Transfer Lists

Environment - "Ohio mulls fertilizer rule in Lake Erie algae fight"

An AP story in the FWJG today reports:

TOLEDO – A new rule being considered by Ohio lawmakers would impact farmers and take a step toward reducing toxic algae in Lake Erie.

The proposal would require large farm operations to only apply synthetic or chemical fertilizers on their land if it’s done by someone certified by the state or working with someone who is certified.

The goal is to cut down on the amount of fertilizer that runs off fields into streams and rivers and then winds up in Lake Erie.

Phosphorus from farm fertilizer runoff and sewage treatment plants feed the algae that leave behind toxins that can kill animals and foul drinking water.

Algae blooms during warm-weather months in recent years have turned the lake’s water into a pea soup color. They’ve become a threat to the lake’s tourism and fishing industries and toxins produced by the algae have contributed to oxygen-deprived dead zones where fish can’t survive.

The bill, which would take effect in 2017, gained approval from the House agriculture committee on Tuesday after earlier passing through the Ohio Senate. The proposal would apply to farm operations with at least 50 noncontiguous acres. * * *

In another change, the state’s agriculture and natural resources departments want to bring all oversight of farmers applying manure under a single agency.

As of now, the agriculture department regulates manure management only of large livestock farms. The new proposal would allow the agriculture department to also oversee small livestock farms.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Environment

Ind. Courts - "Same-sex divorce filings challenge Indiana's ban"

Rebecca S. Green has a long story today in the Fort Wayne Journal Gazette on a same-sex divorce filing this month in Allen Circuit Court. The story begins:

Michael Alan Wetli wants a divorce.

But under Indiana law, it will be very difficult for him to get one. While his same-sex marriage to his estranged spouse, Matthew Eugene Shaffer, is legal in Iowa, the Hoosier State does not recognize such unions.

So it is unclear whether Allen Circuit Judge Tom Felts or one of his magistrates will, or even could, grant Wetli's request, filed March 7.

While his attorney, Harry W. Foster III, is optimistic, some legal experts believe it is not likely to succeed and there are few if any other such cases in Indiana with which to compare.

According to court documents, Wetli and Shaffer were married in Iowa on Jan. 1, 2013. But in August, the couple separated. Wetli has been living in Indiana for about six months, and for at least the last three months, has been a resident of Allen County.

"(T)he petitioner is requesting that the Court dissolve the marriage," Foster wrote in court documents on behalf of his client. "(W)hile Indiana does not recognize same sex marriage, Indiana must give full faith and credit to the marriage which was duly solemnized in Iowa and hereby grant the parties' dissolution of marriage." * * *

The issue showed up earlier this month in federal court in Indianapolis with a trio of lawsuits filed against the state, challenging the ban on same-sex marriages and the refusal to recognize marriages solemnized in other states.

Among the three suits was one that included plaintiffs Linda Bruner and her wife, Lori Roberts. The two have been married since 2010, having had a lawful marriage in Iowa.

Together since 2003, the couple have been raising Roberts' two children. However, they recently separated in a split that included a protective order in Hancock County, according to court documents.

On Jan. 31, Bruner filed for divorce in Marion County, though the position of both the Marion Circuit and Superior courts is that the courts do not have jurisdiction to dissolve same-sex marriages.

Should her request for a divorce be denied, Bruner intends to appeal to the Indiana Court of Appeals, according to court documents.

"The trial court's refusal to grant a divorce to (Bruner) denies her access to the courts and a meaningful opportunity to be heard in violation of her constitutional rights," wrote Bruner's attorneys in their complaint. "Further, (Bruner) is forced to remain in an unhealthy and unsafe marriage."

ILB: Five same-sex marriage lawsuits have been filed in the SD of Indiana since March 7th.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Indiana Courts

Ind. Courts - "Clark County Drug Court moves forward"

Gary Popp of the Jeffersonville News & Tribune reported in a very long story March 30th that began:

JEFFERSONVILLE — The revocation of Clark County Drug Treatment Court’s certification last month has led to the special court being directed under a new administration acting under a temporary status.

Clark County Circuit Court No. 4 Judge Vicki Carmichael now holds the reins of the program, after the Indianapolis-based Indiana Judicial Center pulled the program’s certification from the direction of Clark County Circuit Court No. 2 Judge Jerry Jacobi.

In 11 years of regulating special courts across the state, the Clark County drug court is the only program to have lost its certification.

In this unprecedented territory, those now administering the program are working to give the participants the needed counsel to beat substance abuse, while offering an alternative to prison sentences.

Carmichael said she was asked by the IJC to temporarily oversee the drug court, partially because she has received problem-solving court training and rules over Clark County Family Treatment Drug Court program.

She said that she will take no steps in the future to keep the drug court program that she recently inherited in her court permanently.

“My role is to only process the people now in the program,” Carmichael said.

She added that the most appropriate court to administer the drug court program is in Circuit Court No. 2, where the majority of drug-related cases are heard in Clark County.

Carmichael said she wants to see the drug court remain an option for people in Clark County, and that it’s possible the program could to return under Jacobi’s supervision. Jacobi has repeatedly declined to comment on the matter.

“It is a wonderful way to help people. I hope it will continue in Clark County,” she said of the program that offers drug offenders an alternative to prison sentences.

Here is a list of earlier ILB entries on the drug court problems.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Indiana Courts

Environment - "Duke Energy seeks to keep records from North Carolina regulators and environmental groups"

The most recent post the ILB has on the massive Duke coal ash spill in North Carolina is this one from Feb. 28th, headed "Coal Ash Spill Shows How a State Watchdog Was Defanged." This weekend Mitch Weiss and Michael Biesecker of the AP had this story headed "Duke Energy seeks to keep records from regulators." It begins:

CHARLOTTE, N.C. (AP) — Worried about getting a fair shake from investigators, Duke Energy is asking a judge to shield its records from North Carolina regulators and environmental groups while a federal criminal probe is ongoing.

In a court motion, a defense lawyer for Duke argued that turning over records demanded as part of state lawsuits over the company's coal ash dumps could hurt the investigation's integrity, especially if the documents were to become public.

Federal prosecutors have issued at least 23 subpoenas as part of a widening criminal probe triggered by the Feb. 2 spill at Duke's plant in Eden, which coated 70 miles of the Dan River in toxic sludge. Duke has received two of the subpoenas, which order the company to provide reams of documents to a grand jury that has convened in Raleigh.

Federal investigators are looking at whether the company received preferential treatment from the state environmental agency. Duke has nearly three dozen other ash pits spread out at 14 coal-fired power plants across the state.

"Duke Energy strongly denies that it has in any way knowingly violated any law or committed any crime," says the motion, filed last week. "The government of the United States has the right to investigate the matters involved in these cases and Duke Energy intends to cooperate fully in that investigation so that it may receive a fair and unbiased assessment of its actions. This cannot occur if the proceedings of the grand jury and material provided to it are made a part of discovery in these cases."

The state court cases at issue deal with environmental violations at Duke plants near Charlotte and Asheville.

Working on the behalf of a coalition of citizens groups, the Southern Environmental Law Center tried to use the U.S. Clean Water Act to sue Duke last year in federal court over groundwater pollution leeching from its coal ash dumps.

The state Department of Environment and Natural Resources instead used its authority to issue violations and take the case to state court, quickly negotiating a settlement that would have fined Duke $99,111 with no requirement that the $50 billion company clean up its pollution. The citizens groups protested, calling it a "sweetheart deal" intended to protect Duke from possibly harsher federal penalties.

The agency asked a judge to dismiss that agreement last week, saying it now intends to move forward in court. The citizens groups have intervened in the case, meaning they will have access to documents Duke would provide.

In its motion, Duke said it wants to keep the records under wraps to "preserve the integrity" of the federal grand jury investigation and said the documents could be "publicized and disseminated through the media." If that happened, the company's lawyers said "the ability of Duke Energy to receive a fair and unbiased investigation into its action would be irrevocably compromised."

Frank Holleman, senior staff attorney with the environmental law group, said Duke's motion is a stalling tactic.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Environment

Law - "In These Towns, Being Annoying Is a Criminal Offense"

Joe Palazzolo of the WSJ had a long story March 28th; the subhead: "Dozens of cities and states have passed strictures that equate 'annoying' with 'illegal.'" Several of the cases discussed are from Indiana:

Rodregus Morgan, 52 years old, was arrested in Indiana, where a 2012 public-intoxication law made a criminal of anyone who, while drunk in a public place, "harasses, annoys, or alarms another person."

A police officer smelled alcohol on his breath and deemed him annoying after Mr. Morgan ignored requests to leave the bus shelter in which he had fallen asleep, according to court records.

"I wasn't being annoying," Mr. Morgan said. "I was waiting for the bus."

A state appeals court threw out his public-intoxication conviction in February, ruling that the word "annoy" covered a "vast array of human behavior" that wasn't clearly defined.

Deputy Attorney General George P. Sherman disagreed, saying anybody with "ordinary intelligence" knows what is annoying.

"A reasonable person would readily understand that it is annoying for a person to be passed out drunk in a public bus stop," he wrote in a March court brief asking the state's highest court to hear the case.

Dozens of cities and states have passed strictures that equate "annoying" with "illegal," adding to an already existing stock of aging laws that employ the word. According to Municode, an online database of local laws, "annoy" or some variation appears in more than 5,000 ordinances.

Many of these pass constitutional muster, because they spell out the things that irritate to the point of illegality, such as unreasonably loud music, honking, shouting, fighting and pets that near-constantly bark or yowl. * * *

Wayne Brant and his mother, Betty Wilson, who live together in Indianapolis, were found to have violated a city ordinance that makes it unlawful for a person to keep animals that cause "serious annoyance or disturbance to persons in the vicinity."

Their neighbor was seriously annoyed by the occasional barking of Ms. Wilson's dachshunds and called the police.

Mother and son were cited for a noise violation. It wasn't just a small fine at stake. The dogs could have been impounded if Mr. Brant and Ms. Wilson received a second citation.

They appealed their case in 2012 and won.

The Court of Appeals of Indiana ruled that a complaint from just one neighbor was insufficient to support the violation, because the ordinance's language requires that more than one person be seriously annoyed.

"You get a person who has a low threshold for being annoyed with noise, and that spells trouble," said Karen Celestino-Horseman, an Indianapolis lawyer who represented Mr. Brant and Ms. Wilson. They declined to comment.

The first case mentioned is Rodregus Morgan v. State of Indiana, a Feb. 13, 2014 COA opinion (3rd case). Here is the Sept. 12, 2012 COA opinion in Wayne Brant v. City of Indianapolis.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to General Law Related

Ind. Courts - "Child support court returns to Gary "

A story March 28 in the Gary Post-Tribune reported:

GARY — An overflow crowd of judges, magistrates, lawyers and elected leaders on Friday celebrated the return of the Lake County child support court to Gary.

Among them were Indiana Supreme Court Justices Steven David and Gary native Robert D. Rucker, for whom the Superior Court building at 400 Broadway is named.

“Way to go, Lake County,” David said, adding he was “honored and humbled” to be at the rededication of “this grand old courthouse.”

Magistrate Terry Wilson will preside over the child support court in Gary.

A year ago, then-Lake County Juvenile Judge Mary Beth Bonaventura relocated the court to her building adjacent to the government center in Crown Point, despite protests by officials from the northern part of the county.

Gary Mayor Karen Freeman-Wilson was joined by others in a lawsuit demanding that the IV-D child support court remain in Gary where residents in Gary, Hammond, Whiting and East Chicago could have easier access to the facility.

After Thomas Stefaniak was named the new juvenile judge last year, he announced plans to return the court to Gary.

From the NWI Times, also on March 28th, a story by Lu Ann Franklin that reports:
GARY | A courtroom, crowded with judicial and elected officials, signaled a celebration Friday for the return of the Title IV-D Juvenile Court to the city.

“It was an easy decision,” said Lake Superior Court Judge Thomas Stefaniak Jr. about the move to resume hearings at the county's historic Judge Robert D. Rucker Courthouse at Fourth and Broadway for parents trying to resolve disputes about overdue child support.

That decision was announced in December by Stefaniak and Gary Mayor Karen Freeman-Wilson.

Stefaniak, a longtime Lake Superior Criminal Court judge, assumed full-time responsibilities at the Juvenile Court on Dec. 20.

Former Lake Juvenile Court Judge Mary Beth Bonaventura closed down the Gary venue in 2012 in a consolidation that shifted all child support hearings to the Lake Juvenile Court facility in Crown Point. Bonventura said it would be cheaper for taxpayers to run one rather than two venues.

However, lawyers for Gary, East Chicago and the NAACP sued on grounds the move created a hardship for north Lake County residents who had limited transportation options to get to Crown Point for their hearings.

Lake County Commissioner Roosevelt Allen, D-Gary, joined the fight, indicating the closure was inconsistent with the commission’s decision to invest $3 million during recent years to renovate the courthouse named for Gary native and Indiana Supreme Court Justice Robert D. Rucker.

Before the court dispute was resolved, Bonaventura stepped down as juvenile judge to become Indiana Department of Child Services director, and Stefaniak became Juvenile Court judge.

For background, see this Feb. 2, 2013 ILB entry headed "Gary-based child support court move to Crown Point reignites controversy."

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Indiana Courts

Environment - More on: "Fish farm plans $30 million expansion: But neighbors raising a stink"

Updating this ILB post from Feb. 26th, the Muncie Star-Press reported March 28th in a story that begins:

MUNCIE — The Metropolitan Board of Zoning Appeals on Thursday night voted 4-3 to approve a variance that will allow Bell Aquaculture to install a fish feed mill that supporters say will act as a catalyst to grow the state’s aquaculture industry.

Of the 70 people who attended the meeting, about half were opposed and half were in favor.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Environmental Issues

Environment - "Indiana Farm Bureau Pleased with Legislative Action"

This March 18th story by Gary Trruitt of Hoosier Ag Today talks about SB 111, the bill that "delayed for another year implementation of the soil productivity formula when assessing farmland tax rates," the farm trespassing bill (SB 101), and the "so called “farmers rights” measure (SB 186)."

This story by Cayla McLeland is headed "Understanding Indiana’s Farm Trespass Bill."

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Environment

Ind. Decisions - "Killer must continue paying child support"

A March 21st NFP opinion of the COA, David A. Shane v. Sheila Shane (NFP), is the subject of a story today in the Muncie Star Press, reported by Douglas Walker. Some quotes:

A Muncie man serving a 60-year prison term for a 1997 murder conviction must continue to pay child support with his prison wages, despite the fact his daughter died almost eight years ago.

The Indiana Court of Appeals this month upheld an earlier Delaware Circuit Court ruling that David A. Shane, now 47, must continue to pay 55 percent of his prison wages to catch up on child support owed before his 18-year-old daughter, Ashlie, died in a Kentucky house fire in April 2006.

In a 2-1 ruling, the appeals court ruled Shane, incarcerated at the Pendleton Correctional Facility, had missed a deadline to appeal the local court’s ruling by nine days. * * *

Last June, Shane wrote the court, asking that the child-support case be closed because of the 2006 death of his daughter. “My daughter is gone and nothing can bring her back,” he wrote.

The local court ruled Shane still owed back support in the case, adding “support arrearages do not stop with the death ... of the child.”

Shane — who noted he had not been allowed to see his daughter during his years of incarceration — responded with an offer to pay $10 monthly toward his back support for the duration of his prison sentence, and promised to pay the arrearage in full after his release.

The court rejected that offer.

In a dissenting opinion, Judge John G. Baker of the Indiana Court of Appeals said he could not agree that Shane’s appeal should be rejected because he missed a filing deadline, noting that a court document “was sent to Shane at the wrong address and returned to the court.”

“To reach such an outcome is to not see the proverbial forest for the trees,” Baker wrote.

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Ind. App.Ct. Decisions

Ind. law - "Murder case illustrates big changes coming to Indiana prison terms July 1"

In a March 20th story, Laura Lane of the $$ Bloomington Herald-Times used a murder case to illustrate the impact of the HEA 6 (revisions to criminal code) changes. Some quotes:

Had changes in Indiana’s criminal code been in place when Jordan Buskirk and Randal Crosley abducted and murdered 19-year-old Katelyn Wolfe last summer, the killers would be spending two decades longer in prison than current law mandates.

That’s why prosecutors around the state, including Greene County’s Jarrod Holtsclaw, embrace the revised sentencing guidelines that take effect July 1.

The new law is heralded for lessening penalties for low-level crimes, such as possession of marijuana, while increasing the amount of time violent and repeat offenders spend behind bars.

A key component of the legislation requires Indiana inmates to serve at least 75 percent of the sentence they receive, replacing the current standard of serving just half of the time if a prisoner abides by prison rules.

The state’s “good-time statute” sentence change starts July 1 and will apply to crimes committed after that date. The state’s four divisions of felony offenses are being increased to six, and penalty ranges will be different, offering more discretion for judges.

“A crime committed on June 30 will have different penalties than the same crime committed on July 1,” Holtsclaw said. “And we will be operating under two criminal codes for quite some time into the future.”

The new law also makes most possession of marijuana offenses misdemeanor crimes, not felonies as is the case under the current law.

In the case of Buskirk and Crosley, each received 81-year sentences this month for murder, conspiracy to commit murder, criminal confinement and conspiracy to commit rape. Because of the current good-time law, they will be required to serve 40 years and six months, including the time they already have spent incarcerated.

They also can get up to four years shaved off their sentences for pursuing higher education while behind bars. That changes, too, with the new law, which caps education credit time at two years.

Under the new sentencing guidelines, the Jasonville men would have to serve 60 years and nine months in prison, and could get two years off that for pursuing college courses. They are 26 and 27 years old, and the sentencing differences could mean the difference between getting released from prison in their 60s and being let out with they are nearing 90, essentially a life sentence.

The story included this table:
Indiana felony classifications and sentencing ranges

CURRENT

Murder: 45-65 years, 55 years advisory

Class A: 20-50 years, 30 years advisory

Class B: 6-20 years, 10 years advisory

Class C: 2-8 years, 4 years advisory

Class D: 6 months-3 years, 1.5 years advisory

NEW, EFFECTIVE JULY 1

Murder: 45-65 years, 55 years advisory

Class 1: 20-50 years, 30 years advisory

Class 2: 10-30 years, 17 years advisory

Class 3: 3-20 years, 6 years advisory

Class 4: 2-12 years, 4 years advisory

Class 5: 1-6 years, 2 years advisory

Class 6: 6-30 months, 1 year advisory

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Indiana Law

Ind. Decisions - 7th Circuit decided one Indiana case Friday

In U.S. v. Causey (ND Ind., Lozano), a 20-page opinion, Judge Williams writes:

Randall Causey was part of a conspiracy that preyed on novice real estate investors during the housing bubble in 2005–06, defrauding both borrowers and lenders alike. A five‐day trial revealed that Causey and his co‐conspirators would do just about anything to complete a sale and make a profit, whether it was making promises they had no intention of keeping or falsifying receipts, incomes or other information on loan forms. Causey, who was the only co‐conspirator that did not plead guilty, was convicted and sentenced for his role in the fraud.

Causey raises five issues—four evidentiary and one sentencing— on appeal. First, he argues the court improperly admitted irrelevant and prejudicial photographs taken of the houses around the time of trial rather than at the time of the sale. We reject this argument because the photographs gave the jurors a sense of the size, location and style of the house, and the jurors were repeatedly reminded when the pictures were taken. Second, evidence of a fraudulent sale that took place outside of the conspiracy was properly admitted because Causey placed his intent to defraud and knowledge of the fraudulent scheme at issue by claiming he was an innocent pawn, and this sale demonstrated his fraudulent knowledge and intent. Third, a defense witness’s testimony was properly excluded as undisclosed expert testimony because the witness had no personal knowledge of the transactions at issue and was asked instead about industry norms, which is only permissible if a witness is qualified as an expert. Fourth, Causey argues the district court erred in allowing an unqualified co‐conspirator to give broad expert testimony and allowing her to testify as both a fact and expert witness without a limiting instruction. Since the witness was never referred to as an expert in front of the jury, there was extensive cross examination about her credentials and the basis for her opinion, and her opinion was not significant to the government’s case, we reject Causey’s arguments. Finally, a two‐level sentencing enhancement for being an “organizer, leader, manager, or supervisor of the conspiracy” was properly assessed because Causey was responsible for recruiting the buyers into the conspiracy and exercised control over them during their involvement, which included submit ting fraudulent paperwork during closings, and some buyers were also uncharged criminally responsible parties.

We affirm the district court on each of these issues.

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

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/31/14):

Thursday, April 3

Next week's oral arguments before the Supreme Court (week of 4/7/14):

Thursday, April 10

Webcasts of Supreme Court oral arguments are available here.


Next week's oral arguments before the Court of Appeals (week of 3/31/14):

Monday, March 31

Wednesday, April 2

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

Next week's oral arguments before the Court of Appeals (week of 4/7/14):

Tuesday, April 8

Wednesday, April 10

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


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

Posted by Marcia Oddi on Monday, March 31, 2014
Posted to Upcoming Oral Arguments

Saturday, March 29, 2014

Courts - "Tape Of Hobby Lobby Case Shows Justices' Gender Differences"

NPR's Nina Totenberg effectively uses the audio from the Hobby Lobby oral argument in this story on this morning's Weekend Edition Saturday.

Here was her March 25th Morning Edition story that aired in the morning prior to the Tuesday, March 25th oral argument. Here was her report immediately following the argument, headed "Justices Divide By Gender In Hobby Lobby Contraception Case."

Posted by Marcia Oddi on Saturday, March 29, 2014
Posted to Courts in general

Friday, March 28, 2014

Courts - More on: Status of the 300 same-sex marriages performed last weekend in Michigan

Lyle Denniston of SCOTUSblog has updated his post from last evening (cited here at ILB) to report:

U.S. Attorney General Eric Holder announced on Friday that the federal government will formally recognize and provide marital benefits under federal law to some 300 Michigan same-sex couples who were married last weekend while a lower court ruling was in effect, striking down the state’s ban on such marriages. That ruling has now been put on hold during an appeal by the state to the Sixth U.S. Circuit Court of Appeals. “These Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled,” Holder said.

Posted by Marcia Oddi on Friday, March 28, 2014
Posted to Courts in general

Ind. Courts - 7th Circuit recently held that "time-barred debt can violate Fair Debt Collection Practices Act"

A new article at The National Law Review reports:

The United States Court of Appeals for the Seventh Circuit (Wisconsin, Illinois, Indiana) has recently ruled that collection or "dunning" letters sent after the expiration of the applicable statute of limitations violate the Fair Debt Collection Practices Act ("FDCPA") unless they also disclose that the debt may be time-barred. * * *

The dunning letters at issue in the consolidated appeals McMahon v. LVNV Funding, LLC and Delgado v. Capital Management Services were sent many years after the applicable statutes of limitations for the debts had expired, meaning that the recipients had an "ironclad" defense to collection. Neither letter disclosed this fact. Both letters contained offers to settle the debt at less than the full amount owed. * * *

The Third Circuit (Delaware, New Jersey, Pennsylvania, Virgin Islands) and Eighth Circuit (Missouri, Arkansas, Iowa, Minnesota, North Dakota, South Dakota, Nebraska) Courts of Appeal have both held that sending dunning letters for time-barred debts does not violate the FDCPA unless the letter includes a threat of litigation. Conversely, government agencies including the Federal Trade Commission ("FTC") assert that sending dunning letters for time-barred debt could deceive a consumer because a) most consumers do not understand that their rights or the defense to a lawsuit that is available to them if the debt is time-barred, and b) partial payment on a time-barred debt may actually revive the entire debt in some states.

ILB: I believe this is referred to as "zombie debt." Here is the opinion, from March 11, 2014.

Posted by Marcia Oddi on Friday, March 28, 2014
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (3):

In In Re Paternity of D.T. (Minor Child) Diamond T. Parks (Mother) v. Deante Rashon Tate (Father), a 10-page opinion, Judge Crone writes:

Diamond T. Parks (“Mother”) is a Mississippi resident. In 2011, she filed an action against Deante Rashon Tate (“Father”) in a Neshoba County, Mississippi court (“Mississippi court”), seeking to establish his paternity of her two-year-old son, D.T., and to enforce child support and obtain Medicaid benefits. Because Father resides in Anderson, Indiana, the Mississippi Department of Human Services sought enforcement assistance in Madison Circuit Court (“trial court”). Several months later, the trial court held a hearing, during which Father admitted to paternity. Although D.T. had resided with Mother for his first two years and was listed as a Mississippi resident, he was physically present with Father in Anderson due to a death in Father’s family. Shortly after paternity was established, Father sought custody of D.T. in the Indiana trial court. Due to defective service, Mother was unaware of the Indiana custody hearing and did not appear. The trial court awarded custody to Father.

Mother now appeals, claiming that the trial court lacked subject matter jurisdiction under the Uniform Interstate Family Support Act (“UIFSA”) to make a custody determination and that the trial court lacked personal jurisdiction over her due to defective service of process. Finding that the trial court lacked subject matter jurisdiction, we reverse and remand for proceedings consistent with this decision.

In Jason and Justina Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc., a 15-page, 2-1 opinion, Judge Najam writes:
Jason Kramer and Justina Kramer appeal the trial court’s entry of summary judgment in favor of Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (“Catholic Charities”) on the Kramers’ complaint alleging that Catholic Charities was negligent in facilitating a pre-adoption placement of a child with them. The Kramers present several issues for our review which we consolidate and restate as whether the trial court erred when it concluded that a release executed by the Kramers bars their negligence claims against Catholic Charities. * * *

We hold that the releases executed by the Kramers do not bar their claims because they do not explicitly contemplate Catholic Charities’ negligence. Further, the risk of Catholic Charities’ negligence in not checking the putative father registry prior to placement was not inherent in the pre-adoptive placement. In support of its summary judgment motion, Catholic Charities did not satisfy its burden to make a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Thus, the burden to prove the existence of a genuine issue of material fact did not shift to the Kramers. The trial court erred when it entered summary judgment in favor of Catholic Charities. Reversed and remanded for further proceedings.

CRONE, J., concurs.
BAKER, J., dissents with separate opinion. [which begins, at p. 11] I respectfully dissent with the majority’s conclusion that the trial court erred in entering summary judgment for Catholic Charities. In my view, Catholic Charities satisfied its burden and made a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.

In Matthew Pavlovich v. State of Indiana , a 27-page, 2-1 opinion, Judge Brown writes:
Matthew Pavlovich appeals his convictions for child solicitation as a class D felony and patronizing a prostitute as a class A misdemeanor. Pavlovich raises three issues, which we revise and restate as:
I. Whether the trial court properly denied Pavlovich’s motion to dismiss the child solicitation charge;
II. Whether the trial court properly admitted certain text messages and emails into evidence and properly permitted their authentication as having been written by Pavlovich; and
III. Whether the trial court properly denied Pavlovich’s motion for a directed verdict with respect to the child solicitation charge. * * *

For the foregoing reasons, we affirm Pavlovich’s convictions for child solicitation as a class D felony and patronizing a prostitute as a class A misdemeanor.

ROBB, J., concurs.
BARNES, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 24] I fully concur with the majority’s resolution of Issues I and II. I must respectfully dissent, however, from the majority’s resolution of Issue III. I cannot agree that Pavlovich completed the act of child solicitation under the facts and circumstances here. * * *

Given the language of the child solicitation statute, I do not believe there is sufficient evidence to support Pavlovich’s conviction for that offense. I vote to reverse his conviction for child solicitation and affirm his conviction for patronizing a prostitute.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Joshua L. Wynn v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 28, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Supreme Court reinstates ex-principal's conviction"

Yesterday's Supreme Court decision in Christopher Smith v. State of Indiana (ILB summary here) is the subject of a story today by Douglas Walker in the Muncie Star-Press. Some quotes:

MUNCIE — A divided Indiana Supreme Court on Thursday reinstated former Central High School principal Chris Smith’s misdemeanor conviction for failing to quickly alert authorities to a student’s 2010 rape.

Last October, the state’s highest court held a hearing on the validity of Smith’s March 2012 conviction, which had been overturned by a state appeals court in January 2013.

Delaware County prosecutors contended Smith violated state law when he failed to immediately alert authorities, including off-duty police officers working at the school as security guards, of a 16-year-old girl’s report she had been sexually assaulted in a Central restroom.

The girl’s attacker — Steven Moore, then 16 — was questioned by Smith, but allowed to go home before police were notified. Moore later admitted to the assault and was convicted of sexual battery and criminal confinement.

“It appears from the record that when time was of the essence, Smith dawdled, delayed and did seemingly everything he could to not contact DCS or the police,” Justice Steven David wrote in Thursday’s 3-2 decision that reinstated Smith’s conviction.

“It is apparent that Christopher Smith failed in his duty to help protect one of his trusted charges,” David wrote. “Whether this failure was out of ignorance, a desire to protect the reputation of the perpetrator, or perhaps a wish to keep his school from receiving negative publicity on his watch is not clear.”

The three judges supporting the majority ruling — David, Mark Massa and Loretta Rush — also rejected Smith’s contention that a call he directed another administer to make to the Youth Opportunity Center, where the sexual assault victim was living, qualified as acceptable notification. * * *

The victim and her mother filed suit over the school’s handling of the sexual assault, resulting in an out-of-court settlement with Muncie Community Schools, and a $750,000 judgment against Steven Moore, who drew a four-year prison term for his crime.

Posted by Marcia Oddi on Friday, March 28, 2014
Posted to Ind. Sup.Ct. Decisions

Environment - "Gov. Pence lets energy program expire without signing bill"

Here is Governor Pence's bill watch page; all the bills are now accounted for. There were no vetoes. As John Russell reports today in the Indianapolis Star, however, one becomes law without the Governor's signature. From the story:

A 2-year-old program designed to cut energy consumption in Indiana homes, schools and businesses will end Dec. 31 without Gov. Mike Pence's signature.

In a statement issued shortly after 8 p.m. today, Pence said he had mixed feelings on the bill but would allow it to become law without his signature. That means he neither signed or vetoed the measure, but will let it take effect anyway.

Senate Bill 340 will shut down the Energizing Indiana program, under which energy auditors­ visit homes and businesses and recommend ways to reduce energy consumption. Typical recommendations include switching to energy-efficient light bulbs, wrapping pipes in insulation, turning down the temperature on water heaters and getting rid of old, energy-gobbling refrigerators.

The decision will remove Indiana from the ranks of 26 states that require utilities to offer programs that reduce energy use, part of a growing national effort to reduce electricity demand, lower prices and cut carbon emissions.

Both houses of the General Assembly passed the bill by wide margins.

Pence said he supported the goals of energy efficiency, and he called on the Indiana Utility Regulatory Commission to immediately begin developing recommendations for a new program that would provide an opt-out for large electricity consumers, such as steel mills, which have paid millions of dollars a year into the program.

But Pence said he could not veto the bill, "because doing so would increase the cost of utilities for Hoosier ratepayers and make Indiana less competitive by denying relief to large electricity consumers, including our state's manufacturing base.

Posted by Marcia Oddi on Friday, March 28, 2014
Posted to Environment | Indiana Government

Ind. Decisions - More on "No privilege on Wartell report, appeals court rules"

The March 24th COA opinion in Purdue University v. Michael A. Wartell occasioned this editorial today in the Fort Wayne Journal Gazette, headed "Purdue putdown: Court delivers black eye to black and gold." Some quotes:

Purdue University not only lost its appeal in a complaint involving former IPFW Chancellor Michael Wartell, it also got spanked by the appeals court for its legal “tactics.” * * *

“Purdue frets that recognizing equitable estoppel as an exception to the attorney-client privilege and the work-product doctrine ‘would have a chilling effect on the very principles on which (they) were founded,’ ” Judge Terry Crone wrote in a footnote. “On the contrary, one would hope that it would have a chilling effect on the tactics used by Purdue in this case.”

If the university appeals the latest ruling to the Indiana Supreme Court after that slapdown, it would appear that Trimble’s report is something that Purdue officials really don’t want Wartell and his attorney to see.

Posted by Marcia Oddi on Friday, March 28, 2014
Posted to Ind. App.Ct. Decisions

Environment - "Senators want to talk to BP as Indiana oil spill estimate grows"

Of course they are Illinois senators... Here is how the brief story in the Gary Post Tribune begins:

Illinois’ U.S. senators asked Thursday for a meeting with BP after oil from the company’s Whiting refinery spilled Monday into Lake Michigan and the company increased its estimate of the amount of oil that was released.

U.S. Sens. Dick Durbin and Mark Kirk sent a letter to BP CEO John Minge saying they’re “deeply concerned” about the spill. They want to talk with him about potential public health and environmental threats to surrounding communities.

Posted by Marcia Oddi on Friday, March 28, 2014
Posted to Environment

Thursday, March 27, 2014

Law - What does a stalled U.S. Senate confirmation mean for the candidate?

Well, consider the case of Dawn Johnsen.

Juliet Eilperin's post at a Washington Post blog, The Fix, does just that, under the heading "Stalled nominee knows exactly what purgatory looks like." Some quotes:

But what does it mean for an individual, especially if you don't even get a floor vote in the end?

Consider the case of Dawn Johnsen, the Indiana University law professor whom President Obama picked to head the Justice Department's office of legal counsel in 2009. Johnsen, who came under fire for her writings about interrogation techniques practiced under President George W. Bush and her support for abortion rights, spent 14 months waiting for a confirmation vote before withdrawing her name from the process. Here are some of things you have to do as a nominee, even if you don't get the job in the end.

The post then lists six points; here are samples:
4. Persuade your spouse to give up all civic volunteer posts. Johnsen's husband, the president of non-profit community development organization, was active in several local organizations. But he ultimately had to give up his posts on the Monroe County school board, the board of a community homeless group and within their church in order to focus on their lives in Washington.

5. Get ready to defend footnotes. Johnsen was one of 13 lawyers who filed a brief in a 1989 abortion case on behalf of 77 organizations; a footnote in the brief analogized being forced to bear a child to involuntary servitude. Then-Sen. Arlen Specter (Pa.), who was a Republican at the time, brought the issue up in hearing and followed up with a formal question on it.

The ILB has a long list of earlier posts on Prof. Johnsen.

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to General Law Related

Courts - Status of the 300 same-sex marriages performed last weekend in Michigan

Lyle Denniston of SCOTUSblog had a post last evening quoting the Michigan governor's statement. From the post:

The governor said the state’s refusal to recognize those new marriages for purposes of benefits was based on the fact that the U.S. Court of Appeals for the Sixth Circuit on Tuesday had postponed a federal judge’s decision striking down the state ban.

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to Courts in general

Courts - "Every horse gets one bite" ruled not the case in Connecticut

See the news reports compiled in this How Appealing post on a Conn. Supreme Court ruling yesterday that held, per the Hartford Courant:

The state Supreme Court concluded Wednesday that the owners of domestic animals must take reasonable steps to prevent them from causing injuries – regardless of where an animal is kept or whether it had ever shown signs of dangerousness.
This is the case where there had been concern among Connecticut horse owners that horses would be presumed to be inherently dangerous.

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to Courts in general

Courts - NLRB rules that college athletes are employees and can form unions

The NYT story by Ben Strauss and Steve Eder begins:

CHICAGO — A regional director of the National Labor Relations Board ruled Wednesday that a group of Northwestern football players were employees of the university and have the right to form a union and bargain collectively.

For decades, the major college sports have functioned on the bedrock principle of the student-athlete, with players receiving scholarships to pay for their education in exchange for their hours of practicing and competing for their university. But Peter Ohr, the regional N.L.R.B. director, tore down that familiar construct in a 24-page decision.

The NCAA's official statement is here.

Bloomberg's Mason Levinson's story is headed "Northwestern Football Ruling May Change U.S. College Sports."

A Sports Illustrated column
by Andy Stapes is headed "Northwestern ruling sends clear message: NCAA, it's time to negotiate."

The NLRB ruling can be accessed from this page.

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to Courts in general

Ind. Courts - Transfer Statistics for 2013: Which Types of Cases Are Catching the Indiana Supreme Court’s Eye?

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

Remember those quarterly transfer stats? Sorry, I’m running a little behind.

This post instead offers a more probing overview of 2013 — not just the chart that considers published/unpublished and civil/criminal grants but also some analysis of the types of cases within those categories that garnered the Court’s attention in 2013.

Transfer Dispositions: January 1, 2013-December 31, 2013
  FP cases NFP cases FP & NFP
CIVIL 28/114 (24.6%) 9/129(7%) 37/243(15.2%)
CRIMINAL 26/145 (17.9%) 9/387 (2.3%) 35/532 (6.6%)
ALL CASES 54/259 (20.8%) 18/516 (3.5%) 72/775(9.3%)

Similar to previous quarters, litigants with a published opinion were six times more likely to secure transfer than those with an unpublished opinion. The difference was more muted in civil cases, where litigants in NFP cases fared surprisingly well with 7% odds at transfer, just a bit below the overall average of 9.3% for all opinions.

Overall, transfer was more than twice as likely in civil cases (15.2%) than in criminal cases (6.6%). The numbers are far more bleak for those representing criminal defendants, who secured less than twenty of the grants, despite filing more than 500 of the petitions—or less than 4% odds.

Drilling into the civil and criminal categories by case type provides a more complete picture of the specific kinds of cases that caught the Court’s eye last year. Within the civil realm, transfer was most likely in the following:

(certain) Administrative (EX) 2/6 (33%)
Guardianship (GU) 1/3 (33%)
Adoption (AD) 1/4 (25%)
Civil Tort (CT) 11/56 (20%)
Juvenile CHINS (JC) 1/5 (20%)
Civil Plenary (CP) 13/84 (15%)
Domestic Relation (DR) 3/23 (13%)
Termination of Parental Rights (JT) 3/28 (11%)
Miscellaneous (MI) 2/23 (9%)
Not surprisingly, a fairly high percentage of transfer grants from NFP opinions in civil cases came in Domestic Relations (2/13 or 15%) and Termination of Parental Rights (2/23 or 9%) appeals. Unpublished torts opinions were also granted at an above-average rate of 9% (2/22).

Among the three categories of criminal appeals, the variations were especially stark:

Juvenile Delinquency (JV) 4/9 (44%)
Criminal (CR) 29/391 (7%)
Post-Conviction (PC) 2/106 (2%)
Two of the Court’s three newest members spent many years as juvenile court judges, which boded well for the development of juvenile delinquency law. Although three of the four grants in juvenile delinquency appeals were on petitions filed by the State, all four of the cases ended well for the juvenile, including three opinions authored by Justice Rush. See K.W. v. State; State v. I.T.; N.L. v. State; and G.H. v. State (transfer denied in 2014, after oral argument).

Although the end result is sometimes not affirmance of the conviction or adjudication, as explained in earlier posts the Attorney General’s office has seen nearly every petition for transfer it has filed in the past year granted. Nearly half (16.5) of the thirty-five grants last year were petitions from the State.** A separate post will consider the ultimate outcome in recent criminal appeals and whether any trends can be discerned from the new Court, which has been together now for nearly seventeen months.
_________________
*Cases that appear as N/A on the transfer list have been excluded. Cases in which transfer was granted in 2013 and vacated during the same year have also been excluded. Cases have not been excluded if transfer was granted in 2013 and vacated in 2014. The goal is to give a snapshot of the year, and these numbers may well change even further in the coming weeks and months.
**Guilmette is counted as 0.5 because both the State and Defendant’s petitions were granted.

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In Douglas J. Allison v. Heather Pepkowski , a 7-page opinion, Sr. Judge Darden writes:

The trial court continued the hearing on a protective order petition and extended the temporary protective order for six months after the petitioner suffered an apparent anxiety attack while on the witness stand. Although the circumstances justified a continuance and extension, the delay of six months without explanation runs contrary to the Indiana Civil Protection Order Act and violates the respondent’s due process rights. In any event, because the court’s extension granted a temporary restraining order, which is not appealable as of right, the respondent was required to seek a discretionary interlocutory appeal. Because he did not do so, we must dismiss this appeal for lack of jurisdiction.
NFP civil opinions today (1):

In the Matter of the Adoption of L.T.: J.M. and S.M. v. C.T. (NFP)

NFP criminal opinions today (4):

Bobby Wine v. State of Indiana (NFP)

Ty C. Wilkerson v. State of Indiana (NFP)

Mardel Hill v. State of Indiana (NFP)

Austin M. Scholl v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues two, including one re immediate reporting of child abuse

In Christopher Smith v. State of Indiana, a 41-page, 3-2 decision re timely reporting of child abuse, Justice David writes:

The Indiana Code requires certain school officials to immediately report instances of suspected child abuse occurring within their institutions to the Department of Child Services or law enforcement. Here, a high school principal was convicted for failing to comply with this requirement after a student at his school told him she had been raped by a fellow student, and he did not notify the police or the Department of Child Services for four hours. We affirm. * * *

In sum, it appears from the record as though when time was of the essence, Smith dawdled, delayed, and did seemingly everything he could to not contact DCS or the police. It is therefore a reasonable inference to draw, from this evidence, that Smith knowingly failed to “immediately” report the child abuse as he was obligated to do by statute.

Conclusion. It is apparent that Christopher Smith failed in his duty to help protect one of his trusted charges. Whether this failure was out of ignorance, a desire to protect the reputation of the perpetrator, or perhaps a wish to keep his school from receiving negative publicity on his watch is not clear. But none of those possible reasons are excuses under the Indiana Code’s statutory provisions compelling him to report instances of child abuse or neglect or face criminal liability. We therefore affirm Smith’s conviction and sentence.

Massa and Rush, JJ., concur.
Rucker, J., dissents with separate opinion in which Dickson, C.J., concurs. [which begins at p. 38] What apparently began as an investigation for obstruction of justice morphed at some point into a charge and eventual conviction for failure to report child abuse. Reasoning that the evidence was sufficient to sustain the conviction the majority affirms the conviction. For reasons expressed below I cannot join the majority on this point and thus respectfully dissent. In all other respects I concur in result.

ILB: Here is a long list of earlier ILB entries re Christopher Smith and the obligation to report child abuse.

In Front Row Motors, LLC and Jerramy Johnson v. Scott Jones, a 9-page, 5-0 opinion, Justice Rucker writes:

A car dealership appeals the denial of its motion to set aside default judgment. We conclude the trial court lacked jurisdiction over the dealership at the time the default was entered and therefore reverse the trial court’s judgment. * * *

On the record before us Front Row Motors has made a prima facie showing that Jones’ service of process was a mere gesture not calculated to inform it of the default damages hearing. Because Front Row Motors did not receive notice of the hearing, the default judgment entered against it was void for want of jurisdiction. The trial court thus abused its discretion in denying Front Row Motor’s motion to set aside the judgment. * * *

Indiana Code section 23-1-24-4 provides in relevant part: “A corporation’s registered agent is the corporation’s agent for service of process, notice, or demand required or permitted by law to be served on the corporation.” I.C. § 23-1-24-4(a). The record shows that at all relevant times during the pendency of this action Jerramy Johnson was the registered agent for Front Row Motors, LLC. Indeed Jones served Johnson in that capacity at the address listed with the Secretary State, namely Johnson’s home address. But Jones knew that Johnson was not present at that address and instead was a resident of a Community Corrections facility. Despite this knowledge Jones made no effort to serve Johnson—the registered agent of Front Row Motors—at the facility. * * *

Conclusion. We reverse the judgment of the trial court and remand this cause for further proceedings.

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Indiana Law Review Symposium - Data Privacy in the Digital Age

The Indiana Law Review will be hosting a symposium titled Data Privacy in the Digital Age on Friday April 4 at the Indiana University McKinney School of Law in Indianapolis.

The keynote speaker will be Marc Rotenberg, the President and Executive Director of the Electronic Privacy Information Center in Washington, D.C. Mr. Rotenberg is also an adjunct professor at Georgetown.

The symposium will explore topics related to consumer data - how companies aggregate data, how data is used to explore habits, law enforcement's use of data in criminal investigations, and finally how the government is working to protect consumers from intrusive data collection.

4.25 CLE hours are available (pending approval). Costs for attorneys wanting CLE is $75, $25 for non-CLE attendees, and free for IU McKinney students and faculty.

The registration and agenda can be found here.

Posted by Marcia Oddi on Thursday, March 27, 2014
Posted to Indiana Law

Wednesday, March 26, 2014

Ind. Courts - More on the Judicial Technology Oversight Committee Tuesday, March 18

As reported in this ILB post on March 19th about that day's meeting of the JTOC:

David Pippen then gave a summary of the Practitioner Survey conducted by the Indiana State Bar Association. There were about 900 responses, coming from a wide spectrum of practice types. Over 50% of the respondents were either solo practitioners or from firms with fewer than 10 attorneys. 96% of the attorneys had the capability of creating .pdf documents. 50% were users of the federal court’s PACER system. Respondents overwhelmingly favored instant, 24-hour, online access to court documents and the ability to file electronically. Pippen said the full details from the survey will be posted online, but did not say exactly where.
These survey results have now been posted by the ISBA. Access them here. Of particular interest are the compiled answers to questions, such as Q 23.

Here are committee member David Pippen's comments to the ILB on the March 19th meeting (Pippen was appointed to represent Indiana attorneys):

The discussion of objective really was the meat of what we are trying to get figured out. Justice Massa referred to the statutory language… recommendation to the Court to decide what, if anything will be done with it. Representative Braun argued for functionality – “Best in Class” and clearly sees market competition as the pathway to that functionality. Representative Pierce noted the differing and opposing dynamics at work; the Supremes’ desires, different county officials’ desires and the legislative opinion of what should be done. He noted there are many different business models and we need to determine to which opinion/desire we are catering.

I think we will see more background as to purpose of JTAC and its financials next time to better understand what the Supremes want. That should help drive the discussion of what we may be asking a consultant to do…before we spend money asking them what they should tell us.

Posted by Marcia Oddi on Wednesday, March 26, 2014
Posted to Indiana Courts

Ind. Decisions - Supreme Court reinstates NFP COA opinion in Matter of C.A.H.

In an order filed March 21 and posted today, In the Matter of the Adoption of C.A.H., Minor, J.N.E. v. L.M.H., the Supreme Court writes:

By order dated January 16, 2014, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals not-for-publication memorandum decision, Matter of C.A.H., 49A02-1302-AD-129 (Ind. Ct. App. July 23, 2013), should be reinstated as a memorandum decision. See Appellate Rule 65(D). Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.
This was a July 23, 2013 NFP COA opinion where the issue was "whether the trial court erred when it denied her motion because she contends that the adoption decree, which was entered without notice to her, was void for lack of personal jurisdiction and violated her due process rights." The COA affirmed. Here is the oral argument before the Supreme Court from March 20th.

Posted by Marcia Oddi on Wednesday, March 26, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Brian Byrd v. State of Indiana , a 6-page opinion, Judge Bailey writes:

Brian Byrd (“Byrd”) appeals a judgment against him for the civil infraction of Speeding for driving 54 miles per hour in a 30 miles per hour zone. He alleges he was denied due process because of a variance between the allegations and the proof. Because we find there was a failure of proof, we reverse. * * *

Byrd produced evidence that contradicted the prima facie speed allegation. Specifically, he produced photographs of the speed limit sign in the location where he had been pulled over. The photographs depicted a speed limit of 45 miles per hour; the State did not contest the fact that this was an altered speed limit district. * * *

The State provided the requisite specificity, but alleged only that Byrd violated Indiana Code section 9-21-5-2 by driving 54 miles per hour in a 30 miles per hour zone. The evidence adduced did not establish the violation alleged. And the State’s concession to, but without proof of, an alternative fixed speed limit results in a failure of proof. Although in some circumstances, Byrd’s conduct may have amounted to a violation of a lawfully enacted ordinance, here the State did not prove or otherwise seek judicial notice of a lawfully established altered speed zone. This left the fact-finder to speculate that Byrd violated some unspecified speeding prohibition. Our Legislature has chosen to require more than a bald assertion of speeding. Rather, the prima facie or fixed speed must be alleged and proven by the State. Too, due process requires the State to prove these specific allegations by a preponderance of the evidence. We conclude in this case that the State did not meet its burden.

In Adam Bigger v. State of Indiana , a 6-page opinion, Sr. Judge Sharpnack writes:
Adam Bigger appeals his conviction and sentence for attempted robbery, a Class C felony. * * *

Bigger presents two issues for our review, which we restate as: I. Whether the State presented sufficient evidence to disprove Bigger’s defense of abandonment. II. Whether Bigger’s sentence is inappropriate. * * *

For the reasons stated, we conclude that Bigger waived the defense of abandonment by failing to raise it in the trial court. In addition, we conclude that Bigger’s sentence is not inappropriate in light of the nature of the offense and his character.

NFP civil opinions today (1):

Bradley P. Burcham v. Nichole (Burcham) Fillmore (NFP)

NFP criminal opinions today (5):

Donovan Ball v. State of Indiana (NFP)

Matthew Ramsey v. State of Indiana (NFP)

Jonah Long v. State of Indiana (NFP)

Caleb J. Brubaker v. State of Indiana (NFP)

Robbie L. Hubbard v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 26, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Following the 2014 session results

Updating this post from March 18th:

Here is Governor Pence's list of the bills he has received, the date he must act, and the date signed. The last day for the Governor to sign or veto a bill is tomorrow, March 27th. If he does neither on a bill, it will become law without his signature "on the eighth day after presentment to the Governor. Ind. Const. Art. 5, Sec. 14(a)(3).

Here is the General Assembly's 2014 Enrolled Act Summary, so far. It should correlate with the Governor's list of bills he has acted on.

If you need to find out whether a section of law has been affected during this session, use the cite list. It may not give you the final word yet, but at least it will tell you if your provision was in the mix when the General Assembly adjourned. The version currently posted (Run Time: Tuesday, March 25, 2014, 2:26:07 PM) does NOT show whether a bill has gone to, or been acted on by, the Governor.

Posted by Marcia Oddi on Wednesday, March 26, 2014
Posted to Indiana Law

Ind. Decisons - Supreme Courts decides two today, re termination of parental rights

In In the Matter of the Involuntary Termination of the Parent-Child Relationship of I.P., T.P. v. Indiana Department of Child Services, and Child Advocates, Inc., a 4-page, per curiam opinion, the Court writes:

The Court has granted transfer to address due process safeguards where a magistrate presiding over a termination of parental rights hearing resigns before reporting recommended findings and conclusions to the judge. In this case and another termination case we decide today, In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.B., ___ N.E.3d ___ (Ind. 2014), we find the procedure used violated the parent's due process rights.

The Marion County Department of Child Services petitioned to involuntarily terminate the parental rights of T.P. ("Father") to his child. Magistrate Julianne Cartmel presided over the termination hearing. Father was incarcerated. He participated in the hearing by telephone and was represented by counsel. At the conclusion of the evidentiary hearing, Magistrate Cartmel took the matter under advisement, but she resigned her position before reporting recommended factual findings and conclusions to Judge Marilyn Moores. See Ind. Code § 33-23-5-9. The case was transferred to Magistrate Larry Bradley, who, without holding a new evidentiary hearing, reviewed the hearing record and reported recommended findings and conclusions. Judge Moores approved the findings and conclusions and ordered Father's parental rights terminated. On Father's appeal, the Court of Appeals found no due process violation and affirmed. * * *

A party is entitled to a determination of the issues by the judge who heard the evidence, and, where a case is tried to a judge who resigns before determining the issues, a successor judge cannot decide the issues or enter findings without a trial de novo. * * *

It is precisely because the judge or magistrate presiding at a termination hearing has a superior vantage point for assessing witness credibility and weighing evidence that we give great deference to a trial court's decision to terminate a parent's rights. * * *

The Court of Appeals also found Trial Rule 63(A) authorized Magistrate Bradley to report recommended findings and conclusions without holding a new evidentiary hearing. We find Trial Rule 63(A) inapplicable to this case. * * *

We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

In In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.B., Ay.B., A.B. and K.G., K.G. v. Marion County Department of Child Services, and Child Advocates, Inc., a 4-page, per curiam opinion, the Court writes:
We granted transfer in this case and In the Matter of Involuntary Termination of the Parent-Child Relationship of I.P., ___ N.E.3d ___ (Ind. 2014), to address due process safeguards where a magistrate presiding over a termination of parental rights hearing resigns before reporting recommended findings and conclusions to the judge. In accord with our decision today in In re I.P., we find the procedure used in this case violated the parent's due process rights.

The Marion County Department of Child Services ("MCDCS") petitioned to involuntarily terminate the parental rights of K.G. ("Mother") to her four children. Magistrate Julianne Cartmel presided over the termination hearing. Mother did not attend, but she was represented by counsel. At the conclusion of the evidentiary hearing, Magistrate Cartmel took the matter under advisement, but she resigned her position before reporting recommended findings and conclusions to Judge Marilyn Moores. See Ind. Code § 33-23-5-9. The case was transferred to Magistrate Larry Bradley, who, without holding a new evidentiary hearing, reviewed the hearing record and reported recommended findings and conclusions. Judge Moores approved the findings and conclusions and ordered Mother's parental rights terminated. On Mother's appeal, the Court of Appeals found no due process violation and affirmed. * * *

Mother did not agree to have Magistrate Bradley recommend findings and conclusions based on a review of the record. See Farner v. Farner, 480 N.E.2d 251, 257-58 (Ind. Ct. App. 1985) (concluding parties may stipulate to have successor judge who did not preside at evidentiary hearing decide the issues based on the record). Nor did Mother waive her due process right by failing to object, as MCDCS alleged. Rather, it appears Mother was unaware of Magistrate Bradley's involvement in the case until after entry of the termination order, which she challenged on appeal. In accord with In re I.P., we find the procedure used by the trial court violated Mother's due process rights.

Posted by Marcia Oddi on Wednesday, March 26, 2014
Posted to Ind. Sup.Ct. Decisions

About the ILB - A plea for supporters, please read! And then, please act!

Rather than writing a new plea, below is the ILB's most recent one, from December. Its results? They were very discouraging. No additional annual supporters. Thanks, however, to several of you who sent anonymous one-time gifts last year. And luckily for all readers, the ILB still has the stalwarts listed below. Without their support, there would be no ILB.


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

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

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

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

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

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

As I am semi-retired and far from independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.

Posted by Marcia Oddi on Wednesday, March 26, 2014
Posted to About the Indiana Law Blog

Tuesday, March 25, 2014

Ind. Decisions - 7th Circuit decision re Live Nation bundling

In Batson v. Live Nation (ND Ill), a 13-page opinion, Chief Judge Wood writes:

James Batson walked up to Live Nation’s box office at the Charter One Pavilion in Chicago and purchased a non‐refundable ticket to see O.A.R., a popular American rock band. Ticket in hand, he realized that the ticket price included a $9 parking fee for a spot he did not want. Believing that the bundled $9 fee was fundamentally unfair, he sued on behalf of himself and a proposed class. * * *

There are times when consumers are required to accept a package deal in order to get the part of the package they want. An airline passenger with no luggage may prefer the cost of baggage to be decoupled from the cost of a seat, and a No. 13‐1560 13 law student may prefer to pay lower tuition and avoid “free” pizza days. But while some people may find these bundles annoying, or even unfair, the tie is not illegal unless the standards set forth in the governing antitrust cases have been met. (Batson did not allege that the offer of a parking place was fraudulent because all places were filled; we thus have nothing to say about that or any other variation on the facts before us.) We AFFIRM the district court’s dismissal of Batson’s claim.

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

Ind. Decisions - Supreme Court decides two today

In Joanna S. Robinson v. State of Indiana, a 12-page, 4-1 opinion, Justice Massa writes:

As the two companion appeals we resolve today vividly illustrate, sometimes standards of review decide cases.1 In the instant case, the trial court found law enforcement had reasonable suspicion to conduct a traffic stop and admitted the resulting evidence; in State v. Keck, No. 67S01-1403-CR-179 (Ind. Mar. 25, 2014), the trial court reached the opposite conclusion. We affirm both trial courts and decline appellants’ invitation to invade the fact-finder’s province. * * *

Dickson, C.J., and David and Rush, JJ., concur.
Rucker, J., dissents with separate opinion. [which begins, at p. 11] In a compelling and persuasive opinion the Court of Appeals determined that evidence seized after a traffic stop should not have been admitted into evidence. The majority takes issue with this determination. But in my view the Court of Appeals got it exactly right. * * *

The trial court’s order thus makes plain the basis on which it found reasonable suspicion, namely: Robinson’s acts of making contact with the fog line. I agree with the Court of Appeals that more is required. Sustaining the trial court’s finding of reasonable suspicion on the basis that the court could have credited the officer’s testimony that Robinson drove “[c]ompletely off the roadway,” Tr. at 48, amounts to reweighing the evidence, which we are not permitted to do.9

In State of Indiana v. Darrell L. Keck, an 8-page, 5-0 opinion, Justice Massa writes:
In this case, the second of two companion cases we decide today, the trial court granted the defendant’s motion to suppress the evidence against him on the ground the officer lacked reasonable suspicion to initiate a traffic stop. We affirm. * * *

Thus, the trial court was correct to grant Keck’s motion to suppress the evidence against him. And as we resolve the case on this basis, we need consider neither Keck’s state constitutional claim nor his separate argument that Deputy Smith had no probable cause to arrest him.

We therefore affirm the trial court’s grant of Keck’s motion to suppress.

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Time expires on Notre Dame prof's felony battery case"

State of Indiana v. Stephen Floyd Smith, a Not for Publication decision of the Court of Appeals last Friday, is the subject today of a story by Madeline Buckley in the South Bend Tribune. Some quotes:

SOUTH BEND — A University of Notre Dame law professor will not stand trial for a felony charge of battering his wife because the state ran out of time to build its case, the Indiana Appeals Court ruled, but he still must face a misdemeanor count for the alleged battery of his son.

The appeals court issued a decision Friday in the case of criminal law professor Stephen Smith after a somewhat unusual move brought the matter to the appellate judges before it was resolved in state court in St. Joseph County.

The appeal came after a series of snares in the case, including a switch in judges and an out-of-state witness dodging a subpoena.

Prosecutors in June 2011 charged Smith with Class D felony domestic battery in documents that alleged he tried to punch his wife, then knocked her to the ground and kicked her in front of their 10-year-old son.

Court documents say Smith’s 23-year-old son intervened, and the two struggled down the stairs of the South Bend home. * * *

His attorney, Jon Laramore, declined comment for both of them, noting that the case is still pending. * * *

A graduate of Dartmouth College and the University of Virginia School of Law, Smith continues to teach classes at Notre Dame related to criminal law and appellate advocacy.

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Ind. App.Ct. Decisions

Courts - Still more on "Federal judge strikes down Michigan ban on same-sex marriage"

Updating this ILB post and this post from March 21st, as the ILB reported at its Twitter account, @indianalawblog, although Judge Friedman initially did not stay his ruling pending the outcome of appeal, he did issue a stay during the weekend. A number of couples were married during the interim.

The plaintiffs have now filed their opposition to the stay, access it here via Equality Case Files.

Brian Dickerson, a Detroit Free Press columnist, had a long human interest story last weekend about Judge Friedman ("a Republican who’d been appointed to the federal trial bench by Ronald Reagan in 1988) and a law clerk he had 19 years ago, who as of March 20th is also a judge in the 6th Circuit (and is "the first openly gay district court judge in the history of the 6th Circuit, which encompasses federal courts in Michigan, Kentucky, Ohio and Tennessee"). The story concludes:

Saturday morning, Michigan’s newest federal judge was on hand at the Washtenaw County Clerk’s Office to certify the marriages of same-sex couples who sought to take early advantage of Friedman’s ruling.

Many people will credit Friedman, or blame him, for taking on Michigan’s prohibition of same-sex marriage. But in a larger sense, that vestigial artifact was a victim of human experience itself — including Friedman’s own.

“In attempting to define this case as a challenge to ‘the will of the people,’ state defendants lost sight of what this case is truly about: people,” the judge reflected in a poignant coda to his landmark ruling.

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Courts in general

Ind. Gov't. - " Sinkhole of bureaucracy: Deep underground, federal employees process paperwork by hand in a long-outdated, inefficient system"

As far as I know our Indiana government does not have an office to process tax returns in a cavern in a southern Indiana cave county! But see our federal government, via this long feature story in the Sunday Washington Post, that begins:

In BOYERS, Pa. — The trucks full of paperwork come every day, turning off a country road north of Pittsburgh and descending through a gateway into the earth. Underground, they stop at a metal door decorated with an American flag.

Behind the door, a room opens up as big as a supermarket, full of five-drawer file cabinets and people in business casual. About 230 feet below the surface, there is easy-listening music playing at somebody’s desk.

This is one of the weirdest workplaces in the U.S. government — both for where it is and for what it does.

Here, inside the caverns of an old Pennsylvania limestone mine, there are 600 employees of the Office of Personnel Management. Their task is nothing top-secret. It is to process the retirement papers of the government’s own workers.

But that system has a spectacular flaw. It still must be done entirely by hand, and almost entirely on paper.

The employees here pass thousands of case files from cavern to cavern and then key in retirees’ personal data, one line at a time. They work underground not for secrecy but for space. The old mine’s tunnels have room for more than 28,000 file cabinets of paper records.

There is much, much more, including a number of videos. This, according to the WAPO, is the "First in a series examining the failures at the heart of troubled federal systems," titled "Breaking Points: Where Governoment Falls Apart."

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

For publication opinions today (3):

In Marjorie O. Lesley v. Robert T. Lesley , an 11-page opinion with a separate concurring opinion, Judge Crone writes:

Marjorie O. Lesley (“Wife”) and Robert T. Lesley (“Husband”) obtained a divorce. In the final dissolution decree, the trial court found that Wife did not present sufficient evidence to establish that she was entitled to incapacity maintenance, but indicated that it would reevaluate the issue if the Social Security Administration (“SSA”) determined that she was disabled. Subsequently, the SSA found that Wife was disabled, and she filed a petition with the trial court to revisit the issue of incapacity maintenance. The trial court then issued an order finding that Wife was entitled to rehabilitative maintenance from the time of the dissolution until the emancipation of the parties’ youngest child. Wife filed a motion to correct error, arguing that the trial court erred in granting her rehabilitative maintenance rather than incapacity maintenance. The trial court denied her motion.

Wife appeals the denial of her motion to correct error, arguing that the trial court erred in finding that she was entitled to rehabilitative maintenance rather than incapacity maintenance. Husband cross-appeals, arguing that the trial court did not have the authority to reevaluate its original decision not to grant Wife maintenance. We conclude that the Indiana Code requires the trial court to make a maintenance determination at the time that the final dissolution decree is entered. We further conclude that because the trial court found in the final dissolution decree that Wife failed to carry her burden to show that she was incapacitated, it did not have the authority to revisit the issue based upon a postdissolution decision from the SSA. Accordingly, we reverse the portion of the trial court’s order granting Wife maintenance and remand for further proceedings consistent with this opinion, including all necessary recalculations. * * *

NAJAM, J., concurs.
BAKER, J., concurs with separate opinion. [that begins, at p. 10] I agree with the majority that the issue of spousal maintenance could not be revisited once the trial court entered the final dissolution decree. However, I write separately to explain how the trial court’s intent could have been properly effected.

In Victor Hugo Mesa v. State of Indiana , a 20-page opinion with a separate concurring opinion, Judge Pyle writes:
Victor Hugo Mesa (“Mesa”), pro se, appeals the trial court’s order granting summary judgment to the State of Indiana, the Office of the Jackson County Prosecuting Attorney, and the Seymour Police Department (collectively, “the State”) on the State’s complaint for forfeiture, which alleged that Mesa’s vehicle was purchased with proceeds from cocaine dealing. * * *

Because Mesa did not (1) properly request a summary judgment hearing, or (2) designate any evidence to show that there was a genuine issue of material fact regarding whether the vehicle was seizable under IC 34–24–1–1(a)(3), the trial court did not err by granting summary judgment to the State.

BRADFORD, J., concurs.
MATHIAS, J., concurs with opinion. [which begins, on p. 18 of 20] I concur with the majority’s conclusion that Mesa was not entitled to a hearing in the State’s forfeiture action, but I write separately to emphasize that Mesa’s complete failure to designate any evidence to contradict that designated by the State in its motion for summary judgment negated any reason for a hearing.

In Jerid T. Bennett v. State of Indiana , a 26-page opinion, Judge Bradford writes:
In the months leading up to December of 2011, Officer Randall Sanders of the Paoli Police Department and Detective Shane Staggs of the Indiana State Police received information from multiple confidential informants (“CIs”), each of whom had previously proven to be reliable, that Appellant-Defendant Jerid R. Bennett was engaged in illegal drug activity at his residence in Paoli. While conducting surveillance of Bennett’s residence on the evening of December 6, 2011, Officer Sanders observed Kurt Sugarman arrive at Bennett’s residence, walk around to a side entrance to the garage, return to his vehicle less than five minutes later, and drive away. Detective Staggs stopped Sugarman for a traffic infraction soon after he left Bennett’s residence. Sugarman was arrested after Detective Staggs saw drug paraphernalia in plain view in Sugarman’s vehicle. Sugarman subsequently admitted to police that he had visited Bennett’s residence for the purpose of purchasing cocaine and that he had, in fact, purchased cocaine from Bennett for $50.00. Soon thereafter, Detective Staggs requested and received a search warrant for Bennett’s residence. Law enforcement officers recovered substantial evidence of drug activity during their subsequent search of Bennett’s residence.

On December 8, 2011, Appellee-Plaintiff the State of Indiana charged Bennett with one count of Class B felony dealing in cocaine, one count of Class D felony possession of cocaine, one count of Class D felony maintaining a common nuisance, and one count of Class A misdemeanor possession of marijuana. Following a jury trial, Bennett was found guilty as charged. On appeal, Bennett challenges his convictions, contending that (1) the trial court abused its discretion in admitting certain evidence, (2) the trial court erred in allowing the State to show certain text messages to the jury during its rebuttal closing argument, (3) the trial court erred in allowing the State to amend the charging information, and (4) his conviction for Class D felony possession of cocaine is barred by double jeopardy. Concluding that Bennett’s conviction for Class D felony possession of cocaine is barred by double jeopardy but finding no other error, we affirm the judgment of the trial court in part and vacate Bennett’s conviction for Class D felony possession of cocaine.

NFP civil opinions today (2):

Robert Morris Endris v. Jennifer Lynn Endris (NFP)

Vernon Robinson v. Estates At Eagle's Pointe (NFP)

NFP criminal opinions today (2):

Dennis Knight v. State of Indiana (NFP)

Richard Antonio Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Indiana lawmakers probe Ball State over intelligent design: Legislators issue demand, threaten 'legislative action'"

Updating his troubling story from March 16th, Seth Slabaugh of the Muncie Star-Press now reports, in a story headed "Ball State, lawmakers to discuss intelligent design":

MUNCIE— Four conservative state lawmakers agree with Ball State University President Jo Ann Gora that it would be more productive to talk in person rather than by correspondence about the clash between science and intelligent design.

Sen. Dennis Kruse, R-Auburn, chairman of the Education Committee, and three other legislators sent Gora a letter questioning whether academic freedom, free speech and religious liberty have been respected by BSU in its treatment of Eric Hedin, an assistant professor of physics. * * *

The letter gave Gora until the end of business on Monday to answer the following question: "Does the policy forbid science professors from explaining either their support or rejection of intelligent design in answer to student questions about intelligent design in class?"

The letter concluded, "In order to determine if legislative action is required, we feel obligated to investigate whether BSU has acted in accord with state educational policy, legal requirements, and BSU's own published standards."

On Monday, The Star Press obtained a letter written by Gora to the legislators reporting that Ball State’s governmental affairs representatives had met with the lawmakers “and you agreed that a discussion ... might be more productive than written responses.”

“I have asked our ... representatives to coordinate with each of your offices and find a date that works for the four of you and the university officials I’d like you to meet with,” Gora wrote in her letter dated March 18.

“In addition to the meeting, I would hope you could stay for lunch and a tour of the campus ... My colleagues welcome this opportunity to meet with you and discuss these important issues.”

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Indiana Government

Courts - 6th Circuit mulls fired lawyer’s suit against judge

An AP story published here in the Fort Wayne Journal Gazette offers a glimpse at what looks to be a fascinating story in the 6th Circuit where:

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati recently heard arguments in the case involving Judge David Dean Evans in Gallia County, just across the West Virginia line in southeastern Ohio’s Appalachian country.

Attorney Robert Bright filed a federal civil rights lawsuit against Evans, the county, its board of commissioners and its public defender’s office in November 2012, accusing them of violating his constitutional rights to freedom of speech and due process. The public defender’s office fired Bright in September 2011 after Evans removed him from all the 60-some cases pending in his courtroom because of “the conflict he created with the court.”

The judge cited a lengthy motion from Bright criticizing some of Evans’ courtroom practices. Bright’s criticism came after the judge twice refused to accept a plea agreement involving a defendant who had waffled in court before finally saying he wanted to plead guilty to burglary and drug trafficking at a hearing July 25, 2011.

Bright then filed his motion trying to get the plea accepted, saying that refusing to do so would force a trial that no one wanted, thereby wasting county taxpayer money and the time of everyone involved, including 21 witnesses and a jury. He wrote that the judge’s “attitude is unreasonable and-or arbitrary and-or unconscionable.”

In response, Evans – the only judge in Gallia County – ordered Bright removed from that case and 63 other pending cases, saying the attorney’s attitude compromised the judge’s ability to be fair and impartial toward him.

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Courts in general

Ind. Courts - Sentence Reductions in Indiana: Now An Annual Event?

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

Each year as part of the criminal law survey article I write for the Indiana Law Review, I include some statistics on sentence reductions by the Indiana Court of Appeals under Appellate Rule 7(B). Notice the dramatic reduction over the past three years:

Year 7(B) Claim Raised Reduced by COA Transfer to SC Net Reductions
10/1/10- 9/30/11 391 26 0 26 (6.6 %)
10/1/11- 9/30/12 337 16 3 13 (3.9%)
10/1/12- 9/30/13 302 4 3 1 (0.3%)
As explained in these July 3 and July 22 posts last summer, the revision of sentences is the areas of law in which the Indiana Supreme Court’s jurisprudence has changed most significantly since the 2012 retirements of Chief Justice Shepard and Justice Sullivan. Before the retirement of Chief Justice Shepard, the State would rarely seek transfer from a reduction; it has done so (successfully) in nearly every case since his retirement. More notable, though, is the dramatic reduction of sentence revisions by the Court of Appeals, from nearly 7% three years ago to about one case per year in the past year. Moreover, it’s not as though these cases are dividing panels at the Court of Appeals. Of the nearly 300 opinions in which the defendant’s 7(B) claim was rejected, only four included a dissenting opinion, each of which was written by Judge Riley. Finally, although less stark, appellate counsel for defendants are not oblivious to the shift and are increasingly less likely to raise 7(B) claims.

Wednesday’s opinion in Corbally v. State appears to be the first sentence reduction by the Court of Appeals in more than a year. The last two reductions were in February of 2013. Transfer was quickly granted and the original sentence reinstated in Chamber v. State. In Kovats v. State, however, the State did not seek transfer form an opinion that includes a few pages of thoughtful reasoning to support its modest reduction of a 20-year sentence to 15 years.

Corbally similarly includes pages of thoughtful analysis in a fairly modest reduction (from 270 years to 165 years), including the following:

In researching reported cases decided since adoption of the “inappropriate” standard for reviewing sentences, we have found that the longest affirmed sentence imposed for a single episode of sexual violence against one victim was 151 years, in Johnson v. State, 837 N.E.2d 209, 213-14 (Ind. Ct. App. 2005), trans. denied. In that case, the defendant and two cohorts carjacked a woman’s vehicle, unsuccessfully attempted to force her to withdraw money from an ATM, drove her to a garage, then forced her to perform numerous sexual acts while the defendant was armed with a gun. The defendant had an extensive criminal history, including three felony convictions, consisting primarily of drug offenses. The sentences in other reported cases involving a single episode of sexual violence have generally ranged in the ninety to 150-year range. See Akard v. State, 937 N.E.2d 811, 814 (Ind. 2010) (affirming 94-year sentence and reversing this court’s sua sponte increase of sentence to 118 years for two counts of Class A felony rape, one count of Class B felony rape, two counts of Class A felony criminal deviate conduct, one count of Class B felony criminal deviate conduct, two counts of Class B felony confinement, and two counts of Class C felony battery, where defendant without criminal history abducted homeless woman who appeared childlike and acted out child bondage rape fantasies upon her for several hours); Alvies v. State, 905 N.E.2d 57, 64-65 (Ind. Ct. App. 2009) (affirming 110-year sentence for murder, Class A felony rape, Class B felony criminal confinement, Class B felony burglary, and Class D felony auto theft, where defendant without criminal history abducted victim from her home and, with cohorts, raped victim and then shot and killed her); Rose v. State, 810 N.E.2d 361, 368-39 (affirming 135-year sentence following guilty plea to Class A felony burglary, Class B felony confinement, two counts of Class A felony criminal deviate conduct, and three counts of Class B felony robbery, where defendant and cohort broke into house, performed various sexual acts on two victims, one of whom was pregnant and went into premature labor, and victims were robbed; defendant was sixteen and had several delinquency adjudications).; cf. Horton v. State, 949 N.E.2d 346, 349 (Ind. 2011) (revising 324-year sentence for six counts of Class A felony child molesting and three counts of Class C felony child molesting to 110 years, where defendant had no adult criminal history but he had daily for six months violently molested seven-year-old girl, causing damage to her bowels and giving her herpes).
I would be surprised if the State seeks, or the Court grants, transfer in Corbally. The opinion easily satisfies the State’s requirement of a “compelling analysis” mentioned during an Indiana Supreme Court oral argument last year. As explained in the July 3 post, the Court of Appeals’ opinion in Merida, which did not survive transfer, cited a couple of cases for the legal standard and marshaled the relevant facts but did not apply any Supreme Court child molesting sentence reduction precedent. Corbally does much better on this score.

Finally, as a practical matter, there is not much difference between the 270 years imposed by the trial court and the revised sentence of 165 years. Even if Mr. Corbally maintains good behavior in prison and does only 50% of his sentence, each is a life sentence. The effect of the Court of Appeals’ opinion is to move his release date from April 27, 2146, to approximately November 27, 2093.

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Indiana Courts | Schumm - Commentary

Courts - "Notre Dame students only women fighting challenge to providing birth control"

Maureen Groppe of the Gannett Washington Bureau has a long story today that begins:

WASHINGTON -- — When the Supreme Court on Tuesday takes up challenges to the Affordable Care Act's requirement that employer-provided insurance cover birth control, women affected by the case will not have a legal seat at the table.

Of the dozens of challenges across the country that are moving through the court system, the only one in which effected [sic.] women have gotten involved is the suit brought by the University of Notre Dame that is still working its way through the lower courts. Three students became parties to the case in January, arguing -- on the same side as the federal government -- in favor of the coverage.

"It puts a human face on the issue," said Ayesha Kahn, the legal director of Americans United for Separation of Church and State who is representing the students. "This isn't just about case law and legal doctrine, but about women's access to contraceptive coverage and all of the implications of that access, including control over one's reproductive capacity and childbearing decisions generally."

The students, who participate in the university's health insurance plan, may have added their voice, but they're doing so anonymously. They were concerned that challenging Notre Dame and talking publicly about intimate details of their personal lives, could expose them to public harassment and reprisals, according to court filings.

Kahn is hoping to add to the group a female Notre Dame professor who did not realize she could play a role in the litigation until she saw media coverage about the students' involvement. The employee, who also wishes to remain anonymous, takes oral contraceptives for non-contraceptive medical reasons.

That involvement is missing from the related case the Supreme Court takes up Tuesday -- whether for-profit corporations can be exempted from including full coverage for all methods of birth control, including those that the company's owners oppose on religious grounds.

Advocates on the other side were not able to find an employee of the Hobby Lobby chain of arts-and-crafts stores, or of the cabinet maker Conestoga Wood Specialties Corp., to get involved.

"Those women just don't want to come forward," said Brigitte Amiri, senior staff attorney for the American Civil Liberties Union Reproductive Freedom Project. "They're just too afraid that they're going to lose their job."

But women's groups are promising to make their voices heard in other ways.

Here is the Feb. 21, 2014 7th Circuit Notre Dame opinion,

Posted by Marcia Oddi on Tuesday, March 25, 2014
Posted to Courts in general

Monday, March 24, 2014

Ind. Law - "The Confusing Status of the Indiana Statute of Limitations for Breach of Written Contracts"

Michael Ray Smith, an Indianapolis attorney, has an interesting post at Indiana Business Law Blog on what statute of limitations is applicable in a dispute with a construction contractor after a number of years have passed. A sample:

It has been more than six years, but less than ten, since the addition to your house was finished and you noticed the problem with the shingles. Which statute applies?

Certainly your construction contract called for the payment of money, but don't most contracts do that? Is every contract that requires payment of money subject to the six-year statute of limitations, regardless of the rest of the contract? If so, that leaves the ten-year statute of limitations to cover only those contracts that do not involve the payment of money at all. On the other hand, maybe the idea is that the six-year statute of limitation covers contracts that do not involve anything other than the payment of money.

Surprisingly, there are very few published Indiana court decisions that address the question of which written contracts are covered by the six-year statute of limitations and which are covered by the ten-year statute, even though those statutes originated in 1881.

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Indiana Law

Courts - "Contraception Ruling Could Have Reach Far Beyond Women’s Rights"

Hobby Lobby and Conestoga Wood Specialties will be argued tomorrow before the SCOTUS. The ILB has had a number of posts on Hobby Lobby in the past, particularly significant because on Nov. 8, 2013 the 7th Circuit issued a consolidated opinion in the Grote (SD Ind, Barker) and the Korte (SD Ill.) challenges to the affordable health care act "contraception mandate". The 7th Circuit ruled 2-1 that the two corporations could challenge the contraception mandate. Here are ILB Korte/Grote posts. The SCOTUS opinion on tomorrow's oral arguments will impact these 7th Circuit rulings.

Here is Lyle Denniston's lengthy argument preview, headed "Religion, rights, and the workplace."

How Appealing has at least three posts compiling many news reports on tomorrow's argument. This one is from this morning. This one is from Sunday. This v-e-r-y long list is from Saturday, March 22nd.

"Contraception Ruling Could Have Reach Far Beyond Women’s Rights" is the title to this article today by Adam Liptak of the NYT. A sample:

“If Hobby Lobby were to prevail, the consequences would extend far beyond the issue of contraception,” said Walter Dellinger, a former acting United States solicitor general who filed a brief urging the court to uphold the law.

Objections to laws based on religious beliefs can arise in many settings, and supporters of the coverage requirement say a ruling for the company could frustrate the enforcement of laws addressing health, safety and civil rights.

“We would be entering a new world in which, for the first time, commercial enterprises could successfully claim religious exemptions from laws that govern everyone else,” Mr. Dellinger said. “A win for Hobby Lobby could turn out to be a significant setback for gay rights.”

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Courts in general

Ind. Decisions - "No privilege on Wartell report, appeals court rules"

Today's Court of Appeals opinion in Purdue University v. Michael A. Wartell is the subject of a new story this afternoon by Niki Kelly of the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – Purdue University cannot claim attorney-client privilege in denying former IPFW Chancellor Michael Wartell a report related to his dismissal, the Indiana Court of Appeals ruled Monday.

The court heard the case in December, and at that time expressed skepticism about Purdue’s actions.

The issue is whether attorney John C. Trimble was acting as Purdue's attorney, an independent investigator or both when he issued a report and recommendations to three members of the university's board of trustees.

Wartell sought access to that report but was denied by Purdue's claim of attorney-client privilege, which led to the lawsuit. He won an initial trial-court ruling and the appeals court upheld that finding.

“The attorney conducted his investigation in accordance with the specified procedures to be followed by the independent investigator, and the attorney did not inform Wartell that he was acting as Purdue’s legal counsel, as would be required under Indiana Rules of Professional Conduct,” the appellate decision said.

As the the background of the dispute, Kelly writes:
Wartell was forced out at IPFW in 2011 because Purdue requires university executives to retire at age 65. Requests from IPFW that he be allowed to stay were denied.

Wartell filed a complaint against Purdue, claiming discrimination and harassment. Purdue hired Trimble as an independent investigator. The investigation was completed and the board found that no discrimination had taken place.

But nothing was ever released, to the public or to Wartell, who filed requests with Purdue officials and the state's public access counselor to see the report.

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Domestic Relations Committee of the Judicial Conference of Indiana is holding a public hearing and seeking comment on Indiana’s Child Support Guidelines

Members of the public, judicial officers, attorneys, and parents are invited to attend the hearing, which will also be webcast.

It will be Friday, May 16th, 10:00 a.m. – 12:00 noon E.D.T., Supreme Court Courtroom.

For more details, or to watch live on May 16, check this webpage.

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Indiana Courts

Ind. Decisions - This morning's Indiana Supreme Court opinion is not new, and what's wrong with that

This morning I posted the Supreme Court opinion in State of Indiana v. I.T. Because it sounded familiar, I first checked that I had not already posted it on Friday.

I became aware of the opinion because of a tweet this morning by Indiana Courts:

Prof. Schumm has just sent me a note that this was simply a "corrected opinion". A check of the docket at 3/21/14 shows that to be so:

IT HAS COME TO THE COURT'S ATTENTION THAT THE OPINION HANDED DOWN ON MARCH 12, 2014, CONTAINS AN INADVERTANT ADMISSION ON PAGE 1. SPECIFICALLY, ATTORNEY PETER D. TODD OF ELKHART, INDIANA, WAS NOT LISTED ABOVE THE CAPTION AS COUNSEL FOR THE APPELLEE.

THIS INADVERTANT OMISSION WAS CORRECTED IN A REVISED OPINION THAT WAS DELIVERED TO THE CLERK WITH THIS NOTICE. NO OTHER CHANGES WERE MADE TO THE OPINION, AND NEITHER THE CORRECTED OPINION NOR THIS NOTICE ALTER THE DUE DATE FOR A PETITION FOR REHEARING.

THE CLERK IS DIRECTED TO (1) ENTER THIS NOTICE OF CHANGE ON THE CHRONOLOGICAL CASE SUMMARY; (2) SERVE ALL COUNSEL OF RECORD WITH A COPY OF THE CORRECTED OPINION AND THIS NOTICE; (3) MAKE ARRANGEMENTS FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE AND POSTING THE CORRECTED OPINION IN ITS PLACE; AND (4) SEND A COPY OF THIS NOTICE TO THOMSON/REUTERS, LEXISNEXUS, AND WOLTERS KLUWER.

LORETTA H. RUSH, JUSTICE
(NOTICE REC'D ON 03/21/14 @ 2:08 PM) ENTERED ON 03/21/14 AB

But there is nothing in the opinion filed March 21st to indicate that it is merely a corrected version of the opinion filed March 12th.

Earlier this month, on March 6th, the Supreme Court also issued a corrected opinion, of the March 4th opinion In re Brown. At the time, the ILB wrote:

The Supreme Court has now posted a new version of the March 4th opinion in In re Brown, marked "Corrected on March 5, 2014." However, there is no indication of what is the correction.
Now, a few weeks later, the Supreme Court has issued another corrected opinion, this one with no indication at all that it has been corrected, much less pointing out what the change is. And although the Brown opinion used the same filing date for both versions, I.T. now has two separate filing dates.

On July 12, 2013, the ILB wrote a long post titled "Ind. Courts - Current process for dealing with corrected appellate opinions poses perils." The last part of the post discusses the perils posed by the haphazard way corrections to opinion appear to be dealt with. It concluded:

What to do? At a bare minimum, the changed version should be so identified. A change sheet should be included in the posting so that the changes are easily found.

More should be done if changes go beyond typos, perhaps refiling the opinion. The parties, of course, must be notified. And a general notice system, perhaps similar to the one now used by the Court of Appeals for NFPs changed to FP, might also be employed.

I would end on that note, except that I recently have come across a post from a blog, Citing Legally, run by Peter W. Martin, the Jane M.G. Foster Professor of Law, Emeritus, at Cornell. Scroll down the post to #4, which discusses the Indiana Court correction process. Some quotes:
The judicial web sites of some jurisdictions are very clear that one shouldn’t count on such post-release revisions being incorporated into the electronic texts they hold. A recent example from Indiana illustrates the problems this can generate.

On October 17, 2012, the Indiana Supreme Court issued an opinion in J.M. v. Review Bd. of Indiana Dept. of Workforce Development. The decision was posted at the web site of Indiana’s judicial branch.

Continue reading the post from Cornell for the somewhat sorry tale, at length.

The ILB also talked about this problem involving the Workforce Development opinions in detail in this Sept. 12, 2013 post in the paragraph that begins "ILB:"

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP)

For publication opinions today (2):

In Purdue University v. Michael A. Wartell , an 18-page opinion, Judge Crone writes:

Here, Purdue represented to Wartell that it would appoint an independent investigator to investigate his complaint, but then concealed from Wartell that it hired an attorney it intended to serve as its legal counsel; thus, Wartell never had an opportunity to object to the attorney’s appointment on that basis. Relying on Purdue’s representation, Wartell allowed the attorney to interview him, the president, and others and submit an investigative report with determinations and recommendations regarding his complaint to a panel of Purdue’s trustees. Based on these facts and circumstances, we cannot say that the trial court erred in ruling that Purdue should be equitably estopped from invoking the attorney-client privilege and the work-product doctrine as to Wartell. Therefore, we affirm.
ILB: For background, see this Dec. 18, 2013 ILB post.

In David Sesay v. State of Indiana, a 19-page opinion with a concurring opinion, Judge Robb writes:

Following a bench trial, David Sesay was found guilty of public intoxication, a Class B misdemeanor, and sentenced to a term of 180 days, with 178 days suspended to probation. Sesay appeals his conviction, raising a single issue for the court’s review: whether the evidence of “endangerment” is sufficient to support his conviction for public intoxication. Concluding the State failed to prove Sesay engaged in any conduct beyond intoxication that endangered his life, we reverse. * * *

To prove the offense of public intoxication, the State is required to show that a person is in a public place, in an intoxicated state, and—as relevant to this case—endangering his life. Although there is no question that Sesay was in a public place and that he was intoxicated, the State failed to prove that he engaged in any additional conduct that endangered his life. Sesay’s conviction is, therefore, reversed.

RILEY, J., concurs.
BRADFORD, J., concurs in result with separate opinion. [which begins, at p. 16] I concur with the majority’s conclusion that Sesay’s conviction should be reversed. However, I write separately to clarify that while I believe that the evidence presented at trial was sufficient to show that Sesay was endangered at the time of his arrest, I believe that Indiana Code section 7.1-5-1-3 requires a showing that the endangerment resulted from an affirmative act by Sesay and, in the instant matter, the evidence presented below was insufficient to make such a showing.

NFP civil opinions today (3):

Albert J. Purcell v. Theresa M. Purcell (NFP)

Beatriz Morales v. Housing Authority of South Bend and Attorney General of Indiana (NFP)

Becky O'Neal v. Donald O'Neal (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Justice Rush interviewed on "Indianapolis This Week" on Sunday

Justice Loretta Rush interviewed by WRTV6, Rafael Sanchez, at 17:45-20:09 of video Sunday.

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 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, March 21, 2014. It is two pages (and 16 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - "Judge recommends reprimand for Alexander"

As far as the ILB knows, findings of hearing officers in attorney disciplinary cases are public, but unfortunately not generally accessible online from the Courts site. For instance, the findings in the Devlin case Friday are "incorporated by reference" in the Supreme Court ruling, but not readily available to the public.

Occasionally, a newspaper reports on the hearing officer recommendations. This happened with the Kimberly Brown judicial disciplinary hearing, where the masters' findings of fact were made available to the press.

Today Douglas Walker reports in the Muncie Star-Press that begins:

MUNCIE — A Wayne County judge has recommended that the Indiana Supreme Court publicly reprimand — but not suspend from the practice of law— local attorney Michael J. Alexander.

Wayne Superior Court 3 Judge Darren Dolehanty — appointed hearing officer after a disciplinary complaint was filed against Alexander in January 2013 — issued his findings and recommendations to the state Supreme Court on Friday.

Dolehanty noted that the alleged misconduct — which Alexander largely admitted to at a Feb. 28 hearing — “happened several years ago,” adding that he had no reason to believe the Muncie attorney had committed additional rule violations in the years since. * * *

The final decision on Alexander’s fate rests with the Supreme Court, which is not bound by Dolehanty’s suggestions. In some other local disciplinary cases, the Supreme Court has taken final action several months after receiving a hearing officer’s report.

One of the complaints against Alexander focused on his representation of a local couple in their lawsuit against Outback Steakhouse.

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Taxpayers fund creationism in the classroom"

Politico today has a very long "special" by Stephanie Simon. It begins:

Taxpayers in 14 states will bankroll nearly $1 billion this year in tuition for private schools, including hundreds of religious schools that teach Earth is less than 10,000 years old, Adam and Eve strolled the garden with dinosaurs, and much of modern biology, geology and cosmology is a web of lies. * * *

Decades of litigation have established that public schools cannot teach creationism or intelligent design. But private schools receiving public subsidies can — and do. A POLITICO review of hundreds of pages of course outlines, textbooks and school websites found that many of these faith-based schools go beyond teaching the biblical story of the six days of creation as literal fact. Their course materials nurture disdain of the secular world, distrust of momentous discoveries and hostility toward mainstream scientists. They often distort basic facts about the scientific method — teaching, for instance, that theories such as evolution are by definition highly speculative because they haven’t been elevated to the status of “scientific law.”

And this approach isn’t confined to high school biology class; it is typically threaded through all grades and all subjects.

Here are the two paragraphs directly referring to Indiana:
The Friedman Foundation, which supports vouchers, last year asked hundreds of families receiving tax-credit scholarships in Georgia why they chose a private school. “Religious education” tied with “better education” as the single most important motivation, far above the other choices.

A second Friedman Foundation survey of 1,400 voucher recipients in Indiana yielded similar results. Parents overwhelmingly cited “better academics” as their top reason, closely followed by “morals instruction” and “religious instruction.” Other motivations, such as a safer environment or smaller class sizes, fell way down the list. * * *

Most programs start out targeted at low-income or disabled children, but they often expand. In Indiana, a family of four with an income of $88,000 is eligible for a partial voucher. In Pennsylvania, families with income above $100,000 can qualify if their local public school posts poor test scores. An Arizona bill would raise the income cutoff by 15 percent a year indefinitely.

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court posts opinion filed Friday, construing Juvenile Mental Health Statute’s limited immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delinquency

In State of Indiana v. I.T., a 10-page, 5-0 opinion, Justice Rush writes:

More than half of children entering the Indiana juvenile justice system have mental health or substance abuse problems. In response, Indiana has established a pilot project to screen and treat juveniles suffering from these issues. To facilitate participation in the project, the Legislature en-acted the Juvenile Mental Health Statute, barring a child’s statement to a mental health evaluator from being admitted into evidence to prove delinquency. We construe that statute to confer both use immunity and derivative use immunity, in order to avoid a likely violation of the constitutional privileges against self-incrimination under the Fifth Amendment and Article 1, Section 14 of the Indiana Constitution. We therefore affirm the trial court. * * *

We conclude that the State may appeal a juvenile court order that suppresses evidence, if doing so terminates the proceeding. We also construe the Juvenile Mental Health Statute’s limited immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delin-quency—a safe harbor that honors the Legislature’s intent, while avoiding any question of the Statute’s constitutionality that would otherwise be implicated. We therefore affirm the trial court.

ILB Note: This opinion is NOT new, see this post from later in the same day.

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/24/14):

Next week's oral arguments before the Supreme Court (week of 3/31/14):

Thursday, March 20

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/24/14):

Tuesday, March 25

Thursday, March 27

Next week's oral arguments before the Court of Appeals (week of 3/31/14):

Monday, March 31

Wednesday, April 2

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

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


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

Posted by Marcia Oddi on Monday, March 24, 2014
Posted to Upcoming Oral Arguments

Friday, March 21, 2014

Courts - More on "Federal judge strikes down Michigan ban on same-sex marriage"

Updating this earlier ILB entry, here is SCOTUSblog's Lyle Denniston's report on the Michigan DeBoer v. Snyder opinion, headed "Michigan same-sex marriage ban falls." Denniston points out:

There have been two other trials in history on the validity of same-sex marriage bans — one in Hawaii in 1996 (a state where same-sex marriage rights have since been alternatively banned and then granted), and the trial in federal court in California in 2010 that led to a decision striking down that state’s “Proposition 8″ ban. The California ban ended when the Supreme Court refused last June to decide the merits of an appeal by the ban’s ballot measure proponents.

Judge Friedman had heard testimony from sociological experts on both sides of the same-sex marriage question. He wound up giving “great weight” to the testimony of experts whose studies generally provided support for same-sex marriage, and flatly rejected as unsound the testimony of experts claiming that such marriages would harm children raises in such households.

State officials had defended the Michigan ban with three arguments, and the judge rejected all of them, finding that none provided any justification for the ban. He applied the most easily satisfied constitutional test — “rational basis” — in doing so.

Those arguments by the state were that the ban helped preserve an “optimal environment” for child-rearing, that it was based upon the need to proceed cautiously before abandoning opposite-sex marriage as the standard, that it supported both “tradition and morality,” and that it was based upon the state’s basic authority to define who may marry.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Courts in general

Courts - "Federal judge strikes down Michigan ban on same-sex marriage"

Updating this ILB post from March 8th headed "Courts - Long same-sex marriage trial in Michigan ended Friday," the WSJ has just reported "Federal judge strikes down Michigan ban on same-sex marriage."

[More] From a news release from the Mich. AG [h/t @AppellateDaily] : "U.S. District Court Judge Bernard A. Friedman ruled against the Michigan Constitution in DeBoer v. Snyder ... In contrast with other federal judges handling similar cases across the country, Judge Friedman did not stay his ruling pending the outcome of appeal."

[ILB: However, Nevada and Kentucky did not stay until later]

[More] Here is the opinion, via BuzzFeed.

How Appealing has links to Detroit news stories and the opinion.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Courts in general

Ind. Gov't. - More on: "Lawmaker’s conflicts tarnish entire Indiana House"

Updating this ILB post from March 20th, Tom LoBianco of the AP had a story yesterday afternoon headed "Bosma asks House Ethics Committee to review Turner." A few quotes:

INDIANAPOLIS — Speaker Brian Bosma asked members of the House Ethics Committee Thursday to determine whether a lawmaker did anything wrong by privately lobbying for his family's nursing home business.

Bosma, R-Indianapolis, wrote a letter to House Ethics Chairman Greg Steuerwald, R-Avon, requesting an investigation into whether Republican Rep. Eric Turner violated any ethics rules.

The Associated Press reported Monday that Turner, R-Cicero, had lobbied other members of the Republican caucus in private last week to block a nursing home ban that would have harmed his son's business. Democratic Party Chairman John Zody asked for an ethics investigation in a letter to Bosma Tuesday that cited the AP report.

"I am forwarding this inquiry to your attention to determine whether the Rules of the Indiana House of Representatives, or other applicable authorities, have been violated," Bosma wrote. "If you find a violation, please recommend any actions you feel should be taken."

Even with Bosma's request, it's unclear whether there would be an investigation.

Steuerwald said he would have to talk with other members of the committee before deciding whether to hold a hearing. And if the members do agree to a meeting, he questioned whether anyone would testify because caucus discussions are considered private.

What follows next is what caught the ILB's eye:
"I don't think we have any means to compel people to comment," Steuerwald said. "This is from a discussion in a private caucus — I mean, geez. As you know Democrats and Republicans have those private caucus meetings every day and getting involved in the discussions that happen in caucus would be. Wow. Those are private and confidential by design."
This does not seem to bode well for any sort of reprimand or control of lobbying by legislators that would be unethical if conducted on the floor, when done outside the public eye, in caucus.

The sanctity of the caucus - What happens in the caucus stays in the caucus. Just ask Senator Mike Delph... See this Feb. 16th quote from another LoBianco story:

"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."
But why should caususes meet in secret at all? Currently, under the open door law (ODL), a state board, for example, can't meet in private, hash out an issue, come to a decision, and then hold a pro forma vote at a public meeting. The private session constitutes a meeting and violates the open door law. (See p. 6 of the Handbook on Indiana’s Public Access Laws).

IC 5-14-3-2 defines "public agency" very broadly to include boards, commissions, departments and offices exercising administrative, judicial or legislative power. However, the Handbook discusses legislative caucuses specifically at pp. 6-7, as one of the seven statutory types of gatherings not considered to be “meetings” at IC 5-14-1.5-2. The example given in the Handbook:

Example 1: Before a tax measure is voted upon in the General Assembly, members of the majority party meet to discuss the party’s position. The meeting is not subject to the ODL. A political caucus is not transformed into a meeting subject to public scrutiny under the ODL merely because persons attending such caucuses happen to constitute a majority of a governing body.
But should this be so, in a time of governmental transparency? It wasn't that many years ago that conference committees were held in secret.

The ILB has done some very cursory research and quickly located several states at least discussing the issue of making legislative caucus meetings public.

In Tennessee, according to this story in the Knoxville News: "Senate Republican Leader Mark Norris said Wednesday that he believes the Senate Republican Caucus is obliged to meet in public ... the Senate in May of 2011 voted unanimously to incorporate a 2006 statute that says meetings of a quorum of the House and Senate must be open to the public except when considering impeachments of matters of state and national security."

"Republicans in the Kansas Senate have blocked a proposal from Democrats to require all legislative party caucus meetings to be open to the public" reports this AP story from Topeka.

From an AP story in the Massachusetts Berkshire Eagle:

Lawmakers are currently exempt from the open meeting law, and routinely conduct some of their business -- such as holding legislative caucuses and debating portions of bills like the state budget -- behind closed doors with no written record.

First Amendment groups, journalists and others have long argued that the state’s public records law is outdated and that requests are frequently ignored or rejected by government agencies, and when material is released, it often is delivered in bulky hard copy with an exorbitant fee attached.

In South Dakota the ArgusLeader had a story last month headed "Republican leaders reject call to open party’s closed-door caucuses." A quote:
"We’re basically holding hearings outside the public eye," [Rep. Stace Nelson] said. "Our open government laws here in the state of South Dakota don’t allow… our smaller bodies of government to do the same."

The Legislature’s floor sessions are open to the public, as are its committee hearings where bill testimony is taken and votes taken on whether the bills should advance to the floor. But members of both parties meet daily for an hour or more in closed-door caucuses to debate legislation. Nelson also said Republican members of the same committee sometimes meet before hearings to discuss bills in private.

Rapid City Mayor Sam Kooiker urged lawmakers to adopt the proposal, saying city councils function well under rules strictly limiting when a majority of members can meet in private.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Indiana Government

Ind. Decisions - More on "For Illinois opinion, Judge Posner conducts experiment in chambers"

Josh Blackman's Blog (he is assistant professor of law at the South Texas College of Law in Houston, Texas) has a long post today (h/t @appellatedaily) headed "Judicial Fact Finding Ron Amok: Judge Posner’s Judicial Fashion Shows." Here is the beginning and end:

Under the Federal Rules of Appellate Procedure, the record on appeal is limited to the original papers and exhibits filed in the district court.” That’s it. Lawyers are not allowed to introduce new facts and exhibits outside the record. Yet, this rule has been totally lost on Judge Posner, who has deemed it appropriate to hold a fashion show in chambers because a fact wasn’t clear in the record below. * * *

Under the Federal Rules of Appellate Procedure, the record on appeal is limited to the original papers and exhibits filed in the district court.” That’s it. Lawyers are not allowed to introduce new facts and exhibits outside the record. Yet, this rule has been totally lost on Judge Posner, who has deemed it appropriate to hold a fashion show in chambers because a fact wasn’t clear in the record below.

The ILB wrote about this opinion in a March 19th entry, headed "For Illinois opinion, Judge Posner conducts experiment in chambers."

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Nathan Wertz v. Asset Acceptance, LLC., a 17-page opinion, Judge Najam writes:

Nathan Wertz appeals the trial court’s judgment dismissing his counterclaim against Asset Acceptance, LLC (“Asset”) pursuant to Asset’s Trial Rule 12(B)(6) motion. Wertz raises six issues for our review, but we need only address the following dispositive issue: whether, under Indiana’s Uniform Consumer Credit Code (“IUCCC”), Ind. Code §§ 24-4.5-1-101 to -7-414, Asset, an out-of-state business, was required to obtain an Indiana license to collect on a debt owed by Wertz that Asset had purchased from the original lending institution. We affirm. * * *

Accordingly, because Asset is a Delaware limited liability company with its principal place of business in Michigan, and because Asset does not have a physical situs within Indiana, the IUCCC’s licensure provision does not apply to it. Because Asset was not required to obtain a license under the IUCCC, Wertz’s claims under the IDCSA and the FDCPA cannot stand as alleged. Thus, we affirm the trial court’s dismissal of Wertz’s counterclaim for failure to state a claim upon which relief can be granted.

NFP civil opinions today (3):

Brady D. Ericson and Tiffany J. Ericson v. Bloomfield State Bank (NFP)

David A. Shane v. Sheila Shane (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: J.W.K., R.K., J.N.K., B.K., and J.K., Minor Children, and S.K., Mother v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (7):

State of Indiana v. Stephen Floyd Smith (NFP)

Anthony Taylor v. State of Indiana (NFP)

Henry D. Hull v. State of Indiana (NFP)

Darrell Turner, Jr. v. State of Indiana (NFP)

Justin D. Coates v. State of Indiana (NFP)

Kathy Jo Hill v. State of Indiana (NFP)

Barbara Loomis v. James Loomis (NFP)

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Indiana Court Rules Against Searching Motorists Who Leave Their Car Looking at a tail light during a traffic stop does not justify a pat down"

The Feb. 27th Court of Appeals opinion in State of Indiana v. Michael E. Cunningham is the subject of a story today in theNewspaper.com: "A journal of the politics of driving." The story begins:

Police may not search a motorist simply because he gets out of his car, the Indiana Court of Appeals decided last month. A divided three-judge panel found Huntingburg Police Officer Andrew Hammock was in the wrong when he performed a pat-down search of Michael E. Cunningham simply because the driver wanted to see whether his tail light really was broken while pulled over for the offense on May 17, 2013.

During the stop, Cunningham was genuinely surprised when the officer told him one of his tail light covers was missing. He knew he had a cracked lens, but he did not think it was completely broken. Cunningham asked if he could see for himself. Officer Hammock said he could, but he would have to be searched first. Officer Hammock felt a pill bottle in Cunningham's pocket, and when asked Cunningham admitted it contained marijuana. He also had a pipe in the car. Officer Hammock arrested Cunningham.

Cunningham was charged with Class A misdemeanors for possession of marijuana and marijuana paraphernalia. At trial, Cunningham argued the entire traffic stop was illegal. The appellate court disagreed and found the initial traffic stop was entirely justified, but it went on to question the validity of the pat-down search.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Rare win by defendant in disciplinary hearing

The decision is In the Matter of: Maureen M. DEVLIN, a one-page "published judgment in favor of respondent," filed March 19th. From the judgment:

Upon review of the report of the hearing officer, the Honorable Mark X. Sullivan, who was appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and the briefs of the parties, the Court finds that Respondent did not engage in professional misconduct and enters judgment for Respondent.

Charges: The Commission alleges that Respondent violated the following Indiana Professional Conduct Rules:
3.8(d): "The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . ."
8.4(d): "It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice . . . ."

Discussion: The Court incorporates by reference the hearing officer's findings of fact. The hearing officer concluded that the Commission had failed to meet its burden of proving that Respondent committed any professional misconduct. After reviewing the evidence and considering the parties' arguments, the Court concludes that the hearing officer's findings of fact and conclusions of law are supported by the evidence, which we decline to reweigh.

The Court therefore finds that the allegations of misconduct were not proven and enters judgment for Respondent.

There is no customary statement as to who shall bear the costs.

Here is the docket, which reveals little additional information. The statement in the opinion that "The Court incorporates by reference the hearing officer's findings of fact" does little to help understand the details of this failed disciplinary effort by the Commission.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - "Updates in law codify judges' options for bad drivers"

Nick Cusack of the Shelby News has an informative story today about revisions in the law relating to ignition interlock devices. Some quotes:

Overall, the changes codify a wider variety of options and more discretion when considering license suspension through "specialized driving privileges."

Most of the minimum license suspension times for vehicle crimes were eliminated. But, the code now specifically states that the judge can or, in some cases, must, require the ignition interlock system, driving only to work, and other, noncodified options the judge deems necessary if a judge does not want to order an outright license suspension.

"The changes in our interlock statute have simply been expanded to allow the courts this additional flexibility," said Shelby County Prosecutor Kent Apsley. "From our standpoint, this is a positive thing. It gives the judge more to tools to do his or her job."

Apsley said that with the exception of cases involving injury or death, as well as the initial administrative suspension on a drunk driving arrest, there are no longer mandatory suspensions. But judges have more options available to them to help reform the driver's behavior.

Local defense attorney Andrew Eads said the changes give judges a nudge toward allowing the interlock systems, even for those charged for the first time with drunk driving. He said the judges in Shelby County have rarely ordered ignition interlock systems.

Sadly, the story never identifies the bill that is the subject of the story.

After some effort, the ILB located the provisions in HEA 1279, a 112-page bill concerning motor vehicles which is awaiting action by Gov. Pence. The revisions relating to ignition interlock devices begin in SECTION 131, on p. 55 of the bill.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Indiana Law

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

Updating this ILB post from Nov. 18, 2013, Grace Schneider, of the Louisville Courier-Journal reports today:

William Clyde Gibson III, the New Albany man accused of brutally slaying three women, pleaded guilty to the October 2002 murder of Karen Sue Hodella in court Thursday morning, reversing his intention to pursue three speedy murder trials against him.

The plea agreement accepted by Floyd Superior Judge Susan Orth potentially adds a 65-year sentence for a man already sitting on Indiana’s death row — and facing a separate capital murder trial in June.

Floyd County Prosecutor Keith Henderson said he didn’t know what motivated Gibson to change his plea but the deal includes the condition that the state can’t use the conviction in any future prosecution. * * *

Orth sentenced Gibson to die following a two-week trial in Whitis’ death and death penalty verdict last October. A second capital murder trial in Kirk’s slaying is set for June 16. On Thursday, Henderson said the length of time and other circumstances in Hodella’s case convinced him not to pursue capital murder.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Indiana Courts

Ind. Decisions - Supreme Court upskirting decision "allows child exploitation case against Lafayette pastor to proceed"

Updating this ILB post from March 19th, David Smith of the Lafayette Journal Courier reports in a long story:

The pending criminal case against a former Lafayette pastor accused of hiding video cameras in a women’s restroom may proceed now that the Indiana Supreme Court has issued a ruling in a separate case.

Robert Lyzenga, former pastor of Sunrise Christian Reformed Church in Lafayette, is charged in Tippecanoe Superior Court 1 with five counts of child exploitation, a Class C felony, and five counts of voyeurism by means of a camera, a Class D felony. He was arrested May 10, 2012, suspended from church duties and later fired. * * *

Lyzenga is due for trial June 3. The trial date has been continued several times while both sides awaited a Supreme Court ruling in State v. David Delagrange, a Fort Wayne man accused of sexually exploiting girls by taking upskirt videos at Castleton Square Mall in Indianapolis.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Costs of death penalty case in Harrison County

Ross Schulz has a long story in the March 19th Corydon Democrat on the prospective costs of the Austin Scott death penalty case. Some quotes:

Harrison County Superior Court Judge Roger D. Davis requested $300,000 from the county Monday night at the Harrison County Board of Commissioners meeting. The money is related to the Austin Scott death-penalty case.

The commissioners unanimously passed the request, specifically for public defender fees, on to the county council out of riverboat gaming funds.

Commissioner Kenny Saulman said he understood the county was going to have to give some money to support the trial. The council will hear the request Monday night.

The funds will be needed for attorneys' fees, mitigation experts, psychologists and/or psychiatrists, experts, investigators and miscellaneous expenses.

Judge Davis said the requirements and obligations related to the death penalty are immense.

"The most serious thing the government can do to interfere with your life is to take it," Davis said of the death penalty.

Davis said the requirements expanded after the moratorium on death penalties ended in 1976 and haven't really stopped.

Public defenders are only allowed to do a certain amount of work, so the case load related to the death-penalty case or others will have to be shared with other attorneys, per state law. The law also specifies how much those attorneys are to be paid.

Davis said the funding will be a one-time expense and, when the case is over, it'll be done.

"It's not for me to say; that's the prosecutor's call ... " he said of pursuing the death penalty. "I'll do my best to ensure we don't do things twice." * * *

Historically, the average cost of a death-penalty case to a county in Indiana is substantially higher than a case in which defendants face life in prison without the possibility of parole. According to a 2010 report from the Legislative Services Agency in Indianapolis, of the three possible sentencing options for murder (death, life without parole, determine sentencing of between 45 and 65 years), the death penalty is generally the most expensive for trial courts to conduct because two attorneys are required to represent the accused.

The average capital case resulting in a death sentence costs $449,887, while the average cost of a case in which a life-without-parole sentence was sought and achieved was only $42,658. Since Scott and Schuler [Kevin Schuler, who is represented by a private attorney] will be tried separately, the cost to Harrison County taxpayers could approach or surpass $1 million.

The ILB had a useful post Oct. 28, 2013, headed "Death penalty and high-profile murder monetary costs and other issues as illustrated by the David Camm trial." (Camm, BTW, was not a death penalty case.) See also this Jan. 17, 2012 post headed "Death penalty a costly choice."

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Indiana Courts

Courts - Three interesting Illinois decisions yesterday

The Illinois Supreme Court yesterday ruled unconstitutional a statute banning audio recordings without the consent of all parties. Steve Schmadeke has the story in the Chicago Tribune. It is definately worth reading. The 9-page opinion is Illinois v. Melongo. This follows a 2012 7th Circuit decision, ACLU v. Alvarez, where Judge Sykes, joined by Judge Hamilton, with Judge Posner dissenting, wrote in a 66-page opinion:

The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s freespeech and free-press guarantees.
Per this post in the Sentencing Law and Policy blog, in a ruling yesterday the Illinois Supreme Court deemed the 2012 SCOTUS ruling in Miller v. Alabama ruling substantive and thus retroactive.

Finally, this Tribune story by Matthew Walberg begins:

An Illinois Supreme Court ruling has barred condo owners from using their condo association's failure to repair common property elements as a defense for not paying monthly assessments.

The 4-3 decision Thursday found that state condominium laws require condo owners to pay their assessments as a matter of law, not as a matter of a contract like that of a tenant and landlord.

Posted by Marcia Oddi on Friday, March 21, 2014
Posted to Courts in general

Thursday, March 20, 2014

Law - In Ohio, law license of "naked photographer" reinstated

You can read the story reported by Jim Woods in the Columbus Ohio Dispatch. A few quotes:

[Stephen P. Linnen, 43], who lives in the Clintonville neighborhood, pleaded guilty in 2005 to 53 misdemeanor charges of public indecency, sexual imposition and criminal trespassing. He served an 18-month sentence in jail and under house arrest.

In incidents in 2002 and 2003, Linnen surprised women in public areas by wearing nothing but a cap and shoes and then snapping photographs of their reactions. Images of some of his encounters with his 38 victims were found in his apartment, police said.

At the time, Linnen was a legal counsel to Larry Householder, who was the speaker of the Ohio House.

Linnen said he was a sex addict driven by pressures and depression. “I sought a euphoric outlet in some way to medicate the psychological pain I was feeling, some way to kind of give a jolt to my system to bring me out of my depression,” Linnen wrote in a 2005 deposition.

After his conviction, the Ohio Supreme Court stripped him of his license to practice.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to General Law Related

Ind. Decisions - 7th Circuit says "Marion County Election Board's attempt to enforce unconstitutional statute 'shaves very close to harassment or bad faith prosecution.'" [Updated]

That is a quote from the Indiana ACLU's just-issued news release. More:

In 2003 the Marion County Election Board conceded in a federal lawsuit that Indiana's anti-slating statute violated the First Amendment to the U.S. Constitution. Still, during the 2012 primary season, the Board enforced the statute against candidate Zachary Mulholland, leading to a lawsuit in federal court.

The statute, Indiana Code § 3-14-1-2(a)(2) and (3), made it a crime for a candidate in a primary election to publish certain election materials linking him with other candidates without prior permission and notice to the county election board. In 2003 the federal court found the statute violated the First Amendment of the United States Constitution in all respects. In October 2012, Mulholland, represented by the American Civil Liberties Union of Indiana, challenged the election board's continued enforcement of the statute in a lawsuit filed in federal district court.

Today, the Seventh Circuit Court of Appeals reversed the District Court's dismissal of the case. In doing so, the appellate court noted that the Board's attempt to continue to enforce a statute that it had admitted was unconstitutional "shaves very close to harassment or bad faith prosecution." The Court further stated that if the Board attempted to enforce the statute again in upcoming primaries against any candidate the Board would likely be liable for damages for its actions.

"Although the case is not over, this is a major victory not just for Mr. Mulholland, but for the First Amendment," said ACLU of Indiana Legal Director, Kenneth J. Falk who represents Mr. Mulholland along with ACLU attorney Gavin M. Rose.

See ILB summary of Mulholland here.

[Updated 3/21/14]
Here is Jill Disis story, "U.S. appeals court reinstates challenge to Indiana elections law," in the Indianapolis Star.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit issues reversal in case challenging enforcement of Marion County anti-slating statute

In Zachary Mulholland v. Marion County Election Board (SD Ind., Barker), a 16-page opinion, Judge Hamilton writes:

The two major political parties in Marion County, Indiana, both follow a long tradition of “slating” their preferred candidates in primary elections. Those candidates have the financial and organizational backing of party leadership, and the parties therefore have an interest in preventing confusion among voters as to who supports whom. Accordingly, Indiana’s “anti-slating” statute makes it a crime to distribute a list endorsing multiple political candidates during a primary election unless all such candidates have given their written consent. See Ind. Code § 3-14-1-2(a). More than a decade ago, the anti-slating law was challenged as violating the First Amendment. The plaintiff in that case won a federal injunction against the statute’s future enforcement and a consent decree in which all parties stipulated and the court declared that the law was facially unconstitutional. Ogden v. Marendt, No. 1:03-cv-415 (S.D. Ind. Aug. 29, 2003), EFC No. 40.

One of the defendants then was the same defendant before us today: the Marion County Election Board. Having apparently changed its views on the statute’s validity, the Board enforced it against a candidate running for state representative in the 2012 primary. That candidate, plaintiff Zachary Mulholland, has sued to enjoin further Election Board proceedings related to the slating violation and to enjoin the statute’s future enforcement. The district court dismissed the case under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), citing a still-ongoing Election Board investigation. We reverse for two reasons. First, the Election Board’s investigation is too preliminary a proceeding to warrant Younger abstention, at least in the wake of Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013). Second, even if Younger abstention were theoretically available after Sprint, the previous final federal judgment against the defendant Election Board holding the same statute facially unconstitutional would still amount to an extraordinary circumstance making Younger abstention inappropriate.

Because the district court erred in dismissing the case under Younger, we REVERSE that decision and REMAND for further proceedings, with the additional instruction that the district court consider promptly whether to issue a preliminary injunction against the Board, keeping in mind the primary election scheduled for May 6, 2014. Nothing in this opinion should be understood to prevent the Election Board from making any arguments it wishes to make about changes in applicable law or other circumstances preventing application of issue preclusion based on the Ogden final judgment. Such arguments, though, will need to be raised in the federal court. The mandate shall issue immediately.[1]
__________________
[1] If Board members or their agents were to try to enforce the anti-slating statute against other parties at this point, such as in the May 2014 primary elections, we expect that this opinion and the Ogden judgment would make it difficult to invoke the defense of qualified immunity to a damages action under 42 U.S.C. § 1983.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - New Tax Court opinion, filed March 18th

A new Tax Court opinion, it was filed March 18th. This is the second opinion from the Tax Court this year.

In Fraternal Order of Eagles #3988, Inc. v. Morgan County Property Tax Assessment Board of Appeals and Morgan County Assessor, a 10-page opinion, Judge Wentworth writes:

This case concerns whether the Indiana Board of Tax Review erred in determining that the Fraternal Order of Eagles #3988, Inc. was not entitled to either a fraternal beneficiary association exemption or a charitable purposes exemption for the 2006 tax year. The Court affirms. * * *

Eagles has not shown that the Indiana Board’s determination that it did not present a prima facie case that it is a fraternal beneficiary association is unsupported by substantial evidence. * * *

A review of Eagles’ presentation indicates that it urged the Indiana Board to find that using property for fraternal purposes is synonymous with using property for charitable purposes because fraternal organizations collectively seek to promote the general welfare of their members and society in general. The General Assembly, however, has not expressly declared in any statute that property owned, occupied, and exclusively used by a fraternal organization is ipso facto used for a charitable purpose and thus exempt. Therefore, the fact that Eagles used its property for fraternal purposes does not necessarily establish that its property was used for charitable purposes. [citations omitted]

In this case, the evidence contained in the certified administrative record shows that Eagles used its property both for a variety of social and recreational purposes (e.g., gambling, drinking, dancing, karaoke, pool/dart tournaments, and general relaxation) and for charitable purposes (e.g., fundraisers and donations). Nonetheless, Eagles’ Usage Report did not provide the Indiana Board with a comparison of the relative amounts of time that the lodge was used for exempt and non-exempt purposes. Eagles’ failure to provide this comparison was fatal to its claim for either a full or a partial exemption. In addition, Eagles’ evidence failed to show that the activities that it claimed were charitable (i.e., its fraternal activities) truly were. Consequently, Eagles has not demonstrated that the Indiana Board’s determination that it did not make a prima facie case that its property was exclusively or predominately used for charitable purposes is either contrary to law or unsupported by substantial evidence.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Heritage Acceptance Corporation v. Chris L. Romine , an 8-page opinion, Sr. Judge Sharpnack writes:

Heritage Acceptance Corporation (“Heritage”) appeals a small claims court judgment in favor of Chris L. Romine. We affirm.

Heritage raises two issues, which we restate as: I. Whether a four-year or six-year statute of limitations applies to Heritage’s complaint. II. Whether the statute of limitations bars Heritage’s complaint. * * *

Here, Heritage waited until early April 2013 to exercise its right to demand full payment under the optional acceleration clause. Romine had tendered his last payment almost six years earlier. Furthermore, Romine’s schedule of seventy-eight biweekly payments would have ended in September 2008. Heritage did not demand full payment until well over four years after that deadline. We conclude, as did the Court in Smither, that waiting after these events have occurred to exercise an optional acceleration clause is unreasonable. Thus, Heritage’s long-delayed attempt to exercise the acceleration clause did not prevent the four-year statute of limitations from taking effect, and its complaint is barred. Heritage has failed to establish prima facie error.

In Kevin Moss v. State of Indiana, a 10-page opinion, Sr. Judge Darden writes:
Moss raises one issue, which we restate as: whether the trial court erred in denying his motion to dismiss the enhancement to a class C felony of his charge of class A misdemeanor possession of a handgun without a license due to a prior felony conviction that was later modified to a misdemeanor. * * *

The evidence revealed that Moss completed his term of probation without any violations and that he successfully obtained AMS modification in FD-86565. As in Gardiner, Moss’s prior class D felony conviction no longer exists and has effectively been vacated, unlike in McClure’s case where modification did not occur.

Moss has carried his burden of proving error, and the C felony enhancement must be dismissed for want of a predicate felony conviction.

For the reasons stated above, we reverse the judgment of the trial court and remand with instructions to grant Moss’s motion to dismiss the C felony enhancement to his charge of possession of a handgun without a license.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of:A.H. & J.H. (Minor Children), and D.T. (Father) v. The Indiana Department of Child Services (NFP)

Michael W. Gilliland v. Fifth Third Mortgage Company (NFP)

NFP criminal opinions today (2):

Dominique McClendon v. State of Indiana (NFP)

Charles Washington v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "Indiana lawmakers probe Ball State over intelligent design: Legislators issue demand, threaten 'legislative action'"

Updating this ILB post from March 16th, Dave Bangert, columnist for the Lafayette Journal Courier, weighed in yesterday in a column headed "When a creationist lawmaker starts asking about university science":

The scientific community, including the one at Purdue University, might scoff at what’s going on at Ball State University these days, as a handful of Indiana legislators circle the Muncie campus, questioning whether a physics professor has been unduly stifled from exploring the topic of intelligent design in a science class.

But this is some potent stuff, as reported by Seth Slabaugh of the Muncie Star Press. And the implied threat by the lawmakers, including state Sen. Dennis Kruse, shouldn’t be taken lightly.

Lawmakers are pressing Ball State to explain restrictions and official actions when dealing with “Boundaries of Science,” a class taught by assistant professor Eric Hedin. Ball State says it’s a personnel issue. The legislators want to know if it’s a case of lost academic freedom.

Kruse, a Republican from Auburn and chairman of the Senate Education and Career Development Committee, is no stranger to floating the possibility of opening the doors of Indiana’s science classrooms to teach creationism or intelligent design — two approaches that have been dismissed as the equivalent of teaching religion by the bulk of the science world, not to mention the courts.

In 2012, Kruse led an unsuccessful effort to allow school districts to incorporate creation science into their curricula. That bill eventually was watered down and cast aside. In 2013, when discussing the possibility of a bill that would have protected public school teachers if they strayed from the science curriculum, Kruse made his feelings known about university towns, science and his gauge on popular opinion.

“I’d guess 80 percent of Indiana would be oriented with the Bible and creation,” Kruse said in November 2012. “Where you’re at, at Purdue or IU, you might have more who are for evolution. But once you get out away from there, out into the hinterlands, I think you’ll see a lot more people receptive to it.”

You might add Ball State to that “where you’re at.” Take it from Kruse: The lawmakers who are asking believe they have broad, “hinterland” sentiment on their side, no matter what the science shows.

That’s nothing to scoff at when you’re looking at guys who control the flow of money to universities. Heaven help us all.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Indiana Government

Environment - Lake Co. surveyor won't give Illiana pass on environmental regulations"

Bill Dolan reports in today's NWI Times:

CROWN POINT | Lake Surveyor Bill Emerson Jr. said Wednesday he will not relax the county's stormwater drainage regulations for the proposed Illiana Expressway.

The surveyor publicly released his statement to the Indiana Department of Transportation in response to the state's request he not require the highway's developer comply with every detail in the county's stormwater management and clean water regulations.

HNTB, a Midwest engineering firm working on the project asked Emerson to use his authority to alter the standards on drainage ditches, detention basins, flood plain storage and the amount of water that can be released back into the environment by man-made storage facilities after a heavy rain.

HNTB said those standards could require larger bridges and increase the cost of the project.

Emerson said he couldn't go along with that. "The Lake County Surveyor's office will review any request for waivers on a case-by-case basis ... after a thorough review of the project specifications."

In an earlier unrelated story about the surveyor, Dolan reported:

CROWN POINT | Lake County Surveyor Bill Emerson Jr. has posted online the location of hundreds of official surveying monuments to make his office's documents more available to the public.

Emerson said Monday the new service will primarily aid professional surveyors in mapping sections of the county for purposes of future economic development. The monuments form a grid surveyors use to mark property lines.

The documents are a series of maps of the location of each of hundreds of official monuments in relation to visible landmarks, such as roads, fire hydrants or utility towers.

Emerson said, "This is in line with my policy of putting as much information online and (making) it as accessible as possible.

"Surveyors are always looking for a section corner, which shows them where their survey should begin to be accurate. Before this was online, if they were doing a survey in Whiting or Hammond, they had to drive down to Crown Point to see the card before they could move forward. It saves them time," he said.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Environment

Ind. Gov't. - "Children’s summit addresses Indiana’s needs"

Virginia Black of the South Bend Tribune has a long story on yesterday's sixth annual Community Summit on Children, held in Goshen. From the story:

GOSHEN — As a juvenile court judge for 14 years in Lafayette, Ind., now-Indiana Supreme Court Justice Loretta Rush once held court in a parent's living room.

Because it had been a "messy house case, I said, 'We're going to have court in your house next month,'" Rush told a packed crowd of social workers, law enforcement officers and others in the local child-protection system Wednesday. "And I said, 'And I want a healthy snack while we're there,' because they didn't eat real well, either.'"

Rush described the impromptu living-room court session — complete with sticky couch and iffy food offerings — as a way of encouraging those in the system to be involved with local parents and children.

"But, it's always good to show up," the justice said once the laughter died down and the discussion returned to the serious statistics of how Indiana's children are doing. "Use any opportunity you have to talk to people and the kids you're dealing with."

Rush was among a full slate of speakers for the sixth annual Community Summit on Children, organized by Elkhart County Juvenile Magistrate Deborah Domine and her staff, drawing participants from surrounding counties. It is financed by a grant from an Indiana Supreme Court committee.

Rush, who chairs Indiana's newly formed Commission for Improving the Status of Children, delivered a quick rundown of sobering statistics that included:

  • The No. 1 unmet mental health need in Indiana is for children.

  • Suicide is the No. 2 cause of death among teenagers. “We all recognize at the state level this is a pressing need,” she said. “Are we doing enough? No.”

  • Indiana is fifth highest in the nation for children abusing prescription drugs.

  • The state ranks third in the country for infant mortality.

  • Fewer than 3 percent of abused or neglected children go to college.

  • The biggest cause of child neglect in our country is a parent's substance abuse.

  • As a juvenile judge and now on the state Supreme Court for the last 18 months, Rush says not a day passes without a sexual molestation case crossing her desk. (Her youngest victim, she says, was a 10-year-old fourth-grader who turned up pregnant. “Mom’s boyfriend was the father.”)
The children’s commission will soon address the effect of violence on children, Rush said. The commission, which began its work last summer, also will address such issues as foster care system reforms, child fatalities and data sharing across state agencies.

“We want to right the ship in Indiana,” she said. “We can do better.”

Department of Children’s Services Director Mary Beth Bonaventura, who took over her agency about a year ago, echoed a similar theme, speaking excitedly about new initiatives.

Among those, the former Lake County juvenile court judge identified “permanency roundtables,” which for the last year have brought together problem solvers to tackle the toughest cases, often children who might have lingered in facilities for some time and have no family to return to.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Indiana Government

Ind. Gov't. - FWJG editorial: "Lawmaker’s conflicts tarnish entire Indiana House"

There have been a number of stories since the end of this year's session, first from Tom LoBiano of the AP, followed by the Indianapolis Star, on, as LoBiano writes:

... a Republican state lawmaker's private efforts to kill legislation calling for a ban on the construction of nursing homes, which would go against his son's business interest.
The legislator is Rep. Eric Turner, R- Cicero.

Today the Fort Wayne Journal Gazette has a long editorial on Turner's conflicts. Here are some quotes from the second half of the editorial, after describing this most recent incident:

Don’t expect Turner to show any remorse. He is no stranger to conflict-of-interest charges.

Last year Turner pushed a measure that would have allowed Utah-based Insure-Rite, one of his daughter’s lobbying clients, to win a multi-million dollar contract with the Indiana Bureau of Motor Vehicles.

In 2008, he fought to preserve a controversial call center created in his district as a part of the state’s failed welfare privatization scheme. The legislator was an investor when his son later bought the building housing the call center.

Other public officials recognize Turner’s clear conflicts. Gov. Mike Pence a year ago placed a hold on $345,000 in state economic aid to Mainstreet Property Group because of the legislator’s ties.

The best-case scenario would find voters rejecting Turner in either the May primary, where he faces a challenge from Parvin Gillim of Sheridan, or in November, when the District 32 nominee faces Democrat Bob Ashley.

But the damage to the public trust is done.

Turner might have toed the conflict-of-interest line just close enough to avoid breaking the law, but his efforts on behalf of his family’s business enterprises clearly constitute an abuse of power.

If Turner’s legislative colleagues believe his reputation is the only one harmed, they are mistaken. Hoosiers are left with the suggestion from this incident and others that backroom deals not only are tolerated but might even constitute standard operating procedure. Super-majority control by one party only adds to the appearance that the real business is done behind closed doors.

Interesting, when I was looking for some background for this post, this April 13, 2011 post from Doug Masson's blog turned up, headed "More Conflicts for Rep. Eric Turner."

In addition, per this Feb. 24th ILB post, Turner was the author this session of the amendment to SB 367 which would have allowed. state contracts to discriminate on the basis of religion.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Indiana Government

Ind. Gov't. - "Try again for public access improvements"

Presenting a contrary view to that presented by the ILB in this March 17th post, re HB 1306, the bill which would have allowed governmental agencies to charge a $20/hour search fee for public record requests, Doug Ross of the NWI Times writes in an editorial today:

The Indiana General Assembly came close, but failed this year to pass a valuable new state law that would have improved public access to public records.

House Bill 1306 died in the conference committee when the House and Senate conferees failed to resolve differences between the two versions of the bill.

The most notable provision of HB 1306 would have let the citizen, rather than the government, decide in which format a public record, already in electronic form, would be provided.

There's no reason, other than spite or greed, to print out a spreadsheet or database and charge the citizen for each printed page.

Instead, let the citizen provide an email address, blank CD or flash drive and share the spreadsheet at no cost.

It is the public's record, not the government's record.

The legislation also would have allowed a citizen to use a cellphone camera to copy a public record that contains that person's name. That should be a no-brainer, too.

A third provision would have set rules for the cost of providing records that require an extensive search. After the first two hours, which are free, the person making the request could be asked to pay $20 or the hourly rate of the person conducting the search, whichever is less. That protects the public from unscrupulous requests for exorbitant amounts while compensating the government for exhaustive searches.

This standard is similar to the one set by the federal government's Freedom of Information Act.

The Hoosier State Press Association worked with House Speaker Brian Bosma to set this reasonable standard, HSPA Executive Director Steve Key said.

If it takes more than two hours of staff time to dig up the requested records, the citizen ought to expect to pay a small fee for that search time.

Even smarter, however, is to make smaller requests the first time and make additional requests as warranted. Instead of a shotgun approach, use a rifle. You can always ask for more documents later in a follow-up request, depending on what you uncover.

HB 1306 would have accomplished all this, had negotiations in the conference committee not broken down.

Next year, the the General Assembly should pass, and Gov. Mike Pence should sign, this same bill for the benefit of the Hoosier public.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Indiana Government

Courts - Kentucky federal judge stays enforcement of gay marriage ruling pending appeal

In this Feb. 28th post it was reported that U.S. District Judge John G. Heyburn II was giving "Kentucky officials 20 days to figure out how to implement his ruling that requires the state to recognize same-sex marriages legally performed elsewhere."

Today, March 20th, Andrew Wolfson reports in the Louisville Courier Journal:

A federal judge has extended the stay of his gay-marriage ruling, saying the state presented legitimate concerns that it could cause "chaos" if same-sex marriages were recognized in Kentucky and then the decision was later reversed.

With his stay about to expire Thursday, U.S. District Judge John Heyburn II said that while Gov. Steve Beshear's lawyers hadn't shown they are likely to win on appeal, it is "best that these momentous changes occur with full review, rather than risk premature implementation or confusing changes. That does not serve anyone well."

But in his opinion, Heyburn expressed sympathy for the plaintiffs, saying it may be difficult to understand "how rights won can be delayed." * * *

Heyburn's Feb. 12 opinion came on the heels of similar rulings by nine other state and federal court judges — and as a growing number of states have approved same-sex marriage.

Since the ruling, federal judges in Tennessee and Texas have struck down gay-marriage bans.

The same lawyers handling the Kentucky case on March 4 filed a similar suit in federal court in Southern Indiana to force that state to recognize same-sex marriages.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Courts in general

Ind. Decisions - More on: In a Not for Publication opinion, the COA "upholds 16 percent rate increase for Duke customers"

Updating this ILB entry from yesterday, some quotes from an AP story today in the Bloomington Herald-Times ($$$):

Duke Energy won approval from an Indiana court Wednesday to raise electricity rates to pay for its $3.5 billion Edwardsport coal-gasification power plant.

The Indiana Court of Appeals ruled unanimously against environmental and consumer groups that sought to overturn a 2012 settlement between Duke and state regulators that authorized a 16 percent increase in the monthly bills of 790,000 Indiana customers. * * *

The appeals court acknowledged the cost overruns, but it said that state regulators had taken that into account. It also said that Duke had made plans for possible future requirements that it control carbon emissions at the plant, another aspect of the project that the groups had challenged.

The activist groups, including the Sierra Club and the Citizens Action Coalition, had also raised questions about an ethics flap that arose after Duke officials and regulators were found to be discussing the project's rising costs before an initial 2010 agreement that was later withdrawn.

But the judges said that "despite substantiation of improprieties prior to submission of a first settlement," the second settlement was valid because the officials accused of misconduct were no longer involved.

Citizens Action Coalition Executive Director Kerwin Olson said the ruling confirmed the challengers' belief that Edwardsport was a collaboration between Duke and the state government.

"This ruling kind of confirms our opinion that the fix is in regarding Edwardsport," Olson told the Associated Press. "We really feel like this is one of those cases for whatever reason the state of Indiana chooses to ignore the evidence and the facts to protect this power plant for some reason," he said. Olson said his group will seek a rehearing or appeal to the Indiana Supreme Court.

Posted by Marcia Oddi on Thursday, March 20, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, March 19, 2014

Ind. Decisions - Indiana and Massachusetts "upskirting" decisions

The Supreme Court decision yesterday in David S. Delagrange v. State of Indiana (ILB summary here) was the subject of a brief Indianapolis Star story today headed "Supreme Court upholds conviction mall shoe-cam peeper." From the story:

The Indiana Supreme Court on Tuesday upheld the conviction of a man who videotaped up the skirts of girls at Castleton Square Mall.

The court affirmed a conviction of David Delagrange on charges of attempted child exploitation and reversed an appellate court ruling.

Delagrange was arrested in 2010 at the mall after he was discovered to be using a camera on his shoe to shoot videos up the skirts of four girls between 15 and 17 years old.

Delagrange would place his foot between the feet of girls standing at the mall and activate the video with a fishing line.

The appellate court threw out the conviction because Delagrange did not video any private parts, just undergarments.

But the Supreme Court said even though he got no obscene footage, it could reasonably be deducted that he tried to and the conviction met the legal standard of “attempted” child exploitation.

Voyuerism charges against Delagrange were dropped because Indiana law did not specifically ban the type of videotaping done by Delagrange did. The law has been changed.

Earlier this month Massachusetts' highest court came to an opposite conclusion. [ILB: However, note that although the photographic efforts appear similar, the statutory offenses involved in the two states are not exactly parallel.] From a CNN story by Haimy Assefa, headed "Massachusetts court says 'upskirt' photos are legal." Some quotes:
Massachusetts' highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person's clothing -- a practice known as "upskirting" -- prompting one prosecutor to call for a revision of state law.

The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude.

"A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is 'partially nude,' no matter what is or is not underneath the skirt by way of underwear or other clothing," wrote Justice Margot Botsford of the state Supreme Judicial Court. * * *

Prosecutors had argued that the current statute, which prohibits secretly photographing or videotaping a person who is "nude or partially nude," includes upskirting, according to documents.

But Robertson's lawyers argued that the female passenger on the trolley was not "nude or partially nude" and was not in a place where she had a reasonable expectation of privacy, according to court documents.

"Every person, male or female, has a right to privacy beneath his or her own clothing," Suffolk County District Attorney Daniel Conley said in a statement Wednesday. "If the statute as written doesn't protect that privacy, then I'm urging the Legislature to act rapidly and adjust it so it does."

Notably, a CNN story two days later, March 7th, by Jessica Ravitz, reports:
Gov. Deval Patrick signed a bill Friday, according to his office, making photographing or recording video under a person's clothing -- think down a blouse or up a skirt -- a misdemeanor.

"The legislation makes the secret photographing, videotaping, or electronically surveiling of another person's sexual or other intimate parts, whether under or around a person's clothing or when a reasonable person would believe that the person's intimate parts would not be visible to the public, a crime," Patrick's office said in a prepared statement.

The crime is punishable by up 2½ years in jail or a fine of up to $5,000.

In addition, the law states that "whoever videotapes or photographs, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child" faces a sentence of 2½ to 5 years and up to a $5,000 fine. The law goes into effect immediately. * * *

Lawmakers hastily drew up and passed the bill Thursday, a day after the state's highest court ruled that current laws against secretly photographing a person in a state of partial nudity don't apply to these sorts of secretive shots.

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Ind. Sup.Ct. Decisions

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

In United States v. Yulia Yurevna Abair (ND Ind., DeGuilio), a 26-page, 2-1 opinion, Judge Hamilton writes:

Two weeks before she was planning to close on the purchase of a new home in Indiana, appellant Yulia Abair learned that her bank in Russia would not wire the purchase price from her account. She managed to secure the money before the closing by withdrawing a few hundred dollars at a time from ATMs up to her maximum daily limit and depositing the cash at her bank in Indiana. She was charged with violating a federal criminal statute that prohibits structuring currency transactions in order to evade federal reporting requirements for transactions involving more than $10,000 in currency. 31 U.S.C. § 5324(a)(3). Abair was convicted in a jury trial. She also agreed to sell her new home and to forfeit the entire proceeds to the government. She argues on appeal that the trial court erroneously applied Federal Rule of Evidence 608(b) by allowing the prosecutor to cross-examine her at length about alleged false statements on a tax return and student financial aid applications. We find that the government lacked a good faith basis for believing that Abair lied on the tax and financial aid forms and therefore conclude that the district court erred by allowing the prosecutor to ask a series of accusatory and prejudicial questions about them under Rule 608(b). We cannot say that the error was harmless in a trial that hinged on Abair’s credibility. We reverse Abair’s conviction and remand for a new trial. Abair also challenges the forfeiture of the entire proceeds of her home sale as an unconstitutionally excessive fine. We offer some guidance on that issue in case it arises again after remand.

[The forfeiture discussion, which begins on p. 14, concludes] We recognize that the government believes that Abair may have been involved in a range of other wrongdoing, but there is simply no evidence of other wrongdoing. For all that appears in this record, Abair is at most a one-time offender who committed an unusually minor violation of the structuring statute not tied to other wrongdoing. We therefore have serious doubts that the forfeiture of her home’s entire $67,000 value comports with the “principle of proportionality” that is the “touchstone of the constitutional inquiry under the Excessive Fines Clause,” Bajakajian, 524 U.S. at 334, but further exploration of the issue can await a new trial.

Abair’s conviction and sentence, including the forfeiture order, are REVERSED and the case is REMANDED to the district court for a new trial.

[Judge Sykes' dissent begins on p. 17] Yulia Abair, a Russian immigrant and registered nurse, made an unusual series of large cash deposits into her account at a bank near South Bend, Indiana. This attracted the attention of IRS agents and eventually the Department of Justice, but their investigation turned up no evidence of nefarious activity. Abair wasn’t evading taxes or laundering ill-gotten gains; she was buying a home and was having difficulty accessing funds in her Citibank Moscow account. To get around the problem, Abair resorted to the scheme my colleagues have described: She made repeated ATM withdrawals from her Russian bank account and deposited the cash with her local bank in a series of transactions just under the $10,000 threshold that triggers the bank’s reporting requirements for currency transactions. The withdrawals were legitimate, but the deposits landed Abair in big trouble.

The bank tellers told investigators that the money had a “musty,” “mildewy,” or “dirty” odor, as if it had been kept in a basement rather than freshly drawn from an ATM. Prosecutors inferred from the odd smell that the money must have come from an illegitimate source and brought the full force of the federal criminal law down on Abair. * * *

Finding no error, I would affirm, although not without serious misgivings about the wisdom of this prosecution. It’s unclear to me how the interests of justice are served by saddling Abair with a felony conviction and forcing her to forfeit her home as punishment for a technical, trivial violation of the structuring statute. Without more, the government’s suspicions about the malodorous money do not support an inference that broader criminality was at work here. Abair has no criminal history, and at sentencing the judge noted that she is otherwise a responsible person, has a good employment history, is an excellent mother to her 11-year-old son, and has substantial community support. No doubt these observations contributed to the judge’s decision to place her on probation.

For the foregoing reasons, I respectfully dissent.

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Spierer request that judge seal information in federal lawsuit denied

Updating these ILB posts from Jan. 30th and Feb. 12th, 2014, both headed "Parents of Lauren Spierer ask judge to seal information in lawsuit," United State Magistrate Judge Tim A. Baker has now issued a 6-page order that concludes:

If Plaintiffs have any hope of getting the Court to approve a protective order limiting the manner in which discovery materials may be handled and disclosed, Plaintiffs must correct the deficiencies noted in this order. Thus, Plaintiffs’ motion for a protective order [Filing No. 51] is denied without prejudice.
More from the order:
Defendant Corey Rossman accurately lists the deficiencies found in Plaintiffs’ proposed protective order: (1) it does not identify a legitimate category of confidential information to be protected; (2) it does not properly describe the information to be protected; (3) it does not include language allowing the public to challenge the Party’s sealing of particular documents; and (4) it does not create a mechanism to ensure that good cause exists for sealing documents filed with the Court from the public. As Rossman makes apparent, Plaintiffs’ proposed protective order is no model of clarity.

Rather, the proposed protective order overdesignates material to be labeled confidential. For starters, Plaintiffs describe confidential information as “including, among other things,” certain broad categories of information. Plaintiffs seek to designate material as confidential information so as to prevent harm to parties, nonparties, and ongoing criminal investigations. However, Plaintiffs fail to explain how such material is under a legitimate category of confidential information. Moreover, they do not properly describe what type of material would harm parties, nonparties, and ongoing criminal investigations, or how this material would cause harm. * * *

The protective order is also vague as to the type of information Plaintiffs seek to protect. Absent clear language, the parties cannot determine in good faith what information qualifies as confidential. This is especially important because a confidential designation limits what parties can do with the documents. Thus, Plaintiffs must more narrowly and more convincingly identify the need to make certain documents confidential. Moreover, the proposed order must expressly create a separate mechanism for the parties to seek to file material under seal. * * *

Plaintiffs’ argue that the protective order is necessary to ensure an impartial jury. As Defendant Jason Rosenbaum correctly asserts, it is unlikely that discovery material would taint the jury pool, given that this information will likely be used as evidence during the trial. Any potential prejudice can be fully explored through voir dire and, if necessary, the Court can provide cautionary instructions to the jury.

ILB: Note the long list of counsel at the end of today's order.

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - In a NFP opinion, the COA "upholds 16 percent rate increase for Duke customers"

John Russell of the Indianapolis Star has a story up now about the Court of Appeals decision today in Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor, et al. (NFP) The headline: "Appeals court upholds 16 percent rate increase for Duke customers."

Here is the ILB's summary of the case (3rd case).

The opinion was categorized by the Court of Appeals panel as Not for Publication, despite the requirement of Appellate Rule 65(A)(3) that a COA opinion shall be published if the case "involves a legal or factual issue of unique interest or substantial public importance."

From the story:

The Indiana Court of Appeals upheld a decision by state regulators to raise electricity rates on 790,000 customers to pay for Duke Energy’s $3.5 billion Edwardsport coal-gasification power plant.

The court today ruled unanimously against a motion filed by environmental and citizens groups seeking to overturn the decision made by state regulators in 2012.

The decision allows Duke to charge its 790,000 Hoosier customers a 16 percent increase in their monthly bills to pay for the construction and financing costs of the utility company's power plant in Knox County. Much of the increase already has occurred.

The groups had said ratepayers should not have to foot the bill for what they called "project mismanagement,” citing cost overruns and questions over proper regulatory oversight. The Sierra Club, Citizens Action Coalition and Valley Watch filed the appeal last fall.

The appeals court acknowledged that the plant, which was originally supposed to cost $1.985 billion, suffered huge cost overruns, but said state regulators took that into account, and that Duke will pay for some of the higher costs.

“The record indicates that imprudence increased some construction costs,” the court wrote. “However, this reality was not ignored by the settlement terms.”

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In D.C., Jr. v. C.A., J.D.A. and B.A., an 8-page opinion, Judge Kirsch writes:

D.C., Jr. (“Father”) appeals from the Madison Circuit Court’s order denying his Petition for Change of Custody of his son, C.C. Concluding that Father’s appeal was not timely filed, we dismiss this appeal. * * *

On or about May 30, 2013, Father filed his Notice of Appeal. After Father filed his appellant’s brief, Grandparents filed a motion to dismiss the appeal for lack of jurisdiction. On November 22, 2013, the motions panel of this court denied Grandparent’s Motion to Dismiss.

On appeal, Grandparents ask this court to revisit the issue of whether this appeal should be dismissed because Father’s Notice of Appeal was not timely filed. Even though our motions panel ruled on this issue, Grandparents are not precluded from again presenting their arguments.

In Shawn Lawrence Corbally v. State of Indiana , a 15-page opinion, Judge Barnes writes:
Shawn Corbally appeals his convictions and 270-year sentence for Class A felony burglary, Class A felony rape, four counts of Class A felony criminal deviate conduct, and two counts of Class B felony criminal confinement. We affirm the convictions but revise the sentence to a term of 165 years.

The reordered and restated issues before us are: I. whether the trial court properly allowed a police investigator to relate the contents of her interview with the victim; and II. whether Corbally’s sentence is inappropriate. * * *

Although the trial court erroneously allowed Cummings to relate M.R.’s prior consistent out-of-court statements to the jury, that error was harmless. We do find Corbally’s sentence to be inappropriate and direct that it be revised to a term of 165 years.

BROWN, J., concurs.
ROBB, J., concurs as to Issue I and dissents without opinion as to Issue II.

NFP civil opinions today (6):

In Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor, et al. (NFP), a 31-page opinion by Judge Bailey, the panel upholds orders:

... of the Indiana Utility Regulatory Commission related to power plant construction costs incurred by Duke Energy Indiana, Inc. and a settlement agreement executed by Duke, the Duke Energy Indiana Industrial Group, Nucor Steel, and the Office of the Utility Consumer Counselor, adopted as modified by the Commission. One appealed order approves the settlement, as modified, and four others implement it. We affirm.
ILB note: Appellate Rule 65(A)(3) requires a COA opinion to be published if the case "involves a legal or factual issue of unique interest or substantial public importance." That would seen to be true of the Citizens Coalition opinion.

In Re the Guardianship of Anthony J. Panzica, Protected Person, Anthony J. Panzica v. Real Services, Inc. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: J.E. (Minor Child), and C.E. (Father) v. The Indiana Department of Child Services (NFP)

Justin Whitmore v. South Bend Public Transportation Corporation a/k/a Transpo (NFP)

Mile Djuric v. Eggert Builders, Inc., and Matt Anderson d/b/a Anderson Plastering Co. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: Z.S., K.S., and M.W., (Minor Children), S.S. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Meredith J. Rowley v. State of Indiana (NFP)

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

Andrew Whitmer v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - For Illinois opinion, Judge Posner conducts experiment in chambers

Ryans N. Parsons tells a remarkable story in a post today in the Wisconsin Appellate Law blog.(h/t Michelle Olsen @AppellateDaily) Some quotes:

Appellate judges often lament that they are limited by their reliance on a cold record and an inability to develop facts for themselves. Frequently, courts will highlight a perceived missing piece of information and remand a case to the trial court, perhaps with directions to fill in the missing gap. But on the Seventh Circuit, Judge Richard Posner has been a foremost advocate for judges – even appellate judges – filling in those gaps themselves. His use of independent online research is well known, including, for example, his use of Google Maps in a criminal case to research the site of a shooting.

But he may have taken this practice to a new level with his opinion in Mitchell v. JCG Industries. The lawsuit involved a dispute over whether employees were entitled to be paid for certain time spent donning and doffing clothing and protective gear in a poultry-processing plant. Among the disputes in the case was how much time the employees actually spent performing the activities. The plaintiffs claimed they spent 10-15 minutes of every lunch period performing the activities, while the employer said it all took 2-3 minutes. Each side entered affidavits regarding the time spent in the summary judgment record based on their personal knowledge: the employees from actually performing the activities, and the employer from supervising and watching the employees. * * *

One judge on the panel purchased the actual clothing and equipment worn by the employees (we’re told “it is inexpensive”) and had “three members of the court’s staff” don and doff the equipment while being videotaped. The experiment revealed that it took just under two minutes to don and doff the gear.

Judge Posner is quick to reassure the reader that “[t]his was not evidence – the intention was to satisfy curiosity rather than to engage in appellate factfinding,” yet the court appears to rely on the experiment as confirming its “intuition” that the plaintiffs’ time claims were bogus. This intuition or experiment allowed the court to reject the plaintiff’s claims that they spent so much time donning and doffing.

The opinion, out of Illinois, is Mitchell v. JCG Industries. Judge Kanne concurs. Chief Judge Wood's dissent begins on p. 19 of 33. At p. 25:
I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post-argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment proceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have already shown to be inconsistent with government regulations for hygiene within a meat processing plant. Finally, there are two other problems with the majority’s approach: it runs afoul of the statutory definition of a bona fide lunch break, and it fails to give effect to the Supreme Court’s recent rejection of de minimis analysis in the donning and doffing context.

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - News about Indiana's five same-sex marriage challenges

Breaking: The ILB has just learned that all of the Indiana same-sex marriage challenges (currently five cases, all filed in the SD Indiana) have now been reassigned to Chief Judge Richard L. Young.

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Indiana Courts

Ind. Courts - Still more on: Judicial Technology Oversight Committee to meet Tuesday

Updating this post from Monday, one of the attendees at Tuesday morning's JTOC meeting, Indianapolis attorney (and former Marion County Assessor) Greg Bowes, took notes and sent them to the ILB. (Additions from other attendees would also be welcome.) From Greg:

I arrived a little late. They were in the middle of defining JTOC’s objective, which appeared to be to decide between one statewide vendor or several “best in class” vendors that counties could choose from. There did not appear to be any decision or consensus, because, later in the meeting, they decided to consider hiring a consultant to give them some financial and technical analysis before they shape the objective, and postponed objectives to future meetings.

We next heard from the Fayette County Clerk, who complained that the Fayette Commissioners forced Odyssey on her without her consent and without consulting her. She said they use CSI, which already has imaging capability, and their data and images are available through DoxPop. She complained that Odyssey’s component to track financial data was inadequate.

The President of the Fayette County Council was allowed to respond, and he challenged the accusation that the Clerk was not consulted. He said he reviewed the Franklin County Clerk’s Office system, which had just recently switched to Odyssey, with a pilot program to incorporate imaging. He said that went well, and that the financial component worked for that county’s Clerk. Because the two Fayette judges supported Odyssey, and for fiscal and other reasons, the Commissioners voted to switch to Odyssey.

A presentation from a consultant for CourtFileNow followed. He is a former Lake County judge, and helped this vendor take Lake County to a system that includes electronic filing since 2010. The vendor makes its money by charging attorneys about $24 at the time of filing an appearance, and the electronic filing is free for the duration of the case. Members of the public have free access to a limited set of information, such as the CCS, but to get more, users must buy a subscription. He agreed that a statewide system should be the ultimate goal, but argued that its implementation may take several more years, and vendors such as his should be able to fill the gap with systems that are ready to go immediately.

Item 6, Discussion with JTAC re: Revenue and Expenses was postponed until the next meeting.

David Pippen then gave a summary of the Practitioner Survey conducted by the Indiana State Bar Association. There were about 900 responses, coming from a wide spectrum of practice types. Over 50% of the respondents were either solo practitioners or from firms with fewer than 10 attorneys. 96% of the attorneys had the capability of creating .pdf documents. 50% were users of the federal court’s PACER system. Respondents overwhelmingly favored instant, 24-hour, online access to court documents and the ability to file electronically. Pippen said the full details from the survey will be posted online, but did not say exactly where.

The committee then discussed future agenda topics. This is where it was suggested that they hire a consultant to explore financial and technological details. Another member voiced that they are still unclear about the committee’s goals or objectives.

They agreed the next meeting should be June 24, 2014, at 1:30 p.m.

I asked Greg: "In your first paragraph, they are talking about vendors for the counties. Vendors for what? Would this be for the CMS, such as Odyssey. Or for electronic filing? Did they stop at 11:30 when I'd heard Massa had to leave?" Greg's response:
I got there late, so I am piecing things together. I think they were talking about both CMS and electronic filing. When they talked about the Franklin County pilot project, I heard it as imaging, but I am not sure it included electronic filing.

Justice Massa had to leave before the rest of the group finished. He did not hear all of the ISBA results, and was not there for the discussion of future agenda topics.

Some of the committee members seemed to be concerned about defining the committee’s mission. As for the consultant, it was only to establish some basic information for the committee to work with, such as what would costs be for various options, including what JTAC has planned, and what the technology requirements would be. When the Fayette Clerk talked, she was not clear as to what server capacity her own system used, and who provided it. I had the impression that CSI paid for the servers and covered that cost by charging all of its licensees from other jurisdictions. The cost to Fayette County (about $25,000 annually) seemed too small to cover all of the server costs.

There are many layers to this problem, and I think the committee is attempting to wrestle with them. What services, such as imaging, electronic filing, and public access, are questions. Who pays, county or state, is a question. What is the funding source, user fees, taxes, filing fees, or subscriptions for access, is another question. Whether there is one vendor in the system, or a network of vendors, creates another question of interoperability. I am concerned that the fight over who pays, and who makes a profit, will push the idea of full and free public access to the background.

Posted by Marcia Oddi on Wednesday, March 19, 2014
Posted to Indiana Courts

Tuesday, March 18, 2014

Ind. Decisions - Supreme Court decides one today, re upskirting

In David S. Delagrange v. State of Indiana, a 7-page, 5-0 opinion, Justice Massa writes:

David Delagrange here appeals his convictions for child exploitation, arguing the evidence was insufficient to support them. We affirm.

On February 27, 2010, Delagrange left his home in Fort Wayne and drove approximately one hundred miles to the Castleton Square Mall in Indianapolis. He then wandered around for nearly eight hours trying to take “upskirt” photographs of women and girls as they were shopping. After he selected a particular victim, he would approach her from behind and try to inveigle his foot between her legs. Once in position, he would reach into his pocket and pull on a piece of fishing line attached to the cuff of his pants leg, thereby exposing a video camera attached to his shoe. By means of this procedure, Delagrange collected approximately seven minutes of actual images. * * *

Delagrange argues the evidence was insufficient to support his convictions for attempted child exploitation. * * * Delagrange argues that because the State presented no evidence that any of the images he captured depict uncovered genitals, it failed to prove an element of the charged offense. * * *

[C]an a jury infer that someone taking “upskirt” photographs of women and girls by means of a concealed shoe camera does so in the hope that some of them will not be wearing undergarments? We say yes. Delagrange testified he intended “to get fetish photography, which is high heels, boots, pantyhose, panty shots, nylons,” Tr. at 203, but the jurors were not required to credit that testimony. After all, one victim testified she was not wearing leggings. And on cross-examination, Delagrange’s answers suggested his interest was not limited to his victim’s clothing. When the prosecutor asked whether Delagrange intended to “videotape what was under their skirt [sic],” Delagrange admitted he did. Tr. at 223. When the prosecutor asked “what else” Delagrange had a fetish for, he answered: “I love the female form.” Tr. at 224. In light of that circumstantial evidence, the jury could reasonably infer that Delagrange intended to capture not just images of undergarments but also—or instead—images of uncovered genitals.

Finally, we note that Delagrange’s trial counsel repeatedly drew a parallel between the images Delagrange captured with his ersatz equipment and a famous photograph of Marilyn Monroe standing over an air vent. This analogy was unpersuasive for a lack of similarity between a photograph of a knowing and consenting adult and a video of an unknowing and unconsenting child. The former is legal; the latter is not.

We hereby affirm the trial court.

Posted by Marcia Oddi on Tuesday, March 18, 2014
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Behavioral Health and Human Services Licensing Board, Kimble L. Richardson, George Brenner, Andrew Harner, Geneva Osawe, Rex Stockton, Carla Gaff-Clark, and The State of Indiana v. Elaine Williams, an 18-page opinion, Sr. Judge Sharpnack writes:

The Behavioral Health and Human Services Licensing Board (“Board”) revoked a mental health counselor’s license when she developed a personal attachment to a patient, continued to see the patient after their professional relationship had ended, and ignored the patient’s requests to leave her alone. Upon judicial review, the trial court found substantial evidence supporting the Board’s findings and affirmed the revocation. On the licensee’s motion to correct error, however, the court changed course. This time, it faulted the manner in which the Board conducted its proceedings, disapproved of the lack of a standard for disciplining licensees, and thus reversed and remanded with instructions to either impose a lesser sanction or hold a new hearing.

We conclude the Board afforded the licensee fair proceedings and acted within its authority in imposing the sanction of revocation. Further concluding the trial court impermissibly reweighed the credibility of the witnesses and substituted its judgment for that of the Board, we affirm the revocation.

In In the Matter of A.G. and A.K. Children Alleged to be in Need of Services, M.K. v. Indiana Department of Child Services, an 11-page opinion, Judge Najam writes:
M.K. (“Mother”) appeals the trial court’s adjudication of her children A.G. and A.K. as children in need of services (“CHINS”). Mother presents a single issue for our review, namely, whether the trial court erred when it drew a negative inference from Mother’s invocation of her Fifth Amendment right against self-incrimination. We affirm. * * *

In sum, Mother contends that her right to raise her children has a constitutional dimension which distinguishes a CHINS proceeding from other civil proceedings. Thus, she maintains that the rule in Gash should not apply here. But Mother does not support that contention with cogent argument or citations to the record, and the issue is waived. Waiver notwithstanding, Mother does not challenge the remainder of the trial court’s findings and conclusions. Thus, even disregarding the trial court’s negative inference,
the court’s findings support the remaining conclusions and the conclusions support the judgment. The trial court’s judgment finding the children to be CHINS is not clearly erroneous.

In Donald Murdock v. State of Indiana, a 10-page, 2-1 opinion, Judge Bradford writes:
Appellant-Respondent Donald Murdock was found to have violated the terms of his probation when he committed Class A misdemeanor resisting law enforcement after running from a police officer who had told him to stop. Murdock contends that his probation revocation cannot stand because the State failed to establish that the officer had sufficient reason to detain Murdock. Because well-established Indiana precedent holds that a person may not flee from a police officer who has told him to stop, even if the order is unlawful, we affirm the judgment of the trial court. * * *

Murdock does not dispute that he fled from Officer Stewart after being told to stop but contends that the trial court erred in finding that he committed Class A misdemeanor resisting law enforcement because Officer Stewart allegedly lacked reasonable suspicion to detain him. We disagree. * * * Consequently, even if we assume, arguendo, that Officer Stewart had no legal right to detain Murdock, that fact does not affect the validity of the trial court’s finding that Murdock committed resisting law enforcement.[1]

The judgment of the trial court is affirmed.

PYLE, J., concurs.
MATHIAS, J., dissents with opinion. [that begins at p. 5 of 10; this from p. 9] If we do not require articulable facts and reasonable suspicion before a police officer’s order to stop must be obeyed, we are subjecting Hoosiers to exactly the sort of arbitrary selection Litchfield condemned.

The logic of Corbin and its progeny also has unintended consequences for law enforcement. If otherwise law-abiding citizens cannot legally refuse to engage with a law enforcement officer, then there is no such thing as a consensual encounter between law enforcement officers and citizens. Every such encounter would be a seizure under the law and would require the administration of a Miranda advisement. Is that that kind of society we want to live in? Does law enforcement want to lose the helpful tool of consensual encounters with citizens? I hope not. * * *

Because I believed that Murdock did not commit the crime of resisting law enforcement by fleeing, I also believe that his probation cannot be revoked based on his alleged commission of the crime. Accordingly, I would find that the State failed to prove that Murdock violated the terms of his probation, and I respectfully dissent from the majority’s holding to the contrary.
______________
[1] Murdock relies on a recent decision from this court to support his argument that he had a right to flee from an illegal detention, Gaddie v. State, 991 N.E.2d 137, 141 (Ind. Ct. App. 2013), trans. granted, opinion vacated, 999 N.E.2d 417 (Ind. 2012). Gaddie, however, has been vacated by order of the Indiana Supreme Court. Unless and until the Indiana Supreme Court determines that one has the right to flee from an unlawful police request to stop, we shall follow the myriad Indiana cases holding that one has no such right.

[3] [from the dissent] I acknowledge, as the majority notes, that our opinion in Gaddie has been vacated by transfer of that case to our supreme court. Nevertheless, until our supreme court issues its opinion on transfer in Gaddie, I am persuaded by the reasoning of our opinion in that case.

[4] Again, although our opinion in Griffin has also been vacated by our supreme court’s grant of transfer, I remain persuaded by the rationale of our opinion in that case.

NFP civil opinions today (5):

In the Matter of the Termination of the Parent-Child Relationship of: Bry.B. and B.B. (minor children) and A.B. (Mother) and M.B. (Father) v. Indiana Department of Child Services (NFP)

Cecil Koger and Koger's, Inc. v. T&C, Inc., d/b/a I-70 Wrecker Service (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: C.O. (Minor Child) and T.E. (Mother) v. The Indiana Department of Child Services (NFP)

Renee Berry, as Personal Representative of the Estate of Jeffery Berry, Deceased v. Duke Energy Indiana, Inc., d/b/a Duke Energy (NFP)

Harold Weir v. Riverwalk Holdings, LTD (NFP)

NFP criminal opinions today (11):

Filiberto Rivera v. State of Indiana (NFP)

Edgardo Jose Guido v. State of Indiana (NFP)

Shawn McWhorter v. State of Indiana (NFP)

Ronnie D. Conley v. State of Indiana (NFP)

Dennis Hankins v. State of Indiana (NFP)

Gayle Clark, Jr. v. State of Indiana (NFP)

Eric Lewis v. State of Indiana (NFP)

Robert Fultz v. State of Indiana (NFP)

Henry Woods v. State of Indiana (NFP)

Tony M. Castoreno, Jr. v. State of Indiana (NFP)

Timothy R. Hartwell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 18, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - Following the 2014 session results

Here is Governor Pence's list of the bills he has received so far, the date he must act, and the date signed.

Here is the General Assembly's 2014 Enrolled Act Summary, so far. It should correlate with the Governor's list of bills he has acted on.

The ILB can't locate a list of bills that have been passed by both houses in the same form and are eligible for enrollment. Here is the final Conference Committee grid, which you should be able to use for the same purpose - check to see if a bill that was returned to the first house with amendments made it or not.

[More] If you need to find out whether a section of law has been affected during this session, use the cite list. It may not give you the final word yet, but at least it will tell you if your provision was in the mix when the General Assembly adjourned.

Posted by Marcia Oddi on Tuesday, March 18, 2014
Posted to Indiana Law

Ind. Gov't. - Steele plan "would force lawmakers to justify any measure to crack down on crime that would alter the new criminal code"

Recall March 16's ILB post, headed "The concern is that Sen. Head and the Indiana Prosecuting Attorneys Council won’t stop adding tweaks to the new HEA 1006 reforms until we’re back to what we had before," quoting a Kokomo Tribune story about the new Indiana sentencing rules, headed "Will reforms be undone?"

Well, today Maureen Hayden of CNHI reports in the Goshen News:

[Republican Sen. Brent Steele] wants to significantly slow the process of creating new crimes and penalties that send more people to prison.

The idea, strongly backed by his counterpart, House Judiciary Chairman Greg Steuerwald, R-Avon, would force lawmakers to justify any measure to crack down on crime that would alter the new criminal code.

Their proposal would give a little known body, the Criminal Law and Sentencing Policy Study Committee, new power to vet proposed legislation.

The study committee would operate somewhat like the fiscal gatekeepers — House Ways and Means and Senate Appropriations — by forcing scrutiny of a bill’s long-term impact. Without those committees’ blessing, any money-spending measure is doomed.

Steele and Steuerwald can’t mandate the committee will have veto power. But, with a change in legislative rules, it could have much more clout.

The committee’s make-up already lends it authority. It’s a bipartisan group of more than just legislators. Judges, prosecutors, and public defenders are represented, too.

It meets in the summer, long before the legislative session starts. That would force a lawmaker to bring a proposal to the committee months before he or she could file a bill. That legislator would have to justify not only why a new crime or penalty should be created, but also calculate how much it would cost to incarcerate offenders.

Steele and Steuerwald have spent years working to rewrite the criminal code, stripping it of bloated language, archaic laws and out-of-whack penalties that made child molesters face less prison time than someone caught with a few grams of cocaine near a park.

They know a politician’s instincts. At a press conference last week on legislation that finalizes the rewrite of the criminal code, supporters hailed the bill as “tough on crime.”

It is — on violent crime. But it also pushes down penalties for myriad drug and property crimes. No one was hailing that.

“You’re not going to get politicians to stand up and say, ‘We softened it,’ but we did on the non-violent crimes,” Steele said. “We decided we’re not going to hammer some of these people with a sledgehammer when they need to be hit with a tack hammer instead.”

Like Steele, Steuerwald worries about the tendency to go for the sledgehammer. Tougher criminal penalties, he said, are “extremely difficult to vote against, because everybody thinks they’ll appear to be soft on crime.”

ILB: The Criminal Law and Sentencing Policy Study Committee is a permanent interim committee, created by statute, IC 2-5-33.4-1. Here is its 2013 website.

Another permanent interim study committee, created by IC 33-23-10-1, the Commission on Courts, plays a role during the interim in vetting county requests for new courts. Its charge is set out on p. 4 of its annual report, including: "Review and report on all requests for new courts or changes in jurisdiction of existing courts."

Interestingly, the Criminal Code Evaluation Commission, whose work resulted in the original 2013 version of HB 1006, and would thus be the likely group to conduct the vetting Steele is proposing, was created by HEA 1001-2009(SS), but expired Dec. 31, 2012. The job of reviewing the costs and savings of HB 1006-2013 and proposing any needed modifications to the 2014 session was therefore assigned by the LSA to the 2013 interim Criminal Law and Sentencing Study Committee - see p. 2 of the minutes of the first, Aug. 15, 2013, meeting.

Posted by Marcia Oddi on Tuesday, March 18, 2014
Posted to Indiana Government

Ind. Courts - "Valpo lawyer accused of stealing from clients gives up law license"

Updating this Feb. 15th ILB post, which was headed "Valpo attorney charged in theft of $1.64 million," Valparaiso attorney Clark Holesinger has now resigned from the Indiana bar. Here is the Court's order, filed March 12th, accepting his resignation. From the order:

Respondent has tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline 23(17), which requires an acknowledgement that there is presently pending an investigation into or a proceeding involving allegations of misconduct and that Respondent could not successfully defend himself if prosecuted. * * *

Acceptance of Respondent's resignation from the bar serves only to remove Respondent from the practice of law and does not relieve Respondent from any liability he might have for his/her misconduct under civil or criminal law.

Dan Carden of the NWI Times has a story today on the resignation.

Posted by Marcia Oddi on Tuesday, March 18, 2014
Posted to Indiana Courts

Ind. Courts - "First responders challenge Indiana same-sex marriage law "

This is the case the ILB wrote about briefly on Friday, March 14th, under the heading "A fourth challenge to Indiana's marriage law now has been filed." Here is the complaint in the case, Officer Pamela Lee v. Mike Pence.

A story by WISHTV on Saturday, March 15th, with video, was headed "First responders challenge Indiana same-sex marriage law ." A few quotes:

INDIANAPOLIS (WISH) – Same sex marriage is taking center-stage again in Central Indiana. This time it is over benefits.

Saturday, first responders in Indianapolis announced they were suing the state and the governor for the right to name their partners as beneficiaries.

The lawsuit is an 18-page explanation of why the spouses of three current IMPD officers and one retired Indianapolis firefighter should get pension and death benefits.

24-Hour News 8 was there Saturday as the eight women announced they were suing Indiana Governor Mike Pence and officials with the “Indiana Public Retirement System,” which oversees the police officers’ and firefighters’ pension fund.

It all started when IFD Batallion Chief Ruth Morrison retired at the end of last year. She says she tried to name her spouse as her pension beneficiary four months ago and was denied by the state. She contacted attorneys and found three more first responders, who were legally married in other states, but are in the same boat in Indiana.

“We don’t receive the same benefits that any other firefighters or police officers do. Our spouses would be out in the cold. Also, if there’s a line of duty death — the ultimate sacrifice — their spouses wouldn’t be taken care of with the funds,” Ruth Morrison told 24-Hour News 8.

The funds she mentioned are $150,000 from the state that would be given to the family left behind after a first responder dies.

Since Indiana doesn’t recognize same-sex marriage, their monthly pension money and death benefits would go back to the state, not to the spouse.

ILB: Interestingly, Ruth Morrison was the name plaintiff in the 2005 lawsuit, Ruth Morrison, et al. v. Sadler, where the Indiana Court of Appeals upheld Indiana's statutory prohibition against same-sex marriage.

Posted by Marcia Oddi on Tuesday, March 18, 2014
Posted to Indiana Courts

Monday, March 17, 2014

Ind. Law - N.E.2 phased out; or, marking a milestone in time

Prof. Joel Schumm sent me this note:

I think sometime earlier this year 999 N.E.2d filled and we now have N.E.3d. It's a little odd to see the citations in briefs and opinions.
The ILB asked the crack librarians at the Supreme Court for the periods of time covered by NE, and NE2d. The quick response:More on the 1st series:
1 N.E. 1 Feb. 24, 1885 filed (title page says July 17-Sep 25, 1885, though), begins with State ex rel. Ottenberger v. Hawes

The 1st series ended with 200 N.E. 926 April 2, 1936, Avery v. Forand

More on the 2nd series:
1 N.E.2d 1 April 1, 1936, begins with Doyle v. Goldberg

The 2nd series ended with 999 N.E.2d 1247, Advance sheet dated Jan 29, 2014, Spangler v. Stark County Dog Warden (Oct. 28, 2013) (Ohio)

The Ind. SCt Library has up to volume 996 in print for the 2d series.

[Note: Since we haven’t gotten the bound volume yet for 999 N.E.2d, there is no way to definitively say what the last case will be in the print volume until it’s issued.]

More on the 3rd series
1 N.E.3d 1 Advance sheet dated Feb. 5, 2014, People v. Mineau (Nov 6, 2012) (Illinois)
Those of you who have never pulled down volumes of Reporters from the shelves may have trouble visualizing all this...

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Indiana Law

Ind. Courts - More on: Judicial Technology Oversight Committee to meet Tuesday

As the ILB reported March 12th, the Judicial Technology Oversight Committee (JTOC) is holding its third meeting Tuesday, March 18th at 9:30 a.m. in the Government Center South Building.

The committee's charge from the General Assembly includes electronic filing and allowing public court records to be available on the Internet. The committee appears to meet only quarterly.

Items the ILB has learned will be on Tuesday's agenda, for a meeting which apparently may run no longer than 11:30 am, include:

Here is the ILB's Sept. 13, 2013 report prior to the first meeting of the Judicial Technology Oversight Committee, which gives details about the committee's membership and the purposes for which the General Assembly created the committee.

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Indiana Courts

Ind. Law - "Bill on mo-peds headed to governor's desk"

HB 1343, a bill to regulate mopeds, was passed this session by this General Assembly. The WSJ had a story on mopeds in Evanville on Jan. 20, quoting Mayor Lloyd Winnecke: "It's like someone had taken Miracle-Gro and all of a sudden there are scooters everywhere."

Today Maureen Hayden of CNHI reports in the Logansport Pharos Tribune on why it has taken so long for Indiana to regulate these motor bikes. Some quotes, but be sure to read the story:

INDIANAPOLIS — Rep. Dave Wolkins could only oppose mo-ped regulations for so long, as more bikes zipped along the roads and were involved in an increasing number of accidents.

So Wolkins — who spent five years fighting to keep Indiana among the few states that don’t require a license, registration or insurance to operate the bikes — has led the push for regulation.

But the Republican from the small town of Winona Lake in northern Indiana set a condition: Limits on the vehicles and their riders couldn’t keep those most dependent on mo-peds off the road.

That includes the developmentally disabled who can’t get a regular driver’s license, Wolkins said. It also includes a constituency for which he has taken much grief — Hoosiers who’ve lost their privilege to drive a car, many for drunken driving.

“People joke I represent the DMRA — the Drunk Mo-ped Riders of America,” said Wolkins. “They think that’s who I sponsored this bill for.” * * *

“I know these are people who’ve made bad decisions,” Wolkins said. “But I’d rather have them get on a mo-ped than behind the wheel of a car.”

Wolkins’ bill, passed by the House and Senate, creates two classifications of motor-driven cycle. Anything with a cylinder capacity exceeding 50 cubic centimeters is considered a Class A cycle. Drivers must obtain a valid license, proof of insurance and a plate issued by the Bureau of Motor Vehicles to affix to the back of their bike.

Rules for Class B mo-peds — those with engines of 50 cubic centimeters or less — aren’t as strict. Riders won’t need a driver’s license but will be required to have a valid state ID, issued by the BMV after the rider passes a written test on road rules. Their bikes will be required to carry a BMV-issued license plate, but riders won’t be required to carry insurance. Cost for registering either kind of bike with the BMV will be under $30.

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Indiana Government

Ind. Gov't. - This is Sunshine Week; think about what nearly became law

HB 1306, the bill which would have allowed governmental agencies to charge a $20/hour search fee for public record requests, apparently died in conference committee in the final moments of this year's legislative session.

I thought about it when reading this Fort Wayne Journal Gazette editorial Sunday, which begins by detailing recent success stories involving significant information revealed via FOIA requests.

The editorial concludes, and this is where I thought of what the impact of the $20/hour fee would have been, with:

That’s not to say all public officials cooperate. Reporter Vivian Sade is continually stonewalled by Huntertown officials, who demand FOIA requests for even the most routine meeting documents. The town council’s actions involving a proposed wastewater treatment plant, however, directly affect tax bills. With an annual budget of less than $2 million, Huntertown has spent more than $220,000 in legal and engineering fees in appealing the Indiana Department of Environmental Management’s denial of a treatment plant permit.

The need for public access laws hasn’t decreased with emerging technology. In addition to creating ways to collect data on private citizens, it has created ways for government officials to hide public information or to communicate outside official channels. Updated laws are required to reflect technology, with continued vigilance and pressure on public officials to operate in full light.

Democracy exists only where government is open. Sunshine Week is a necessary reminder of the need to protect transparency.

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Eddie Horton v. State of Indiana (NFP)

Derrick Anthony Edwards v. State of Indiana (NFP)

Todd A. Kiser v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 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, March 14, 2014. It is three page (and 28 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Indiana Transfer Lists

Ind. Courts - "Money, politics and judges: Do judicial candidates pay to play?"

Marisa Kwiatkowski had the lead front-page story in the Sunday Indianapolis Star, 7 "pages" long if you read it online when I initially did, headlined "Money, politics and judges: Do judicial candidates pay to play?"

The first time I read the story, the "paged" online version, I had difficulty following it. Now there is a all-on-one-page version, here. In addition, there is now a video, giving a quite-good overview of the issues addressed in the story. Watch that first.

My initial problems were not with the story itself, written by a very good reporter, but with the medium. Technical issues, hindering reader comprehension, are now resolved. Still, it seems, and this also may be a problem with the medium, the story tried to cover too much ground in one big gulp.

The story looks at the issue of the "slating fees" required of candidates for judicial official in Marion County who are seeking party endorsement in the primary. It questions whether this is "pay to play" and points to a now pending federal lawsuit.

The story looks at how the judicial candidates selected in the slating conventions and then elected in the primary nearly always prevail in the general election: "Since 2006, every candidate who won in Marion County's primary election ultimately took the bench. In most general elections, there are the same number of judicial candidates on the ballot as there are openings."

The story also looks at the way judges are selected in Marion County compared with the judicial selection systems for St. Joe and Lake Counties, which have statutory "merit" selection systems similar to the way appellate court judges are selected in Indiana. In these systems, the judge is ultimately selected by the Governor, from nominations submitted by a commission.

Other issues also are touched on. But there is little discussion of the way judges are selected in most of Indiana's 92 counties, which is by popular vote in the general election. Nor is there comparison of the pros and cons of popular election versus appointment of judges.

A quibble, the story says "State legislators created Marion County's system of electing judges in 2006." True, that is when the law was changed to eliminate the "odd-man out" rule. But Marion County certainly did not have general elections that could be considered competitive before the 2006 change.

The ILB looked into some of the details of Marion County judicial slating in this Jan. 10th post.

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Indiana Courts

Courts - More on: Is it the Kentucky AG's duty to defend every law, or does he have discretion?

Updating yesterday's ILB post, the Fort Wayne Journal Gazette today has a long editorial - some quotes:

Two neighboring states. Two attorneys general. Two very different reactions to legal assaults on their man-woman-only marriage laws.

In Kentucky, Attorney General Jack Conway comes to tears as he discusses his decision not to appeal a federal judge’s decision that his state was constitutionally obligated to recognize gay marriages that had been performed in other states.

North of the Ohio River, Attorney General Greg Zoeller rushes to defend Indiana’s anti-gay-marriage law against all challenges.

Both men say they are acting out of conviction. But the tide of history, and a truth that goes deeper than the law books, are on Conway’s side, not Zoeller’s. * * *

After Conway read the decision, he declared that “Heyburn got it right” and that “I must draw the line when it comes to discrimination.” Moreover, he said, “in light of other recent federal decisions, these laws will not likely survive upon appeal. We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win.” Unfortunately, Kentucky’s governor, Steve Beshear, quickly announced that he would hire private counsel to appeal Heyburn’s ruling.

But Conway’s point was made.

Zoeller disagrees with that approach. He has had Indiana join other states in filing amicus briefs with the Supreme Court on behalf of marriage-limiting laws in other states. [See ILB comment below] He announced that he will defend the law against a state suit filed by four same-sex couples. Before he even received service of the suit, he announced that he would defend the law against a similar suit filed in federal court. Friday, three other federal lawsuits were filed against the law, including one that includes two Fort Wayne plaintiffs, Monica Wehrle and Harriett Miller, who was the founding director of the Fort Wayne Women’s Bureau Inc. The attorney general’s office did not immediately comment on those latest suits. But if there were a challenge against Indiana’s law filed on Mars, Zoeller would no doubt become the first attorney general to mount an interplanetary defense.

ILB comment: Our Attorney General has not joined other states in filing amicus briefs supporting prohibitions against same-sex marriage. Zoeller, on behalf of the State of Indiana, has authored the amicus briefs, and invited other states to join. From a March 13th ILB post:
It is worth noting, however, the AG Zoeller has authored and filed an amicus brief on behalf of the State of Indiana in the 9th Circuit in 2010, supporting California's Prop. 8. AG Zoeller authored and filed amicus briefs on behalf of the State of Indiana in both of the same-sex marriage cases before the SCOTUS last term.

And most recently, AG Zoeller has authored and filed an amicus brief in the 9th Circuit on behalf of the State of Indiana, supporting the position of the State of Nevada (where the Nev. AG has declined to appeal), and in the 10th Circuit, supporting the positions of both Utah and Oklahoma in opposing same-sex marriage.

In short, it appears that our Attorney General could not have better prepared himself to defend Indiana against the five lawsuits filed this month that call for recognition of same-sex marriage in Indiana.

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Courts in general

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

From Sunday, March 16, 2014:

From Saturday, March 15, 2014:

From late Friday afternoon, March 14, 2014:

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/17/14):

Thursday, March 20

Next week's oral arguments before the Supreme Court (week of 3/24/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/17/14):

Monday, March 17

Next week's oral arguments before the Court of Appeals (week of 3/24/14):

Tuesday, March 25

Thursday, March 27

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

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


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

Posted by Marcia Oddi on Monday, March 17, 2014
Posted to Upcoming Oral Arguments

Sunday, March 16, 2014

Ind. Law - "The concern is that Sen. Head and the Indiana Prosecuting Attorneys Council won’t stop adding tweaks to the new HEA 1006 reforms until we’re back to what we had before"

Scott Smith has a must-read column today in the Kokomo Tribune about the new Indiana sentencing rules, headed "Will reforms be undone?." A few quotes:

[N]ew state sentencing rules are about to send quite a few low-level offenders back to the counties to deal with. That’s why Howard County officials are getting estimates for turning the former Kokomo Academy into a work release center.

There’s even a provision in the latest criminal code update, House Bill 1006, which requires the Indiana Department of Corrections to somehow keep track of the number of inmates serving less time because of sentencing reform.

If the DOC has fewer prisoners to take care of, the thinking goes, the state could use that money to fund community corrections.

Larry Landis, head of the Indiana Public Defenders Council, said he doesn’t expect the DOC will rebate any funding to the state next March, but he does think the new sentencing laws “will push low-level people with addictions and mental health problems into county jails.”

Without funding for community corrections from the state, many of those people will simply re-offend, and will be sent to prison, negating any of the sentence reductions passed by the Legislature, Landis said.

Then there is are individual legislators – with State Sen. Randy Head, R-Logansport the prime culprit – who cannot resist the temptation to insert draconian measures into otherwise reform-minded legislation.

This year, Head managed to negate many of the sentence reduction provisions contained in the original criminal code reform bill, which passed in 2013. He was also instrumental in reducing the “good time credit” available to high-level offenders.

The concern is that Head, and the Indiana Prosecuting Attorneys Council, won’t stop adding tweaks to the new reforms until we’re back to what we had before – a system where drug possession could net more prison time than aggravated assault.

Posted by Marcia Oddi on Sunday, March 16, 2014
Posted to Indiana Law

Courts - Is it the Kentucky AG's duty to defend every law, or does he have discretion?

On March 4th The Kentucky Attorney General announced that he would not appeal the federal district court opinion (currently on hold) requiring the State of Kentucky to recognize marriages of Kentucky same-sex couples performed outside Kentucky.

Later that day the Kentucky governor announced that outside counsel would be hired to conduct the appeal.

On March 12th the Lexington Herald-Leader had a story headed "Bill would let top lawmakers intervene in court cases when AG declines to defend Kentucky law."

Today Joseph Gerth of the LCJ has a column headed "Attorney General duty didn't require gay marriage appeal." Some quotes:

You couldn’t turn on social media or listen to talk radio in the last two weeks without folks wringing their hands and expressing outrage about the fact that Attorney General Jack Conway had failed to do his job as the state’s laws require him to do. * * *

Conway and all other officials — including every lawyer in the state, every local city council member and county magistrate — must swear in that oath to defend the U.S. Constitution and the state constitution.

The state constitution, where the oath is found, however, doesn’t say what actions the attorney general should take in the defense of the state and federal constitutions, but another section of the constitution says his specific duties are to be “prescribed by law.”

That means you have to hit the statute books — which is where others have made their cases.

Some of those who disagree with Conway’s decision argue that he was required to appeal the ruling as a matter of law. The logical extension of that argument is that Conway must appeal every adverse ruling in every case all the way to the U.S. Supreme Court if he keeps losing along the way. * * *

So what is the attorney general’s job? * * *

According to the law, he has to “attend to” litigation against the state but it doesn’t define what that means. A 1974 ruling by the Kentucky Supreme Court, then the highest court in the state, said that didn’t mean he had to defend the laws.

In fact, the ruling allowed the attorney general to file suit to block a law he believed to be unconstitutional and that opposing a law in defense of the constitution should not be considered “a breach of the Attorney General’s duty to represent the Commonwealth.”

And that didn’t even deal with whether or not the attorney general had to appeal losses, it deals with whether he has to defend laws in the first place.

But what’s really important here is part of the law titled “Appeals.”

“The Attorney General may prosecute an appeal, without security, in any case from which an appeal will lie whenever, in his judgment, the interest of the Commonwealth demands it,” it says.

That’s pretty simple. The words “may prosecute” and “in his judgment” gives him discretion as to whether to pursue an appeal.

That provision allows the attorney general to appeal the cases he thinks he can win and to bow out on those he thinks he will lose. It also allows him to save the state money.

Plaintiffs in the gay marriage case have already asked Heyburn to award them about $70,000 in lawyer fees. It’s likely that after Gov. Steve Beshear’s appeal of Heyburn’s decision, they’ll ask for even more.

It’s clear Conway had no statutory obligation to file an appeal.

What’s also clear is that if folks have a problem with Conway’s actions in the case, it’s not about whether he did his job. Their problem is with how he did it.

ILB: Similarly, Indiana's AG exercised discretion in his decision in September of 2012 not to further appeal federal court rulings against the constitutionality of an Indiana immigration bill.

Posted by Marcia Oddi on Sunday, March 16, 2014
Posted to Courts in general

Ind. Gov't. - "Indiana lawmakers probe Ball State over intelligent design: Legislators issue demand, threaten 'legislative action'"

A story by Seth Slabaugh of the Muncie Star-Press is reprinted this weekend in the Lafayette Journal Courier. Some quotes:

MUNCIE — State lawmakers are investigating Ball State University’s decision to prohibit the teaching of intelligent design in a science course.

BSU President Jo Ann Gora concluded last summer that intelligent design is overwhelmingly regarded by the scientific community as a religious belief and not a scientific theory.

A “Boundaries of Science” class taught by Eric Hedin, an assistant professor of physics, allegedly promoted the idea that nature displays evidence of intelligent design, as opposed to an undirected process like evolution.

Four legislators, including Sen. Dennis Kruse, R-Auburn, chairman of the Education Committee, say “serious questions have been raised about whether academic freedom, free speech and religious liberty have been respected by BSU in its treatment of professor Hedin, its subsequent establishment of a speech code restricting faculty speech on intelligent design, and its cancellation of professor Hedin’s ... class,” the lawmakers said in a letter to Gora this week. * * *

The letter gives Gora until the end of business on March 24 to answer the following question: “Does the policy forbid science professors from explaining either their support or rejection of intelligent design in answer to student questions about intelligent design in class?”

The letter concludes, “In order to determine if legislative action is required, we feel obligated to investigate whether BSU has acted in accord with state educational policy, legal requirements, and BSU’s own published standards.”

Kruse and fellow Republican legislators Travis Holdman, Greg Walker and Jeffrey Thompson also say they are “disturbed by reports that while you restrict faculty speech on intelligent design, BSU authorized a seminar that teaches ‘Science Must Destroy Religion.’ ” * * *

BSU spokesman Tony Proudfoot said the legislators apparently were referring to Honors 390A, “Dangerous Ideas,” which uses a book titled, “What is Your Dangerous Idea?”

One essay in the book is titled “Science Must Destroy Religion.” Proudfoot says other essays in the book include these titles: “Science May Be Running Out of Control,” “Science Will Never Silence God,” and “Religion is the Hope that is Missing in Science.”

“This is not a seminar that teaches that ‘Science Must Destroy Religion,’ “ Proudfoot said. “That phrase is simply the title of one four-page essay among 109 others.”

He added, “It is important to note that this is an honors colloquium with honors credit. It is neither a science class bearing science credit nor a religion class bearing religion credit.” * * *

The legislators are acting on behalf of The Discovery Institute, an intelligent design think tank, whose vice president, John West, told The Star Press he is hopeful the legislative investigation will force Ball State to release the report of the faculty review panel, which West called “an ad hoc kangaroo committee.”

“That report should be public so the public can judge whether what happened was fair or biased or whatever,” West said.

He noted the legislators’ letter noted that they plan to ask Ball State more questions in the future.

“Ball State ought to be careful,” West said. “I think their mishandling of this could turn into a much bigger deal. * * *

Discovery Institute officials have been meeting with the legislators.

“If Ball State isn’t more transparent ... it is risking legislative intervention,” West said. “Sen. Kruse is head of the Education Committee, so I believe he has some oversight over ... higher education. In the tool kit of legislators, you have funding ... and you also could have legislation that would create another investigative mechanism, or set up an ombudsman with power to get data and investigate things from outside the university to deal with academic freedom complaints.”

[Emphasis by ILB.] There is much more in the long story.

The ILB is reminded of the Mar. 16, 2012 Indianapolis Star story of another unofficial group of legislators sending a similarly demanding letter ... Here are some quotes from the Star story of that date:

The youth group — a support group for gay and lesbian youths — was targeted by conservative lawmakers who were upset that the group won a specialty plate. In the final days of the legislature, there were efforts to pass legislation that would strip them of their plate, while also cutting down on the proliferation of specialty plates in general.

When that effort failed, lawmakers, including Senate President Pro Tempore David Long, R-Fort Wayne, said they had found an alternative “solution”: seeking to void the group’s contract.

Mary Byrne, executive director of the Indiana Youth Group, said the BMV called her today and said 20 senators had sent a letter challenging their plate and that it was being removed from sale. She said they were given no chance to appeal; no opportunity to state their case.

Posted by Marcia Oddi on Sunday, March 16, 2014
Posted to Indiana Government

Ind. Law - "State’s lawmakers pick guns over kids"

The is the heading of an op-ed by Shannon Watts of Zionsville, the founder of Moms Demand Action for Gun Sense in America, that appears today in the Fort Wayne Journal Gazette. It begins:

INDIANAPOLIS – For insight into why Indiana’s – and many other states – gun laws often seem transcribed from the Washington gun lobby’s playbook, visit a legislative hearing at the capitol.

I had this experience last week when I testified against Senate Bill 229, a bill that would allow guns on school property. You would think that the Sandy Hook, Conn., shooting in December 2012 – and the 57 additional school shootings that have taken place across America in the 15 months since – would make our elected officials realize the dangers of letting anyone bring a gun onto school property at any time.

You would also think that legislators would listen to the Indiana Association of School Principals, the Indiana Association of Public School Superintendents, the Indiana School Boards Association, the Indiana Urban School Association, the Indiana State Teachers Association and my organization, Moms Demand Action for Gun Sense in America – which all oppose the legislation – when it comes to matters of child safety at schools. If educators and moms don’t want to allow loaded guns near our children in the place they should feel safest, then whose support does that leave? The gun lobby.

During my testimony, legislators did everything they could to distract listeners from the simple truth that Indiana moms and teachers do not want easy access to guns on school property. Lawmakers yelled, cut off questioning from other legislators and refused to let me finish my responses. At one point State Rep. Jim Lucas, R-Seymour. pulled out a copy of my résumé and questioned my personal affiliations going back years.

He and other legislators were not nearly as concerned with the personal and professional credentials of the National Rifle Association lobbyist who testified in support of the bill. They also were not concerned that not a single Indiana private citizen showed up to speak up for SB 229.

Moms will endure the heckling from elected officials for as long as we need to if it means keeping our kids safe. We have come a very long way since that awful day at Sandy Hook Elementary School.

Lesley Weidenbener's Sunday column in the Louisville Courier Journal is headed "Bullying has no place in the Statehouse." Some quotes:
Whether they’re arguing for a bill or against a bill, telling their own stories or that of a loved one, or simply sharing a heart-felt belief, it’s great to see Hoosiers participating in their government.

Until it goes wrong. Then, it’s just frustrating.

So was the case last week as one Hoosier tried to express her views on a controversial bill only to be browbeaten by a handful of lawmakers who didn’t like those views.

The legislature was days from wrapping up the 2014 session when Shannon Watts, who launched the national group Moms Demand Action for Gun Sense, came to the Statehouse to testify against a bill that would allow guns in locked cars in school parking lots.

It was a controversial proposal, especially among gun control and education groups. The proposal’s supporters say it just makes common sense. And I wrote recently that it seemed like an issue on which both sides could find a reasonable compromise.

But Republican lawmakers who backed the legislation — which has since been sent to Gov. Mike Pence to sign into law or to veto — were in no mood to talk compromise with Shannon Watts.

Watts filled her testimony with statistics and data, which she said lawmakers had asked her to do the last time she’d appeared before them. “Easy and unregulated access to guns must be eliminated, not encouraged,” Watts told them.

Republican legislators then picked apart her statistics. They were combative in their questions. They challenged her views.

One lawmaker — Rep. Jim Lucas, R-Seymour — had done research on Watts’ background and ticked off her various jobs, even asking her one time to verify her maiden name so he could describe more of her career history.

His point? She had been a marketing specialist and therefore knew how to manipulate data.

It was all, well, uncomfortable. Rep. Terri Austin, D-Anderson, even called it “bullying.” * * *

Of course, anyone who testifies before a legislative committee should be prepared for questions — and Watts certainly was. Lawmakers should absolutely interact with people about their research and opinions.

Still, there’s no reason to be aggressive and confrontational. A public hearing is just that — for the public. It’s the time for people who represent organizations or companies or themselves to come before the elected leaders who make our laws and try to influence the outcome.

People who exercise that civic duty in the respectful way that Watts did should never be treated poorly. Doing so is indeed bullying and it has no place at the Statehouse.

Finally, here are some quotes from the NRA on its success with SB 229:
Last night, the 2014 session of the Indiana General Assembly adjourned sine die. In the eleventh hour, both the state Senate and House agreed on the NRA-supported conference committee report (CCR) for Senate Bill 229. Both legislative chambers passed the measure in an overwhelming manner; by a 38 to 10 vote in the Senate and a 75 to 24 vote in the House of Representatives. SB 229 will now be sent to Governor Mike Pence (R) for his approval.

Authored by state Senator Jim Tomes (R-49) and shepherded through the House by state Representative Sean Eberhart (R-57), SB 229 is a common sense measure which would protect law-abiding gun owners’ rights to transport a firearm. Current Indiana law allows the operator of a vehicle to drive onto school property, but does not allow the operator to leave the firearm locked in the vehicle unattended. SB 229 would allow a law-abiding person to exercise their fundamental right to self-defense without fear of criminal prosecution. The CCR for SB 229 includes the following provisions:

  • Prohibits the use of public (taxpayer) funds to be used to conduct a gun “buyback” program

  • Allows a firearm that is legally and lawfully possessed to be locked, out of plain sight, in a vehicle while parked on school property

  • Removes the “roaming school zone” provision from law that was to be returned on the books as of July 1, 2014 – “roaming school zones” occur when a school function is held at another location not owned by the zoo (i.e. a field trip taking place at a zoo) – law-abiding handgun carry license holders could find themselves facing felony charges if they happened to be carrying a firearm at the same location a school was taking a field trip.
Law-abiding citizens should not face criminal prosecution for exercising a right protected by the Constitution. SB 229 is a huge step in the right direction towards keeping law-abiding Hoosiers from being unintentional felons.

Senate Bill 229 will now be sent to Governor Mike Pence for his approval.

Here is the Senate Enrolled Act 229.

The NRA story also reports that:

[D]uring this session, Senate Joint Resolution 9 passed in both legislative chambers of the General Assembly. Authored by state Senator Brent Steele (R-44) and sponsored by state Representative Mark Messmer (R-63), SJR 9 would guarantee Hoosiers the right to hunt, fish and harvest wildlife. This proposed constitutional amendment would ensure the preservation of Indiana's rich hunting heritage for future generations. The language in SJR 9 also needs to be passed either next year or in 2016 to be eligible for the 2016 ballot.
[More] As the NRA story makes clear, SB 229 covers much more than guns in school parking lots. Read the bill for yourself.

Posted by Marcia Oddi on Sunday, March 16, 2014
Posted to Indiana Law

Saturday, March 15, 2014

Ind. Courts - Wrap-up story on the five same-sex marriage challenges filed in SD Ind., starting on March 7th [Updated 3/16/14]

Jill Disis has a lengthy story in this morning's Indianapolis Star on the now five lawsuits filed since March 7th in the Southern District of Indiana, challenging Indiana's prohibition against same-sex marriage.

Earlier ILB posts have linked to the complaints in each of these lawsuits.

The Star story also includes a helpful side-bar distinguishing the five lawsuits:

[Updated 3/16/14] Rick Callahan of the AP has a story, here in the Gary Post-Tribune, also surveying all five lawsuits. The story quotes Ken Falk, chief legal counsel for the ACLU of Indiana, as saying:
[H]e expects the growing number of federal lawsuits will be consolidated into a single challenge against the state’s marriage law. He said the ACLU’s challenge citing the 14th Amendment involves “complicated legal notions that when boiled down stand for two things — fairness and equality.”
More:
Indiana Attorney General Greg Zoeller has said his office will defend against challenges to the state’s marriage laws.
Zoeller's news releases make it clear that this includes appeals of any upcoming federal rulings adverse to the State.

The ACLU lawsuit bears a close resemblance to the recent SCOTUS decision in Windsor in that:

One of the plaintiffs is Midori Fujii, a Hamilton County resident who married her longtime partner, Kris Brittain, in California in 2008, three years before Brittain died of ovarian cancer.

Because Indiana doesn’t recognize same-sex marriages that are legal in other states Fujii had to pay more than $300,000 in Indiana inheritance tax after Brittain’s death. If Indiana recognized same-sex marriages, Fujii — like any Indiana widow — would have had to pay no inheritance tax, said her attorney, Sean Lemieux.

“When you’ve spent your lives together, saving, building assets, protecting yourself, to have that then go into taxes because your marriage is disrespected is not only emotionally insulting but financially harmful,” he said.

The story continues:
Another suit was filed Friday by four lesbian couples who were married in states that allow same-sex marriages. Three of those couples have spouses who are police officers, while the spouse of the fourth couple is a retired firefighter.

Their suit seeks a permanent injunction ordering the state to recognize the couples’ marriages as valid and lawful. It also seeks that the state’s pension fund for police officers and firefighters extend the same pension and death benefits to same-sex spouses as opposite-sex spouses. [Lee v. Pence]

A third federal lawsuit was filed Friday on behalf of a lesbian couple from Indiana who were married in Iowa and another woman who was also married in that state to her same-sex partner, but is now in the midst of a divorce. [Bowling, Bowling and Bruner v. Pence]

A fourth lawsuit challenging Indiana’s ban was filed on March 7, and another was filed on Monday by Lambda Legal, a national gay rights group, on behalf of three lesbian couples from Indiana. [Baskin v. Bogan]

Posted by Marcia Oddi on Saturday, March 15, 2014
Posted to Indiana Courts

Friday, March 14, 2014

Ind. Courts - Star report on: "Fourth lawsuit aimed at Indiana same-sex marriage ban"

Here is the Indianapolis Star update on the "fourth" lawsuit, which the ILB has termed "the fifth", Bowling v. Pence.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Courts

Ind. Courts - A fifth challenge to Indiana's marriage law now has been filed

The case is Bowling v. Pence, filed today in the Southern District of Indiana, Indianapolis Division.

Here is the complaint.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In State Board of Funeral and Cemetery Service v. Settlers Life Insurance Company , a 10-page opinion, Judge Baker writes:

In this case, we consider whether the product sold by appellee-petitioner Settlers Life Insurance Company (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. Here, appellant-respondent, the State Board of Funeral and Cemetery Service (the Board), appeals the trial court’s grant of Settlers’s motion for summary judgment in which it determined that Settlers’s insurance product did not fall within the statutory confines of the Pre-Need Act. The Board argues that Settlers’s product was intended to provide funding for the purchase of funeral services or merchandise, which is the same purpose the products regulated by the Pre-Need Act were intended to fulfill; the Board contends that all lawful funeral trusts must comply with the Pre-Need Act. We find that Settler’s product does not fall within the jurisdiction of the Pre-Need Act. Therefore, the judgment of the trial court is affirmed.
NFP civil opinions today (4):

In the Matter of the Termination of the Parent-Child Relationship of: K.D., S.D., and I.D., Minor Children, and D.D., Father v. The Indiana Department of Child Services (NFP)

Beverly K. Oswald v. CNB National Lending, LLC, Bryce A. Bly, Eric Swedenburg and Andrea Swedenburg (NFP)

C.B. v. G.N. (NFP)

Mary Sparks v. Harborside Nursing Home (NFP)

NFP criminal opinions today (3):

Cleveland Munoz v. State of Indiana (NFP)

Jason Roudebush v. State of Indiana (NFP)

David Lee Robinson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Star report on: "Third lawsuit aimed at Indiana same-sex marriage ban"

Tim Evans and Jill Disis of the Indianapolis Star now have a story on the first of the two lawsuits filed this morning challenging Indiana's same-sex marriage ban. Some quotes:

A trio of federal lawsuits challenging Indiana's same-sex marriage ban have been filed this month, joining a mounting number of similar complaints cropping up in courts nationwide.

The American Civil Liberties Union of Indiana filed a lawsuit Friday morning in U.S. District Court for the Southern District of Indiana on behalf of 15 plaintiffs, including two children of same-sex couples, challenging the same-sex marriage ban and the state's refusal to recognize gay unions legally performed in other states.

The ACLU suit marked the third such complaint filed in Indiana this month, following a challenge to Indiana's law filed Monday by gay-rights legal organization Lambda Legal, and another lawsuit filed in the same U.S. District Court last Friday by four other Indiana same-sex couples.

"The government is a powerful teacher of discrimination," said Sean Lemieux, an attorney working on the ACLU case. "There is no justification for Indiana to treat these families as second-class citizens. The families in this case want the responsibility, security and dignity that only marriage provides, and their children deserve the same protections that other Indiana families enjoy." * * *

The three Indiana lawsuits are among dozens of similar legal challenges filed nationwide that took off last year after a U.S. Supreme Court decision gave full federal recognition to legally married gay couples. Recent public opinion polls also have shown growing acceptance of gay marriage.

Here are the ILB posts this morning on the ACLU lawsuit, plus the most recent lawsuit, relating to pensions of same-sex partners who are police and firefighters.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Courts

Ind. Courts - A fourth challenge to Indiana's marriage law now has been filed

A fourth challenge to Indiana's marriage law has been filed; four now within the course of a week.

This case, the second filed this morning in the Southern District Indiana, Indianapolis Division, is Officer Pamela Lee v. Mike Pence. In addition to the Indiana Governor, the defendants include the executive director and members of the Indiana Public Retirement System.

Here is a copy of the complaint.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Courts

Ind. Gov't. - General Assembly adjourned last evening for the year

Here are some stories:

Dan Carden's story in the NWI Times, headed "Legislature wraps session with busy final day," begins:

The Indiana General Assembly adjourned for the year late Thursday night, ending a 10-week session dominated initially by the marriage amendment, but concluding with proposals to significantly improve the state's roads, preschool education, criminal code and other matters.
Here is Niki Kelly's story in the Fort Wayne Journal Gazette.

Here is AP coverage, in the Gary Post-Tribune, headed "Business tax cuts, preschool funding pass as session ends ."

"What happened to key Indiana legislation on final day," is the headline to this Indianapolis Star story by Tony Cook and Barb Berggoetz.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Government

Ind. Courts - More on: Clark County drug court back in business, conditionally

Updating this ILB post from last evening, Charlie White of the Louisville Courier Journal has a story this morning headed "Indiana high court revives embattled Clark County Drug Court." It begins:

The Indiana Supreme Court has agreed to conditionally reinstate the Clark County Drug Court, a move that means existing participants will have a chance to complete treatment and have their charges dismissed.

Jane Seigel, executive director of the Indiana Judicial Center — a branch of the high court — told Clark County judges the suspension would be lifted last Friday,March 7. The letter she sent to the judges was obtained by The Courier-Journal on Thursday.

It lists seven conditions to the six-month, temporary certification, including:

• No new participants will be admitted unless authorized by the state.

• Judge Vicki Carmichael will oversee drug court sessions, lead team meetings and supervise drug court case managers.

• A representative of the Clark County Prosecutor’s office must attend weekly team meetings and court sessions.

• A member of the defense bar must serve as an advocate for participants during weekly meetings and sessions.

• Drug court must provide the state with its policy and procedure manual, reflecting current practices.

• Drug court must cooperate with state courts during a certification review that may include interviews with all involved, observation of meetings and sessions, and case reviews.

• Drug court must provide periodic updates or reports to the state as directed.

The state also could impose additional conditions.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Courts

Ind. Courts - More on: A third challenge to Indiana's same-sex marriage prohibition announced; this one by Indiana ACLU

Updating the entry from earlier this morning, here now is the 4-page news release from the ACLU of Indiana, detailing the stories of the plaintiffs in their lawsuit, Midori Fujii, et al. v. Indiana Governor, et al., Cause No. 1:14-cv-00404-TWP-DKL. It begins:

Indianapolis – When a husband or wife passes away, the unavoidable task of arranging the funeral can serve as a measure of comfort to the grieving spouse. But in 2011, when Midori Fujii’s wife of 11 years Kris Brittain died after a two-year struggle with ovarian cancer, because her California marriage is not recognized in Indiana, the funeral home would not allow her the dignity of making those decisions. Because she was not “next-of-kin,” they said, Fujii had “no relationship” to her wife.

Today the American Civil Liberties Union of Indiana, along with attorney Sean Lemieux of the Lemieux Law Office in Indianapolis and the national ACLU filed a lawsuit in federal court to challenge that law, Indiana Code § 31-11-1-1, saying the law violates the Due Process and Equal Protection clauses of the Fourteenth Amendment to the U.S. Constitution. The lawsuit was filed on behalf of Fujii and 14 other plaintiffs, including two children, who have suffered similar indignities and discrimination because Indiana does not permit marriage for same-sex couples or recognize marriages conducted outside of the state. The suit seeks to stop the state from enforcing this law, to require the state to recognize marriages that have taken place outside of Indiana and to allow same-sex couples to wed in Indiana.

“Marriage has long played a fundamental role in our society,” said ACLU of Indiana Legal Director Kenneth J. Falk. “By failing to allow or recognize marriages for same-sex couples in Indiana, the state is perpetuating a discriminatory practice that cannot be squared with the Constitution.”

“The government is a powerful teacher of discrimination,” said Lemieux. “There is no justification for Indiana to treat these families as second class citizens. The families in this case want the responsibility, security and dignity that only marriage provides and their children deserve the same protections that other Indiana families enjoy.”

In Fujii’s case, without access to the familiar language and legal label of marriage, she was unable to instantly or adequately communicate the depth and permanence of her commitment to her wife, or to obtain respect for that commitment as others do simply by invoking their married status. Adding insult to injury, because Fujii’s marriage is not recognized in Indiana, she was required to pay more than $300,000.00 in Indiana inheritance tax on all of the property that her wife left to her, including their shared home. If Fujii were an opposite sex spouse she would have paid no inheritance tax on the property she inherited.

The ILB has obtained a copy of the complaint in Fujii v. Indiana Governor, access it here.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Courts

Ind. Decisions - One yesterday from 7th Circuit, dismissal vacated

In Leonard Thomas v. Keith Butts (SD Ind., Magnus-Stinson), a 7-page, per curiam decision, the Court writes:

Leonard Thomas, an Indiana prisoner, sued prison officials and medical personnel at the Pendleton Correctional Facility under 42 U.S.C. § 1983 for deliberate indifference to his epilepsy in violation of the Eighth Amendment. The district court dismissed without prejudice after Thomas did not pay the initial partial filing fee that the court assessed under 28 U.S.C. § 1915(b)(1). We vacate the dismissal because the judge dismissed the suit without determining if Thomas was at fault for not paying.

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - A third challenge to Indiana's same-sex marriage prohibition announced; this one by Indiana ACLU

The American Civil Liberties Union of Indiana has announced that it will hold a news conference at noon today to discuss its lawsuit challenging Indiana's marriage law. A quote:

By continuing the discriminatory practice of failing to allow or recognize same-sex marriages in Indiana, the State is denying couples and families the same dignity, legal protections and financial and emotional stability afforded to opposite-sex couples, and is violating the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution. The ACLU of Indiana's lawsuit seeks to stop the state from enforcing this law now and in the future by requiring it to recognize marriages that have taken place outside of Indiana and allowing same-sex couples to wed in Indiana.
The ILB will post the complaint as soon as it is available.

This makes three lawsuits within a week, the first last Friday (Love v. Pence), the second yesterday (Baskin v. Bogan).

Posted by Marcia Oddi on Friday, March 14, 2014
Posted to Indiana Courts

Thursday, March 13, 2014

Ind. Courts - Clark County drug court back in business, conditionally

Gary Popp of the Jeffersonaville News & Tribune has the long story that begins:

JEFFERSONVILLE — The Clark County Drug Treatment Court is back in session.

The Indiana Judicial Center lifted the program’s suspension, implemented several weeks ago, and has provided a six-month conditional certification. This will allow Clark County officials to properly supervise the nearly 75 participants in the program.

The suspension was put into effect following allegations of misconduct by drug court staff.

Clark County Circuit Court No. 2 Judge Jerry Jacobi oversaw the drug court program, which is the only problem-solving court the IJC has ever decertified in its 11 years of regulating special courts such as drug or veterans court.

After drug court participants’ allegations of mistreatment became public, Jacobi responded by placing his bailiff Jeremy Snelling — who also acted as a drug court field officer — and the drug court program’s director, Susan Knoebel, on unpaid leave Jan. 7. Knoebel was fired weeks later, and Snelling remains on leave.

Allegations of misconduct have included unlawful arrest and incarceration. Others have claimed their due process rights were violated by never being taken before a judge during months-long jail stints.

After the suspension, Jacobi was forced by the IJC to relinquish the drug court, and he handed over the program to Clark County Circuit Court No. 4 Judge Vicki Carmichael.

Carmichael was tasked with honoring the contracts the state and drug court participants had entered.

The contracts require the participants meet certain criteria, such as passing drug screens, attending substance-abuse classes and keeping residence in halfway houses. In turn, the state must offer participants an alternative to prison sentences.

While Carmichael absorbed the program from Jacobi, her court did not have the required IJC certification to fully run the program, such as implementing sanctions following violations of the participants, until recently.

The certification was granted Wednesday when Carmichael, Jacobi, Clark County Prosecutor Steve Stewart and Clark County Chief Public Defender Jeff Stonebraker signed their names on a certification-authorization document drafted by IJC Executive Director Jane Seigel.

ILB: Here is a long list of earlier posts.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Indiana Courts

Ind. Decisions - A third opinion today from the Supreme Court

In Howard Justice v. American Family Insurance Company, a 13-page, 4-1 opinion, Jutcie Massa writes:

This case raises a question of contract interpretation: in an insurance policy, does the phrase “limits of liability of this coverage” refer to the policy limit or to the insured’s total damages? We believe it is the former, but because this particular set-off would reduce the policy limit below the statutory minimum, we reverse the trial court. * * *

Conclusion. We therefore reverse the trial court’s grant of summary judgment to American Family and remand for further proceedings consistent with this opinion.

Rucker, David, and Rush, JJ., concur.
Dickson, C.J., concurs with Parts B and C but, contrary to Part A, believes that the workers’ compensation setoff provision cannot apply to reduce benefits payable under the underinsured motorist policy because the policy expressly excludes coverage of injuries eligible for workers’ compensation.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Trial court rules on summary judgment motions in State Fair Stage Collapse litigation [Updated]

From a brief AP story March 11th:

INDIANAPOLIS — The state can't be held responsible for work performed by the contractor that built the stage rigging that gave way during the 2011 Indiana State Fair stage collapse, a judge ruled.

The Indiana attorney general's office said Tuesday that a Marion County judge had denied Mid-America Sound Corporation's claim that the state is financially responsible for the cost of its defense and any judgments against it. * * *

Mid-America argued that the state was obligated by its contract to cover the company's legal costs. But Judge Theodore Sosin disagreed in a two-page ruling.

Mid-America had claimed that the State had indemnified Mid-America against claims.

The ILB posted about this contention in 2012. From Aug. 8, 2012, quoting an AP story that reported:

Invoices signed by fair executive director Cindy Hoye in the months after the collapse include an "indemnification" clause that requires the fair to assume all responsibility for any judgments, fines, injuries and loss of life resulting from use of the equipment and to hold the companies harmless.

Fair spokeswoman Stephanie McFarland referred questions about the invoices to the attorney general's office Tuesday.

Attorneys for Mid-America claim the invoices constitute binding contracts, a contention the state disputes. But after the state had already paid $5 million, and with lawmakers prepare to provide $6 million more, Zoeller decided it was better not to test that argument in court.

A post by the ILB from the following day discussed how what was purported to be a valid state contract amendment could not be, because it had not gone through the requisite state approval and signature process.

However, an Aug. 16, 2012 story by Tom LoBianco of the AP reported that Mid-America rejected the state's settlement plan, meaning that:

The company’s decision Wednesday scuttles a legal strategy Zoeller pursued to protect the state from a Mid-America lawsuit claiming the state would be on the hook for any damages victims won in court against the company.

Mid-America pointed to invoices signed by State Fair Executive Director Cindy Hoye after the stage collapse that included legal language clearing the company of any wrongdoing. The state argues that the invoices didn’t constitute a legally binding contract, but state lawyers didn’t want to test that assertion in court.

But in the end the State won on this point in court. In a press release dated March 11, 2014 the Attorney General's office announced:
INDIANAPOLIS – In an important legal victory for the State of Indiana, a Marion County court has ruled the State is not responsible for defending or assuming the liability for the private company that supplied the stage rigging that collapsed at the Indiana State Fair on August 13, 2011.

In ongoing litigation stemming from the seven fatalities and multiple injuries in the stage-rigging collapse, Marion County Superior Court 2 Judge Theodore Sosin ruled against Mid-America Sound Corp. and in favor of the Indiana State Fair Commission. Mid-America Sound had claimed it had a contractual right to be indemnified by the State – that is, the private company claimed that its civil liability and legal defense were the State’s financial responsibility – something the State vigorously denied. In denying Mid-America’s motion for partial summary judgment and granting the State’s motion, the court ruled Monday that the State Fair Commission is not responsible for indemnifying or defending the private company.

The 2-page order by Judge Theodore M. Sosin, Marion County Superior Court Two, is attached. As you will see from reading it, it likely will not be useable as any sort of precedent a state contract may not be unilaterally altered or amended via the signature of an agency head on an invoice containing a boilerplate indemnification clause on its back.

[More at 4:54 PM] Just found this March 12th John Tuohy story (IndyStar) in USA Today which includes:

The company claimed that the contract it signed with the state made the [state fair] commission liable for any injuries or damages after the stage was erected, said Robert MacGill, an attorney for Mid-America. The Greenfield company oversaw the construction of the stage by laborers, but the state was responsible from that point on, MacGill said Tuesday.

"We argued that the state has to defend whatever happened to the stage during its use or operation," MacGill said.

MacGill said that obligation was spelled out on the back of invoices that state officials signed when they paid their bills to Mid-America. [AG spokesman] Corbin agreed that the invoices were at the center of the dispute, but Sosin did not say why he ruled in favor of the state.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. Trial Ct. Decisions | Stage Collapse

Ind. Decisions - Supreme Court reverses involuntary termination case where mother denied counsel at CHINS proceeding

In In re the Involuntary Termination of the Parent-Child Relationship of G.P., a Minor Child, and His Mother, J.A. v. Indiana Department of Child Services and Child Advocates, Inc., an 18-page, 5-0 opinion, Justice David writes:

We have always said that a parent’s due process rights are vital during court proceedings aimed at determining whether the parent’s child is a Child in Need of Services. Here, a mother waived her right to counsel at an initial CHINS hearing and her son was found to be a CHINS. At a subsequent CHINS review hearing, the mother requested counsel and the trial court found that she was indigent and entitled to representation—but it failed to actually follow through and appoint an attorney to her case.

After additional CHINS hearings at which the mother remained unrepresented, the Department of Child Services filed an action to involuntarily terminate the mother’s parental rights with respect to her son. At the mother’s request, the trial court appointed counsel to represent her during the TPR process. But even with representation at this stage, her parental rights were terminated and her son has since been adopted by his paternal grandparents. We now assess the impact of the failure to appoint counsel for the mother during the CHINS process. * * *

Conclusion. J.A. was denied her statutory right to counsel during the course of the CHINS proceedings below and those proceedings flowed directly into an action to terminate her parental rights and (in a separate action) adopt out her child. We therefore vacate the trial court judgment terminating her parental rights.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Highlights of the Court of Appeals’ 2013 Report

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

The Indiana Court of Appeals’ annual report for 2013 was released on Tuesday. Appellate lawyers and those who follow the appellate courts will find much of interest in the fourteen-page report, and I’ve included below some highlights similar to the ones I noted last year.

The number of majority opinions has steadily declined over the past six years by nearly 25% as shown in the table.

Indiana Court of Appeals Majority Opinions, 2008 - 2013*
Year Criminal/PCR Civil Expedited/Other Total
2013 1232 557 269 2058
2012 1271 594 278 2143
2011 1408 654 335 2397
2010 1411 610 583 2375
2009 1613 583 373 2569
2008 1700 716 323 2739

The decline has been across all categories of cases but particularly steep in criminal cases, which have declined nearly 28%. The widespread use of sentencing appeal waivers in most plea agreements has surely contributed to this decline. The general decline in the number of jury trials has likely contributed as well.

The number of majority opinions written by each judge who served the full year varied considerably, from 91 (Judge Pyle) to 152 (Judge Crone). The average was 130 opinions among the fifteen judges. (Six senior judges collectively wrote 104 opinions for the court.) In 2012 the range was narrower: 125 to 156, with Judge Crone again topping the list. As mentioned in last year’s post, these numbers are much lower than during the higher caseload years when Judge Baker would often top the list with numbers like 313 (2007) or 242 (2008).

Again this year, the vast majority of opinions were unanimous. The fifteen judges penned an average of only five dissenting opinions (72 total). Judges Barnes, Mathias, and Pyle authored zero dissenting opinions, while Judges Riley (16), Baker (10), and Brown (9) wrote the most. A post last summer commented on the high number of dissents from the Riley/Bradford/Brown panel.

The Court of Appeals published an average of 25% of its opinions, again with wide variations among judges. Three judges published more than 30% of their opinions: Judges Brown (36.0%), May (34.5%), and Pyle (30.8%). Three published less than 17%: Judges Friedlander (13.8%), Kirsch (13.8%), and Bailey (16.9%). Judges Friedlander and Kirsch also published the lowest percentage of their opinions in 2012 as well.

The court heard fewer arguments (71) in 2013 than in recent years. Most judges were near the average of 14, except for Judge Brown (9) on the low end and Judges Baker (19) and May (17) on the high end. As explained in this post, the court denies more requests for oral argument than its grants. It denied 65 requests in 2013, and many of the 71 arguments were scheduled without a request from counsel.

The court granted 38.5% (77) of the 200 petitions for permissive interlocutory appeals filed in 2013. This is down a bit from recent years, such as the 45.8% grant rate in 2012.

Finally, the court received a petition for rehearing in about one-eighth (259) of its cases. Last year it granted 16% (42) of those petitions, which is a bit higher than the 12% rate from last year.
_______________
*The Court of Appeals report runs January to December, while the Indiana Supreme Court runs on a July to June fiscal year.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Schumm - Commentary

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Donald R. Walker, D.D.S. v. State Board of Dentistry , a 12-page opinion, Judge Barnes writes:

Donald Walker, D.D.S., appeals the trial court’s denial of his petition for judicial review of a decision by the State Board of Dentistry (“the Board”). We affirm.

Dr. Walker raises two issues, which we restate as: I. whether the Board properly found that Dr. Walker violated Indiana Code Section 25-1-9-4(a)(3) by failing to provide continual and direct supervision to Patient A; and II. whether the Board properly found that Dr. Walker violated Indiana Code Section 25-1-9-4(a)(4)(B) by using the “hand over mouth” technique on Patient A. * * *

We conclude that the Board properly found that Dr. Walker violated 828 IAC 3-1-6.5(c)(10) by knowingly failing to provide “continual and direct supervision by a person trained in basic cardiac life support” to a recovering patient. * * *

We conclude that substantial evidence supports the Board’s finding that the hand over mouth technique is not current professional theory or practice for use on adult patients. Consequently, substantial evidence supports the Board’s finding that Dr. Walker violated Indiana Code Section 25-1-9-4(a)(4)(B) by using the “hand over mouth” technique on Patient A.

Conclusion. The trial court properly denied Dr. Walker’s petition for judicial review regarding the Board’s findings and conclusions thereon. We affirm.

In J.L. v. State of Indiana , 23-page opinion with a separate concurring opinion, Judge Brown writes:
J.L. appeals the juvenile court’s true finding that he committed a delinquent act, which, if committed by an adult, would constitute child molesting, a class C felony. J.L. raises two issues, which we revise and restate as: I. Whether the court abused its discretion in admitting J.L.’s statement to police; and II. Whether the evidence is sufficient to sustain his adjudication as delinquent. We affirm. * * *

We conclude that although J.L.’s waiver of his opportunity for a meaningful consultation was not knowingly and voluntarily made, that the testimony of F.R. was sufficiently detailed and probative which rendered the videotaped confession relatively unimportant, and that accordingly the error was harmless beyond a reasonable doubt. * * *

The next issue is whether the evidence is sufficient to sustain J.L.’s adjudication as a delinquent. When the State seeks to have a juvenile adjudicated as a delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of the crime beyond a reasonable doubt. * * *

Under these circumstances, we conclude that the State presented evidence of a probative nature from which a reasonable trier of fact could find that J.L. committed an act that would constitute child molesting as a class C felony if committed by an adult.

For the foregoing reasons, we affirm the juvenile court’s true finding that J.L. committed a delinquent act, which, if committed by an adult, would constitute child molesting, a class C felony.

ROBB, J., concurs.
BARNES, J., concurs in result with separate opinion. [which begins, at p. 22] I concur in result. Although my colleagues affirm the adjudication of delinquency, I differ with them as to the route they took to get there. I believe that the meaningful opportunity to confer was extended, considered, and knowingly and voluntarily waived as contemplated by Indiana Code Section 31-32-5-2.

NFP civil opinions today (4):

Joseph Mike Barnett v. JDH Contracting (NFP)

George T. Bonin v. Review Board of the Indiana Department of Workforce Development (NFP)

City of Valparaiso, Indiana v. Richard and Janet Brown (NFP)

Brittney L. Romero v. Teddy Brady and Advantage Tank Lines, LLC

NFP criminal opinions today (5):

Caylin P. Black v. State of Indiana (NFP)

Vincent J. Castaneda v. State of Indiana (NFP)

Jennifer Fleming v. State of Indiana (NFP)

Shawn Anderson v. State of Indiana (NFP)

Dean R. Pressler v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisons - Supreme Court decides one today

In Bobby Alexander v. State of Indiana, a 4-page, 5-0 per curiam opinion, the Court writes:

We granted transfer to address whether this appeal, taken after a prison sentence was imposed but before the question of restitution was decided, should have been dismissed as premature. Given the particular circumstances, as explained below, we have concluded that this appeal should not be dismissed and should be remanded to the Court of Appeals for resolution on the merits. * * *

[H]ere the trial court advised Alexander that any Notice of Appeal had to be filed within thirty days of the June 20 hearing and the trial court appointed appellate counsel a few days later. That advisement sufficiently put matters in a state of confusion about Alexander’s appeal deadline, we think, such that he is entitled to have his appeal decided on the merits now. * * *

As indicated, given the confusion about appellate deadlines that may have resulted from the trial court’s advisement and in view of the delay already in the case, Alexander’s appeal should be addressed on the merits even though the issue of restitution remains unresolved at this juncture. Accordingly, transfer having been granted, this case is remanded to the Court of Appeals for consideration of the points raised in Alexander’s appellant’s brief.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on "Lambda Legal Files Federal Suit Seeking Marriage for Same-Sex Couples in Indiana"

Updating this ILB post from a few minutes ago, Tim Evans of the Indianapolis Star has a report on the Baskin v. Bogan lawsuit. Some quotes:

For the second time in less than a week, Indiana’s law banning same-sex marriages has become the target of a federal lawsuit.

A national gay-rights legal group filed a federal lawsuit Monday on behalf of three same-sex couples who seek the freedom to marry in their home state of Indiana.

The lawsuit follows a similar legal challenge filed in federal court Friday by four Indiana same-sex couples challenging the same-sex marriage ban and the state’s refusal to recognize gay unions legally performed in other states.

The Indiana legal challenges are part of a national wave of lawsuits targeting state bans on same-sex marriages.

Boone County Clerk Penny Bogan, Porter County Clerk Karen M. Martin, Lake County Clerk Michael A. Brown, as well as Indiana Attorney General Greg Zoeller, are named as defendants in the the lawsuit filed Monday in U.S. District Court for the Southern District of Indiana by Lambda Legal.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Indiana Courts

Ind. Courts - "Lambda Legal Files Federal Suit Seeking Marriage for Same-Sex Couples in Indiana"

Here from a news release just received:

(Indianapolis, IN, March 13, 2014) – On Monday, in the United States District Court Southern District of Indiana, Lambda Legal filed a federal lawsuit on behalf of three same-sex couples who seek the freedom to marry in their home state of Indiana.

"Same-sex couples and their families in the Hoosier state are vulnerable every day that they are denied the freedom to marry," said Paul Castillo, Staff Attorney for Lambda Legal. "Many families are helped and no one is hurt when same-sex couples are treated fairly by their government. Even if couples travel out of state to marry they will still be denied any respect by the state of Indiana and there are many important federal benefits, such as Family Medical Leave, that will be denied because those benefits are based on whether or not the home state respects the marriage."

Lambda Legal filed the lawsuit against Boone County Clerk Penny Bogan, Porter County Clerk Karen M. Martin, and Lake County Clerk Michael A. Brown, as well as Indiana Attorney General Greg Zoeller on behalf of three same-sex couples. Rae Baskin (60) and Esther Fuller (78), Bonne Everly (56) and Linda Judkins (57), and Dawn Lynn Carver (41) and Pamela Eanes (50). Ms. Baskin and Ms. Fuller have been together for twenty-four years and reside in Whitestown, Indiana. Ms. Everly and Ms. Judkins have been in a loving, committed relationship for over thirteen years and live in Chesterton, Indiana. Ms. Carver and Ms. Eanes, residents of Munster Indiana, have shared their lives together for seventeen years. All three couples wish to marry in Indiana, which bans marriage for gay and lesbian couples.

ILB: Here is a copy of the complaint in Baskin v. Bogan. It was indeed filed Monday! This is not one of the two the ILB has been expecting, so perhaps a flood-gate is opening.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Indiana Courts

Ind. Courts - More on "Same-sex couples sue Indiana governor, attorney general over gay marriage ban"; and what is next?

Last Friday, March 7, the ILB reported that four same-sex couples had filed suit in federal court in New Albany, challenging Indiana's marriage requirements. The lawsuit, Love v. Pence, is available here.

Gary Popp of the News & Tribune had a lengthy story March 7th reporting on the lawsuit in detail. After noting that attorney generals in more than a half dozen states, including Kentucky, had declined to appeal federal judges' rulings in similar cases, the story reports:

On Friday, Indiana Attorney General Greg Zoeller said his office will defend Indiana’s statutory marriage definition challenged in the lawsuit.

“As state government’s lawyer, I must defend the state’s authority to define marriage at the state level within Indiana’s borders,” he said in a release. “People of goodwill have sincere differences of opinion on the marriage definition, but I hope Hoosiers can remain civil to each other as this legal question is litigated in the federal court.”

Nothing is said about what happens if Indiana loses in federal district court on constitutional grounds and the question then is - would Attorney General Zoeller appeal on behalf of the State of Indiana?

Or course, this is a hypothetical question, as this issue likely will not arise for more than a year, at a time when much may have changed. It is worth noting, however, the AG Zoeller has authored and filed an amicus brief on behalf of the State of Indiana in the 9th Circuit in 2010, supporting California's Prop. 8. AG Zoeller authored and filed amicus briefs on behalf of the State of Indiana in both of the same-sex marriage cases before the SCOTUS last term.

And most recently, AG Zoeller has authored and filed an amicus brief in the 9th Circuit on behalf of the State of Indiana, supporting the position of the State of Nevada (where the Nev. AG has declined to appeal), and in the 10th Circuit, supporting the positions of both Utah and Oklahoma in opposing same-sex marriage.

What may be "coming down the pike" in Indiana? After the Court of Appeals loss in Ruth Morrison, et al. v. Sadler (1/20/05 IndCtApp), the Indiana ACLU never filed another suit challenging Indiana's law, although numerous suits were filed in federal court in other states, particularly after last term's SCOTUS decisions.

Instead, it was a Louisville firm that finally last week filed the challenge to Indiana's marriage prohibition, and the case was filed in the New Albany Division of the Southern District of Indiana.

The ILB has learned, however, that now that the session is ending, several additional lawsuits are expected to be filed.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Courts in general

Environment - How safe are Indiana above-ground storage tanks?

A March 11th story in the Muncie Star-Press, reported by Amy Olson Miller, looks at that question. After describing the "catastrophic spill from an above-ground chemical storage tank occurred near Charleston, W.Va., on Jan. 9," where "more than 300,000 people in nine counties were unable to use their tap water for more than four days" and problems continue, Miller writes:

In Indiana, there are 9,581 above-ground storage tanks that contain large volumes of hazardous chemicals. The state inspects only those tanks that contain pesticides or fertilizer and at the time of construction, tanks holding petroleum products. Eight thousand six hundred and eighty five tanks are never inspected by a governmental agency,

In Indiana 26, 013 of these tanks are located within Zones of Concern for the protection of public water system sources.

Forty-two Indiana municipalities use rivers or lakes as their source of tap water. After 9-11, the federal government required each community that relies on lakes or rivers for their water supply to map out areas near water intakes that are vulnerable to terrorist attack. Those areas are also vulnerable to spills from chemical storage tanks. There are also wellhead protection zones identified for communities that use ground water. Many Indiana communities are at risk for contamination of their drinking water from uninspected above-ground chemical storage tanks.

Most communities are unaware of the location of above-ground chemical storage tanks and do not know which tanks are located within or near their municipal water intake. Without inspection of above-ground chemical storage tanks, all communities that have these tanks are in jeopardy of a spill, as was experienced in West Virginia.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Environment

Ind. Decisions - Use of breath tests as evidence under challenge

The Feb. 18th Court of Appeals opinion in Tanner Piotrowski v. State of Indiana (ILB summary here) was the subject yesterday of a story in the LaPorte Herald-Argus, reported by Matt Fritz:

La Porte County officials are still allowed to admit breath tests as evidence in cases of drunken driving and other crimes, at least that's according to a recent ruling by the Indiana Court of Appeals.

On Feb. 18, the court ruled in favor of the judgement of La Porte Superior 3 Judge Jennifer Koethe, upholding the county's procedures for certifying both the breath test machines and those who operate them. Koethe made her ruling on May 14, 2013.

In March of that year, Attorney Scott Pejic filed motions on behalf of client Tanner Piotrowski challenging these practices because the state of Indiana failed to update an administrative code that applies to the certification of both the machines on which the breath tests are administered and those officers who conduct the tests.

The agency that certifies the results changed in July of 2011. Prior to that date, the Indiana University School of Medicine ran the toxicology department for the state. On that date, state legislation established the State Department of Toxicology.

A 12-month transition period defined by statute expired in July of 2012 and new rules have not yet been adopted.

In a previous story, Pejic said this oversight makes all certifications issued after this date invalid. The administrative code requires machines to be tested and re-certified every 180 days. Pejic's motion applied to at least three testing machines in La Porte County, including one in Michigan City.

But the court did not agree.

"Although the legislature transferred rulemaking authority to the state," said Judge Elaine Brown in the ruling, "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."

La Porte County Prosecuting Attorney Bob Szilagyi said if the ruling had not been upheld, it would have meant his prosecutors couldn't use breath tests as evidence. Juries would have to decide intoxication cases based on witness testimony and observations by officers. He noted that jurors usually want to see the breath test results. He said attorneys from across the state have been filing similar motions.

When asked about the ruling, Pejic said he and his client plan to seek further appellate review, which may involve a transfer to the Indiana Supreme Court.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Supreme Court will hear Marion County redistricting case at 9 am

Updating this post from earlier this morning, if you listened to the oral argument and want to read what IC 36-3-4-3 said before it was amended in 2013, you may review the version in effect in 2012 here, from the archived 2012 Indiana Code.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Old ban on beer booze level may be tapped out"

Indiana statute currently provides:

IC 7.1-5-2-2 Advertising of proof, amount, or percentage of alcohol in beer, wine, or liquor
Sec. 2. It is unlawful for a person to advertise the proof or the amount or percentage of alcohol in beer or wine. It is lawful for a person to advertise the proof or the amount or percentage of alcohol in liquor.
(Formerly: Acts 1973, P.L.55, SEC.1.) As amended by P.L.78-1986, SEC.7.
But Maureen Hayden of CNHI reports March 11th in the Terre Haute Trib-Star in a story that begins:
INDIANAPOLIS — Loughmiller’s Pub across Washington Street from the Statehouse is a favorite hangout for legislators and lobbyists who like the tavern’s menu of gourmet burgers and craft beers. State police are regular lunch customers, as are state officials who regulate the sale of alcohol.

So, it came as a surprise to bar owner Dave Livinghouse that he may be violating the law by posting on menus and chalkboards the alcohol content — from 4 percent to 9 percent — of the 14 Indiana-made craft beers he keeps on tap.

“Am I going to jail?” Livinghouse asked.

Probably not. An old state law prohibiting advertisements that sell beer based on its strength hasn’t been enforced in years. Now it’s likely headed for repeal, given the popularity of craft beers that vary dramatically in terms of alcohol content.

“We’re getting rid of some crazy stuff,” said state Sen. Mike Young, R-Indianapolis, author of Senate Bill 236, which rewrites a portion of the state’s criminal code covering alcohol offenses.

The bill — passed by the House with minor changes — would roll back other laws long on the books if signed by the governor. Among them: Teenagers caught with alcohol won’t automatically have their driver’s licenses suspended if the crime doesn’t involve an automobile; and sober boaters who step onto a dock with an alcoholic drink in their hands won’t be subject to arrest.

Young’s bill evolved from work done by the Criminal Law and Sentencing Policy Study Committee, which has been rewriting the felony portion of the state criminal code. When craft beer brewers heard about the effort, they asked legislators to review an old section of code that reads: “It is unlawful for a person to advertise the proof or the amount or percentage of alcohol in beer … .”

The bill, SB 236, appear to remain in conference committee this morning.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Indiana Government

Ind. Gov't. - "Legislative leaders plan to wrap up the 2014 session of the Indiana General Assembly today"

Tony Cook and Barb Berggoetz of the Indianapolis Star have a brief story this morning that begins:

Legislative leaders plan to wrap up the 2014 session of the Indiana General Assembly today — and they’ve saved some of the most contentious issues for the final day.
Here is the 35-page Conference Committee Grid as of 7:51 AM this morning. But as Fort Wayne Journal Gazette reporter Niki Kelly tweeted yesterday: "Started the day tracking action on nine bills. Still no action on any of those bills."

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court will hear Marion County redistricting case at 9 am

The Supreme Court will hear oral argument in Mayor Gregory Ballard v. Maggie Lewis, et al. this morning at 9 a.m. You may watch the oral argument here.

See this earlier ILB post for links to some of the documents, plus the maps. This was an expedited Rule 56(A) transfer, so there is no COA opinion, but there is a trial court order.

Tim Evans has a story in today's Indianapolis Star. Some quotes:

The high court has scheduled an oral argument for 9 a.m. in the case that essentially pits Republican Mayor Greg Ballard against the council’s Democratic majority.

Ballard asked the Supreme Court to step in last year after a Republican-drawn map he approved Jan. 1, 2012, was rejected by a judicial panel that instead issued its own district lines in August.

The roots of the case stretch back to the 2010 census and also have ties to the 2011 council elections, which shifted majority control of the council from Republicans to Democrats.

The battle hangs on a since-changed provision of state law.

State law now says that council boundaries must be redrawn by the end of the second year after each census is conducted. But before the General Assembly changed the law in 2013, it had said that the division must be done during the second year following the census.

In 2011, the year after the census, Republicans controlled the council and redrew the maps. In 2012, the results of fall elections put Democrats in control.

But on Jan. 1, 2012, Ballard signed off on the GOP-backed plan crafted in late 2011.

The question for the high court to decide is whether Ballard’s action meets the requirement of the law at that time.

Posted by Marcia Oddi on Thursday, March 13, 2014
Posted to Ind. Trial Ct. Decisions

Wednesday, March 12, 2014

Ind. Decisions - Second Supreme Court opinion today

In Joseph D. Hardiman and Jaketa L. Patterson, as Co-Administrators of the Estate of Britney R. Meux, Deceased v. Jason R. Cozmanoff, a 12-page opinion, Justice Massa writes:

“Inevitably, in civil cases where related criminal charges are involved, tension will arise between plaintiffs’ rights to a just and timely adjudication and defendants’ rights to refuse to answer under the Fifth Amendment upon a reasonable fear of prosecution.” Nat’l Acceptance Co. of Am. v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983) (internal citation omitted). The case we address today involves just this sort of tension; the civil trial court granted a limited stay of discovery against the defendant, but ordered him to respond to the plaintiff’s complaint. Both sides appealed, and we now affirm the trial court in all respects. * * *

After making its decision, the trial court acknowledged the stay was not a perfect solution: “I’m not at all satisfied with this ruling. But I think it’s the best I can do right now.” Appellee’s App. at 34. In light of all the circumstances we have discussed above, we cannot disagree. Our ruling today does not mean the trial court was constitutionally required to impose the stay;7 simply that it did not abuse its discretion by so doing. Indeed, were we to hold otherwise, it would be hard to imagine a set of circumstances in which it would be an appropriate exercise of a trial court’s discretion to order a stay for a defendant in Cozmanoff’s position.

We therefore affirm the trial court and remand this case for further proceedings consistent with our opinion today.

Posted by Marcia Oddi on Wednesday, March 12, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Judicial Technology Oversight Committee to meet next week

The Judicial Technology Oversight Committee (JTOC) is holding its third meeting next week, Tuesday, March 18th at 9:30 a.m. in the Government Center South Building. No agenda has been made available.

The ILB does know that a subcommittee was formed at the last meeting to develop discussion topics for future meetings. Also, readers who are ISBA members should have received an electronic questionnaire asking about eFiling.

Here is a list of five earlier ILB entries covering "JTOC". From the ILB's Dec. 9, 2013 post:

[T]he committee's charge includes electronic filing and allowing public court records to be available on the Internet, topics of much importance in the 21st century. As the ILB has noted in its last two posts about the group, "when the Committee does meet, hopefully its meetings will be live-streamed around the state." At this point, however, not even its agendas are available.
Live-streaming, of course, has not happened, agendas have not been available.

The ILB would love to have a contact attending and reporting the meeting next week...

Posted by Marcia Oddi on Wednesday, March 12, 2014
Posted to Indiana Courts

Law - "Bill would let top lawmakers intervene in court cases when AG declines to defend Kentucky law"

From the Lexington Herald-Leader, a story by Jack Brammer that begins:

FRANKFORT — A Kentucky lawmaker has filed a bill that would allow the Senate president or House speaker to intervene in a court case when the attorney general fails to defend a state law or provision of the Kentucky Constitution.

Sen. Sara Beth Gregory, R-Monticello, said Tuesday she filed Senate Bill 221 in part because Attorney General Jack Conway decided last week not to appeal a federal judge's ruling that Kentucky must recognize same-sex marriages performed in other states and countries.

Last year a similar bill was introduced in the Indiana General Assembly.

That followed after reaction to the AG's decision in September of 2012 not to further appeal federal court rulings against the constitutionality of an Indiana immigration bill - see posts in 2012 with the heading "Indiana legislators ask federal judge to allow them to defend state's immigration law."

Posted by Marcia Oddi on Wednesday, March 12, 2014
Posted to General Law Related

Environment - Tentative settlement reached in federal class action lawsuit against VIM Recycling in Elkhart

The most recent post the ILB has on VIM Recycling in Elkhart is one from May 30, 2012, reporting on a $150,000 fine ordered by an Elkhart County judge.

In an Elkhart Truth story posted yesterday afternoon, headed "Controversial Elkhart County wood grinder to halt operation under tentative court accord: The controversial plant on Old U.S. 33 has been the focus of wrangling and lawsuits for years," Tim Vandenack reports:

After years of wrangling, lawsuits and more, a tentative end is in sight to long-standing complaints centered on a controversial wood-grinding operation west of Elkhart.

Neighbors living around Soil Solutions Inc. and the company have reached a tentative agreement to resolve a four-year-old federal lawsuit charging that the firm is a nuisance and health hazard. Under terms of the accord, subject to final approval at a June 16 U.S. District Court hearing in Hammond, Soil Solutions would clean the massive mounds of wood and wood waste piled at the Old U.S. 33 location in Baugo Township. It would have five years to complete the cleanup, then it would have to halt wood-grinding operations.

"Everything has to go. They have to have it cleaned out," Wayne Stutsman, who lives in the neighborhood and has spearheaded efforts to close the operation, said Tuesday, March 11.

Kim Ferraro, one of the attorneys for the neighbors, said another provision of the tentative accord prevents Soil Solutions from turning the operation into another industrial waste facility once the wood-grinding operation is gone. The accord was the focus of a court hearing last week.

"The operation itself is just inherently harmful and disruptive," she said Tuesday. "It's just really the only way."

A second story sets out "a timeline of events leading to the tentative court accord, focus of a hearing last week in U.S. District Court in Hammond."

Also available for background is the Feb. 5, 2013 story headed "Case against wood recycling firm gets class-action status, underlying issues stay the same: The three-year-old federal lawsuit surrounding the old VIM Recycling site has garnered class-action status, but the core issues remain the same. "

Posted by Marcia Oddi on Wednesday, March 12, 2014
Posted to Environment

Ind. Decisions - One today from Supreme Court

In State of Indiana v. I.T., a 10-page, 5-0 opinion, Justice Rush writes:

More than half of children entering the Indiana juvenile justice system have mental health or substance abuse problems. In response, Indiana has established a pilot project to screen and treat juveniles suffering from these issues. To facilitate participation in the project, the Legislature en-acted the Juvenile Mental Health Statute, barring a child’s statement to a mental health evaluator from being admitted into evidence to prove delinquency. We construe that statute to confer both use immunity and derivative use immunity, in order to avoid a likely violation of the constitutional privileges against self-incrimination under the Fifth Amendment and Article 1, Section 14 of the Indiana Constitution. We therefore affirm the trial court. * * *

I. State’s Authority to Appeal. The Court of Appeals determined that the State lacked the statutory authority to appeal because the State may appeal criminal matters only when authorized by statute. State v. Brunner, 947 N.E.2d 411, 415 (Ind. 2011). * * *

Therefore, we conclude the State had statutory authority to appeal the trial court’s order, and we proceed to the merits of its appeal.

II. The Juvenile Mental Health Statute Must Provide Both Use and Derivative Use Immunity to Pass Constitutional Scrutiny. The State argues that the Juvenile Mental Health Statute prevents it from introducing I.T.’s actual statements to prove delinquency at trial, but not from using his statements to develop other evidence—in other words, that the Statute provides “use immunity” but not “derivative use immunity.” * * *

We will therefore construe the Statute to provide both use and derivative use immunity as a safe harbor against jeopardizing its constitutionality.

III. A Juvenile’s Compelled Statements May Not Be Used Against Him—Even in a Probable-Cause Affidavit. Because the Statute must be construed to provide use and derivative use immunity, the trial court reached the correct result. * * *

Therefore, while the Juvenile Mental Health Statute limits the State’s use of a juvenile’s statements, it does not prevent the State from ensuring that juveniles face appropriate consequences for their actions.

Conclusion. We conclude that the State may appeal a juvenile court order that suppresses evidence, if doing so terminates the proceeding. We also construe the Juvenile Mental Health Statute’s limited immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delin-quency—a safe harbor that honors the Legislature’s intent, while avoiding any question of the Statute’s constitutionality that would otherwise be implicated. We therefore affirm the trial court.

Posted by Marcia Oddi on Wednesday, March 12, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In In re the Adoption of: J.T.D. & J.S. (Minor Children), Children to be Adopted, and N.E. (Prospective Adoptive Parent) v. Indiana Department of Child Services , an 11-page opinion, Judge Mathias writes:

This appeal involves a jurisdictional issue arising from the Lake County Courts. The minor children at issue are wards of the Department of Child Services (“DCS”) and proceedings are pending in Lake County Juvenile Court for the involuntary termination of parental rights regarding the children. N.E., the children’s former foster parent, attempted to intervene in those proceedings, but her petition was denied. Thereafter, N.E. filed a petition to adopt the children in Lake County Superior Court. DCS sought to intervene in the adoption proceedings, or in the alternative, requested that N.E.’s petition to adopt be transferred to the Juvenile Court. The Lake County Superior Court denied the DCS’s motions. The DCS appeals and argues that the Lake County Superior Court was required to transfer N.E.’s adoption petition to the Juvenile Court pursuant to the Lake County Case Allocation Plan. However, pursuant to statute, the Civil Division of the Lake County Court System, which includes the Lake Superior Court, has exclusive jurisdiction to adjudicate adoption petitions and therefore, we affirm, concluding that the Lake Superior Court properly denied DCS’s motion to transfer. * * *

“A tribunal receives subject matter jurisdiction over a class of cases only from the constitution or from statutes.” Georgetown Bd. of Zoning Appeals v. Keele, 743 N.E.2d 301, 303 (Ind. Ct. App. 2001). Our General Assembly has statutorily conferred jurisdiction of adoption proceedings exclusively to probate courts. In Lake County, the Civil Division has probate jurisdiction, and therefore, exclusive subject matter jurisdiction over adoption proceedings. DCS may not rely on local court rule, i.e. the Caseload Allocation Plan, to circumvent the Lake County Civil Division’s exclusive subject matter jurisdiction over adoption proceedings.[3] For all of these reasons, we conclude that the Lake Superior Court properly denied the DCS’s motion to transfer this case to the Lake County Juvenile Court.
_________
[3] DCS observes that the Juvenile Court has adjudicated hundreds of adoption proceedings under the Caseload Allocation Plan. DCS complains that our holding will potentially place those adoptions at risk. This opinion addresses only the challenge of N.E. The finality of prior and pending adoption proceedings in the Juvenile Court has not been challenged and we do not address those proceedings.

In Kimberly D. Blankenship v. State of Indiana , a 13-page opinion with a separate concurring opinion, Judge Najam writes:
Kimberly D. Blankenship appeals her convictions for unlawful possession of a syringe, as a Class D felony, and maintaining a common nuisance, a Class D felony. Blankenship raises a single issue for our review, which we restate as whether the trial court abused its discretion when it admitted into evidence contraband found in Blankenship’s hotel room that the police seized pursuant to a search warrant. We hold that the officers’ reliance on the search warrant was objectively reasonable under Article 1, Section 11 of the Indiana Constitution and, as such, any defect in probable cause underlying the warrant does not render the evidence inadmissible under the exclusionary rule. Thus, we affirm the trial court’s admission of the evidence. * * *

On appeal, Blankenship argues that the trial court abused its discretion when it admitted into evidence the items seized from her hotel room. * * *

In particular, Blankenship asserts that Dasko’s [police dog] sniff-search of the hotel’s hallways violated Blankenship’s rights under Article 1, Section 11 of the Indiana Constitution. * * *

In sum, we need not reach Blankenship’s argument that Article 1, Section 11 prohibited the officers from walking canine units in the common area of the hotel, at the hotel management’s request, absent reasonable suspicion. The officers searched Blankenship’s hotel room while objectively and reasonably relying on a search warrant. There is no evidence that the officers had knowledge, or should be charged with knowledge, that the sniff-search in the hallway may have been unconstitutional. Accordingly, there is no “wrongful police conduct” to deter, and suppression of the evidence under the exclusionary rule would not be appropriate in light of the facts and circumstances of this case. See Shotts, 925 N.E.2d at 724. As such, we affirm the trial court’s admission of the evidence. Affirmed.

CRONE, J., concurs.
BAKER, J., concurs in result with separate opinion. [that begins, at p. 11 of 13] I agree that the trial court properly admitted the contraband seized from Blankenship’s hotel room into evidence. However, I part ways with the majority’s need to discuss the notion that the officers’ search was justified because they “acted in good faith” when executing the search warrant and searching Blankenship’s hotel room.

NFP civil opinions today (4):

Arafat Isa v. Catherine A. Adams, Christopher J. Perry, and State Farm Insurance Company (NFP)

Personal Resource Management, Inc., and Margaret A. Ditteon v. Evanston Insurance Company (NFP)

Tasha Ensley, et al. v. Veterans of Foreign Wars, et al. (NFP)

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

NFP criminal opinions today (5):

Steven Cox v. State of Indiana (NFP)

Ty Wilkerson v. State of Indiana (NFP)

Kaneka S. Kidd v. State of Indiana (NFP)

Richard W. Tome v. State of Indiana (NFP)

Miguel A. Lazcano v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 12, 2014
Posted to Ind. App.Ct. Decisions

Tuesday, March 11, 2014

Ind. Decisions - 7th Circuit decides a second Indiana case today

In David Snyder v. J. King et al (SD Ind., Lawrence), a 20-page opinion (with a concurring opinion by CJ Wood starting on p. 18), Judge Kanne writes:

This case is about small town politics, a bare-knuckle brawl, and the right to vote. But the appeal before us is limited to drier subjects: sovereign immunity, and the pleading requirements for a civil rights action against a municipality. The district judge dismissed the state-affiliated defendants on immunity grounds, and found that the plaintiff failed to state a claim against the county-affiliated defendants. He then went on to consider whether injunctive or declaratory relief might be available to the plaintiff, but that was unnecessary. His initial findings were correct, and they dispose of the case entirely. We affirm the dismissal. * * *

We acknowledge that the right to vote is fundamental, and we do not take any case alleging its infringement lightly. But it is incumbent on a litigant to identify a proper defendant for his suit and to properly plead an action against that defendant. Snyder has not done so. Because Snyder has waived any challenge to the dismissal of the State Defendants, and because he has failed to state a claim against the County defendants, we AFFIRM the district court’s dismissal of his suit.

WOOD, Chief Judge, concurring in the judgment. I agree with my colleagues that David Snyder’s suit against the Co‐ Directors of the Indiana Election Division (the State Defendants) and the named members of the St. Joseph County Voter Registration Board (the County) must be rejected as a matter of law. My path to that conclusion is, however, somewhat different from theirs. * * *

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Law - General Assembly honors Professor Lawrence Jegen III

The Indiana Senate and House this week adopted Senate Concurrent Resolution 37 honoring Professor Lawrence Jegen III.

Prof. Jegen was my all-time favorite professor. Just a great teacher who totally put his heart into it.

I had Larry Jegen for Income Tax and then Estate Tax early on in his career, in I think 1967, when he would have been teaching about five years.

This was back when there were one or maybe two women in any law school classroom. Prof. Jegen always paid particular attention to me and to Ms. Rucker, we were called on frequently. As a result of that and his skill in preparing and presenting the materials, I learned a lot.

In 1970 John Jay Osborn, Jr.'s novel, The Paper Chase, came out, and we all recognized "Professor Charles Kingsfield, the brilliant, demanding contracts instructor whom Hart both idolizes and finds incredibly intimidating." (h/t Wikipedia)

More than a decade after my classes with Prof. Jegen, when my brother-in-law was in the same class, Mike told me that a number of them used this great set of notes for Jegen's class. When I saw them, I recognized them as my own, although the raggedy, much-xeroxed, and by then incomplete copies did not have the benefit of my original color coding. I wish I'd kept a set!

Professor Jegen, you likely don't read the Indiana Law Blog, but if you do, many thanks from one grateful student!

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Indiana Law

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

In Golden v. State Farm (ND Ind., Moody), an 11-page opinion, Judge Rovner writes:

Cindy Golden brought this purported class action suit against her auto insurer State Farm Mutual Automobile Insurance Company (“State Farm”). Golden attacks State Farm’s practice of using its own in-house attorneys to defend its insureds against third-party claims, alleging that State Farm owes its insureds a duty to explain in its policies that such house counsel may be used. Golden’s policy (attached to her complaint) provides that in the event of an accident, State Farm will pay “attorney fees for attorneys chosen by us to defend an insured who is sued” (emphasis in original) for damages. The district court dismissed Golden’s complaint, concluding that Indiana law creates no obligation for an insurer to provide advance notification to an insured that it uses house counsel to defend its insureds. The court also denied Golden’s request to certify to the Indiana Supreme Court the question of whether advance notification is required. Golden appeals. * * *

For the foregoing reasons, we AFFIRM the district court’s decision dismissing Golden’s complaint under Rule 12(b)(6) and denying her motion to certify questions of state law to the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Annual Report of the COA for calendar year 2013 released

Access the 14-page report here.

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Indiana Courts

Ind. Law - More on: US News 2015 Law Rankings are Out

Updating this post from this morning, the WSJ Law Blog has an interesting new entry. A sample:

In just two years, University of Nebraska College of Law has moved up 35 spots in the ranking, to 54.

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Indiana Law

Ind. Decisions - A third Supreme Court ruling today

In In re Adoption of T.L. and T.L.; M.G. v. R.J. and E.J., a 7-page, 5-0 opinion, Justice Massa writes:

M.G. (“Father”) challenges the trial court’s ruling that his consent to the adoption of his children by their mother’s new husband was not required pursuant to Indiana Code § 31-19-9-8(a)(2)(B) (2008). Because we find the evidence in the record sufficient to support the trial court’s decision, we affirm the order of adoption. * * *

Father argues petitioners failed to prove, by clear and convincing evidence, that he was able to support his children but failed to do so such that his consent to the adoption was not required. Indiana law provides a parent’s consent to adoption is not required “if for a period of at least one (1) year the parent . . . knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.” Ind. Code § 31-19-9-8(a)(2). The burden to prove this statutory criterion is satisfied by clear and convincing evidence rests squarely upon the petitioner seeking to adopt. * * *

Based on Father’s history of payment (and non-payment), we cannot say the trial court’s finding that Father was able to pay at least some support while incarcerated but chose not to do so was unsupported by the evidence. Therefore, it was not clearly erroneous. That finding supports the trial court’s judgment that Father’s consent to the adoption was not required under Indiana law; thus, the judgment is also not clearly erroneous, and we must affirm.

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Michael E. Hitchens v. Collection Specialists, Inc., a 10-page opinion, Judge Pyle writes:

Michael E. Hitchens (“Hitchens”) appeals the small claims court’s judgment in favor of Collection Specialists, Inc. (“Collection Specialists”) concerning a bill for dental work. We affirm.

ISSUE. Whether the small claims court denied Hitchens the due process of law when it admitted a letter containing hearsay into evidence. * * *

[In Matusky] we wrote that the effect of re-writing the Small Claims Rules to provide that a judgment could not be based exclusively on hearsay evidence would “impose technical rules upon largely untrained litigants[,] completely thwarting the express purpose of providing an uncomplicated and simple method of resolution of issues in order to dispense speedy justice between the parties.” Id.For the same reasons, we decline to impose such technical rules here, and we conclude that the trial court did not deny Hitchens due process.

In Robert E. Hicks v. State of Indiana , a 13-page opinion, Judge Mathias writes:
Following a jury trial, Robert E. Hicks (“Hicks”) was convicted in Vanderburgh Circuit Court of murder and sentenced to fifty-five years in the Indiana Department of Correction. Hicks appeals and claims that the trial court abused its discretion by admitting into evidence recorded statements made by Hicks to the police in which he admitted to killing the victim. We affirm. * * *

The trial court did not have to credit Hicks’s testimony that he requested the assistance of counsel prior to waiving his Miranda rights. And even if Hicks was in custody during the interrogations, by the time of his second interview, which was a day after his first interviews, he was advised of, and waived, his Miranda rights. Because Hicks did not confess prior to being read his Miranda rights, Seibert is inapplicable. Therefore, we conclude that the trial court did not abuse its discretion in admitting into evidence the two recorded statements Hicks made to the police after he had been advised of, and waived, his Miranda rights.

NFP civil opinions today (4):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of B.P., C.P., and D.P., the minor children, and A.H., the Mother, and J.P., the Father: A.H. and J.P. v. IDCS (NFP)

Fidelity and Deposit Co. of Maryland v. Sheet Metal Workers' International Association Local Union No. 20, Sheet Metal Workers Local No. 20 Welfare and Benefit Fund, et al. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: K.S. & A.S. (minor children); K.D. (Mother) v. The Indiana Department of Child Services (NFP)

Indiana Office of Utility Consumer Counselor v. Indiana Michigan Power Company and Steel Dynamics, Inc. (NFP)

NFP criminal opinions today (3):

Dennis J. Turner v. State of Indiana (NFP)

Gregory K. Cox v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Two today from the Supreme Court

In State of Indiana v. Adrian Lotaki, a 4-page per curiam opinion where "This award of credit time with respect to a mandatory consecutive sentence was error, and conflicts with our precedent," the Court grants transfer and remands the case:

... to the trial court with instructions to re-evaluate the award of credit time consistent with this opinion, and to re-sentence Lotaki. The trial court may discharge this responsibility by (1) issuing a new sentencing order without taking any further action, (2) ordering additional briefing on sentencing and then issuing a new order without holding a new sentencing hearing, or (3) ordering a new sentencing hearing at which additional factual submissions are either allowed or disallowed and then issuing a new order based on the presentations of the parties.
In Bonnie Moryl, as Surviving Spouse and Personal Representative of the Estate of Richard A. Moryl v. Carey B. Ransone, M.D., La Porte Hospital, Dawn Forney, RN, Wanda Wakeman, RN BSBA, et al., a 7-page, 5-0 opinion, Chief Justice Dickson writes:
This case presents a question of first impression: whether, under Indiana's Medical Malpractice Act, a proposed medical malpractice complaint is considered "filed" upon deposit with a private delivery service or upon receipt. The Court of Appeals affirmed the trial court's grant of summary judgment, finding that such proposed complaint is filed upon receipt. We now grant transfer and hold that the commencement of a medical malpractice action occurs when a copy of the proposed complaint is deposited for mailing by registered or certified mail or by certain pri-vate delivery services and that the plaintiff's action was timely filed in this case. * * *

For these reasons, we conclude that the plaintiff's medical malpractice action was timely filed. We reverse the grant of the defendants' motions for summary judgment asserting the stat-ute of limitations and remand for further proceedings consistent with this opinion. As to all other claims, we summarily affirm the Court of Appeals.

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Conflicting state and federal policies will likely cost Indiana same-sex couples more when they file their tax returns this year, experts say"

This AP story today by Summer Ballentine reports that it will cost more to file your tax returns this year if you are an Indiana same-sex couple legally married by another state, because filling out your Indiana tax return will be more complex. But the second part of the story is based on a false premise ...

A federal revenue ruling issued (Revnue Ruling 2013-17), issued Sept. 16, 2013, "clarified that a same-sex couple’s marital status for federal tax purposes is determined by the laws of the state where they got married — not the state where they reside," as explained in this release by the Boulay accounting firm, that continues:

Revenue Ruling 2013-17 addresses only the federal tax treatment of same-sex spouses. States that don’t recognize same-sex marriages aren’t required to permit same-sex spouses to file jointly or to extend to them any benefits of married status. But the ruling will have an indirect impact in states that don’t recognize same-sex marriages but require taxpayers to calculate their state tax liability based on information from their federal returns.
That is the case in Indiana. Rather than simply filing a federal joint return as a married couple, and a state joint return based on the adjusted gross income (AGI) calculated in the federal return, Indiana's Department of Revenue (IDOR) requires the same-sex couple to prepare and submit individual State of Indiana returns as though they were not married. To derive the AGI to use in the individual Indiana returns, each partner must first fill out a token federal individual return.*

These requirements are set out in the IDOR's Same-Sex Marriage Tax Filing Guidance, issued Nov. 21, 2013. As the IndyStar reported at the time:

But officials stopped short of creating a tax worksheet to help married same-sex couples recalculate their joint income before they file separate state tax forms, as Wisconsin and Michigan have done. That is the approach recommended by the nonpartisan Tax Foundation to help reduce confusion.
Theoretically, Indiana could have gone much further than Wisconsin and Michigan and elected to allow same-sex Indiana couples filing joint federal returns to also file joint state returns, but that would seem very unlikely. The Governor of Missouri, for example, attempted to allow that by executive order, as this Jan. 10, 2014 story by the Baptist Press news service reports:
[Governor] Nixon's executive order was issued last November and directed the Department of Revenue to accept combined returns from same-sex couples who properly filed a federal joint return with the IRS. The IRS has decided to permit same-sex couples to file a joint federal return if the parties were married in a state that permits same-sex marriage. The IRS decision did not bind state governments and did not mandate that states like Missouri, where same-sex marriage is unlawful, permit joint returns under state law.
It seems totally improbable that either Governor Pence or his IDOR would take this step. Rather, the IDOR issued the guidance cited above, requiring the preparation of individual Indiana returns. And, as the AP story reports, that means that same-sex Indiana couples who are eligible to file joint federal returns have to go through additional steps in Indiana.

But then the remainder of the AP story is based on the same false premise the ILB wrote about at length in this March 5, 2014 post. From the AP story:

Indiana was on track to match IRS tax policies this year until Sen. Brandt Hershman, R-Buck Creek, made a late-session change that would prevent the state from adopting the same-sex marriage provision. Indiana does not recognize gay marriage.
What does that mean?The AP story does nothing to support either possibility, but simply makes the same baseless assertion made in an earlier (March 4th) story.
________
*Or, to look at it another way, this year Indiana same-sex couples legally married in another state may file joint federal tax returns, but must file individual Indiana tax returns as they have in prior years.

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Indiana Law

Ind. Law - "Changed wording delays debate on right to hunt, fish"

Maureen Hayden, CNHI Statehouse Bureau, writes in the Rushville Republican:

INDIANAPOLIS – A much-debated ban on same-sex marriage wasn’t the only proposed constitutional amendment to get knocked off this November’s ballot. Gone, too, is the less contentious proposal to protect Hoosiers’ right to hunt and fish.

Backers of the measure say enshrining the right to “hunt, fish, and harvest wildlife” in Indiana’s Constitution will protect the state’s heritage from animal rights and anti-hunting activists. Without it, they fear, future generations of sportsmen will see limits on hunting seasons, more restrictions on hunting weapons, and increased protections for prey. * * *

But similar to the fate of the same-sex marriage amendment, a change to the hunting and fishing resolution’s language – removing a phrase covering the right to farm – postpones any public vote until at least 2016. [That version sought to protect the right “to engage in the agricultural or commercial production of meat, fish, poultry, or dairy products.”] * * *

Earlier this year, lobbyists representing farmers pulled their support after opponents, lead by the Hoosier Environmental Council, argued the amendment would prevent future laws protecting private landowners and regulations limiting factory farms and puppy mills.

Steele reluctantly pulled the farming language, blaming agricultural interests as gutless. “I told them to grow some horns because they’re going to get run around the pasture, and there’s no language that’s going to mollify the opposition,” he said at the time.

A newly worded resolution – minus the farming language – starts the process anew. The exact language contained in Senate Joint Resolution 9 will have to be passed by the next elected General Assembly before it can go before voters.

See also this ILB post from Sept. 26, 2013.

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Indiana Law

Ind. Law - US News 2015 Law Rankings are Out

So reports Above the Law in this post.

Unfortunately, it appears that the ILB did not report last year's (2014) rankings. Here are the relevant numbers from the 2013 rankings.

In the [unofficial] 2015 rankings, for the first 50, Notre Dame is #26 (#23 last year) and Indiana-Bloomington is #29 (#25 last year). In the second 50, Indiana-Indianapolis is #87 (#98 last year).

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Indiana Law

Ind. Law - "Prosecutors' advocate was quiet man of steel"

Supplementing this ILB post from March 4th, Maureen Hayden of CNHI has a tribute today to Steve Johnson in the Kokomo Tribune. It begins:

When Steve John­son, longtime advocate for Indiana’s county prosecutors, died unexpec­tedly last week at the age of 66, I tweeted the Statehouse had lost “a quiet voice in a place of bombast.”

Lisa Swaim, Cass County’s chief deputy prosecutor, described it differently. For prosecutors, she said, losing Johnson was like losing Superman.

Both are true. For the nearly 15 years Johnson led the Indiana Prosecuting Attorneys Council — and the 25 years he spent as its research director — he exhibited both the mild manner and man-of-steel qualities admired by so many.

“He was the most knowledgeable man I ever met about Indiana criminal law,” said lawyer and state Senate President David Long. “And his word was his bond.”

Posted by Marcia Oddi on Tuesday, March 11, 2014
Posted to Indiana Law

Monday, March 10, 2014

Ind. Gov't. - Looking at the efficacy of legislative study committees, then and now

Doug Masson blogs today on the effectiveness of summer study committees. Some quotes:

Tom LoBianco, writing for the Associated Press has an article on summer study committees entitled “Legislative Studies often precede tough action.” That’s true, but – as the article also discusses – it’s often where legislation goes to die. * * *

[T]he summer study committee is an area where the General Assembly could stand to study the committee process itself and maybe implement more formal procedures. From my perspective anyway, the process seemed fairly slapdash. The witnesses and materials reviewed by legislators seemed arbitrary and far from comprehensive. The meetings could be sporadic and often rushed at the end of the summer and in the first half of fall. The meetings were, at times, pro forma.

The quality of the studies was largely dependent on who the chair of the committee was. Among other things, some legislators are simply more diligent than others. And, of course, if the study gets assigned to a committee where the chairperson isn’t very interested, not a lot is going to happen. (Though that’s true of the regular session committee as well.)

Another factor is that we still have, at least nominally, a part time legislature. These lawmakers mostly have jobs in the “real” world as well. And they have a lot of catch up to do after spending the winter and early spring in session. So, beefing up the summer study committees will be challenging under the best of circumstances.

ILB: The ILB will also weigh in on summer study committees, particularly those that meet every year and are assigned topics by the Legislative Council. My impression is that they often cover too many issues, with little time spent on each one. For instance, an issue may be a topic on one meeting agenda, several speakers may testify, and that likely will be the end of it. At the last meeting there is a final committee report that may summarily address the issue.

LoBianco's story points to the exception, such as:

The best example from this year could be the regulations for religious daycare centers that lawmakers are on the verge of approving. Proposed regulations were often stymied in previous sessions, despite grim reports of child deaths and multiple newspaper investigations that exposed widespread problems. But it wasn’t until after lawmakers spent a summer reviewing the issue that new rules seemed possible.
There was a time in Indiana when most study committees conducted deeper studies and published comprehensive reports. I was a staffer at the Legislative Services Agency during that period, beginning in the 1960s, when there were still biennial sessions, meaning that the interim for studies was much longer. The materials I have been putting together on constitutional revision in Indiana in the 1960s and 1970s demonstrate the kind of report that resulted. Of course, some of these efforts had their own full-time staffs. But many of the final reports listed in Vol. 2, pp. 5-6 of the Biennial Report to the Indiana General Assembly, 1969, for instance, were staffed out of the LSA, just as is done now.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Indiana Government

Environment - Mounds Lake reservoir plan opposed by environmental groups

The ILB first learned of the proposed Mounds Lake Reservoir yesterday via this letter in the Indianapolis Star, signed by Rosemarie Jeffery of Muncie. It begins:

Shortly after moving to Muncie in 1992, my family and I visited Mounds State Park. We have since visited many times each year. We have delighted in the bountiful spring wildflowers, and canoeing down the river is a great way to enjoy the wooded corridor through the park in the summer. Another wonderful facet of Mounds State Park is that it encompasses some of the best preserved mounds built by the prehistoric Adena people. The Great Mound is thought to have been built around 160 BCE.

We have appreciated Mounds Park even more since realizing that it is one of few high-quality natural areas remaining in East-Central Indiana. Therefore, it is with great dismay that we have read about the Mounds Reservoir Project. This project would result in the loss of one-third of Mounds State Park, including the state-dedicated Mounds Fen Nature Preserve. The habitat loss both in the park and the wooded corridor along the river would be a tremendous blow to wildlife.

The Anderson Herald Bulletin had a story yesterday by Ken de la Bastide headed "Audubon Society opposed to reservoir: Concern is impact on Mounds State Park." Some quotes:
ANDERSON – Another environmental group has voiced opposition to the proposed Mounds Lake reservoir based on concerns over the potential impact on Mounds State Park.

The Robert Cooper Audubon Society, which represents 500 members in Madison, Delaware, Henry, Grant, Jay, Randolph and Blackford counties, stated the proposed reservoir would “exact a heavy cost to the natural environment by inundating at least one-third of Mounds State Park."

Marty Benson, a spokesman for the Indiana Department of Natural Resources, said DNR has not taken an active role in the discussion concerning the reservoir.

“Nothing has been formally done,” he said. “Until the permits required are applied for the DNR will not have an active role.”

State Sen. Tim Lanane, D-Anderson, said the process surrounding the proposed reservoir has to be transparent.

“My concern is the impact on Mounds State Park,” he said. “The state park is an important asset for community and Indiana. We need to know what the impact will be and the impact on the White River.”

Lanane said residents should insist on transparency throughout the discussion period on the proposed reservoir.

“There are still a lot of questions that need to be resolved,” he said.

Among the consequences would be the loss of shaded hiking trails along White River that would be submerged, the group said in a press release. Another concern is that the Adena-Hopewell Indian mounds would be subjected to a greater threat of flooding and erosion.

“The complete destruction of the Mounds Fen State Nature Preserve,” Sarah McKillip, president of the local society, said. “The board meets four times a year and voted unanimously to approve the opposition to the reservoir.”

McKillip said group members have attended several of the public forums on the reservoir, but this is the first time it has voiced opposition to the plan.

“We have reviewed the impact of the proposed change to the White River channel that would inundate the Mounds Fen Nature Preserve,” she said. “That’s our main concern right now.”

She said the proposed reservoir would destroy a unique biodiversity area of the Fen.

The Fen, designated in 1980, is remarkable not only for its “clean water” but the profusion of wild flowers, indicating a high-quality woods with minimal disturbance, McKillip said. She said the park also contains numerous critically important animal and plant species native to Indiana.

The local Audubon Society noted that 360,000 people visited Mounds State Park last year.

“We are going to look at the environmental impact of the proposed reservoir,” McKillip said, “and the potential impact of the reservoir along the entire White River watershed.”

Currently a Phase II study of the proposed Mounds Lake Reservoir is being undertaken with a $600,000 grant from the state. * * *

Mounds Lake Reservoir, which would cost an estimated $350 million to $450 million to create, would stretch approximately from East Lynn Street in Anderson east by northeast around Chesterfield and Daleville into Delaware County, ending just north of Delaware County Road 300 South.

The "Mounds Lake on the White River" project has a sophisticated website, access it here.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Environment

Ind. Gov't. - Warrick County seeks to assure that vote miscounting doesn't reoccur

The AP story in the FWJG Sunday began:

BOONVILLE – A southwest Indiana county is developing a new accountability system using “archaic” methods after a discovery that thousands of votes weren’t counted in the 2012 general election.

Nearly 3,800 early votes cast in Warrick County during the 2012 general election went uncounted because of an error by an electronic voting machine technician. The lost ballots included that of county Clerk Sarah Redman, who said her top priority this year is having every vote count – even if it means using an old-fashioned system of checks and balances.

“When I say archaic, I mean old pen and paper that I want (them) to jot down. I don’t want to go by any reports that shoot out of a computer,” Redman told the Evansville Courier & Press.

The problem was discovered by a Democratic precinct leader as he cross-referenced precinct summary reports with a state voter history report. The missing votes did not affect the outcome of any elections.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Indiana Government

Ind. Gov't. - "GOP lawmakers hostile to opponents of guns at schools proposal" [Updated Twice]

Hmm, here is a story on one of this morning's conference committees, reported by Dan Carden of the NWI Times, that begins:

Republican state lawmakers defending their plan to allow Hoosiers to carry guns in school parking lots were accused Monday of bullying conference committee witnesses who argued that guns at schools will make children less safe.

State Rep. Jim Lucas, R-Seymour, repeatedly challenged opponents of Senate Bill 229, at one point going so far as to pull up the resume of Zionsville's Shannon Watts, founder of Moms Demand Action for Gun Sense in America, and questioning her personal and professional affiliations with former New York City Mayor Michael Bloomberg and other political action groups.

He was joined by state Rep. Sean Eberhart, R-Shelbyville, who bizarrely yelled that his wife has the right to carry a gun, while Watts testified that women and children are more likely to be killed than a criminal if there is a gun in the home.

Later, state Rep. Alan Morrison, R-Terre Haute, joined in, laughing at the idea that the Second Amendment provides for potential restrictions on where guns can be taken.

State Sen. Jim Tomes, R-Wadesville, the conference committee chairman, did nothing to rein in his colleagues, especially Lucas, who took four turns questioning a witness -- usually only one chance is allowed -- and shushed another when she dared to ask him a question in response.

Tomes also insisted that guns already are too regulated and licensed handgun carriers never do any wrong.

While watching the two-hour spectacle, state Rep. Terri Austin, D-Anderson, tweeted: "Bullying...it doesn't just happen in schools."

[Updated at 1:54 PM] Here is another story, this one by Chelsea Schnieder of the Evansville Courier & Press (oddly, no paywall, right now anyway). A sample:
Lawmakers sitting on the conference committee that will ultimately decide the final version of the legislation had, at times, heated exchanges with opponents of the bill.

Opponents characterized allowing guns to remain in school parking lots a major policy shift that would provide access to weapons and restrict local school boards from making policy. Supporters of the bill – namely Republican lawmakers who spoke out on the measure and a representative from the National Rifle Association – said the measure would protect the constitutional rights of a gun owner to keep a firearm locked in a car in the parking lot without running the risk of committing a felony.

As associations representing Indiana superintendents and principals testified against the measure, their representatives were repeatedly asked if they thought a licensed gun owner should face a felony charge if they left a firearm in a locked vehicle in a school parking lot.

In his first time chairing a committee hearing, Sen. Jim Tomes, R-Wadesville, said he’s had teachers and assistant principals ask him to get the bill passed so they aren’t treated “like a criminal.”

The legislation would allow licensed gun owners to keep their firearms inside a locked vehicle in a school parking lot as long as it’s out of sight.

“I know this is a concern that a lot of people have,” Tomes said. “I don’t think (in) any of these shootings occurred in our schools – as tragic as they are – that it was someone who took a gun out of a car on school property.”

Shannon Watts, a mother of five children from Zionsville, Ind., and founder of Moms Demand Action for Gun Sense in America, said the legislation would allow loaded guns near children in a place where they should feel safe. Watts recalled the Newton, Conn., shooting where 20 children and six staff members were killed in 2012 as an example of why “unregulated access to guns must be limited and not encouraged.”

“Schools do not want firearms on their properties and neither do the mothers of Indiana,” Watts said.

In one of the more tense exchanges, Rep. Sean Eberhart, R-Shelbyville, asked Watts if she felt his wife as a mother of three and former school teacher should give up her right to self protection as she goes to and from school.

“Your premise that women are somehow made safer by a gun is factually incorrect,” Watts said.

Eberhart answered Watts by asking why his wife’s rights should be precluded and that his wife, “has the constitutional right for self protection.”

Here is Niki Kelly's story for the Fort Wayne Journal Gazette. (She also tweeted about it as the meeting was going on.) Some quotes:
A move to allow guns in school parking lots drew testy exchanges Monday between citizens opposing the bill and Republican lawmakers defending it.

The meeting got so heated that one Democratic legislator called it bullying.

“I think the behavior of some of the committee members was a little over the top,” said Rep. Terri Austin, D-Anderson. “They were disrespectful to those expressing concerns. Bullying doesn’t just occur in schools.”

But Rep. Jim Lucas, R-Seymour – one of the more vocal members – said he was just refuting misinformation.

“We have to make sure people have the facts,” he said. “It’s imperative that we respect the rights of the individual.”

The meeting was the first to hash out differences on Senate Bill 229. No final compromises were reached.

The legislation originally dealt with law enforcement gun-buyback programs. But the House added language that would allow Hoosiers with firearm permits to have a gun in their locked vehicle parked at a school if it is out of sight.

Under current law it is a felony to have a gun on any school property. It still would be a felony to take any firearms into the school.

Supporters contend citizens – such as teachers and parents - deserve the right to self-protection that having a gun affords going to and from school.

And Sen. Jim Tomes, R-Wadesville, kept saying the bill was about protecting “legitimate, proper citizens” – not criminals.

Rep. Linda Lawson, D-Hammond – who served as a cop for decades – took exception to the notion that no one with a carry permit can be irrational or have a problem with anger or rage.

More from Kelly's comprehensive story:
A coalition of groups against that provision has grown in recent weeks, including a number of school organizations and children’s groups.

“Having guns on school property that are very accessible adds potential for what may occur,” said Todd Bess, executive director of the Indiana Association of School Principals.

And Stephen Dunlop, of Hoosiers Concerned About Gun Violence, said, “There are certain areas where it is simply inappropriate to bring a gun.”

He noted people aren’t allowed to bring guns to courthouses or even to the Statehouse.

It got especially heated when Zionsville mother Shannon Watts, of Moms Demand Action for Gun Sense in America, testified.

For every statistic she used, Lucas countered from a book he carried. For every statement she made on mass shootings, another lawmaker would refute.

Lucas even pointed out her maiden name and read a list of her previous jobs to note her expertise in media and marketing.

And Rep. Jud McMillin, R-Brookville, called her disingenuous for supporting background checks and other gun regulations but claiming to be a strong supporter of the Second Amendment.

A representative from the National Rifle Association spoke in support of the bill, but no private citizens did.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Indiana Government

Environment - "Bigger hog pens create challenges for farmers"

From the March 9th Fort Wayne Journal Gazette, this AP story by M.L. Johnson.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Environment

Ind. Decisions - Supreme Court fines attorney $300 for contempt, for practicing law while suspended

From In re Patricia S. Beecher, a 2-page, 4-1 order signed by CJ Dickson:

[T]he Court entered an agreed "Published Order Suspending Respondent from the Practice of Law in Indiana for Disability" on August 8, 2013, suspending Respondent from the practice effective as of the date of the order. * * *

[The Commission filed a show cause motion] on October 28, 2013, alleging that Respondent appeared in the Merrillville Town Court on August 26, 2013, and informed the judge that she had been suspended but that her suspension did not take effect for 45 days. Based on this representation, the judge allowed Respondent to continue to represent clients in court. * * *

Through counsel, Respondent admits that she appeared in Merrillville Town Court on August 26, 2013, while suspended. She states, however, that she and her counsel had discussed filing a petition for additional time to close her practice soon after her suspension took effect on August 8, that counsel unfortunately did not file a petition until August 26 (it was actually filed on August 28—after she appeared in court), and that she was under the mistaken belief that she had been granted additional time. The Court notes that it denied Respondent's request for postponement of the effective date of her suspension by order dated September 26, 2013.

Based on Respondent's admissions, the Court finds that Respondent was in contempt of this Court when she appeared and represented clients in court on August 26, 2013, knowing she had been suspended as of August 8, yet affirmatively assuring the judge that her suspension had been postponed without any knowledge of whether a motion to postpone the effective date had even been filed (it had not), let alone whether it had been granted (it was not). * * *

Under the circumstances, the Court concludes that a fine of $300.00 is sufficient discipline for Respondent's contempt of court by practicing law while suspended. * * *

All Justices concur except Rucker, J., who would decline to find Respondent in contempt, concluding that Respondent’s action was simply a matter of miscommunication between Respondent and her attorney.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Jeff L. Ewing and Renee Ewing, Household Finance Corporation III v. U.S. Bank, N.A., as Trustee for the Structured Asset Securities Corp., Series 2005-GEL4, an 8-page opinion, Judge Bradford writes:

Appellants-Defendants-Supplemental Plaintiffs Jeff and Renee Ewing (“the Ewings”) appeal from the trial court’s denial of their motion to correct error, arguing that the trial court erred in granting Appellee-Plaintiff-Supplemental Defendant U.S. Bank’s motion for summary judgment in this foreclosure action. The Ewings claim their designated evidence, consisting only of Jeff’s affidavit outlining the Ewings’ past attempts to modify the mortgage loan at issue, establishes a genuine issue of material fact. Because Jeff’s affidavit does not dispute the alleged default or otherwise support an ascertainable defense to U.S. Bank’s foreclosure, we conclude that summary judgment was appropriate.

The Ewings also appeal from the trial court’s grant of U.S. Bank’s motion to dismiss the Ewings’ supplemental complaint for failure to state a claim upon which relief could be granted. In their supplemental complaint, the Ewings alleged that U.S. Bank failed to act in good faith during the parties’ settlement discussions as allegedly required by the Indiana Alternative Dispute Resolution Rules (“the A.D.R. Rules”). Finding that the A.D.R. Rules did not govern the parties’ settlement discussions, we conclude that dismissal was appropriate. The judgment of the trial court is affirmed.

In Brian Bradley v. State of Indiana , a 22-page, 2-1 opinion, Judge Vaikik writes:
Police officers pulled over a car and arrested the driver for possession of marijuana. Officers took her to the county jail, where she revealed that she had purchased the marijuana that day from a man nicknamed Shrek—but whose name was Brian—who lived in a second-floor apartment above the antiques store in town. The officers secured a search warrant for an apartment on the second floor of the building. Upon executing the search warrant, the officers learned that the apartment belonged to a couple, who just happened to have marijuana in their apartment. The couple told police that they had purchased their marijuana earlier that day from Brian a/k/a Shrek, who actually lived on the third floor of the building. The officers then secured a search warrant for Brian Bradley’s1 third-floor apartment. Upon executing this search warrant, the officers found marijuana and other related items.

Brian now appeals his conviction for Class D felony dealing in marijuana. He challenges the first warrant that led to the search of the couple’s apartment as well as the warrant for his apartment, arguing that they lacked probable cause. Because Brian, who lived on the third floor of the building, lacked a reasonable expectation of privacy in the couple’s second-floor apartment, he cannot challenge the search or seizure of property belonging to the couple. Furthermore, although one particular piece of evidence may not have conclusively established probable cause to search Brian’s third-floor apartment, the evidence in the officer’s probable-cause affidavit, when fitted together and viewed collectively, is sufficient to support the trial court’s finding of probable cause. In addition, although the witnesses who provided probable cause changed their stories after the search warrants were issued, the law focuses on the facts known by police and presented to the judge in obtaining the search warrants, not on 20-20 hindsight. We therefore affirm the trial court. * * *

MAY, J., concurs.
RILEY, J., dissents with separate opinion. [thatbegins, at p. 17] While I agree with the majority that Brian does not have standing to challenge the validity of the initial warrant, executed in the apartment of Carroll and Hite, I respectfully dissent from the majority’s decision to affirm Brian’s conviction. Based on the totality of the circumstances, I do not find that there was sufficient probable cause to justify the issuance of the second search warrant.

NFP civil opinions today (1):

In the Matter of L.W. and J.W., Children in Need of Services, and J.W. (Father) and L.W. (Mother) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Jerimaine Carter v. State of Indiana (NFP)

Darod A. Wheeler v. State of Indiana (NFP)

Juan Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 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, March 7, 2014. It is two pages (and 22 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Indiana Transfer Lists

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

From Sunday, March 9, 2014:

From Saturday, March 8, 2014:

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/10/14):

Thursday, March 13

Next week's oral arguments before the Supreme Court (week of 3/17/14):

Thursday, March 20

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/10/14):

Wednesday, March 12

Next week's oral arguments before the Court of Appeals (week of 3/17/14):

Monday, March 17

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

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


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

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Upcoming Oral Arguments

Ind. Gov't. - Conference committee time; how they work

This is the last week of the 2014 legislative session and it is the week of conference committees. If a House or Senate does not consent to changes that were made to a bill by the second house, it may vote to dissent. In such a case, a conference committee will be appointed in an effort to resolve the differences. The Barb Berggoetz and Tony Cook story in the Sunday Indianapolis Star includes this sidebar:

Legislative leaders appoint four members to each conference committee, two from each party and chamber, to try to reach consensus over different versions of a bill. That process can be averted, though, if one chamber agrees to the changes made in the other chamber.

The committees meet once in public, sometimes take testimony from lobbyists. Then they recess, most often not officially meeting again. They talk among themselves and try to compromise, with the goal of having each “conferee” sign the bill. Before the conferees can sign off on the bill, though, they take the proposed compromise before their caucuses for approval.

If it’s not acceptable, they go back to negotiating. If they can’t agree, the majority legislative leaders have the power to replace lawmakers with those who will support the bill. Because Republicans control both the House and Senate, it’s the Democrats who likely would be replaced.

If the compromise language is acceptable to the caucuses, the bill goes back to each chamber in the revised form for a final vote before heading to the governor’s desk. He then has 14 days after it hits his desk to sign or veto it.

Here is another post on conference committees, from a 2011 story by Dan Carden.

Posted by Marcia Oddi on Monday, March 10, 2014
Posted to Indiana Government

Saturday, March 08, 2014

Courts - Long same-sex marriage trial in Michigan ended Friday [Updated]

This Feb. 23rd ILB entry is headed "Federal trial begins Tuesday in Michigan same-sex marriage challenge."

Late yesterday afternoon, Steve Friess of BuzzFeed posted an update subheaded "Without the star power, location, and timing of the trial against California’s Proposition 8, the trial against Michigan’s marriage amendment has taken place under the radar. A decision in coming weeks could change all that." Some quotes:

[T]estimony in only the third courtroom trial over same-sex couples’ marriage rights in U.S. history abruptly ended with an understated flourish befitting proceedings that, for all their historic significance, nonetheless flew largely under the national radar when compared to the attention paid to similar cases in Virginia, Utah, and elsewhere.

The two-week trial – which now awaits a written decision from [ U.S. District Court Judge Bernard Friedman] that he said wouldn’t come before March 17 – was the first such event since 2010 when a federal judge considered the constitutionality of California’s Proposition 8. The first trial took place in Hawaii in the 1990s, but the result in support of marriage equality was never realized because Hawaii voters passed a constitutional amendment allowing the legislature to ban same-sex couples from marrying.

Prop 8, like the Michigan marriage statute, was a constitutional ban on same-sex marriage imposed by voters. The federal judge struck down the ban, and last June, the Supreme Court let that decision stand in dismissing the attempted appeal by supporters of the amendment.

Activists on both sides of the issue flocked to California for the Prop 8 case, each issuing a flurry of press releases at every turn. Helmed by big-name lawyers Ted Olson and David Boies, it was the subject of lawsuits over whether testimony should be broadcast live or at least on delay and later gave rise to a play written by Oscar-winning screenwriter Dustin Lance Black and performed by an A-list Hollywood cast.

By contrast, the Michigan trial drew just a couple dozen protesters on both sides to a combined picket line outside the courthouse, often in freezing temperatures and brutal winds. The courtroom was rarely full, not even on Tuesday when attorneys for April DeBoer and Jane Rowse cross-examined controversial sociologist Mark Regnerus. Regnerus’ findings, which claim children fare worse when raised by same-sex couples than their married biological parents, have been called into question by academics and LGBT advocates but have been cited by opponents of same-sex couples’ marriage rights in several cases pending around the country. * * *

Regardless of the trial’s lower profile, it produced a litany of key moments that may impact the future of ongoing marriage litigation — including what most legal experts see as an inevitable Supreme Court case — depending on how Friedman rules. Should he strike down the ban, for instance, the withering cross-examinations undergone by Regnerus and other experts called by the state this week may be cited in briefs for cases in other states, [the plaintiffs' attorney Ken] Mogill said. * * *

Mogill was practical about whether this case would be the one heard at the Supreme Court — while pointing to advantages that the case’s posture would bring to the court.

“Having a factual record is significant as appellate courts consider these cases, certainly, and that’s something the judge was very cognizant of” when he decided not to issue a summary judgment in October, Mogill said. “We’re very happy with the state of the record in this case. We think it supports our position, and what the Supreme Court’s going to do, they’re going to do, and they’re going to do it when they do it. Whichever case gets there first is just absolutely fine.”

[Updated] Here is another story, this one from Erik Eckholm of the March 7th NY Times.

Posted by Marcia Oddi on Saturday, March 08, 2014
Posted to Courts in general

Friday, March 07, 2014

Ind. Decisions - Supreme Court decides one today

In In the Matter of the Termination of the Parent-Child Relationship of E.M. and El.M., E.M. v. Indiana Department of Child Services, a 24-page, 4-1 opinion, Justice Rush writes:

Decisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive—so we review them with great deference to the trial courts, recognizing their superior vantage point for weighing the evidence and assessing witness credibility. Because a case that seems close on a “dry record” may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.

We granted transfer to reiterate that caution. Father’s eventual efforts to establish a relation-ship with his children were commendable, and DCS’s family preservation efforts with him could have been stronger. Yet the standard of review requires us to consider only the evidence favorable to the judgment—and in turn, to respect the trial court’s reasonable conclusion that Father’s efforts were both too little in view of his violence and earlier pattern of hostility toward services, and too late in view of the children’s urgent need for permanency after several years in out-of-home placement. The evidence was sufficient to support termination, so we defer to the trial court and affirm its judgment. * * *

Dickson, C.J., and David and Massa, JJ., concur.
Rucker, J., dissents with separate opinion. [which begins, at p. 16 of 24] In a carefully worded and well reasoned memorandum decision the Court of Appeals concluded there was insufficient evidence to support the trial court’s judgment terminating Father’s parental rights. In re E.M., No. 45A03-1208-JT-370 (Ind. Ct. App. May 8, 2013). It therefore reversed the judgment of the trial court. I agree with the Court of Appeals and thus respectfully dissent from the majority’s contrary view. * * *

[and at p. 24] Finally, in affirming the trial court’s judgment, the majority says: “the evidence here was close” and “the trial court could reasonably have reached either conclusion [to permit or deny the State’s petition for termination of parental rights].” Slip op. at 14. But this is not a game of horseshoes and close is not good enough. In order to terminate a parent’s parental rights the State must prove its case by clear and convincing evidence. It has failed to do so. Therefore I would reverse the trial court’s judgment.

Posted by Marcia Oddi on Friday, March 07, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Same-sex couples sue Indiana governor, attorney general over gay marriage ban" [Updated Again]

Suit has been filed today in federal court, in the Southern District of Indiana, according to this brief story from the New Albany News & Tribune. A quote:

LOUISVILLE — Four same-sex couples from Southern Indiana are suing Indiana Gov. Mike Pence and Attorney General Greg Zoeller in federal court to allow them to legally marry or to have their marriages recognized.

Louisville law firm Clay Daniel Walton & Adams announced the lawsuit today at its offices. The lawsuit was filed in Southern District of Indiana, which has a courthouse in New Albany. The couples are from Clark and Floyd counties and it's the only such federal case involving Indiana.

The law firm is representing four couples in a similar case in Kentucky. In that case, a federal judge ruled last month that the state must recognize legal marriages from other states.

This is not the case it had been anticipated that the Indiana ACLU would file.

[Updated at 1:58 PM] Here is the story from Chris Kenning of the Louisville Courier Journal. Some quotes:

Four gay couples are filing suit in the Southern District of Indiana to seek to force that state to recognize gay marriage.

The suit mirrors the current case in Kentucky, where a federal judge ordered the state to recognize same-sex marriages legally performed elsewhere.

Daniel J. Canon of Clay Daniel Walton & Adams of Louisville announced at a noon press conference that he is filing the suit for the couples who either want to want to get married or have their marriages recognized in Indiana.

The ILB will post the complaint as soon as a copy is located.

[Updated at 2:20 PM] Here is the complaint in Love v. Pence.

Posted by Marcia Oddi on Friday, March 07, 2014
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: H.W. (Minor Child) and B.M. (Father); B.M. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Jimel Pimpton v. State of Indiana (NFP)

Deangelo LaJuan Curry v. State of Indiana (NFP)

Xxavier Jones v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, March 07, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Environmental groups seek probe of Duke plant: Controversial Edwardsport plant operating at 37 percent of capacity"

John Russell's story today in the Indianapolis Star reports:

A coalition of environmental and citizens’ groups called on Indiana regulators to launch a formal investigation into a growing list of problems and delays that have sharply crimped output of Duke Energy’s controversial Edwardsport power plant.

In a motion filed Thursday with the Indiana Utility Regulatory Commission, the groups say the plant has been beset by failures and outages that have cut deeply into its ability to generate electricity, even as customers continue to pay for construction and repairs on their monthly electric bills.

The plant, in southwestern Indiana, generated only 4 percent of its maximum capacity in January. From June to December, it generated an average of 37 percent of maximum capacity. * * *

In a 24-page motion, with numerous exhibits, the groups argue that Duke prematurely declared Edwardsport to be in commercial operation last summer, before it was “actually used and useful for the convenience of the public.”

Six days after the opening, the plant broke down and remained offline for nearly a month. Since then, the plant has suffered numerous problems, including leaking valves, cracked pipes and frozen machinery.

The environmental groups say that by opening the plant before it was ready, Duke could try to recover repair costs from electricity customers, despite a settlement the company reached in 2012 the set a cap of $2.595 billion, plus millions in financing costs.

Posted by Marcia Oddi on Friday, March 07, 2014
Posted to Indiana Government

Law - "Can Indiana same-sex couples marry in Illinois?"

The answer seems to be, "Yes, but ...".

As reported in this Feb. 21st ILB post, although the new Illinois statute legalizing same-sex marriage does not take effect until June 1st, in a successful class-action suit relating to Cook County a federal judge has ruled that same-sex marriage may proceed immediately in Cook County, Illinois.

A column called "Ask Gerry" in the Chicago Phoenix, written March 5th by Gerald Farinas, takes an in-depth look at whether Indiana same-sex couples may marry in Illinois. The answer is comprehensive and links to other useful information, such as a 2-page FAQ from the Cook County Clerk.

But, although the Cook County FAQ says:

If we live in a different state, can we get a marriage license in Cook County?
Yes, even if same-sex marriage is not legal in your state. Marriage licenses are issued in the county where the ceremony will occur, so you must get married in Cook County if you get your license here.
That may not be enough. As the Phoenix column points out (in a section perhaps added later, after several Hoosiers submitted comments), Illinois statute still provides:
(750 ILCS 5/217) (from Ch. 40, par. 217)
Sec. 217. Marriage by Non-residents - When Void.) No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.(Source: P.A. 80-923.)
In other words, as "Ask Gerry" notes:
The obtaining of a marriage license, however, does not mean that the couples’ home state will acknowledge and validate it as legal. It would take legislation or a federal court order in Indiana to make that change. * * *

[E]ven within the State of Illinois, that marriage may not be legal.

Posted by Marcia Oddi on Friday, March 07, 2014
Posted to General Law Related

Thursday, March 06, 2014

Ind. Decisions - 7th Circuit decides one Indiana case March 5th

In USA v. Carol Woodard (SD Ind., McKinney), a 16-page opinion, Judge Williams writes:

Defendant Carol Woodard, the managing director of a non‐profit organization, was indicted on one count of health care fraud for collecting $8.9 million from Medicaid based on her submissions of phony healthcare claims. As the first trial date approached, Woodard filed the first of many motions to change counsel. After the district court appointed a third attorney, it sua sponte ordered Woodard to undergo a competency examination because it felt that she might not understand the nature of the proceedings against her. After a doctor concluded that Woodard was competent to stand trial because she knew and understood the charges against her and was able to assist in her defense, the court found Woodard legally competent to stand trial. Nearly two years later, after several more delays and new attorneys, Woodard asked for a second competency evaluation, which the court denied. Woodard pled guilty and was sentenced to 80 months’ imprisonment.

On appeal, Woodard argues that the district court abused its discretion by not ordering a second competency evaluation. Because the district court reached a reasonable conclusion after it reviewed a previous psychological evaluation, considered the advice of two mental health professionals, and considered Woodard’s interactions with her attorney, we conclude that the district court did not abuse its discretion. In addition, although Woodard argues that she did not knowingly and voluntarily plead guilty during her Rule 11 colloquy, a review of the record shows that she did and that no red flags were raised that would alert the court to the contrary. Finally, we agree with her last argument that the district court violated the Ex Post Facto Clause at sentencing by sentencing her under the wrong version of the Sentencing Guidelines. Therefore, we remand this case for resentencing, but affirm the district court’s judgment in all other respects.

Posted by Marcia Oddi on Thursday, March 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today

In Fayette County Board of Commissioners v. Howard Price, a 4-page, 4-0 opinion, Chief Justice Dickson writes:

Concluding that the decision of the Fayette County Board of Commissioners not to reappoint its County Highway Supervisor was a ministerial decision, not a quasi-judicial one, we hold that such employment decision was not subject to judicial review. * * *

The "nature, quality, and purpose" of the Board's action was not a "determination of issues" nor a "rendition of a judgment or final order regarding the parties' rights, duties, or liabilities." In the absence of these two critical factors, we find as a matter of law that the Board's em-ployment decision regarding Price was administrative and ministerial, not quasi-judicial. It is thus not subject to judicial review.

Posted by Marcia Oddi on Thursday, March 06, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Even more on: Supreme Court appoints special judge in Justice v. Justice case

Updating this post from Feb. 21, where it was reported that the Feb. 18th filing in the Justice case was not available for public release because of the Court's concerns regarding AR 9, the rule that governs access to court records, it now appears from the docket that new documents have been filed March 3rd:

VERIFIED RESPONSE TO TRIAL RULE 53.2 MOTION AND REQUEST TO
REINSTATE VACATED ORDER (WITH EXHIBITS ON GREEN) (6) CERTIFICATE
OF SERVICE (6) BY MAIL 03/04/14. ENTERED ON 03/03/14 MC
For background, see this Feb. 28th ILB post and its links.

Posted by Marcia Oddi on Thursday, March 06, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In In Re the Marriage of: Frank J. Ozug v. Karen S. Ozug, a 7-page opinion, Judge Kirsch writes:

Frank J. Ozug (“Husband”) appeals the trial court’s decree of dissolution (“the Decree”), claiming that it was error to award Karen S. Ozug (“Wife”) spousal maintenance despite a finding that there was no credible evidence of Wife’s medical condition and that it was error to award Wife more than 50% of the marital estate. Wife cross-appeals, arguing that Husband’s notice of appeal was not timely filed. We vacate and remand. * * *

In the present case, Husband had the right to file a motion to correct error, and timely filed his notice of appeal after his motion was deemed denied. We conclude that his notice of appeal was timely, and we have jurisdiction over this appeal. * * *

Based on the stated inconsistencies and lack of information, we are unable to conduct a proper review of the property distribution and the grant of spousal maintenance in the present case. We, therefore, vacate the trial court’s judgment and remand for proceedings to remedy these problems and determine the issues of spousal maintenance and distribution of the marital estate.

In Vinod C. Gupta v. Henry S. Busan, Heritage Federal Credit Union, an 8-page opinion, Judge Robb writes:
Vinod C. Gupta appeals the trial court’s denial of his motion for summary judgment and its grant of summary judgment in favor of Henry S. Busan. He raises two issues for our review, which we restate as: whether the trial court erred in finding Gupta failed to comply with statutory notice provisions for obtaining a tax deed, and whether the trial court erred in granting summary judgment in favor of Busan. Concluding that Gupta complied with the statutory notice provisions, we reverse and remand. * * *

Under the unique facts presented in this case, where the parties and trial court did not follow the established procedures to set aside a tax deed and where the parties did not address the procedural deficiencies upon appeal, we conclude that the trial court erred in finding Gupta’s notices sent certified mail, but without return receipt requested, statutorily deficient. We further conclude that Gupta provided notice reasonably calculated to inform Busan of the tax sale and petition for the tax deed. Therefore, we reverse the trial court’s grant of summary judgment in favor of Busan and denial of summary judgment for Gupta. We remand for a grant of summary judgment quieting title for Gupta.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: M.M., G.M., and D.M., K.M. (Mother) and R.M. (Father) v. The Indiana Department of Child Services (NFP)

Eric Keith v. Indiana Bell (NFP)

Mellondie Bensen v. Review Board of the Indiana Department of Workforce Development (NFP)

NFP criminal opinions today (4):

Michael Williams v. State of Indiana (NFP)

Richard A. Perkey v. State of Indiana (NFP)

Zao Burrell v. State of Indiana (NFP)

Craig Hoog v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, March 06, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts corrected version of Judge Brown disciplinary opinion

The Supreme Court has now posted a new version of the March 4th opinion in In re Brown, marked "Corrected on March 5, 2014." However, there is no indication of what is the correction.

Here is the March 4th ILB post linking to the earlier version.

[More] The correction is in the case docket:

THE ORIGINAL PER CURIAM OPINION HANDED DOWN IN THIS CASE ON
MARCH 4, 2014, CONTAINS A NON-SUBSTANTIVE OMISSION. SPECIFICALLY
THE NAME "ELIZABETH DAULTON" SHOULD HAVE BEEN INCLUDED AS ONE OF
THE ATTORNEYS FOR THE COMMISSION ON JUDICIAL QUALIFICATIONS.
THIS INADVERTENT ERROR WAS CORRECTED BY A REVISED OPINION THAT
WAS DELIVERED TO THE CLERK WITH THIS NOTICE, AND THE CORRECTED
OPINION CONTAINS THE WORDS "CORRECTED ON MARCH 5, 2014" BENEATH
THE DATE OF THE OPINION. NO OTHER CHANGES WERE MADE TO THE
OPINION.
ACCORDINGLY, THE FOLLOWING SHALL OCCUR: (1) THIS NOTICE OF
CHANGE SHALL BE ENTERED ON THE CHRONOLOGICAL CASE SUMMARY; (2)
ALL COUNSEL OF RECORD SHALL BE SERVED WITH A COPY OF THE
CORRECTED OPINION AND THIS NOTICE; (3) ARRANGEMENTS SHALL BE
MADE FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE
AND POSTING THE CORRECTED OPINION IN ITS PLACE; AND (4) A COPY
OF THIS NOTICE SHALL BE SENT TO THOMSON/REUTERS, LEXISNEXIS, AND
WOLTERS KLUWER.
KEVIN S. SMITH, CLERK/ADMINSTRATOR

Posted by Marcia Oddi on Thursday, March 06, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Supreme Court continues weighing future of Clark Co. Drug Court participants"

That is the headline to this long story today, reported by Charlie White in the Louisville courier Journal. Some quotes:

The drug-treatment program was suspended in mid-February by the Indiana Supreme Court following allegations of unlawful conduct by drug court staff and practices harmful to participants.

It’s the first suspension of any problem-solving court in Indiana since the state began certifying them 11 years ago, according to officials with the state’s high court.

“I have full trust in the Indiana Supreme Court to evaluate any unlawful conduct by Clark County judges, and expect the investigation will be carried out thoroughly,” state Sen. Jim Smith, R-Charlestown, said.

[The 60 current program] participants are waiting on state officials to decide whether they will get to complete the program under a temporary certification.

Sarah Kidwell, outreach coordinator for the state Supreme Court, said Monday that state officials will work with the county to address outstanding issues regarding participants who agreed to enter the drug-treatment program. * * *

Eight plaintiffs in a federal class-action suit filed last month are seeking monetary damages and a court injunction. The suit includes people who allege they were arrested or were subject to arrest by drug court workers with no arrest powers, incarcerated for more than 72 hours without hearings or other due process, or face the possibility of being in violation of drug court or probation through Judge Jerry Jacobi’s court.

On Friday, Jacobi transferred all drug court cases to fellow Clark Circuit Judge Vicki Carmichael’s court, which is seeking temporary certification from the state to allow existing participants a chance to complete the program. * * *

Also on Friday, Jacobi and other Clark County officials who are listed as defendants in the federal suit were granted an extension to respond to the initial complaint. The response deadline is now April 10. * * *

While the Judicial Center evaluates the drug court, local residents can share complaints or concerns about potential wrongdoing in the Clark County court system by contacting the Judicial Qualifications Commission at (317) 232-4706 or going to www.in.gov/judiciary/jud-qual. All complaints and subsequent investigations are confidential.

ILB: See also this story from last Sunday in the News & Tribune.

Posted by Marcia Oddi on Thursday, March 06, 2014
Posted to Indiana Courts

Wednesday, March 05, 2014

Ind. Gov't. - Driving on a suspended license termed “a crime of poverty.”

Surprisingly, at least to the ILB, Indiana driving privileges may be suspended for numerous offenses having nothing to do with driving. Maureen Hayden of CNHI reported yesterday on HB 1279, which is currently awaiting concurrence in the House (a motion to concur in the Senate amendments failed today by a vote of 50-35).

The 127-page bill deals with a number of motor vehicle issues, including making changes to statutes dealing with driver's license suspension and revocation. Those changes are the focus of Hayden's story. A few quotes:

INDIANAPOLIS — Unpaid parking fines, falling behind on child support, drunken driving: So many offenses trigger a suspended driver’s license in Indiana that more than a half-million Hoosiers have lost their driving privileges.

In fact, driving on a suspended license is the most common charged offense, prosecutors say.

A bill passed by the House and Senate hopes to keep more drivers legally on the road, supporters say, by eliminating most automatic license suspensions for non-traffic offenses and giving judges more leeway over how the penalty is used. The bill also creates a “special use” license with strict conditions such as the use of technology that monitors when certain drivers get behind the wheel.

Supporters say the law goes a long way toward helping the high number of Hoosiers with suspended licenses get back on the road legally without compromising public safety. There are about five million licensed drivers in Indiana and more than 556,000 who currently have their licenses suspended, according to the state Bureau of Motor Vehicles. * * *

David Powell, head of the Indiana Prosecuting Attorneys Council, said he’s seen many people who had few transportation options other than a car during the 20 years he spent as chief prosecutor in a rural Indiana community. People who lost a license didn’t want to lose their job so they kept driving on a suspended license, without insurance, and risked getting caught.

Powell called driving on a suspended license “a crime of poverty.”

“In my county, most of the cases I saw were people who couldn’t afford their reinstatement fees so they just kept driving and just kept getting caught and caught and caught,” he said.

That kind of decision has a spiral effect: The first time someone is caught driving with a suspended license, it’s a Class A infraction with a $150 fine. The second offense is a Class A misdemeanor with a fine up to $5,000 and up to a year in jail. A third time is Class D felony, with a jail term up to three years and a fine up to $10,000. Once more and it’s a Class C felony and up to 8 years in prison.

License reinstatement fees escalate from $100 to $300 for each offense.

The law currently allows judges to offer probationary or hardship licenses to some people who’ve had their driving privileges automatically suspended.

But the rules for granting those are prohibitively restrictive, said Chris Daniels, a lawyer with the Prosecuting Attorneys Council who helped draft the law with McMillin and Young.

“A big part of our goal is to keep the truly dangerous drivers off the road while letting people who’ve made a mistake but who can drive safely back on the road legally,” Daniels said. “Right now, we don’t have much of a mechanism in place to do that.”

ILB: Hayden has a lot more information that didn't fit in the story, such as:
Right now we have at least 8 OWI charges that carry a mandatory suspension. Most of those mandatory suspensions will go away. So will the mandatory suspensions for a lot of the non-traffic offenses. There are some administrative suspensions that 1279 is not addressing. The big one is refusing to take a chemical test when an officer has probable cause to believe you are operating while intoxicated. That mandatory suspension stays in place.

In addition, your license will still be suspended once a judge finds PC on an OWI case, but the judge can then go back and modify the suspension. I think failure to appear in court for an infraction will also still carry an automatic license suspension. Failure to pay child support still results in a suspension.

It would be useful to see a chart or table setting out all the offenses which currently can lead to a suspension, along with how they would be affected by this bill.

Posted by Marcia Oddi on Wednesday, March 05, 2014
Posted to Indiana Government

Ind. Gov't. - Still more on "Purdue University Rejects Donor's Reference to 'God's physical laws' on Plaque Honoring Parents' Legacy" [Updated]

Updating this post from March 2nd, a settlement has been reached between the donor and Purdue University, according to a news release from Liberty Institute. Purdue University approved the following wording to appear on the plaque of alumnus Dr. Michael McCracken:

“Dr. Michael McCracken: ‘To all those who seek to better the world through the understanding of God's physical laws and innovation of practical solutions.’ Dr. Michael and Mrs. Cindy McCracken present this plaque in honor of Dr. William ‘Ed’ and Glenda McCracken and all those similarly inspired to make the world a better place.”
The phrase "God's physical laws," which was the basis for the earlier rejection, remains.

Dr. McCracken's accompanying statement concludes:

“We are also especially grateful to the Liberty Institute and Covington & Burling LLP for providing their time and resources to help us resolve this issue. Without people serving as they have, most would not have the resources to have their voices heard.”
The amount of the gift to Purdue was $12,500. It is unclear from the release re whether Covington & Burling's services were donated.

[Updated on March 6th] The Lafayette Journal Courier has a story this morning by Hayleigh Colombo that begins:

Purdue University has decided after all to allow a donor to reference “God’s physical laws” on a plaque recognizing the alumnus’ donation to the university.

The West Lafayette research university will avoid a First Amendment fight between itself and a donor, engineering graduate Michael McCracken, who alleged that Purdue was violating his rights by not allowing him to reference God on a plaque commemorating his parents. The plaque, in a renamed conference room in Herrick Laboratories, was offered to him after McCracken made a $12,500 donation to the university in 2012.

The argument came to a head last week when Purdue’s legal counsel, Steve Schultz, said Purdue’s status as a public institution opened the door to a costly and lengthy legal battle if Purdue accepted McCracken’s proposed language for the plaque, which referenced “God’s physical laws.”

McCracken and his lawyers argued that the speech would be considered “private speech” and would not put the university in danger.

Posted by Marcia Oddi on Wednesday, March 05, 2014
Posted to Indiana Government

Ind. Gov't. - An overview of the brouhaha caused by the deletion of a single provision in HB 1380

The Indiana Adjusted Gross Income Tax Act of 1963 is set out at Indiana Code Title 6, Article 3. The first Chapter, IC 6-3-1, contains the definitions that apply throughout the Article.

The definition of adjusted gross income in Sec. 3.5 explains that Indiana's adjusted gross income tax is tied to "adjusted gross income" (as defined in Section 62 of the Internal Revenue Code).

Sec. 11(a) of the definitions explains that:

The term "Internal Revenue Code" means the Internal Revenue Code of 1986 of the United States as amended and in effect on January 1, 2013.
A glance at the History Line at the end of Sec. 11 shows that the section has been amended nearly every year the General Assembly has been in session since it was enacted in 1963. The reason why was explained in this April 11, 2007 ILB post:
This section defines what the Indiana Code means when it references the federal "Internal Revenue Code." The federal law changes nearly every year.

Does a reference in Indiana law to the "Internal Revenue Code" incorporate all the latest changes made by Congress? Yes, but only because the Indiana law is changed each year to reflect the most recent version of the IRC.

What is that? Because the General Assembly cannot delegate its lawmaking authority to the federal government.

This year, language to update the references in IC 6-3-1-11 to "Jan. 1, 2014" was included as SECTION 8 in HB 1380, a bill covering a miscellany of tax and administrative issues, as can be gleaned from the digest to the Feb. 28th version of the bill. You can find mention of SECTION 8's content about a third of the way down p. 2 of the digest: "Updates references to the Internal Revenue Code."

On Monday, March 3, when the House bill was on second reading in the Senate, Senator Brandt Hershman, the bill's sponsor, successfully offered a motion to delete SECTION 8. It read: "Page 7, delete lines 12 through 42. Page 8, delete lines 1 through 34." Period. He added no new language to the bill.

As related in this ILB post yesterday, the ILB first learned about this motion striking SECTION 8 the next morning, through a brief, confusing and inaccurate news story that did not identify the bill and was headed "Indiana measure would ban same-sex marriage tax benefits."

Senator Hershman contacted the ILB several times during the day yesterday, helping me to understand his intent, including this statement:

We couple our tax code selectively to the federal IRC. If we did a blanket coupling, it would potentially require recognition and joint filing under state law.

We aren’t doing anything to the federal ability to file jointly, we’re just not creating a state right to do so through coupling to the federal code.

Indiana adjusted gross income (AGI) is derived from the AGI figure on your federal tax form. You copy that number, if you are married, from your joint tax form onto your Indiana tax form.

On August 29, 2013, following the recent Supreme Court decision in U.S. v. Windsor, the US Department of the Treasury issued a press release and Revenue Ruling 2013-17. The release began:

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

The ruling implements federal tax aspects of the June 26th Supreme Court decision invalidating a key provision of the 1996 Defense of Marriage Act.

So for the purposes of their federal tax return, Indiana same-sex couples, legally married in another state, will be treated as married for federal tax purposes.

What of the Indiana tax returns of Indiana same-sex couples legally married in another state? The Indiana Department of Revenue issued guidance this fall, providing that because Indiana does not recognize same-sex marriages, same-sex couples who file federal returns with a married filing status must each file their Indiana income tax returns with a filing status of single. To accomplish this, each same-sex spouse needs to fill out a "sample" federal form as if single, and apply the AGI derived to an individual Indiana tax return.

Senator Hershman's concern, as set out in this story this morning in the Indianapolis Star, reported by Barb Berggoetz, was:

... that [IDOR] opinion takes precedent, unless the legislature changes the law. However, he said if lawmakers don’t “decouple” state tax policy in HB 1380 from the broad federal tax changes, then the practice of joint filing for same-sex couples would be adopted here.

Since Indiana has an existing state law banning same-sex marriage, Hershman said, “we don’t want to do that because a tax bill is not the appropriate venue for a debate on same-sex marriage.”

Some, including myself, would differ with Sen. Hershman's answer, but the Senate on second reading accepted it.

A different approach: IC 6-3-1-11 governs what version of the Internal Revenue Code (a federal statute) is referenced in the Indiana adjusted gross income tax law. Currently it is the IRC as amended and in effect Jan. 1, 2013. Sen. Hershman's concerns seems to be that by upping that reference to Jan. 1, 2014, we would also be adopting DOR Revenue Ruling 2013-17. I do not believe that to be the case, but it would have been easy enough to add another exception to IC 6-3-1-11, rather than leaving the entire adjusted gross income tax law tied to the Jan. 1, 2013 version for another year. (There also appear to be several errors in the 2013 version of IC 6-3-1-11 that need to be corrected.)

Finally, yesterday the Senate voted on HB 1380 on final passage.
SECTION 8 had been excised the day before. The bill contained a laundry list of tax and administrative provisions. The vote on third reading, which was 41-6, had nothing to do with which version of the IRC is referenced in state tax law. But many in the press continued to make that absent provision of HB 1380 the story. For example, where is this provision in HB 1380?

Separately, the legislation would put a previously announced Indiana Department of Revenue rule into state law by requiring gay Hoosiers who are married in other states to file their Indiana income tax returns as individuals. While federal law permits joint returns for married gay and lesbian couples, Indiana still prohibits gay marriage and state lawmakers said the state tax code should reflect that prohibition. NWI Times

On the heels of recent demonstrations emotions were running high after an amendment was passed Monday spelling out that same sex couples in Indiana would not be able to file their state taxes jointly, even though they can now file federal taxes jointly. WISH-TV

Barb Berggoetz's story today in the Indianapolis Star gives a clearer picture, although I disagree with the lede:
The Indiana Senate on Tuesday deleted a state tax provision that would have inadvertently allowed same-sex couples to file joint tax returns in Indiana.
Summer Ballentine's story for the AP takes a different approach, looking at the impact of Indiana's not allowing legally married same-sex couples to file as married on their Indiana tax returns.

Posted by Marcia Oddi on Wednesday, March 05, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 1 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Lyndon C. Davis v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, March 05, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Marion County Superior Court Judge Kimberly Brown removed by the Supreme Court

Updating yesterday's post of the opinion in the Supreme Court judicial disciplinary action against Marion County Superior Court Judge Kimberly Brown, Tim Evans of the Indianapolis Star reports today:

The Indiana Supreme Court on Tuesday ousted Marion Superior Court Judge Kimberly Brown, only the third Indiana judge to be permanently removed from the bench for misconduct in the past 20 years.

“We conclude that protecting the integrity of the judicial system and ensuring the fair and timely administration of justice require that (Brown) be removed from office,” the Supreme Court said in an order. “This removal renders (Brown) ineligible for judicial office.”

Brown is the first Indiana judge to be permanently removed since 2004.

The disciplinary decision in Brown’s case cannot be appealed, and the court did not place any time limits on Brown’s ineligibility to serve as a judge. That means she is, effectively, permanently barred from holding judicial office.

The court did not suspend Brown’s law license, and she will be able to work as an attorney. * * *

Brown has been on a paid suspension since Jan. 9 and has filed to run in the Democratic primary in May for the party’s nomination to seek re-election. The party has slated another candidate for her post. Whether Brown’s name would remain on the primary ballot was unclear Tuesday. * * *

All five Supreme Court justices concurred with the decision to bar Brown from judicial office, but Justice Robert Rucker argued in a separate opinion that the court’s goal of preserving the integrity of the judicial system could be achieved by suspending Brown for 60 days without pay, then staying her removal for one year, during which she would be on supervised probation. He noted the charges against Brown did not involve “acts of moral depravity,” and neither the court nor the commission found that she had engaged in “willful misconduct in office.”

During the probationary period, Rucker wrote, “(Brown) would carry the burden of demonstrating that she has the capacity to manage her court efficiently and effectively. A failure to do so would result in a probation violation and immediate removal from office.”

The Supreme Court order noted Brown was not a novice judge and that her misconduct occurred as part of her official duties.

“It violated multiple Rules of Judicial Conduct, and much of it prejudiced the administration of justice. It was not singular, isolated, or limited to a particular subset of cases or persons. It was often repeated or continuing in nature.

“This misconduct not only displayed a lack of dignity, courtesy and patience required of judges, but it also negatively affected parties, court staff and others interested in the efficient operation of the criminal justice system,” the order said. * * *

The Supreme Court order noted that Brown’s “pattern of neglect, hostility, retaliation and recalcitrance toward investigating officials indicates an unwillingness or inability on her part to remedy deficiencies.”

Posted by Marcia Oddi on Wednesday, March 05, 2014
Posted to Ind. Sup.Ct. Decisions

Tuesday, March 04, 2014

Ind. Gov't. - Still more on: So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?

Updating this post from earlier this evening, Tom LoBianco of the AP is reporting:

INDIANAPOLIS — Former Indiana Republican Chairman Jim Kittle says his involvement in the state's gay marriage battle has been misstated.

Kittle said Tuesday that he never offered "unlimited" campaign funds to Republican House Speaker Brian Bosma. * * *

Bosma said in January that he had rejected an offer of "unlimited" funds to make the ban "go away." He said then he was concerned it might violate state and federal law. But last week he said that he didn't think any crime was committed.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Indiana Government

Ind. Gov't. - "Indiana measure would ban same-sex marriage tax benefits " says AP story

A wrap-up. This AP story from this morning is confused and at some points completely in error. Sen. Brandt Hershman made a second reading amendment yesterday to HB 1380 that was intended to disallow Indiana same-sex couples legally married in another state from filing as a married couple on their Indiana returns.

In this post I started this morning and updated a number of times, I make two points:

The Senate passed HB 1380 this afternoon by a vote of 41-6.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Indiana Government

Ind. Gov't. - More on: So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?

Updating this ILB post from March 3rd, here is a copy of a letter dated March 4th, sent by the National Organization for Marriage to AG Zoeller, asking for an investigation.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Indiana Government

Ind. Decisions - Marion County Superior Court Judge Kimberly Brown removed by the Supreme Court

In The Honorable Kimberly J. Brown, Judge of the Marion Superior Court, a 22-page opinion, including a separate 5-page opinion by Justice Rucker concurring in part, the Court writes:

This matter comes before the Court as a judicial disciplinary action initiated by the Indiana Commission on Judicial Qualifications (“Commission”) against Kimberly J. Brown (“Respondent”), Judge of the Marion Superior Court. Article 7, Section 4 of the Indiana Constitution and Indiana Admission and Discipline Rule 25 give the Indiana Supreme Court original jurisdiction over this matter. After considering the evidence, the report of the Special Masters appointed in this matter, and the parties’ arguments, we conclude that the Commission has demonstrated, by clear and convincing evidence, that the Respondent engaged in significant judicial misconduct, and we conclude that the misconduct warrants her removal from office. * * *

We conclude that protecting the integrity of the judicial system and ensuring the fair and timely administration of justice require that the Respondent be removed from office. Therefore, the Court hereby removes the Respondent from the office of Judge of the Marion Superior Court, effective immediately. This removal renders the Respondent ineligible for judicial office. See Admis. Disc. R. 25(III)(C). Although a judicial officer removed from office under such an order of discipline, “pending further order the Supreme Court, shall be suspended from the practice of law in the State of Indiana[,]” id., the Court hereby orders that the Respondent shall not be suspended or barred from practicing law in Indiana as a result of this removal from office. The Masters appointed in this case are discharged, and we thank them for their conscientious service in this matter.

Dickson, C.J., and David, Massa, and Rush, JJ., concur.
Rucker, J., concurs in part with separate opinion. [that begins, at p. 18] Three very experienced and highly-respected trial court judges serving as Masters in this case have recommended that the Respondent be removed from office. The majority has accepted the Masters’ recommendation and today orders Respondent’s immediate removal. For reasons the majority expresses I agree that Respondent should be removed from the bench. However, I disagree the removal should be ordered effective immediately.

Here is a preliminary story posted by Tim Evans of the Indianapolis Star.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Indiana shoreline jurisdiction dispute turns into 2-year legal battle"

Recall this ILB post (and the earlier linked entries) from Jan. 1st, headed "Court rules against Long Beach lakefront property owners" concerning a dispute between Lake Michigan beachfront property owners near Michigan City and the Town of Long Beach, over ownership of the "space between the water's edge and the ordinary high watermark (OHWM)."

It seems the same dispute has been going on further west along the Lake Michigan shoreline, in the Town of Dune Acres, which is on Lake Michigan just to the west of what natives of the area refer to as "Johnson's Beach" or "Porter Beach" and the Indiana Dunes National Lakeshore, which, as this story today in the Chicago Tribune, by Jennifer Delgado, reports:

Along Lake Michigan's southern shore, the Indiana Dunes National Lakeshore's 15,000 acres surrounds a checkerboard of small beach communities.

But the borders that divide the towns and park don't mean much when it comes to the beach. Conflicting regulations exist on water scooters, beach fires and dogs without leashes, among other policies.

You'll need to read the whole story to totally understand the dispute that resulted in a bench trial in federal court, but this section relative to the OHWM gives an idea:
The National Lakeshore contended that the water scooter had been used within 300 feet of the shoreline, a violation of its rules. The rangers also said [Rob] Carstens had used the ATV below the ordinary high water mark, an area that falls within the park's boundaries. And signs aren't required for every park rule, they added.

The Indiana Department of Natural Resources said it does not prohibit water scooters on Lake Michigan. If another agency issues a ticket, it would be up to a court to decide what entity has ultimate jurisdiction, a spokesman said.

The town has been around since 1923, long before Congress established the national park in 1966. It wasn't until years later that the park boundaries expanded beyond the land to include 300 feet into Lake Michigan.

The ordinary high water mark, an elevation line drawn by scientists, determines the edge of the lake where the federal agency begins governing. The water line has been below average for at least 10 years, according to the National Lakeshore, meaning Carstens could be standing on the beach in federal jurisdiction. * * *

After a one-day bench trial last July, a judge on Jan. 31 convicted Carstens. Lou Mellen, president of the Dune Acres Town Council, argued that the national park does not maintain the town's beach and the ruling sets a bad precedent.

"They're threatening to change the way we use the beach and treat us as if we're just visitors when in fact we live here. We consider this our beach," said Mellen, who noted that the national park does not own the Dune Acres beach.

About 9 miles east, the Beverly Shores beaches have the same rules as the National Lakeshore with a few exceptions.

"Occasionally" the town has a minor jurisdiction issue with the park service, like when a ranger spots a dog without a leash on the beach, said Geof Benson, the Town Council president. The two have different rules on the issue, he said. "But mostly it's been settled with a phone call or discussion, not a court," he said of differences.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. -"State police open probe on Elwood mayor's campaign funds"

Ken de la Bastide and Zach Osowski reported in The Anderson Herald Bulletin March 2nd in a lengthy story that began:

ELWOOD – The Indiana State Police and FBI are investigating campaign finance expenditures by Elwood Mayor Ron Arnold for 2012 and 2013, according to local officials.

In particular, Arnold spent campaign money for out-of-state travel and personal bills, which could be seen as a violation of state election laws. A Herald Bulletin review of Arnold’s campaign finance records found that he spent $7,264 for Verizon wireless service and $3,939 for Comcast cable service.

The investigation is being conducted by the ISP Organized Crime and Corruption Unit. * * *

Madison County Prosecutor Rodney Cummings said Monday the ISP approached him before the investigation began. State police received complaints about alleged irregularities in Arnold’s campaign finance report, Cummings said.

Initially, Cummings turned down a request for a subpoena by ISP for Arnold’s campaign bank records. But after being informed that the campaign paid for a hotel room in California and cable bills, Cummings approved the subpoena of the campaign committee’s bank records.

“There are several possible statute violations,” Cummings said. “You can’t use campaign funds for your own personal use.”

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Indiana Government

Ind. Law - Stephen J. Johnson, longtime executive director of the Indiana Prosecuting Attorneys Council, dies

From the Indiana Prosecuting Attorneys Council website:

It is with heavy hearts that we inform you of the death of former Executive Director, Stephen J. Johnson. Steve died unexpectedly at home on Sunday, March 2, 2014. We will miss him more than words can express.

SERVICES
Visitation
Thursday, March 6, 2014, 4:00 pm - 8:00 pm
G.H. Hermann Madison Avenue Funeral Home
5141 Madison Avenue, Indianapolis

Visitation
Friday, March 7, 2014, 10:00 am - 11:00 am
Resurrection Lutheran Church
445 E. Stop 11 Road, Indianapolis

Funeral Service
Friday, March 7, 2014, 11:00 am
Resurrection Lutheran Church
445 E. Stop 11 Road, Indianapolis

Burial
Friday, March 7, 2014
Maple Hill Cemetery
709 Harding Street, Plainfield

Here is the obituary.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Indiana Law

Courts - "Outside lawyer to appeal Kentucky gay-marriage ruling after attorney general refuses"

Updating this ILB post from a few minutes ago, Tom Loftus of the LCJ is now reporting that:

Gov. Steve Beshear announced Tuesday morning that the state will hire outside counsel to appeal a judicial ruling that the state must recognize same-sex marriages legally performed outside the state.

The announcement followed state Attorney General Jack Conway’s emotional announcement that he would not appeal U.S. District Judge John G. Heyburn II’s ruling and would not pursue any more stays.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Courts in general

Courts - More on "Kentucky Attorney General Conway faces unenviable situation"

Updating this ILB post from March 3rd, the AP is reporting that Kentucky's attorney general will not appeal Bourke v. Beshear, the federal district court opinion requiring Kentucky to give recognition to same sex marriages performed in other states.

Here is the preliminary story from Tom Loftus of the Louisville Courier Journal.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Courts in general

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

For publication opinions today (1):

In Commonwealth Land Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, et al, a 33-page opinion, Judge Crone writes:

The Indiana Department of Insurance (“IDOI”) conducted a targeted market examination of Commonwealth Land Title Insurance Company (“Commonwealth”) to determine if it was in compliance with the Indiana Insurance Code. Following the examination, the IDOI issued an order (“the Administrative Order”), concluding that Commonwealth violated Indiana Code Sections 27-4-1-4(a)(7)(C)(i) (“the Rate Statute”), 27-1-3-4 (“the Unsafe Business Practices Statute”), and 27-1-18-2 (“the Gross Premium Tax Statute”), and ordered Commonwealth to take certain actions to cure its violations pursuant to Indiana Code Section 27-1-3.1-11 (“the Cure Statute”). Commonwealth petitioned for judicial review, and the trial court upheld the Administrative Order with one exception.

Commonwealth appeals the trial court’s order, arguing that the IDOI’s determinations that it violated the aforementioned statutes are unsupported by substantial evidence and that the cures the IDOI ordered are not authorized by the Cure Statute. We conclude that Commonwealth fails to carry its burden to show that the IDOI’s determinations are unsupported by substantial evidence and that the cures are not authorized by the Cure Statute. Accordingly, we affirm the trial court’s order. * * *

We conclude that substantial evidence supports the IDOI’s determination that Commonwealth violated the Rate Statute, the Unsafe Business Practices Statute, and the Gross Premium Tax Statute. We further conclude that the cures imposed by the IDOI for Commonwealth’s violations of these statutes are authorized by the Cure Statute. Therefore, we affirm the trial court’s order.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Jermaine Christopher Scott v. State of Indiana (NFP)

Randy L. Madewell v. State of Indiana (NFP)

Marcus Pernell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Story reports "Indiana measure would ban same-sex marriage tax benefits" [Updated a 4th Times!]

This morning the Indianapolis Star posted a confusing, unsigned AP story with that headline. It reports:

Indiana would break from an Internal Revenue Service policy recognizing same-sex marriage for tax purposes if a late-session change becomes law.

The Senate on Monday approved adding the language to another tax bill. The measure is up for a final vote in the chamber Tuesday [that would be today].

The IRS last year announced all same-sex marriages would be recognized in federal tax returns. The ruling applies regardless of whether the couple lives in an area where their marriage is recognized.

If passed into law, the Indiana bill would split from the IRS and not grant same-sex couples the same tax breaks other couples now receive.

Republican Sen. Brandt Hershman of Buck Creek says blocking the benefits would match Indiana tax policy with the state ban on same-sex marriage.

The story does not give the bill number. The ILB has tried to locate a bill with this amendment, but has been unsuccessful so cannot comment either on how the language would impact current Indiana policy, or when the "change" would take effect.

On Nov. 23, 2013 the Indiana Department of Revenue issued a document headed "Same-sex Marriage Tax Filing Guidance." Jon Murray, then of the Indianapolis Star, reported on it the same day in this story. From the story:

The U.S. Supreme Court in June ruled that the federal government must recognize legally performed same-sex marriages. Under a resulting policy announced Aug. 29 by the Internal Revenue Service, legally married gay couples will be able to file a joint federal tax return for the first time next year — no matter where they currently live.

That creates a challenge in Indiana, which is among 24 states that have gay-marriage bans and also use state income-tax forms that rely on the federal tax return form as the basis for income calculations.

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

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

Thus, same sex Indiana couples, legally married in another state, may file a joint federal return, but for purposes of the Indiana tax, must file as unmarried.How Hershman's amendment would change this, if at all, is not clear without being able to review its language.

[Updated at 10:45 AM and again at noon]
Thanks to Sen. Hershman, who has sent the ILB the bill number, HB 1380 and identified the motion as Amendment 5.

However, this confuses the ILB, as amendment 5 strikes from the bill the entire SECTION 8 (of the Feb. 28 printing, at pp. 7-8), containing the annual update to IC 6-3-1-11, to define the term "Internal Revenue Code" as that in effect as of the current year.

Perhaps (likely) the amendment to IC 6-3-1-11 will appear in another bill. It is unclear to the ILB, however, how any change to Indiana tax law could prevent Indiana same-sex couples legally married in another state from filing their federal return jointly as married couples under federal law.

The State of Indiana currently does not recognize the marriage and does not permit joint filing of Indiana tax returns, as indicated earlier in this post. But as we've seen this week with Kentucky, which has been required by a federal court decision to recognize same-sex marriages performed in other states, that could change with litigation.

[More at 1:55 PM] The ILB has located the LSA fiscal note for the version of HB 1380 as it existed before the second reading Senate amendments. Here is the applicable analysis, from p. 3, of SECTION 8's changes to IC 6-3-1-11:

Internal Revenue Code: The bill updates the reference to the Internal Revenue Code (IRC) as amended and in effect on January 1, 2014. The current reference to the IRC pertains to all IRC provisions amended and in effect on January 1, 2013. There were no significant updates to the IRC enacted by Congress during 2013.

However, some federal provisions were allowed to expire on December 31, 2013, that Indiana requires to be added back to federal adjusted gross income. Those add-backs will no longer be necessary and should not have a significant fiscal impact. (It is possible that these federal provisions could be retroactively reinstated during 2014.) The expiring provisions with an Indiana add-back are:
• Discharge of indebtedness on a principal residence.
• Increase in section 179 expensing to $500,000/$2,000,000 and expansion of the definition of section 179 property.
• Special expensing rules for certain film and television productions.

Senator Hershman's 2nd reading amendment removed SECTION 8 from HB 1380 entirely. What connection any of this has to do with Indiana "breaking from an Internal Revenue Service policy recognizing same-sex marriage for tax purposes" continues to elude me.

[Updated at 3:05 PM] Senator Hershman has sent the ILB this response:

We couple our tax code selectively to the federal IRC. If we did a blanket coupling, it would potentially require recognition and joint filing under state law.

We aren’t doing anything to the federal ability to file jointly, we’re just not creating a state right to do so through coupling to the federal code.

Hope this helps.

ILB: Repealing SECTION 8 will simply leave IC 6-3-1-11 (starts at bottom of p. 16) as it currently exists.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Indiana Government

Ind. Gov't. - "State, LaPorte Co. sue former worker for missing funds"

Stan Maddux reports today in the NWI Times in a story that begins:

LAPORTE | Indiana Attorney General Greg Zoeller on Monday personally filed a lawsuit in LaPorte Circuit Court aimed at recovering nearly $200,000 in public funds allegedly embezzled by a now former chief deputy LaPorte County auditor.

He said lawsuits by his office are common in cases involving theft of tax dollars.

However, the legal action taken against former chief deputy auditor Mary Ray asks for triple of the amount she allegedly took because she was in a position of trust and evidence suggests the money went for gambling and, perhaps, other personal use, according to court documents.

"It's meant to show the public that we're going to take these things seriously. We're not going to look the other way," said Zoeller.

ILB: Here is a July 16, 2011 ILB post, where a story quoted from the Goshen News began:
LaGrange County Clerk Beverly Elliott is facing four Class D felony counts of official misconduct. She is also being asked to return close to $10,000 in county money and pay more than $8,000 in costs incurred during an audit by the Indiana State Board of Accounts.

In addition, State Attorney General Greg Zoeller announced Tuesday afternoon he has filed a lawsuit against Elliott seeking triple the amount in damages — $55,160. He is also seeking an injunction freezing all of her assets.

Posted by Marcia Oddi on Tuesday, March 04, 2014
Posted to Indiana Government

Monday, March 03, 2014

Ind. Courts - Hoosier and 7th Circuit Judge John Tinder retiring in 2015

Above the Law has the scoop (congratulations!), alerted by a letter sent by Judge Tinder to a clerkship applicant, telling him or her that he had "recently decided that I will be leaving the court in 2015."

David Lat of ATL spoke with Judge Tinder this afternoon by phone and writes:

Judge Tinder plans to continue hearing cases through February 2015, which is when he’ll turn 65 and become eligible for retirement pursuant to the so-called “Rule of 80.” Under this policy, a federal judge who’s at least 65 years old and has at least 15 years of active service as an Article III judge can leave active status and still receive full pay, whether as a completely retired judge or a judge on senior status (a semi-retirement typically involving a somewhat reduced caseload). Judge Tinder, who has served as an Article III judge for a total of more than 25 years — first on the District Court for the Southern District of Indiana, then on the Seventh Circuit — easily satisfies the rule’s requirements.

So around February 2015, Judge Tinder will stop picking up new appeals and turn to finishing up work on his still-pending opinions. He hopes to retire completely from the Seventh Circuit sometime in the spring of 2015. He does not plan to take senior status; rather, he will step down from the bench completely. What does he plan to do after departing from the court?

“I’ve got some hazy concepts in my mind, but no definite project,” he said. “I’ve been a judge since 1987 and U.S. Attorney prior to that, so it has been a while since I’ve been in the private sector. I don’t aspire to build a clientele or start a practice at this point in my career, but I can think of things I’d enjoy doing in public interest, advocacy, or arbitration. But I don’t have a particular target, just some vague notions that I will explore closer to the time.”

Serving as a federal appellate judge is many a lawyer’s dream job. Why would Judge Tinder want to step down from the bench?

“We have a wonderful court, full of really smart and collegial people, tackling the most interesting issues,” he said. “It will be hard to leave. But I just got to a point where I thought about whether I’d like to target what Bill Bauer [Judge William Bauer] is doing at 88, handling a full caseload, and I thought I’d like to try something different. It has been fascinating to serve on this court and on the district court before that.”

Thank you, Judge Tinder, for your many years of judicial service, and best of luck in your next endeavor, whatever it might be!

(h/t AppellateDaily)

ILB: This is NEWS. As most know, Judge Tinder hails from Indianapolis.

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "What Does the SCOTUS Really Think About the Right to Counsel?"

The subtitle to this Feb. 27th Atlantic article by Andrew Cohen is "The chief justice pens a paean to criminal defense attorneys, never mentioning the national crisis the Court has helped perpetuate."

A number of readers have sent notes referring the ILB to this article.

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Courts in general

Ind. Gov't - What is a "timely" period for a response under the Public Records Act? More than five months?

On Feb. 28th the Public Access Counselor issued a 3-page opinion re Formal Complaint 14-FC-15; Alleged Violation of the Access to Public Records Act by the Indiana Department of Education.

The complaint to the PAC was dated a month earlier, Jan. 29th, and said that although a request had been submitted to the DOE on August 8, 2013:

The Department acknowledged receipt of your request; however, as of the date of your formal complaint they had not produced any documentation responsive to your request. The Department responded to your complaint on February 12, 2014 stating they were still in the process of satisfying numerous other requests received and had not processed your request.
More from the opinion:
Your request is presumably pursuant to a debate sparked in August 2013 regarding the Department’s A-F school accountability grading system administered by the previous Indiana Superintendent of Public Instruction Tony Bennett. Most of the materials you are seeking appear to be related to that particular situation. The alleged controversy was widely covered in local and national press. Consequently, I am aware the Department’s incoming administration has received abundant requests for information very similar to your request.

I point this out because the Department’s claim they have received “numerous requests for information and we process the requests in the order we receive them” is likely under these circumstances. And while you are entitled to the records you seek (notwithstanding any confidential or deliberative material) it is to be expected the Department would be the recipient of a large number of public records request related to this controversy. * * *

Reasonableness is a subjective standard which changes on a case-by-case basis. To conclude the Department has not yet caught up with the numerous requests for information would not be beyond reason. Moreover, the APRA is not intended to interfere with the regular discharge of the functions or duties of the public agency or public employees. See Ind. Code § 5-14-3-7(a). It is my understanding the Department has only a limited number of staff members assigned to address public records requests. Considering the amount of attention this matter has generated, your request may still be waiting in queue.

You are likewise correct stating an agency should produce portions of a response as they become available in situations where the request is large. This has been my standing opinion as well as former Public Access Counselors. As your response is being processed, I encourage the Department to release the disclosable information in a piecemeal manner. However, as they have not begun to work on your request, this is not practical at this time.

Five months is certainly a long time to wait for records production. In normal circumstances, even for a request as large as yours, I would find a violation if the agency had not produced any records responsive to the request. Given the unprecedented amount of attention and public records requests received by the Department in light of Augusts’ news cycle, I do not find it unreasonable the Department has taken this amount of time to even commence investigation into the response to your request.

ILB: Here are some ILB observations, in no particular order:

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Indiana Government

Ind. Decisions - Fourteen New Cases Added to the Indiana Supreme Court’s Oral Argument Calendar

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

Updating this post from November 27, in the past month the Indiana Supreme Court has added the following fourteen cases to its oral argument calendar.

THU, APR 24, 2014 at 9:45 AM Robert Corbin v. State of Indiana FP Granted
THU, APR 24, 2014 at 9:00 AM Curtis Sample v. State of Indiana NFP Granted
THU, APR 10, 2014 at 10:30 AM Nick McIlquham v. State of Indiana FP Granted
THU, APR 3, 2014 at 9:45 AM Phillip J. Griffin v. State of Indiana FP Granted
THU, APR 3, 2014 at 9:00 AM Keion Gaddie v. State of Indiana FP Granted
THU, MAR 20, 2014 at 10:30 AM Matter of C.H.; J.E. v. L.H. NFP* Granted
THU, MAR 20, 2014 at 9:45 AM Detona Sargent v. State of Indiana (civil) FP Granted
THU, MAR 20, 2014 at 9:00 AM Randy L. Knapp v. State of Indiana Direct appeal (LWOP)
THU, MAR 13, 2014 at 10:30 AM Paternity of I.B., K.H. v. L.B. NFP* Pending
THU, MAR 13, 2014 at 9:45 AM Michael E. Lyons, et al. v. Richmond Community School Corporation, et al. FP Granted
THU, MAR 13, 2014 at 9:00 AM Mayor Gregory Ballard v. Maggie Lewis, et al. Direct appeal 56(A)
THU, FEB 13, 2014 at 10:30 AM Kenyatta Erkins and Ugbe Ojile v. State of Indiana FP Granted
THU, FEB 13, 2014 at 9:45 AM Christopher Cross v. State of Indiana FP Granted
THU, FEB 13, 2014 at 9:00 AM William Eisele v. State of Indiana NFP Pending
*Motion to publish denied

Two of the fourteen cases are direct appeals. Ballard v. Lewis is the Marion County City-County Council redistricting case in which the Court granted emergency transfer under Appellate Rule 56(A). Knapp v. State is a life without parole case, which is a direct appeal to the Supreme Court under Appellate Rule 4(A)(1)(a).

Of the remaining twelve transfer cases, one-third (4/12) involve unpublished opinions from the Court of Appeals. Interestingly, in two of those cases the losing party (Appellant) filed a motion to publish with the Court of Appeals, which was denied.

The earlier practice of scheduling oral argument to decide whether to grant appears to be declining. Less than 17% (2/12) of the transfer cases involve pending petitions to transfer.

Finally, almost 65% (9/14) of the arguments are in criminal cases. The three criminal cases argued on February 13 were scheduled for oral argument on fairly short notice. (The two cases that had previously been scheduled for oral argument on February 13 were removed from the calendar; one was continued, and the Court dismissed the petition in the other upon the request of the Appellant.) The order in Erkins/Ojile was issued January 16, and the orders in Eisele and Cross were issued on February 4. As counsel in one of those cases, I can report that the court administrator calls and secures counsels’ consent before scheduling oral argument with less than a month’s notice.

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Schumm - Commentary

Ind. Decisions - Court of Appeals issues 2 today (and 9 NFP)

For publication opinions today (2):

In Joseph amd M. Carmen Wysocki v. Barbara A. and William T. Johnson, both individually and as Trustees of the Barbara A. Johnson Living Trust, a 9page opinion, Judge Friedlander writes:

Joseph and M. Carmen Wysocki appeal the denial of their request for attorney fees and additional damages under Indiana’s Crime Victims Relief Act, [IC 34-24-3-] (the CVRA). We affirm. * * *

The foregoing reflects that the elements of common-law fraud and the criminal offense of fraud are different. So, too, is the burden of proof necessary to prove those two allegations. Thus, it cannot be said that authorization of attorney fees in the CVRA for victims of criminal offenses that can be categorized as fraud extends to the common-law tort of fraud. Simply put, in its current form, the CVRA authorizes certain fees only for victims of certain, specific criminal offenses, as well as for liability arising under I.C. § 24-4.6-5 et seq., which does not apply here. The Wysockis were not victims of the criminal offense of fraud because the Johnsons were not charged with that crime in relation to the sale of the house, much less convicted of it in a court of law. In the absence of such a conviction, the CVRA does not apply. Accordingly, the trial court did not err in denying the Wysockis’ request for attorney fees under its provisions.

In CBR Event Decorators, Inc., Gregory Rankin, Robert Cochrane and John Bales v. Todd M. Gates , a 13-page opinion, Judge Robb writes:
CBR Event Decorators, Inc. (“CBR”) and its individual shareholders Gregory Rankin, Robert Cochrane, and John Bales (collectively, “Shareholders”) bring this consolidated appeal, challenging the trial court’s award of attorney fees and order requiring $1,000,000 from a letter of credit to be deposited with the trial court clerk. The Appellants raise the following issues for our review: (1) whether, following a decision by this court in a previous appeal in this case, the trial court erred by ordering that the Shareholders be personally liable for attorney fees on a claim against CBR for wrongful stop payment of a check; (2) whether the trial court erred by failing to hold a hearing regarding the amount and reasonableness of attorney fees; (3) whether the attorney fee award of $290,093 was unreasonable; and (4) whether the trial court erred by granting an ex parte order requiring $1,000,000 from a letter of credit to be deposited with the trial court clerk. We conclude Shareholders are not personally liable for attorney fees on the wrongful stop payment claim.1 However, we find the ex parte order requiring deposit of $1,000,000 with the trial court clerk was not reversible error. Therefore, we affirm in part and reverse in part.
NFP civil opinions today (3):

In Re the Involuntary Termination of the Parent-Child Relationship of D.D. and J.D.: D.H. (Mother) and J.P.D. (Father) v. The Indiana Department of Child Services (NFP)

Suzanne Throgmartin v. Wilson S. Stober and Christopher E. Clark (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.C., Minor Child, and his Father, M.C., M.C. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (6):

Tanya R. Dawson v. State of Indiana, City of Indianapolis, and Indianapolis Metropolitan Police Department (NFP)

Federal Home Loan Mortgage Corporation v. Janice M. Stern (NFP)

Shearece M. Love v. State of Indiana (NFP)

Cornell Johnson v. State of Indiana (NFP)

Timothy J. Tkachik v. State of Indiana (NFP)

Dawn Jackson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Kentucky Attorney General Conway faces unenviable situation"

Columnist Joseph Gerth wrote yesterday in the Louisville Courier Journal that begins:

Attorney General Jack Conway, who wants to be the next governor, is in an unenviable situation.

With U.S. District Judge John G. Heyburn issuing his final ruling last week in the case challenging a Kentucky law that prohibits the state from recognizing gay marriages from elsewhere, Conway has to decide whether to appeal his decision.

He and governor Steve Beshear have said they’ll work quickly to decide whether to take the case to the 6th Circuit Court of Appeals in Cincinnati or if they’ll do as Democrats have done in six other states — walk away believing that the framework established by the U.S. Supreme Court in the Windsor case means that they can’t win. * * *

No matter what [AG] Conway decides, he’ll surely anger a sizable portion of Kentucky’s electorate — one group that could make it tough to win a Democratic primary for governor and the other group that could make it difficult to win the general election.

And while [Gov] Beshear says he has run his last political race, he certainly wants to protect his own image, lest he sully the Beshear brand as his son, Andrew, gears up to run for Attorney General in 2015.

Here is the updated ILB post on the status of the Kentucky case, which involves the issue of whether Kentucky is required to give recognition to same sex marriages performed in other states.

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Courts in general

Ind. Gov't. - Status of HB 1306, that allows $20 per hour search fee for public records requests

Updating this Thursday, Feb. 27th ILB entry, HB 1306 passed the Senate later that same day by a vote of 38-10. Here is the roll call.

As there were amendments in the Senate, it was returned to the House for concurrence or dissent. Here is the current version of HB 1306.

Authored by: Rep. William Friend
Co-Authors: Rep. Kathy Richardson
Sponsors: Sen. Travis Holdman, Sen. Randall Head, Sen. James Arnold

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Indiana Government

Ind. Gov't. - So who pledged "campaign cash to protect House members who were considering voting against a constitutional gay marriage ban"?

It turns out it was a former Republican party chairman. Tom LoBianco of the AP has the story today. Some quotes:

INDIANAPOLIS (AP) — A former Republican Party chairman's pledge to provide campaign cash to protect House members who were considering voting against a constitutional gay marriage ban offers a rare look at the private power game that plays out on tough issues at the Statehouse.

Jim Kittle offered "unlimited" campaign help to House Speaker Brian Bosma as part of a push to defeat the proposed amendment, according to multiple people with direct knowledge of the discussion. They spoke on condition of anonymity because they weren't authorized to disclose the private discussions.

Kittle withdrew his offer after Bosma questioned its legality, and it turns out the money wasn't needed after all. Only four House Republicans targeted by ban supporters face primary challenges, and changes to the proposed amendment's language will keep the issue off the ballot until at least 2016. But the back-room intrigue illustrates how election-year politics and campaign dollars shape some of the state's most important decisions. * * *

Bosma first announced an offer of campaign dollars in a January news conference but did not identify the potential contributor.

"I received a pledge of unlimited campaign funding if I were to make this issue go away," Bosma announced.

Bosma said he rejected the offer and expressed concern that it might have violated state or federal law. He has worn his decision as a badge of pride throughout the session, telling reporters he does not bow to threats or intimidation.

Bosma told The Associated Press last week that he didn't think the offer constituted a crime. But the speaker, who has never said Kittle made the offer, acknowledged voicing some concerns.

"I did bring to that individual's attention what it sounded like he was saying and I think he was pretty concerned about it after he said it," Bosma said.

Kittle did not return calls seeking comment.

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending February 28, 2014

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

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Indiana Transfer Lists

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

From Sunday, March 2, 2014:

From Saturday, March 1, 2014:

From Friday afternoon, February 28, 2014:

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, March 6

Next week's oral arguments before the Supreme Court (week of 3/10/14):

Thursday, March 13

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/3/14):

Tuesday, March 4

Friday, March 7 Next week's oral arguments before the Court of Appeals (week of 3/10/14):

Wednesday, March 12

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

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


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

Posted by Marcia Oddi on Monday, March 03, 2014
Posted to Upcoming Oral Arguments

Sunday, March 02, 2014

Law - More on "Unsealed email ties Wisconsin Gov. Scott Walker to secret email system"

Updating this ILB post from Feb. 19th, Joe Strupp of Media Matters had a story the following day, Feb. 20th, headed "How A News Coalition Dug Up Scott Walker's Email Secrets."

Posted by Marcia Oddi on Sunday, March 02, 2014
Posted to General Law Related

Ind. Gov't. - More on "Purdue University Rejects Donor's Reference to 'God's physical laws' on Plaque Honoring Parents' Legacy"

Since the ILB first broke this story last Thursday morning, a number of stories have followed. This one today by columnist Dave Bangert, in the Lafayette Journal Courier, is by far the best, and the longest. A sample:

[Donor Michael] McCracken’s attorney, Robert Kelner, said Purdue is stifling his client’s free speech rights by reneging on an offer to write an inscription. Steve Schultz, Purdue’s legal counsel, made things a bit more dicey by essentially saying the university agrees in principle with McCracken — if only there was a way to guarantee against potential lawsuits and “the hopelessly muddled state of jurisprudence in this particular area” that could wipe out the value of a donation that comes in five yearly installments of $2,500.

On one hand, you have a question on the limits of speech. Does an invitation to write something to hang as a fixture on a state-run university offer absolute First Amendment rights? (Take religion out of the mix for a second. What if he’d written: “Mitch Daniels is a doofus,” “Purdue is a lousy place to go to school,” or, heaven forbid, “Neil Armstrong was no hero of mine?”)

On the other hand, there’s an implication in Schultz’s justification that there’s a price for everything at Purdue. The McCracken donation just didn’t meet it. So what price would have eliminated what McCracken’s lawyer called the fear of defending against a “heckler’s veto?” Upward of $100,000? $1 million? $12 million? No telling.

Either way, Purdue has no decent landing zone at this point.

Bangert's long column concludes:

Will McLauchlan, a political science professor at Purdue who specializes in constitutional law, said the university is in a bind of its own making, by accepting a donation and offering carte blanche on an inscription. But now that it’s out there …

“Whether one believes in a complete wall of separation, as some of us do, or if we would tolerate some overlap, such as a ‘grace’ before dinner at a banquet in the (Purdue Memorial) Union, putting this kind of reference in a visible and semi-permanent way on the wall is not appropriate,” McLauchlan said. “Furthermore, since we value or prize diversity, which includes religious diversity, would we allow a similar reference to Mohammed on a classroom or hallway wall if the benefactor was Muslim? The university allowing ‘God’ would permit reference to any religious deity chosen by the benefactor. That is not a position the university should be in.

“The university should give the money back and thank the benefactor for considering Purdue.”

If it were only that easy — or as easy as wishing Purdue had etched McCracken’s inscription, put the plaque on the wall and quietly backed away, figuring no one would notice or care about a fairly innocuous reference to God.

Too late now. Purdue drew another line in the gray area of church and state. And everyone on both sides of that line is watching to see if it holds up.

Posted by Marcia Oddi on Sunday, March 02, 2014
Posted to Indiana Government

Ind. Decisions - " Divided opinions on contraceptive mandate: Notre Dame only religious entity denied contraceptive injunction"

Madeline Buckley of the South Bend Tribune has a good, very long story in the Sunday edition with this introduction:

The form that allows religious nonprofits to opt out of paying for contraceptives is two pages long, with three fill-in boxes for information and a line for a signature and date.

Its basic simplicity on the surface is at odds with the divisive and complicated litigation it has spawned.

For the University of Notre Dame and 18 other religious nonprofit organizations that have challenged the contraceptives mandate of the Affordable Care Act, the form is just a piece of paper that still forces them to play a role in facilitating coverage that is against their religious beliefs.

But for the government, the form is a compromise that allows these nonprofits to declare their opposition and shift the payment of the contraceptives elsewhere.

It's an issue that has already resulted in divided opinions among judges who have heard bids for temporary exemptions from the mandate, making it a case that could head to the U.S. Supreme Court, some experts say.

That is if the nation's high court ruling on the similar Hobby Lobby lawsuit (expected in June) doesn't have strong implications for cases like Notre Dame's.

A key difference in the cases, though, -- Hobby Lobby is a for-profit business with no religious affiliation -- might gear up the nonprofits for a separate fight.

Posted by Marcia Oddi on Sunday, March 02, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Update on the Clark County Drug Court decertification

Updating a long list of earlier ILB entries on the Clarke County Drug Court decertification, Gary Popp of the Jeffersonville News & Tribune, who has covered this story from the beginning, has two new reports, both dated March 1.

" Officials work to right Clark County Drug Court: Judge Jacobi relinquishes program to fellow judge" is a lengthy story, here are a few quotes:

JEFFERSONVILLE — Officials are trying to determine how to best supervise the nearly 80 participants in the Clark County Drug Treatment Court after the court lost its certification last month.

Judge Jerry Jacobi’s Clark County Circuit Court No. 2 ran the drug court program, until it was recently decertified by the Indiana Judicial Center (IJC) in Indianapolis. An IJC official said this week that in the 11 years of providing certification to more than 50 counties that offer problem-sovling courts, such as the drug court program, Jacobi’s drug court is the first and only program to have its certification revoked by the state agency.

Clark County Chief Deputy Prosecutor Jeremy Mull said Friday that Jacobi has followed legal procedure and transferred what remains of the program to Clark County Circuit Court No. 4 Judge Vicki Carmichael.

The story reports that the services cannot simply be continued in the new court, because the IJC requires that any supervision must be done by a certified drug court. Much later in the story:
The program lost its certification after IJC Executive Director Jane Seigel notified Jacobi in a letter: “We have been made aware of the recent allegations of unlawful conduct by drug court staff and drug court practices harmful to participants. Regretfully, the seriousness of these allegations necessitates an immediate suspension of Clark County Drug Court operations.”

Before the certification was revoked, several drug court participants made allegations of false arrest by drug court officials and being held in the Clark County jail without due process, including not being taking before a judge during months-long incarceration. One participant involved in a class action law suit — in which Jacobi and other drug court officials are named as defendants — was incarcerated for nearly five months following a 48-hour sanction without appearing in court.

Jacobi placed the program’s director Susan Knoebel and his court bailiff and former drug court field officer, Jeremy Snelling, on unpaid leave Jan. 7. Knoebel was later terminated and Snelling remains on suspension.

While the future of a drug court program in Clark County remains unknown, [Jeffersonville attorney Drew] Adams said those suffering addiction, as well as prosecutors and court staff, all benefit from a court-operated controlled-substance program.

“Essentially, the program is a good program, if it is ran properly and executed properly,” he said. “There is a need for it in Clark County and Southern Indiana.”

County officials must take direction for the IJC, an arm of the Indiana Supreme Court, while navigating how to best handle the drug court.

“We are all trying to abide by the [the IJC’s] directive and advice and guidance on how to go forward, but the fact of matter is, this is an unprecedented situation in Indiana,” [Prosecutor] Mull said.

Popp's second story yesterday is a report that "[a]nother possible lawsuit for Clark County officials has surfaced following alleged misconduct of Clark County Drug Treatment Court officials."

Posted by Marcia Oddi on Sunday, March 02, 2014
Posted to Indiana Courts

Courts - "Renting Delaware Judges for Secret Rulings"

The ILB had a post Jan. 23rd, quoting stories about the State of Delaware's plans to appeal a 3rd Circuit decision holding that, as Reuters reported, "the state violated the U.S. Constitution with its novel system of allowing judges to arbitrate private business disputes, which critics called secret trials."

Judith Resnik, a professor of law at Yale, had this op-ed in the Feb. 28th NY Times (there are 110 comments). A few quotes from the article:

NEW HAVEN — SHOULD wealthy litigants be able to rent state judges and courthouses to decide cases in private and keep the results secret?

The answer should be an easy no, but if the judges of Delaware’s Chancery Court persuade the United States Supreme Court to take their case and reverse lower federal court rulings outlawing that practice, corporations will, in Delaware, be able to do just that. * * *

Delaware passed a law in 2009 offering new privileges to well-heeled businesses. If litigants had at least $1 million at stake and were willing to pay $12,000 in filing fees and $6,000 a day thereafter, they could use Delaware’s chancery judges and courtrooms for what was called an “arbitration” that produced enforceable legal judgments.

Instead of open proceedings, filings would not be docketed, the courtroom would be closed to the public and the outcome would be secret. The Delaware Supreme Court could review judgments, but that court has not indicated whether appeals would also be confidential.

A group called the Coalition for Open Government, including news and civic organizations, objected that Delaware’s legislation was unconstitutional. In 2012, a federal judge agreed that the law violated the public’s right of access to civil proceedings under the First Amendment. A divided appellate court concurred. Delaware judges are now asking the Supreme Court to reinstate Delaware’s system.

Posted by Marcia Oddi on Sunday, March 02, 2014
Posted to Courts in general

Ind. Decisions - "Acapulco’s Owners Sentenced; One Must Pay $305K In Restitution"

Updating a long list of earlier ILB entries, Mike Perleberg reported Feb. 28th in EagleCountyOnline:

(Lawrenceburg, Ind.) – Sentencing has come for two brothers who pleaded guilty to illegal activity at their southeast Indiana chain of restaurants.

Adolfo Lopez and Benito Lopez owned and managed Acapulco’s Mexican Restaurants in Dearborn, Ripley, and Ohio counties. Those restaurants were raided by Indiana State Excise Police in 2012 after an investigation determined the restaurants had been under-reporting their sales taxes.

Last month, Adolfo Lopez, 44, agreed to pleaded guilty to Corrupt Business Influence (Class C felony), Forgery (Class C felony), Perjury (Class D felony), Theft (Class C felony), and Money Laundering (Class C felony). Benito Lopez, 50, pleaded guilty to Perjury (Class D felony). * * *

Lopez’s cash and vehicles seized during the 2012 raid will be kept by the state, because they were the proceeds of criminal activity, according to the plea agreement. Lopez will keep $61,607 – presumably to pay the restitution lump sum – as well as a pickup truck and his home in Greendale.

Benito Lopez, of Batesville, was given one year on probation. While no restitution payment was ordered, his agreement stipulated that all cash or currency and vehicles seized, with the exception of real property, will be kept by the state.

During the raids of the restaurants in 2012, 109 arrests were made including the restaurant owners and their employees. Dearborn County prosecutors dismissed the charges against 107 of the suspects, but continued to prosecute the Lopez brothers.

Posted by Marcia Oddi on Sunday, March 02, 2014
Posted to Ind. Trial Ct. Decisions