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Wednesday, April 30, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 14 NFP)

For publication opinions today (4):

In L.C. Neely Drilling, Inc. and Maverick Energy, Inc. v. Hoosier Energy Rural Electrical Cooperative, Inc., a 12-page opinion, Judge Friedlander writes:

L.C. Neely Drilling, Inc. and Maverick Energy, Inc. (collectively, Maverick) appeal from the trial court’s ruling in favor of Hoosier Energy Rural Electrical Cooperative, Inc. (Hoosier Energy) upon the parties’ cross-motions for partial summary judgment. On appeal, Maverick argues that it was entitled to summary judgment or, alternatively, that a genuine issue of material fact precluded summary judgment in Hoosier Energy’s favor. We affirm. * * *

For all of these reasons, we conclude that the lease clearly and unambiguously provided that if Maverick had not begun paying production or shut-in gas royalties by the end of the initial term, the lease would continue year-to-year upon the timely payment of advance royalties. Because Maverick failed to timely pay advance royalties, the lease expired by its own terms and without the need for Hoosier Energy to issue a demand. Because the language of the lease is clear and unambiguous, we will not consider Maverick’s extrinsic evidence concerning the history of advance royalty payments. See Bd. of Com’rs of Delaware Cnty. v. Evans, 979 N.E.2d 1042. Accordingly, there are no genuine issues of material fact and Hoosier Energy is entitled to judgment as a matter of law. The trial court therefore properly granted Hoosier Energy’s motion for partial summary judgment and denied Maverick’s motion for partial summary judgment.

In Gary Community School Corporation v. Prince Lardydell b/n/f Erma Lardydell , an 18-page opinion, Sr. Judge Darden writes:
Gary Community Schools Corporation (“GCS”) appeals the trial court’s entry of judgment in favor of Prince Lardydell by his mother and next friend, Erma Lardydell. We affirm.

GCS raises three issues, which we restate as:
I. Whether the trial court abused its discretion in admitting evidence.
II. Whether the trial court abused its discretion in instructing the jury.
III. Whether the jury’s damage award of $120,000 is supported by the evidence.

In In Re the Adoption of L.T.: J.M. and S.M. v. C.T. , a 13-page opinion, Judge Bailey writes:
C.T. (“Father”) established his paternity of L.T. (“Child”) in the Marion County Circuit Court. The custodial parent (“Mother”) died, and Father allowed maternal grandparents J.M. and S.M. (“Grandparents”) to assume guardianship. A guardianship order was entered by the Hamilton County Superior Court, although Child did not reside there. Paternal grandparents (“Interveners”) intervened and secured transfer of the matter to the Marion County Superior Court, Probate Division, where it was consolidated with Grandparents’ adoption petition. In a non-evidentiary hearing, Father contended that the Hamilton County Superior Court order was void for lack of subject matter jurisdiction. The probate court granted relief from the order and summarily awarded Father physical custody of Child. We reverse and remand for a hearing on the best interests of the child. * * *

Ultimately, however, we need not decide whether, upon death of one parent, the surviving parent is entitled to automatic extinguishment of an existing guardianship. Those are not the circumstances of this case. Here, Father relinquished a right to custody of Child immediately upon Mother’s death. For reasons not yet developed in a best interests hearing, Father signed – subsequent to Mother’s death – a consent to guardianship of Child. As no hearing has been conducted, the record on appeal is devoid of any evidence of changed circumstances. We are not in a position to speculate on potential evidence. As to the law, we are not persuaded that either statutory or common law provides Father, who previously acknowledged that Child needed guardians, an absolute and summary right to custody without a hearing on changed circumstances and best interests.

In Austin G. Pittman v. State of Indiana, an 11-page opinion dealing with expungement, Judge Mathias writes:
Austin G. Pittman (“Pittman”) filed a petition in Boone Superior Court to restrict access to the record of his criminal conviction, which the trial court denied. Pittman appeals and presents one issue, which we restate as: whether the statute regarding the restriction of access to criminal records prohibited the trial court from restricting access to Pittman’s record because Pittman had violated the terms of his probation in the conviction at issue. The State cross-appeals and claims that this court is without jurisdiction to consider Pittman’s appeal. Concluding that we have jurisdiction and that the trial court did not err in denying Pittman’s petition, we affirm. * * *

[B]ecause Pittman committed another crime while on probation, he failed to satisfy the obligations imposed as a part of his sentence, and he did not qualify to have access to his conviction records restricted under Indiana Code Chapter 35-38-8. Accordingly, the trial court did not err in denying Pittman’s petition to restrict access to the records of his prior OWI conviction.

NFP civil opinions today (4):

Clarenda Love v. Bruce Love (NFP)

Timothy E. Strowmatt v. Jennifer Smith, Matt Penticuff, Misty Cecil (NFP)

T.W. v. Review Board of the Indiana Department of Workforce Development (NFP)

Robin (Bankert) Hall v. Robert H. Bankert (NFP)

NFP criminal opinions today (10):

Claricea D. Muse v. State of Indiana (NFP)

Kristin A. Houssain v. State of Indiana (NFP)

Yosef M. Hajaji v. State of Indiana (NFP)

Eric Davis v. State of Indiana (NFP)

Dillon W. Grissell v. State of Indiana (NFP)

Neil Short v. State of Indiana (NFP)

Shannon L. Simons v. State of Indiana (NFP)

Alan Ramsey v. State of Indiana (NFP)

Heath Burgess v. State of Indiana (NFP)

Howard Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Ind. App.Ct. Decisions

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

In USA v. James Carroll (SD Ind., Magnus-Stinson), a 15-page opinion, Judge Frederick J. Kapala of the United States District Court for the Northern District of Illinois, sitting by designation, writes:

Defendant-Appellant, James V. Carroll, pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and six counts of sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a). Carroll now appeals the district court’s denial of his motion to suppress having reserved the right to do so in his plea agreement. We affirm.

For these reasons, consistent with the necessary deference to the issuing judge’s determination of probable cause, we conclude that the information in Detective Spivey’s affidavit was sufficient to establish a fair probability that the computer or other digital storage devices within Carroll’s residence would contain evidence of child pornography or sexual exploitation of a child, despite the fact that the photographs were taken approximately five years earlier. Therefore, we hold that there is a substantial basis in the record to support the decision to issue the search warrant for Carroll's residence. As a result, we need not reach the issue of good-faith reliance on the search warrant. Thus, Carroll’s conviction is AFFIRMED.

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "SCOTUS says Indiana must comply with pollution limits"

Maureen Groppe of the Indianapolis Star Washington Bureau reports in a story that begins:

WASHINGTON – Indiana and 27 other states have to reduce power plant pollution that contributes to smog and soot in downwind states, the Supreme Court ruled Tuesday.

The court’s 6-2 decision upholds a rule issued by the Environmental Protection Agency in 2011 to reduce the cross-state pollution that makes it difficult for some states to meet clean air requirements.

Indiana was among the upwind states and power companies that challenged the rule.

Writing for the majority, Justice Ruth Bader Ginsburg said the EPA’s approach is a “permissible, workable and equitable interpretation” of the “good neighbor” provision of the Clean Air Act.

The 6-2 decision was Environmental Protection Agency v. EME Homer City Generation. Lyle Denniston's SCOTUSblog opinion analysis is here.

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Courts in general | Environment

Ind. Courts - "Former regulator’s acts in Duke case not criminal, court rules"

Yesterday's COA opinion in State of Indiana v. David Lott Hardy is the subject of an Indianapolis Star story today by John Russell. Some quotes:

Marion Superior Court Judge William Nelson dismissed the charges last year, ruling that the actions no longer amounted to a crime. Although he scolded Hardy in the courtroom for a “definite betrayal of trust,” Nelson said the General Assembly made changes to the law in 2011 that invalidated the charges. The changes, recommended by the Indiana inspector general’s office, took effect more than a year after Hardy’s actions.

Indiana Attorney General Greg Zoeller appealed the dismissal, saying the law was not meant to be retroactive.

But the appeals court said the issue of retroactivity was not the main one to be decided. It simply ruled that the allegations against Hardy were administrative and ethical violations, not criminal violations, and therefore he could not be held to answer for a crime.

Zoeller is reviewing the ruling and has not decided whether to appeal to the Indiana Supreme Court, spokesman Bryan Corbin said.

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Indiana Courts

Courts - More on "Federal District Court Strikes Wisconsin Voter ID in ACLU Case"

Updating this ILB post from yesterday, the NYT has an editorial today titled "Voter ID Is the Real Fraud" that states in part:

[T]he judge found that 300,000 Wisconsin voters, or 9 percent of all registered voters, lack the required ID — more than twice the margin of victory in the most recent election for governor. “A substantial number” of those voters, the judge found, are lower-income and poorly educated residents who face a “unique barrier” to getting the underlying documents needed to obtain a photo ID. Some cannot afford the $20 for a birth certificate; others must spend weeks tracking down documents at government agencies inaccessible by public transportation.
Jaime Fuller of the Washington Post's "The Fix" surveys the 12 other states whether the voter ID issue is pending.

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Courts in general

Ind. Courts - "2 Democrats sue for voter records in bid for judges' seats"

The hearing is going on this morning. Tim Evans' long story this morning in the Indianapolis Star reports:

Two Democrats running against the party's slate of endorsed Superior Court judge candidates have filed a lawsuit seeking to force the Marion County Board of Voter Registration to give them access to thousands of public voter records.

The lawsuit was filed Monday in Marion Circuit Court by attorney Greg Bowes on behalf of his client, David Hennessy. Bowes and Hennessy are running for Democratic nominations for judgeships.

A hearing is scheduled for 9 a.m. Wednesday on the petition for an emergency order that would allow Hennessy to immediately inspect the documents he sought to obtain through a public records request filed March 13.

The records include home and email addresses of voters, as well as their telephone numbers — valuable data now unavailable to nonslated candidates but available to endorsed candidates through the state party. * * *

The lawsuit highlights the contention surrounding a unique state law that dictates how Marion Superior Court judges are elected — a process that requires candidates seeking endorsements to pay a hefty fee to their respective political parties and guarantees Democratic and Republican candidates never run against each other in the general election.

State legislators created the system in 2006 to try to limit the influence of political parties, though some say it has had the opposite effect. Each party now nominates candidates for half the open judicial seats in a given year, and each party ends up with an equal number of judges on the bench.

Bowes and Hennessy are vying to be among the eight Democrats who will win judicial seats designated for the party in next week's primary election.

But they, along with Indianapolis attorney Christopher Starkey, are running against eight other Democrats endorsed by the party, candidates who paid $14,000 each to cover the cost of the campaign — and to be considered for a party endorsement. * * *

The controversial judicial selection process also is the target of a 2013 lawsuit filed against Gov. Mike Pence, Secretary of State Connie Lawson and members of the Indiana Election Commission. That suit challenges the constitutionality of the state law that limits the number of seats each party can seek.

Voters who choose not to participate in a primary election, which requires them to declare a party affiliation, have no say in who will take the bench, according to the lawsuit filed by the American Civil Liberties Union of Indiana on behalf of Common Cause Indiana. At best, those who do vote in the primary can vote for only half the judgeships in Marion County.

State officials deny the suit's claims, arguing that the Indiana law is constitutional "and only imposes reasonable nondiscriminatory restrictions on voting as part of the state's important regulatory interests," court records show.

The ILB has obtained a copy of the complaint.

In addition, the ILB has located here an April 22, 2014 Public Access Counselor "response to an informal inquiry" re "Reasonable Particularity and Voter Registration Cards." Here is a sample:

Your client stated a preference for receiving the records electronically. The Board has indicated in the past the forms are scanned and uploaded electronically and therefore are maintained in that format. You argue this would presumably ease the retrieval and production of the forms, despite the Board’s contention they are unable to do so. You take exception to their assertion the forms would need to be printed and delivered and consequently your client would be assessed the $.04 Marion County charges for copies. * * *

On the topic of fees, a public agency which maintains public records in an electronic data storage system shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency's data storage system. See Ind. Code § 5-14-3-3(d). This also appears to be consistent with Marion County, Indiana Election Board Resolution No 05-12, which is
attached for your reference. In the case of electronic production, only the direct cost of the production is permitted to be charged under Ind. Code § 5-14-3-8(g)(1). Unless an ordinance or policy reflects otherwise, if you provide a compatible disk to the Board, they would incur no actual cost and should not charge for the cost of production.

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Indiana Courts

Ind. Gov't. - "New sentencing laws prompt local worries around state" [Updated]

Maureen Hayden of CNHI Indiana Statehouse Bureau has a long story today in the Greensburg Daily News and the Logansport Pharos Tribune on Indiana's new sentencing laws which go into effect July 1. From "page 2" of the 4 "page" story:

It’s unclear how many offenders will be diverted out of state prisons when the new sentencing legislation goes into effect. But a January study, done for the Legislature by the American Institutes for Research, predicts the impact on local communities will be significant.

The study estimates more than 14,000 offenders could be diverted out of state prisons and back into local communities every year if judges take full advantage of the new sentencing rules.

The study authors also found many communities aren’t ready: Many, especially in rural counties, lack access to treatment programs for addicts. Others have community corrections programs already operating at or near capacity. The study found less than 25 percent of Indiana’s county jails have the capacity to “fully absorb” the impact of the new sentencing laws.

The ILB has been unable to locate this study online.

[Updated at 10:40 AM]
Thanks to reporter Hayden, who has sent a link to the 178-page AIR Report, "Assessing the Local Fiscal
Impact of HEA 1006."

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Indiana Government

Courts - "SCOTUS Taking Up Police Searches of Data Troves Known as Cellphones"

That is the headline of the NYT's Adam Liptak's pre-argument story re the SCOTUS oral arguments yesterday in the cases of Riley v. Calif and U.S. v. Wurie. A quote:

“The implications of these cases are huge,” said Orin S. Kerr, a law professor at George Washington University, noting that about 12 million people are arrested every year, often for minor offenses, and that about 90 percent of Americans have cellphones.

The justices will have to decide how to apply an 18th-century phrase — the Fourth Amendment’s prohibition of “unreasonable searches and seizures” — to devices that can contain 100 times more information than is in the Library of Congress’s 72,000-page collection of James Madison’s papers.

How Appealing has collected links to some of the post-argument stories here.

SCOTUSblog's Lyle Denniston had a long argument analysis, illustrated with drawings by Art Lien. Amy Howe of SCOTUSblog has additional links in her Wednesday round-up.

Posted by Marcia Oddi on Wednesday, April 30, 2014
Posted to Courts in general

Tuesday, April 29, 2014

Courts - "Federal District Court Strikes Wisconsin Voter ID in ACLU Case"

The case is Frank v. Walker, here is the opinion.

Here is Prof. Hasen's post in the Election Law Blog.

Here is Indiana attorney Bill Groth's take on the opinion, Groth earlier brought the first challenge, the Indiana voter ID challenge:

Breaking news. A federal judge in Wisconsin today struck down that state's photo ID law, a law similar in most respects to Indiana's law upheld against a facial challenge in Crawford v. Marion County Election Board. The judge held that the Wisconsin law would excessively burden about 300,000 voters without the required form of ID in violation of the equal protection clause of the 14th amendment. He held that the state's asserted interest in deterring voter fraud was very weak because voter-impersonation fraud has never been detected and is essentially non-existent, noting that in light of the steep criminal penalties and the unlikelihood of a single vote changing an election's outcome, a person would have to be "insane" to impersonate another voter. The judge also held that the law imposes a disproportionate burden on Black and Latino voters and thus additionally violates Section 2 of the Voting Rights Act (the part not yet declared unconstitutional by the Roberts Court).

The Wisconsin law in its entirely is permanently enjoined by the district court, subject to the inevitable appeal to the 7th Circuit on which sits Judge Richard Posner, who has already publicly stated that he now believes voter ID laws are voter-suppression devices. This promises to get very interesting.

Here are many earlier ILB posts on "voter ID".

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Courts in general

Ind. Decisions - Supreme Court decides another today, re "impartial" jury

In Ernesto Roberto Ramirez v. State of Indiana, an 18-page, 5-0 opinion, including a separate concurring opinion, Justice Rush writes:

Every accused has a constitutionally protected right to an impartial jury. We have long recognized that even one juror’s unauthorized contacts and communications may poison the entire jury, but we rely upon trial courts to decide whether a mistrial is the cure. Unfortunately, we have given trial courts inconsistent guidance on both how to make this determination and whether the accused must prove prejudice. Today we clarify our precedent: Defendants are entitled to a rebuttable presumption of prejudice when they can show by a preponderance of the evidence that an unauthorized, extra-judicial contact or communication with jurors occurred, and that the contact or communication pertained to the matter before the jury.

In this case, though, Ernesto Ramirez failed to prove that a juror’s extraneous contact and communications related to his case. As a result, he was not entitled to a presumption of prejudice, and the trial court properly denied his motion for mistrial. We also summarily affirm Ramirez’s sentence. * * *

Federal and Indiana precedent has narrowed the presumption of prejudice to apply in cases where defendants show more than just potential taint—but some Indiana precedent, including our own, has applied that presumption inconsistently. We now clarify its precise scope, and reiterate the proper process for trial courts to address jury taint in the courtroom. We hold that no presumption applies in Ramirez’s case, and that the trial court’s approach in addressing his allegation of jury taint was correct. On all other issues, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A)(2). * * *

In cases of suspected jury taint, a presumption of prejudice still applies in limited circumstances. Whenever defendants can prove, by a preponderance of the evidence, that a juror engages in unauthorized contacts or communications that are directly related to their case, they are entitled to a presumption of prejudice. The State then bears the burden of showing harmless error. Ramirez has failed to demonstrate that he was entitled to a presumption of prejudice because he has not shown that Juror 282’s incident related to his case or even that the other jurors believed it was. Ramirez’s case was instead one of simple juror misconduct, and he has not demonstrated that he suffered gross misconduct or probable harm. We affirm the trial court’s denial of Ramirez’s motion for a new trial, and summarily affirm the Court of Appeals’ decision to uphold his sentence.

Dickson, C.J., and Rucker and David, JJ., concur.

Massa, J., concurs in result with separate opinion. [which begins, at p. 12 of 18] I agree with my colleagues that the trial court properly denied Ramirez’s motion for a mistrial and appropriately sentenced him to an aggregate term of sixty-two years’ imprisonment for murder and criminal gang activity. I write separately because I would decide this case more narrowly and more simply.

The majority, faced with a plethora of somewhat muddled precedent from both federal and state courts, attempts to create order by carving out a new analytical framework and questioning one of our own prior decisions: Griffin v. State, 754 N.E.2d 899 (Ind. 2001). I prefer a gentler approach. After considering the three seminal federal decisions on this issue, I believe they are fully consistent with each other. What is more, I believe we can synthesize them and articulate a reasonable rule without doing violence to our precedent. * * *

State courts of last resort occupy a unique position in the jurisprudential hierarchy. We are accustomed to being final and thus necessarily infallible, but when we address issues of federal constitutional dimension, we must suspend that custom. Just as our own state trial and intermediate appellate courts must study our opinions and try to apply the rules we articulate, we must study federal Supreme Court opinions, endeavor to distill from them a rule, and apply that rule to the case we are entrusted to decide. I am confident that if we are inadequate to the task, our federal colleagues will so advise us.

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - An Election That Matters: Judicial Primaries One Week from Today [Corrected Table]

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

A recent Indianapolis Star article, which focused on Congressional elections, called next week’s primary “a sleepy affair.” Not so for those concerned about trial courts across the state, where each judge makes potentially life-altering decisions for Hoosiers on a daily basis.

The 2009 A New Way Forward report (from the Strategic Planning Committee of the Indiana Judicial Conference) observed with regard to the 2008 trial court elections that: “in reality, the public may not have a meaningful choice in counties where direct election of judges takes place. In approximately 70% of all recent judicial elections, a judge runs for a specific court with no opposition or runs in a multiple court selection process where the judge is guaranteed to win. In these elections, the general public has little or no ability to remove an ineffective judge from office.” Six years later, most judicial races remain uncontested, although the primaries are of much greater consequence than the general election for most judicial candidates.

Excluding Marion County, candidates face primary opponents in 29 (22%) of the 132 Democratic or Republican judicial races. Only 14 of these judicial seats include both Democratic and Republican opponents, which means, barring the late entry of candidates in races without primary candidates (which may but seldom does happen through party appointment for any race), 118 (89%) uncontested races in the fall.

Challenges to Incumbent Judges

Excluding Marion County, only nine incumbent trial court judges face a primary opponent next week:

Even if the incumbent judge prevails in the Jennings Superior races, he will face a general election opponent. Barring a late entry by party appointment, the other races will not be contested in the General Election.

Marion County Madness

By statute, Marion County voters will select 8 Democratic and 8 Republican candidates in the primary. Each is assured victory in the November “election” where 16 seats are available, unless an independent or third-party candidate were to enter the race. As previously discussed in the ILB blog, the constitutionality of the statute is in some doubt in light of a federal court lawsuit challenging the denial of the right to cast a meaningful vote, which has withstood a motion to dismiss.

The Republican primary includes only eight candidates, but those voting in the Democratic primary will be allowed to vote for eight of the following eleven candidates:

23A GREG BOWES
25A ANNIE CHRIST-GARCIA
26A BARBARA COOK CRAWFORD
27A ANGELA DAVIS
28A DAVID J. DREYER
29A SHATRESE M. FLOWERS
30A DAVID R. HENNESSY
31A CHRISTINA R. KLINEMAN
32A JAMES B. OSBORN
33A MARCEL A. PRATT, JR.
34A CHRISTOPHER K. STARKEY
The ballot will not inform voters that Christ-Garcia, Crawford, Dreyer, and Osborn are incumbent judges or that Davis, Flowers, Klineman, and Pratt join them as the eight candidates endorsed or “slated” by the party. However, a list of the slated candidates is being distributed during early voting and will surely be given to voters at polling places around the county next Tuesday. That may be enough to carry the slate in a low turnout race that draws highly motivated and presumably party-loyal voters. Or perhaps the Democratic party will take more aggressive steps in pushing its candidates, such as the “Say No to the O’s” mailers from Republicans in 2012 that took aim at Carol Orbison and Paul Ogden, the two non-slated candidates.

Marion County’s single Circuit Court will be filled by a contested general election race between Democrat Sheryl Lynch and Republican Therese Hannah, each of whom face no primary opposition.

Marion County’s nine, unique, township-based small claims courts feature just one contested primary. Democrats living in Center Township will have a choice between incumbent Michelle Smith-Scott, the Marion County small claims court judge whose refusal to move her court from the basement of the City County Building to a location outside downtown was upheld by the Indiana Supreme Court last year and the party-slated candidate, Brenda Roper. This race represents a break from past practice of Democrats supporting incumbent judges. Republicans, in contrast, have declined to slate incumbent judges (most recently in 2008).

Judicial Election Trivia

Finally, two somewhat unusual developments may be worth watching next week. First, the new Hendricks Circuit Court judge could be elected with little more than 20% of the vote if the five candidates (the most for any judicial race in 2014) split the vote fairly evenly. The winner will not face a Democratic opponent in November.

Second, at least two judicial candidates have switched parties since their last election. Kitty Coriden (Bartholomew County) and Gary Smith (Jennings County) were elected as Democrats in 2008 but are running as Republicans in 2014. No Democratic opponents have filed for the Bartholomew County primary, but there is a possibility that opponents could be recruited by the party for the general election.

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Schumm - Commentary

Ind. Law - "Legislatures Weigh Constitutional Amendments Enshrining Right to Hunt"

The $$$ WSJ has a long, important story on April 27th headed "More States Aim to Protect Hunting." Indiana has such a constitutional amendment pending, it will be up for second passage in the General Assembly next year. Here are a few quotes form the story by Arian Campo-Flores; the story also includes a national map.

For Don Knight, little compares to the adrenaline rush and camaraderie he feels heading out with friends to hunt rabbits, raccoons and deer in Alabama.

But he said he worries that animal-rights groups around the country are intent on restricting his cherished pastime by pushing measures that, for instance, would forbid the use of dogs to pursue game. * * *

Similar efforts, which have been promoted by the National Rifle Association and sportsmen's groups in recent years, are unfolding in eight other states, while 17, including Alabama, already have such constitutional guarantees. A proposed amendment to create a constitutional right to hunt and fish also will appear on the November ballot in Mississippi, where some lawmakers worry that campaigns in other parts of the country to forbid hunting certain game could make their way to the Magnolia State. * * *

Some animal-rights organizations say fears of outright hunting bans are unfounded. The amendments "are largely an overreaction to efforts that seek to curb abusive or unsporting practices," such as using dogs to corner and tree bears, or baiting animals with food, said Michael Markarian, chief program and policy officer at the Humane Society of the U.S. "Eliminating bear baiting doesn't mean there's no bear hunting."

In Maine, a ballot proposal this fall would prohibit bear hunting with bait, dogs or traps. In California, two laws tightening hunting restrictions were signed in the past two years: one banning bear and bobcat hunting with dogs, the other use of lead ammunition. The second law is aimed at protecting condors and other wildlife that sometimes scavenge carrion with lead fragments in it.

And a lawsuit filed by conservation groups in North Carolina last year seeks to ban coyote hunting in a region of the state populated with endangered red wolves, which are sometimes mistaken for coyotes.

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Indiana Law

Ind. Courts - Challenging job opportunity, running appellate clerk's office

The Supreme Court has just posted this job: Deputy Clerk of Indiana Supreme Court, Court of Appeals, and Tax Court. The applications are due by May 7, 2014. Salary range: $85,000 - $110,000 depending on experience and qualifications. (Interestingly, the current deputy clerk's salary is listed by the state transparency database at $84,706.)

This is an important and high pressure position. On Jan. 31, 2006 then-Chief Justice Shepard announced that:

Supreme Court Administrator Kevin S. Smith will permanently add the duties of Clerk of the Courts to his responsibilities as part of the transition of the Clerk’s position from an elected position to an appointed one, Chief Justice Randall T. Shepard announced today.

The present Clerk of the Courts, David C. Lewis, announced Monday that he is resigning February 10, 2006 to take a job in the private sector.

Under legislation passed in 2004, the Clerk’s position was changed from an elected position to one appointed by the Chief Justice whenever the elected Clerk completes his or her term, or leaves office. Mr. Lewis’ current term would have expired December 31, 2006.

Mr. Smith has been the Supreme Court Administrator, serving as the Supreme Court’s chief appellate counsel and supervising a staff of 8 since 2004. Under the new arrangement announced today, he will also supervise the 14 employees in the Clerk’s office.

“I told the Clerk's staff this morning that for many years Indiana's appellate courts and the public have greatly benefited from effective and accurate work by our Clerk's Office. We have every reason to believe the Clerk’s office will continue to build upon its already substantial foundation,” said Chief Justice Shepard.

David Schanker, who has been serving as Mr. Lewis’s Chief of Staff, will continue in a similar capacity but with the new title, Deputy Clerk of the Courts. The Clerk’s Office is the “front door” of Indiana’s appellate judiciary where appeals to the Supreme Court, Court of Appeals, and Tax Court are filed. The Clerk’s office is also the custodian of the millions of pages of documents filed each year in Indiana’s appellate and runs a substantial operation to preserve vital court records in a lasting format.

Mr. Smith had been named Supreme Court administrator in Oct. of 2004, according to this ILB post, detailing his background. According to the Indiana transparency website, his salary currently is $121, 637.

The deputy clerk position was last advertised on Feb. 5, 2007, according to this Feb. 5, 2007 ILB post:

A job posting on the Indiana Courts website is advertising the position of Deputy Clerk of Indiana Supreme Court, Court of Appeals, and Tax Court.

David Schanker, who currently holds the Indiana position, reportedly is headed to Wisconsin to assume a similar spot there.

Last year about this same time (Jan. 31, 2006), the ILB posted this entry reporting that the Supreme Court was merging the Clerk of Courts position with the Court Administrator position. This followed upon legislation passed in 2004, where the Clerk’s position was changed from an elected position to one appointed by the Chief Justice whenever the elected Clerk completed his or her term, or left office.

Per this March 22, 2007 ILB entry, Heather Smith was selected to fill the deputy clerk position.

There has been some criticism over the years, including in the ILB (lost cases, sudden/odd changes in formatting expectations, etc), of the responsiveness of the clerk's office, and of its ability to innovate to resolve problems. Some harken back to the time when the position was elective and responsible to the voters. Now the Deputy Clerk reports to the Clerk/Supreme Court Administrator who reports to the Chief Justice.

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today, re sufficiency of evidence

In Martin Meehan v. State of Indiana, a 7-page, 5-0 opinion, Justice David writes:

At Martin Meehan’s trial for class C felony burglary, the State offered into evidence, among other things, a glove containing Meehan’s DNA recovered at the scene of the burglary. Meehan was subsequently convicted of class C felony burglary, found to be a habitual offender, and sentenced to a total term of thirteen years in the Indiana Department of Correction. On appeal, he challenges the sufficiency of the evidence underlying his conviction. Finding that Meehan’s jury had before it substantial evidence of probative value from which it could have reasonably inferred that Meehan was guilty of burglary beyond a reasonable doubt, we affirm his conviction. * * *

On appeal, Meehan argued that the State failed to produce sufficient evidence to establish beyond a reasonable doubt that he committed the O.J.S. burglary. Specifically, Meehan contended that it was unreasonable to infer that he committed the burglary “simply because a glove containing his DNA was found at the scene of the crime.” Concluding that “there was no evidence that would support an inference that Meehan’s DNA was found on the glove because he handled it during the burglary, as opposed to some other time,” the Court of Appeals found that the burglary verdict was based on speculation and reversed Meehan’s conviction. * * *

Like a fingerprint, DNA is a marker of identity. Therefore, Meehan’s jury could have found the glove containing Meehan’s DNA, together with other evidence offered by the State, to be sufficient proof of Meehan’s identity as the burglar. Discovered near the damaged overhead door, the glove was located mere steps from the burglar’s point of entry. “A fingerprint found at the point of entry is accorded substantial weight because of its direct relationship to the element of illegal entry.” Id. Thus, the jury could reasonably have inferred that the glove was dropped by Meehan upon entering or exiting the O.J.S. building through the panel of the overhead door he had removed.

Moreover, there was no more obvious explanation for the glove’s presence at the scene. * * *

Meehan also argues that “[t]he [S]tate’s lack of evidence is especially disturbing where police recovered a viable footwear print from a broken door inside the premises and failed to make any comparisons” to his footwear. Whether such a comparison may have helped either side, we will never know. Under Drane, what is required to sustain the verdict is a reasonable inference of guilt drawn from probative evidence. A glove containing Meehan’s DNA discovered at the scene of a burglary just steps from the point of entry and in an area Meehan had no right to be, together with his possession of potential burglary tools, is sufficient evidence to support his conviction for burglary.

Conclusion. Meehan also argues that “[t]he [S]tate’s lack of evidence is especially disturbing where police recovered a viable footwear print from a broken door inside the premises and failed to make any comparisons” to his footwear. (Appellant’s Br. at 9.) Whether such a comparison may have helped either side, we will never know. Under Drane, what is required to sustain the verdict is a reasonable inference of guilt drawn from probative evidence. A glove containing Meehan’s DNA discovered at the scene of a burglary just steps from the point of entry and in an area Meehan had no right to be, together with his possession of potential burglary tools, is sufficient evidence to support his conviction for burglary.

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In State of Indiana v. David Lott Hardy , an 11-page opinion, Judge Pyle writes:

The State of Indiana appeals the trial court’s dismissal of its charges against David Lott Hardy (“Hardy”) for four counts of Class D felony official misconduct. We affirm. * * *

On appeal, the State argues that the trial court erred in retroactively applying the amended version of the official misconduct statute to Hardy because the legislature’s amendment was not remedial in nature and because there was no compelling reason to give it retroactive effect. In response, Hardy argues that the amendment was remedial and, regardless, should still have retroactive effect. Alternatively, Hardy contends that we should affirm the trial court on any basis supported by the record. * * *

Throughout these proceedings, neither party has disputed that the previous version of the statute was in effect when Hardy allegedly committed the violations underlying his charges, and neither party has disputed the fact that none of Hardy’s charges are based on criminal offenses. * * *

We conclude that the trial court properly granted Hardy’s motion to dismiss, although our rationale differs from the trial court’s. * * * Our conclusion is based on the Indiana Supreme Court’s decision in State v. Dugan, 793 N.E.2d 1034 (Ind. 2003), which Hardy cited in all of his motions to dismiss. * * *

[T]he Supreme Court interpreted the “forbidden by law” language of the official misconduct statute as requiring an underlying violation to be criminal in nature.

The State dismisses that interpretation here, arguing that it was merely dicta. Obiter dictum — dicta — refers to statements that a court makes that are not necessary in the determination of the issues presented. * * *

[T]he State was not able to advise us of any cases since Dugan where the State has charged a defendant with official misconduct based on civil, ethical, or administrative violations, rather than criminal offenses. In light of this history, it is clear that Dugan unequivocally established that a charge of official conduct must be based on a criminal offense. See Dugan, 793 N.E.2d at 1039.

The Supreme Court’s holding in Dugan was controlling law eight years prior to the legislature’s 2011 amendment, as well as during the time period when each of the violations underlying Hardy’s charges occurred. Because our Supreme Court has interpreted the official misconduct statute to require a charge of official misconduct to rest upon criminal behavior that is related to the performance of official duties, we conclude that the trial court did not abuse its discretion when it dismissed the State’s charges against Hardy.

In Jeremiah D. Wilkes v. State of Indiana , a 7-page opinion, Judge May writes:
Jeremiah D. Wilkes appeals his two convictions of Class B felony sexual misconduct with a minor. He alleges the court’s admission of hearsay and vouching testimony denied him his right to a fair trial. We affirm. * * *

No fundamental error occurred from the admission of hearsay testimony that was merely cumulative of the victim’s own testimony, and the vouching testimony was harmless in light of the weight of the evidence in the record. Even when considering all that evidence cumulatively, we hold no fundamental error occurred. Accordingly, we affirm Wilkes’ convictions.

In D.D. v. D.P., a 10-page opinion, Judge Baker writes:
In this case, the parties are before this Court for the third time concerning essentially the same stepparent adoption proceedings. Appellant-petitioner D.D. (Stepfather) married K.D. (Mother) in 2007 and wanted to adopt her two children from a previous marriage. However, the children’s father, appellee-respondent D.P. (Father), resides in Washington D.C., and Mother could not convince him to consent to the adoption. Nevertheless, Stepfather’s petition for adoption was granted in 2010 but was vacated for lack of notice to Father.

Another hearing on the adoption petition was scheduled and Stepfather alleged that Father’s consent was unnecessary because he had failed to significantly communicate with the children for a period of at least one year when able to do so. The trial court found that Stepfather had not met his burden, but a panel of this Court remanded after clarifying the correct burden of proof. After reviewing the evidence again and applying the correct burden of proof, the trial court entered findings of fact and conclusions of law in its order denying Stepfather’s petition to adopt the children. Perhaps the trial court’s most compelling finding was that Mother had thwarted Father’s attempts at communicating with the children.

Stepfather now appeals, arguing that the trial court’s finding that Mother thwarted Father’s attempts at communication are clearly erroneous, insofar as Father never tried to directly communicate with the children. Concluding that the trial court did not err by denying Stepfather’s petition to adopt the children, we affirm the judgment of the trial court.

In Tyler J. Veerkamp v. State of Indiana , a 9-page opinion, Judge Pyle writes:
Tyler J. Veerkamp (“Veerkamp”) files an interlocutory appeal of the trial court’s denial of his motion to suppress evidence. We hold that a law enforcement officer has probable cause that Indiana Code § 9-19-8-5 has been violated when fumes or smoke emanating from the engine or power mechanism of a motor vehicle completely obscure a motorist’s view of a portion of the vehicle being followed. We affirm.
In Jamal Ahmad Gore v. State of Indiana , a 6-page opinion, Judge May writes:
Jamal Ahmad Gore appeals the jury’s finding that Gore was guilty of murder1 and Class C felony battery, but mentally ill at the time of the crime. Gore asserts the jury clearly erred in finding Gore guilty but mentally ill, instead of not guilty by reason of insanity. We affirm. * * *

An appellant who complains he or she ought to have been found not guilty by reason of insanity faces a heavy burden on appeal. Id. Because it is the trier of fact’s province to weigh evidence and assess witness credibility, a finding that a defendant was not insane at the time of the offense warrants substantial deference from reviewing courts. Id. Thus, we may not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact. Id. We may set aside set aside a conviction only “when the evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed.” Id. at 710 (quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)). * * *

Gore has not shown that the evidence is without conflict and leads only to the conclusion that he was insane when the crime was committed. Accordingly, we affirm.

In J.K. v. State of Indiana, a 28-page, 2-1 opinion, Judge Robb writes:
J.K. appeals the juvenile court’s adjudication of J.K. as a delinquent based on acts of illegal possession of alcohol, illegal consumption of alcohol, and aiding illegal consumption of alcohol. He raises one issue for our review: whether the trial court admitted evidence against J.K. in violation of his rights under the Fourth Amendment to the United States Constitution, where law enforcement officers entered J.K’s curtilage, conducted a knock and talk lasting approximately one hour, and entered the residence without a warrant. Concluding the officers’ entry onto J.K.’s curtilage, their lengthy knock and talk, and eventual residential entry were unreasonable searches under the Fourth Amendment, we reverse. * * *

We conclude the officers’ warrantless entry on J.K.’s curtilage, including both the sides of the house and back yard, violated the Fourth Amendment. Further, we hold the officers’ presence at the home and continually knocking for approximately one hour without an answer from an occupant exceeded their implied invitation to knock and talk and constituted an unreasonable search in contravention of the Fourth Amendment. Finally, we would also conclude the officers’ warrantless residential entry was unconstitutional. All evidence against J.K. was obtained consequent to these constitutional violations. Accordingly, his adjudications must be reversed.

CRONE, J., concurs.
SHEPARD, Sr.J., dissents with separate opinion. [which begins, at p. 26] J.K.’s lawyer places two assertions before us. He says one officer unconstitutionally entered his backyard, and he claims the officers stayed too long at his property and knocked on his door too many times.

My reaction to these two points is that the officer’s stay in the backyard produced no evidence supporting the juvenile finding that is being appealed, and that the continued knocking is not what led the juveniles inside ultimately to step outside, visibly impaired from drinking.

My take on the events that gave rise to this proceeding, viewed favorably to the trial court’s judgment as the standard for appellate review demands, is rather different than the way the majority sees the facts.

NFP civil opinions today (9):

Damon L. Wallace v. Audra C. Wallace (NFP)

In re the Adoption of E.M., a minor, R.G. v. R.M. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of C.W., minor child, and L.W., Mother, L.W. v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: N.H., A.I-H and P.I-H., Minor Children, A.I-H., Father v. Indiana Department of Child Services (NFP)

Calumet Township Trustee v. Edward R. Hall (NFP)

In re the Marriage of Laura Hyatt v. Charles Hyatt (NFP)

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

In the Matter of the Termination of the Parent-Child Relationship of L.W., J.W., M.T., L.P., C.L.Q., and C.Q. minor children, and L.W., Mother, L.W. v. Indiana Department of Child Services (NFP)

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

NFP criminal opinions today (8):

Ronald A. Manley v. State of Indiana (NFP)

Mark D. Webb v. State of Indiana (NFP)

William P. Montgomery v. State of Indiana (NFP)

Willie Johnson v. State of Indiana (NFP)

Derrick A. Hicks v. State of Indiana (NFP)

Landon Shaw v. State of Indiana (NFP)

Cary Lane Lawson v. State of Indiana (NFP)

Warren D. Bowen v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court reprimands attorney for restricting the rights of an associate to practice after termination of the employment relationship

In In the Matter of: Karl N. Truman, a 5-0 attorney disciplinary action, the Court writes:

We find that Respondent, Karl N. Truman, engaged in attorney misconduct by making an employment agreement that restricted the rights of a lawyer to practice after termination of the employment relationship. For this misconduct, we conclude that Respondent should receive a public reprimand. * * *

In October 2006, Respondent hired an associate ("Associate") to work in his law firm. As a condition of employment, Associate signed a Confidentiality/Non-Disclosure/Separation Agreement ("the Separation Agreement"). If Associate left the firm, the Separation Agreement provided that only Respondent could notify clients that Associate was leaving, prohibited Associate from soliciting and notifying clients that he was leaving, and prohibited Associate from soliciting and contacting clients after he left. The Separation Agreement also included provisions for dividing fees if Associate left the firm that were structured to create a strong financial disincentive to prevent Associate from continuing to represent clients he had represented while employed by the firm.

In October 2012, Associate informed Respondent that he was leaving the firm. At the time, Associate had substantial responsibility in representing more than a dozen clients ("Associate's Clients"). Respondent insisted on enforcing the terms of the Separation Agreement regarding these clients. Respondent sent notices to Associate's Clients announcing Associate's departure. Not all of the notices explained that these clients could continue to be represented by Associate if they so chose, and the notices did not provide clients with Associate's contact information. The Separation Agreement provided that Respondent would provide Associate's Clients with his contact information only if they requested it, and Respondent provided the information to any such clients who specifically requested it.

Despite the provisions of the Separation Agreement, Associate sent out notices to Associate's Clients that explained that the client could choose to be represented by Respondent or by Associate, and that included Associate's contact information. In response, Respondent filed a complaint against Associate seeking to enforce the Separation Agreement. A settlement was reached through mediation. * * *

Indiana Professional Conduct Rule 5.6(a) is for the protection of both lawyers and clients. Comment [1] to this rule states: "An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer." The Separation Agreement hampered both Associate's right to practice law and Associate's Clients' freedom to choose a lawyer by restricting Associate's ability to communicate with the clients and creating an unwarranted financial disincentive for Associate to continue representing them.

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - February Indiana bar exam results

"The following is a list of those applicants who were successful on the February 2014 Indiana Bar Examination. Written notification will be mailed.

"Not all examinees listed are eligible for admission. A successful result on the Indiana Bar Examination is only one of the eligibility requirements to be admitted to the Bar of Indiana. Only examinees that have met all requirements are eligible for admission. No examinee is permitted to practice law until admitted."

Posted by Marcia Oddi on Tuesday, April 29, 2014
Posted to Indiana Courts

Monday, April 28, 2014

Ind. Courts - More on "Dead woman’s video statement to cops admissible"

Updating this ILB post from this morning, Bob Kasarda of the NWI Times is reporting this afternoon:

VALPARAISO | Porter Superior Court Judge Roger Bradford cleared the way Monday for the state appellate court to review his decision from last week to allow videotaped statements from a dead witness to be used in an upcoming murder trial.

Defense attorney Peter Boyles sought the necessary permission to file the interlocutory appeal.

Bradford postponed the May 12 trial for the accused, Dontaye Singletary, to allow time for the appellate court to decide whether the taped testimony can be used. * * *

A former jail cellmate of Singletary told the court earlier this month that Singletary indicated to him that he had the witness in question killed.

The witness, Antoinetta Johnson, 34, of Hammond, was shot to death in her beauty salon Dec. 13, 2012, at 1008 W. Fifth Ave., Gary.

Bradford cleared the use of the videotaped interviews with Johnson under a law that says they can be admitted if it can be shown Singletary was responsible for Johnson not being available to appear at the trial. Singletary forfeited his right to cross-examine the woman.

Upon hearing that Singletary never said directly that he had Johnson killed, Boyles questioned whether the former cellmate was testifying in hopes of avoiding spending the rest of his life behind bars.

ILB: I have highlighted the above sentence because it rang a bell and I located this Sept. 26, 2012 ILB post headed "'Illinois law allowing hearsay to shape [Drew] Peterson case,' and the Indiana connection."

The latter part of the 2012 post discusses the similar and then-new Indiana Evidence Rule 804(b)(5), including: "Indiana's rule was effective July 1, 2009 and has not yet been the subject of court interpretation. This may come soon, however. Yesterday the Court of Appeals heard oral argument in the case of Tyler A. White v. State of Indiana."

A subsequent, Nov. 21, 2012 post summarizes J. Najam's opinion in Tyler, including:

Because there is no reported Indiana case addressing the rule, the application of the rule to the circumstances in this case is an issue of first impression. * * *

Under Evidence Rule 804(b)(5), because White was at least partially motivated to kill Amy to prevent her from testifying at the provisional custody hearing, the trial court properly allowed the challenged hearsay evidence. * * * And we hold that the probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice to White. * * *

We hold that the trial court properly allowed hearsay testimony regarding statements Amy had made to others prior to her death under Indiana Evidence Rule 804(b)(5). The preponderance of the evidence shows that White killed Amy, at least in part, for the purpose of preventing her testimony at the provisional custody hearing.

Transfer was denied in Tyler by the Supreme Court on Feb. 14, 2013.

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Analysis of the Indiana Supreme Court’s First Quarter Opinions (Civil Cases)

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

This is the civil companion to the April 11 post analyzing criminal opinions. As was done there, the following chart considers the timing of opinions, authorship and unanimity, and whether the Court of Appeals and trial court were affirmed or reversed in the cases decided last quarter.

Indiana Supreme Court Opinions (Civil Cases): Jan. 1, 2014 - March 31, 2014*
  Days from
Transmitted
to Grant
Grant to
Oral Arg.
Oral Arg
to Opinion
Grant to
Opinion
Total Time Majority Author Dissent COA Trial Ct.
Amer. Cold Storage 83 105 215 --- 403 BD U A R
Veolia Water 71 84 315 --- 470 SD U R/A A/R
Steiler Ent. v. Evansville 56 105 131 --- 292 BD LR, RR R R
S.D. (CHINS) 42 55 104 --- 201 LR U R R
Yost v. Wabash 79 47 296 --- 422 BD RR A/R A/R
Mitchell v. 10 & Bypass 51 168 161 --- 380 RR U R R
Fayette Co. v. Price 73 84 119 --- 276 BD U R R
E.M. (TPR) 45 63 134 --- 242 LR RR R** A
Adoption of T.L. 51 --- --- 208 259 MM U R A
Moryl v. Ransome 153 --- --- --- 153 BD U R R
Hardiman 58 --- --- 166 224 MM U R A
G.P. (TPR) 38 49 154 --- 241 SD U R R
Justice v. Amer.Fam. 38 171 179 --- 388 MM BD A/R R
S.B. (TPR) 51 --- --- 48 99 PerCur U R R
I.P. (TPR) 28 --- --- 48 76 PerCur U R R
Front Row Motors 136 --- --- 133 269 RR U R** R
Averages 66/60 93 181 121 275        

Nine Month Average

The wait from arrival at the Supreme Court to the rendering of an opinion ranged from less than 100 days in two cases involving the due process safeguards when a magistrate presiding over a termination of parental rights hearing resigns before reporting recommended findings and conclusions to the judge, which were decided by per curiam opinions (S.B. and I.P.), to more than a year in American Cold Storage, Veolia Water, Yost, and Justice. The average of 275 days was remarkably similar to the 278 days for criminal cases.

As with criminal cases, that time period can be broken into three general categories, which do differ in some respects between civil and criminal cases. The shortest period in both types of cases is from the transmission of a case to the Supreme Court to a decision on whether to grant transfer. This took an average of two months in civil cases,*** compared to only three weeks in criminal cases. As explained in the April 11 post, most civil cases are delayed a few weeks while a memo is prepared by staff attorneys in the Supreme Court Administration office. Decisions to grant transfer were generally made more quickly in child cases (for example, only 28 days in I.P. and 38 days in G.P.).

After transfer is granted, oral argument is generally scheduled, although the order setting argument may not be issued for several weeks or longer. Arguments were heard in less than two months in two child cases (S.D., a CHINS case, and G.P., a termination of parental rights case) but took nearly six months in two other cases (Mitchell and Justice). The average delay from transfer grant to oral argument was 93 days, which is significantly quicker than the 140 days in the criminal cases decided last quarter. Perhaps most remarkable here is rendering of opinions in 38% (6 of 16) of civil cases without oral argument.

Finally, after hearing oral argument, the Indiana Supreme Court decided civil cases in as short as 104 days (in S.D., a CHINS case) to more than ten months in Veolia Water. The average was 181 days (or 202 days in non-child cases), which is significantly longer than the 133 days in criminal cases.

More Unanimity

Although only six of the nine criminal opinions (67%) were unanimous, unanimity was higher in civil cases at 75% -- or twelve of the sixteen cases. As in the criminal cases, Justice Rucker was the most likely dissenter, disagreeing with his colleagues on liability of a college for injuries during a pledging “incident” in Yost, the constitutionality of the Evansville smoking ban (Steiler Ent.) by joining Justice Rush’s dissenting opinion, and in a termination of parental rights case (E.M.) in which he would have reversed the trial court because “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.”

Unlike in criminal cases, cases with dissenting opinions did not take longer on average to decide than those decided by unanimous opinions. The cases with dissenting opinions were resolved 185 days after oral argument, which is remarkably similar to the 181 day average for all civil cases.

Finally, consistent with the overall criminal case decision time, the two per curiam opinions were the quickest to receive a decision (an average of only 88 days), which is expected because the Court usually issues per curiam opinions in straightforward cases in which the justices are unanimous.

Low Affirmance of Both Trial Courts and Court of Appeals

Although trial courts were largely affirmed in criminal cases, they fared much more poorly in civil cases before the Indiana Supreme Court, which affirmed trial courts in only 5 of 16 — or 31% of cases. The Court of Appeals fared even more poorly, pulling out a partial affirmance in only 3 of 16 — or 19% of civil cases.

Deference to Trial Court Judgments — not Procedural Errors

As noted in the previous post, the importance of deferring to trial courts was emphasized in at least two of the criminal cases. In Keck, which was decided along with Robinson, Justice Massa explained:

when it comes to suppression issues, appellate courts are not in the business of reweighing evidence. And we reiterate that principle today; our trial judges are able to see and hear the witnesses and other evidence first-hand. But the appellate bench, in a far corner of the upper deck, doesn’t provide such a clear view. Remote from the hearing in time and frequently in distance, we review a cold paper record. Thus, unless that record leads us to conclude the trial judge made a clear error in his findings of fact, we will apply the law de novo to the facts as the trial court found them.
Similar language appeared in a termination of parental rights case (E.M.), where Justice Rush wrote for the majority:
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.
The higher reversal rate of trial courts, though, is explained by the procedural claims decided by the court in several cases. As explained above, the two per curiam reversals involved the lack of due process when a magistrate presiding over a termination of parental rights hearing resigns before reporting recommended findings and conclusions to the judge. Front Row Motors set aside a default judgment for lack of jurisdiction because a party did not receive notice of a hearing. G.P. reversed a termination of parental rights order because a mother 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.”

One quarter provides a fairly small frame of reference for the not-so-newly-comprised Court, which will soon mark 18 months together. Nevertheless, its recent opinions suggest its willingness to reverse for a variety of procedural violations while generally affirming on claims in which the trial court is perceived to be in a “superior vantage point.”

___________________
* The first five columns in the chart consider the number of days for various time periods of each appeal to the Indiana Supreme Court: transmission on transfer to grant of transfer; grant of transfer to oral argument; oral argument to opinions; transfer grant to opinion (for those cases without oral argument); and the total amount of time. If one or more of these steps did not occur in a case, the box was left blank. The next two columns address the authoring justice (by initials) and any dissenting justices. U=unanimous opinion; C=concurring opinion. Finally, the last two columns consider whether the outcome of the court of appeals’ opinion and the trial court’s decision were affirmed or reversed by the supreme court.

** In both of these cases, the Court of Appeals dismissed an appeal, a ruling reversed by the Supreme Court, which then addressed the case on its merits — reversing the trial court in one case and affirming the trial court in another. More broadly, these statistics focus on the claims addressed on transfer by the Supreme Court — and do not include a partial affirmance (A) if the Court of Appeals was summarily affirmed on one or more issues by the Supreme Court.

*** The 66 day statistic includes the 153 day outlier in Moryl — a case in which transfer was granted on the same day the opinion was issued. Otherwise, the average was 60 days.

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Schumm - Commentary

Ind. Decisions - Still more on the Elkhart Four appeals

Updating this ILB post from April 17, which contained links to a number of the documents in the Layman/Sparks appeal, the ILB wrote:

Finally, for now, the ILB has obtained a copy of the brief of Appellant/Defendant Blake Layman. I'm told the Layman reply to the State's brief will be filed shortly.
Here now is the Layman reply brief.

Here are some earlier ILB Elkhart Four posts.

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Ind. Trial Ct. Decisions

Law - China Law Blog useful to non-China law business attorneys too

The ILB was aware of the China Law Blog, but just took a good look at it this morning. It appears to be as useful to the general business attorney who has nothing much to do with China as to the specialist. For instance, check these two recent posts by Dan Harris:

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to General Law Related

Ind. Decisions - Transfer list for week ending April 25, 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, April 25, 2014. It is two pages (and 22 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In John M. Weidman v. State of Indiana, a 5-page opinion, Judge Mathias writes:

John M. Weidman (“Weidman”) pleaded guilty in Bartholomew Circuit Court to Class C felony dealing in marijuana, two counts of Class D felony attempted receiving stolen property, Class D felony dealing in marijuana, and Class D felony possession of marijuana. The trial court sentenced Weidman to an executed term of fourteen years, and Weidman appeals, claiming that he should have been given credit for the time he spent on electronic monitoring as a condition of bond. Because Weidman specifically agreed in his plea agreement that he was not entitled to credit for time that he was on electronic
monitoring, we affirm.
NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: A.C. (Minor Child), and A.C.C. (Father) v. The Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of D.S. and G.S., minor children, and A.C., Mother, A.C. v. Indiana Deparmtent of Child Services (NFP)

NFP criminal opinions today (7):

Sammie L. Booker-El v. State of Indiana (NFP)

Benjamin E. Freed v. State of Indiana (NFP)

Richard L. Jones v. State of Indiana (NFP)

Trent D. Pope v. State of Indiana (NFP)

Blake J. Drapeau v. State of Indiana (NFP)

John W. Dozier v. State of Indiana (NFP)

Carl R. Evanoff v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Senate chief David Long calls for study of trophy deer industry's disease risks"

Ryan Sabalow of the Indianapolis Star reported Sunday in a long story that begins:

The leader of Indiana's Senate said he's willing to consider closing the state's borders to live-deer imports in the wake of an Indianapolis Star investigation that uncovered a link between the trophy deer-breeding industry and the spread of disease.

State Senate President Pro Tempore David Long, R-Fort Wayne, called for a summer study session to discuss the disease risks associated with Indiana's nearly 400 deer farms, and address the decades-long legislative and legal stalemate over high-fence hunting.

"I think the whole issue needs to be analyzed thoroughly," said Long, R-Fort Wayne.

The Star's investigation examined the disease risks and ethical concerns associated with North America's $1 billion captive-deer industry, which breeds animals with freakishly large antlers and ships them to fenced preserves to be shot by hunters willing to pay tens of thousands of dollars for the trophies.

Here is a link to Sabalow's multi-part investigative series earlier this year.

Here is a long list of ILB entries containing the word "deer." The earliest one relvant to the fenced hunting issue is this post from March 25, 2005, quoting a story by Niki Kelly about then pending legislation to strip the DNR of authority " over captive deer, elk and other cervidae livestock operations."

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Indiana Government

Courts - "Stopping Link Rot: Aiming To End A Virtual Epidemic"

NPR Weekend Edition has a story on link rot - some quotes from the start of the story:

Just about anyone who's gone online has encountered the message: "Error 404" or page "Not Found." It's what you see when a link is broken or dead — when the resource is no longer available.

It happens all across the Internet, on blogs, news websites, even links cited in decisions by the Supreme Court. It's called link rot, and it spreads over time as more pages die.

These are natural deaths; links die when the server where the page first lived has closed for business, or a filter is blocking access. It's annoying on sites like Buzzfeed and Gawker, but it's worse when links go rotten on judicial decisions or works of scholarship.

Jonathan Zittrain, professor of law and computer science at Harvard University, says that's a serious problem.

"It's extraordinarily bad for the long-term maintenance of the information we need, say, to understand the law," says Zittrain, who helped create Perma.cc, a service to help judges, authors and scholars preserve links indefinitely.

"When a Supreme Court justice offers a URL to explain what he or she is thinking, if you can't follow it and can't get there, or even worse, if something different is there, people can be misled," Zittrain tells NPR's Scott Simon.

The ILB has had a number of earlier posts on the problem of link rot. Access them here.

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Courts in general

Environment - "IDEM chief: Obama climate change plan bad for Hoosiers"

Lauri Harvey Keagle's story April 25th in the NWI Times began:

HAMMOND | Indiana's top environmental official on Friday said the president's plan to reduce emissions from coal-fired power plants is bad for Hoosier residents and businesses.

"Indiana is based on low-cost electricity," said Indiana Department of Environmental Management Commissioner Tom Easterly. "The economy and the businesses we have are. Having those businesses leave the country is not going to help worldwide greenhouse gas emissions at all and it certainly isn't going to help Hoosiers."

Easterly's comments came during a presentation to the Partners for Clean Air annual kick-off luncheon at Lost Marsh Golf Course in Hammond. The Environmental Protection Agency is calling for stringent rules on new coal-fired power plants and plans to release tougher rules for existing coal-fired plants in June.

Easterly said Obama's plan would create "very expensive changes to our electricity sector," noting Indiana is an energy- and coal-producing state.

"I have serious concerns about how long we're going to be able to run our existing power plants," Easterly said.

Easterly said he believes the plan will increase the cost of doing business in the state, with the costs being passed down to consumers.

"We have a lot of homeowners who can't pay their bills," he said.

Easterly said he has spent the last two weeks traveling the country to meet with other leaders on how states might be able to combat the new standards.

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Environment

Ind. Courts - "Dead woman’s video statement to cops admissible"

James D. Wolf Jr. writes in the Gary Post-Tribune on a trial judge's ruling in a story that begins:

VALPARAISO — Statements a woman made to police investigating a murder case can be used as testimony, even though she is dead, because the defendant likely had a hand in her death, Porter Superior Judge Roger Bradford ruled.

The decision was handed down Wednesday and released Thursday in the case of Dontaye D. Singletary, 22, of Gary. Singletary is charged with murder and is accused of being hired by Sheaurice Major, 43, of Portage to kill 72-year-old Carl Griffith Sr. of Portage on Nov. 1, 2012. Major is also charged with murder.

During the investigation, Antoinetta Johnson, 34, of Gary, told police on video that she introduced Major and Singletary after Major allegedly told her she wanted Griffith killed, and she helped in the process, court records state.

Such statements to police aren’t normally be used as testimony because the witness can’t be cross-examined, but state law makes an exception if the witness is not available due to actions by the defendant.

During an April 14 meeting, former Porter County Jail cellmate John Allen Tener, 49, testified that Singletary indicated someone called “The Ghost” killed Johnson.

Bradford, in his ruling, said Tener’s testimony was “sufficient to show that the defendant encouraged wrongdoing, that is the murder of Antoinetta Johnson” to make her unavailable, and “the court finds that his testimony was more probably true than not true.”

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Warrick Co. Prosecutor under fire from defense community for repeatedly failing to disclose evidence"

That is the headline to this story in the City-County Observer ("Evansville's True Watchdog!"). The story begins:

Warrick County Prosecutor JoAnne Krantz has come under fire from the defense community in Boonimages-36ville, IN. for repeatedly withholding exculpatory evidence in criminal cases.

In February, the Tri-State Times wrote a piece titled, “Attorneys Speak Out About Warrick County Prosecutor” in which defense attorney Rick Martin said Krantz’s office has failed to turn over evidence in a number of cases, causing dismissals in some. This was followed by a run of articles about specific cases in late February and March where other attorneys argued that Krantz wasn’t providing basic – in some instances, court ordered – information to the defense.

In the initial article Martin, who is also the 8th District Republican Head, cites a specific case related to child pornography that was dismissed after Krantz failed to disclose exculpatory evidence. He used the case to illuminate some of the broader problems in Krantz’s office: During a number of cases over the last few years, Martin says, the Warrick County Prosecutor’s office has failed to provide evidence to the defense even after being specifically asked by the court to do so. “A person who is charged with a crime, has the right to see the evidence that is going to be used against them,” says Martin. He says some cases are handled by other deputies, but it’s ultimately County Prosecutor, Joanne Krantz’s responsibility.

Here is the Feb. 18, 2014 Tristate.com story, headed "Attorneys Speak Out About Warrick County Prosecutor."

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Indiana Courts

Ind. Courts - "Clark judges carry heaviest caseload in Indiana"

That is the headline to this April 21st story in the Louisville Courier Journal, reported by Charlie White. Some quotes:

Clark County’s circuit courts were the most overloaded with new cases of any Hoosier county last year, with judges handling more than double the state standard, according to Indiana’s latest caseload study.

The average Indiana county’s courts had about 120 percent of the standard caseload last year, according to the study, which was released this month. But Clark had 232 percent of the caseload.

The study also found the state would need to fund about 89 new judicial officers in various counties to meet the standard caseloads, including hiring about seven more judges in Clark.

Other southern and southwestern Indiana counties were among the top 10 in highest caseloads, including Scott (second, 171 percent), Jennings (third, 161 percent), Vanderburgh (fourth, 157 percent), Spencer (seventh, 151 percent) and Floyd (eighth, 151 percent). * * *

In January 2012, Clark County’s three superior courts were merged with its one circuit court, creating a department with four judges and two magistrates in a move aimed at helping balance the overall caseload.

There are also municipal courts in Jeffersonville and Clarksville that handled about 2,200 of the 3,600 misdemeanors in 2013, according to county records.

Similar courts in Sellersburg and Charlestown previously were eliminated.

Clark County records show its criminal cases involving one or more felonies have more than doubled to 3,089 last year from 1,512 in 2004.

More than half of the new cases involving felonies last year — or 1,746 cases — were in Clark Circuit 3 Judge Joe Weber’s courtroom. Circuit Court 2 Judge Jerry Jacobi worked 958 felony cases, while Clark Circuit 4 Judge Vicki Carmichael oversaw 215 and Clark Circuit 1 Judge Dan Moore handled 170.

Moore noted he presided over three murder cases, including one transferred from Vanderburgh County, and other cases that he said took longer to complete than some felony cases. Carmichael also had lengthy trials involving violent crimes.

“Judges across the state are having to work harder,” Moore said, adding he doesn’t believe adding more judges is the solution.

Prosecutor Steve Stewart is convinced the county needs state relief. He described 2008 budget cuts to his and others departments as “a disaster” that hasn’t gotten better. He was forced to lay off a deputy prosecutor, investigator and two office workers at the time, and nearly all of his workers haven’t seen a pay increase since, he said.

Posted by Marcia Oddi on Monday, April 28, 2014
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/28/14):

Thursday, May 1

Next week's oral arguments before the Supreme Court (week of 5/5/14):

Thursday, May 8

Webcasts of Supreme Court oral arguments are available here.



This week's oral arguments before the Court of Appeals (week of 4/28/14):

Wednesday, April 30

Thursday, May 1

Next week's oral arguments before the Court of Appeals (week of 5/5/14):

Monday, May 5

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, April 28, 2014
Posted to Upcoming Oral Arguments

Saturday, April 26, 2014

Courts - Fascinating amicus brief filed by "Historians of Marriage" in 4th Circuit

While looking through the invaluable collection of briefs collected at Equality Case Files (website forthcoming at equalitycasefiles.org), the ILB ran across this brief, which is fascinating reading, filed 4/18/2014 by a long list of "historians of marriage" in support of Plaintiffs-Appellees in Bostic v. Schaeffer, on appeal to the 4th Circuit. The "Interest of Amici Curiae" reads:

Amici are historians of American marriage, family, and law whose research documents how the institution of marriage has functioned and changed over time. This brief, based on decades of study and research by amici, aims to provide accurate historical perspective as the Court considers state purposes for marriage.

Amici support Plaintiffs-Appellees’ position that allowing same-sex couples to marry is consistent with government purposes for marriage. In view of the changes over time in marriage, amici cannot credit Defendant-Appellant’s arguments that reasons such as “tradition. . . , responsible procreation, and optimal child rearing” justify prohibiting same-sex marriages. (Appellant’s Opening Brief at 40.) The removal of restrictions on choosing a marital partner of one’s own sex accords with the ongoing historical direction of change in marriage rules.

The "Summary of Argument" begins:
In the United States, marriage has changed significantly over time to address changing social and ethical needs, while inheriting and retaining some essential characteristics from English common law. Marriage in all the United States has always been under the control of civil rather than religious authorities. Religious authorities were permitted to solemnize marriages by acting as deputies of the civil authorities only. While free to decide what qualifications they would consider valid by religious precept, they were never empowered to determine the qualifications for entering or leaving a marriage that would be valid at law.

Marriage is a capacious and complex institution. It has political, social, economic, legal and personal components, and conveys meanings and consequences that operate in several arenas. Marriage has served numerous purposes during this nation’s history. It has been instrumental in facilitating governance; in creating stable households, leading to public order and economic benefit; in assigning providers to care for dependents (including minors, the elderly and the disabled); in legitimating children; in facilitating property ownership and inheritance; and composing the body politic. Recognizing multiple purposes in marriage, the states have seen marriage as advancing the public good whether or not minor children are present. Only a highly reductive interpretation would posit that the defining characteristic of marriage is the married pair’s procreation or care of biological children, since marriage has been important in numerous ways.

Marriage has long been entwined with public governance. The relation between marriage and government is visible today in both federal policy and state laws, which channel many benefits and rights of citizens through marital status. Every state gives special recognition to marriage, in areas ranging from tax to probate rules. Federal law identifies more than 1,000 kinds of benefits, responsibilities and rights connected with marriage, as the General Accounting Office reported in 2004. U.S. Gen. Accounting Office, GAO-04-353R: Defense of Marriage Act: Update to Prior Report (2004); see also United States v. Windsor, 133 S. Ct. 2675, 2683 (2013).

Posted by Marcia Oddi on Saturday, April 26, 2014
Posted to Courts in general

Friday, April 25, 2014

Ind. Courts - "Success of Self Help Center in Clark County celebrated"

From the Clark County News & Tribune, a long story by Jenna Esarey. Some quotes:

SELLERSBURG — Indiana Supreme Court Justice Loretta Rush had high praise for the Clark Legal Self Help Center as she delivered the keynote address at its annual Patron and Supporter Luncheon on Wednesday.

“What you’re doing down here is phenomenal,” Rush told the gathering at Cricket’s Café. “I’m full of hope for the work you’re doing. Keep up the good work.”

The help center opened in the Clark County Courthouse lobby in May 2010. In 2011, phase II of the program saw the creation of a computer resource room where guests can access the Indiana Supreme Court website, allowing them to fill out their own court documents for filing.

“The Supreme Court really supports efforts like these,” Rush said. “People need good, solid access to the courts.”

No criminal cases are handled through the help center. Only civil cases, such as divorce, paternity, custody, name changes and eviction proceedings are addressed.

“A lot of times people don’t even know what kind of case they have,” Rush said.

The center does not provide legal advice, although those who qualify financially can be steered to organizations that offer assistance, and some of the attorney volunteers have been known to offer their services at reduced rates.

According to Kathryn Dolan, chief public information office for the Indiana Supreme Court, chief justice Brent Dixon, “feels strongly that people who go into court without a lawyer are not self-represented, they are unrepresented.”

“Absolutely,” agreed Rush. “People are at a real disadvantage when unrepresented. That’s why this help center is so important. They’re giving guidance to help people navigate the system.”

More from later in the story:
The Clark Legal Self Help Center is staffed by volunteer lawyers and students from the University of Louisville, Indiana University Southeast and Ivy Tech.

“You talk about an eye-opener,” said Dan Moore, Clark Circuit Court No. 1 judge, who started the Self Help Center. “You’ll have people crying because they think they may lose custody of their child. It really gives them a grasp of what they’re getting into.”

While the program is specifically aimed at low-income users, all informational pamphlets are available at no cost to all comers.

Kentucky has a similar program in every county, but Indiana has only four throughout the state. The Indiana Supreme Court has “an excellent website though,” Rush said.

“People can really get a lot of help there. [The help center] has just taken it a step further. And with it being located in the courthouse, that’s a big help.”

“There are so many people who really cannot get legal assistance,” said Jill Oca, chair of the program’s board of planners. “I know an attorney — most people don’t.”

“People get scared,” Rush said. “The idea is to help people.”

Posted by Marcia Oddi on Friday, April 25, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP)

For publication opinions today (1):

In Marvin Garner v. State of Indiana, an 8-paage opinion, Judge Pyle writes:

Marvin Garner (“Garner”) appeals his aggregate sentence of sixty years for his convictions for four counts of Class A felony child molesting. We affirm.

Issue. Whether Garner’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). * * *

On appeal, Garner asks that we revise his sentence under Appellate Rule 7(B) based on the nature of his offense and his character. Essentially, Garner argues that we should take into account his age of 68 years and his physical infirmities. As stated above, Garner is paraplegic. * * *

Garner argues that his aggregate sentence is excessive and asks us to order his sentences to be served concurrently, rather than consecutively. He quotes the Indiana Supreme Court’s opinion in Cardwell, in which the Supreme Court stated that appellate courts should “focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence of any individual count.” Id. at 1225. He contends that here we should, similarly, look at the length of the total sentence rather than the number of counts or whether they should be served concurrently. * * *

Even when we examine Garner’s aggregate sentence, we cannot find that the trial court’s sentence was inappropriate. In Cardwell, the Supreme Court elaborated on factors we should consider when evaluating a defendant’s sentence. It stated that “whether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. at 1224. The Court also noted that “[w]hether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences if for no other reason than to preserve potential deterrence of subsequent offenses. Similarly, additional criminal activity directed to the same victim should not be free of consequences.” Id. at 1225.

Here, both of the above factors are relevant to the nature of Garner’s offense. His offenses were committed against multiple victims and against the same victims repeatedly. * * *

For all of the above reasons, we conclude that the trial court’s sentence was appropriate, and we decline to revise it under Appellate Rule 7(B).

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, April 25, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts 2, filed April 24th

In Nick Popovich v. Indiana Department of State Revenue (first motion), a 20-page opinion, Judge Wentworth writes:

This matter involves Nick Popovich’s first Motion to Compel the Indiana Department of State Revenue to respond to fifty-three (53) of his discovery requests and the Department’s Motion for Protective Order that seeks to protect from disclosure the information and documents requested by Popovich. The Court grants the parties’ motions in part and denies them in part. * * *

The Department contends that the information and documents that Popovich seeks are shielded from discovery because they are not relevant, are protected by the deliberative process, work-product, and attorney-client privileges as well as a bar against probing the mental impressions of decision-makers. The Department also maintains that Popovich’s discovery requests are objectionable on several other grounds. Popovich, however, claims that the information and documents he seeks are discoverable because all of the Department’s objections to disclosure lack merit. * * *

[T]he proper inquiry is whether the information and documents sought pertain to the subject-matter of the pending action, the very inquiry answered affirmatively above. Accordingly, the Court finds that Popovich’s discovery requests are relevant. * * *

[T]he Court fails to find that Indiana recognizes a deliberative process privilege applicable to the discovery rules and leaves it to the Legislature to elevate public policy regarding the protection of deliberative processes into a privilege. Consequently, the Department’s objections to disclosure based on an alleged deliberative process privilege fail. * * *

[A] bar against probing the mental processes and deliberations of quasi-judicial decision-makers does not extend to protect the information or documents regarding Popovich’s audit from disclosure. * * *

The Department has provided no reasoning, argument, or citation to precedent or persuasive authority in support of its claims that the work-product and attorney-client privileges bar it from responding to Popovich’s discovery requests.17 Thus, the Department has attempted to shift the responsibility of articulating and adequately supporting its assertions of privilege to the Court. This the Court will not condone. * * *

Conclusion. “[W]hen the discovery matters cannot be resolved by the sincere efforts of counsel, the issues presented to the court should be sharply focused in fact, law, and number, so that the trial court’s time required is minimal and well spent.” Howard, 813 N.E.2d at 1223. Unfortunately, neither party fully complied with this expectation and the Court admonishes them both for failing to do so.

For all the above-stated reasons, the Court GRANTS Popovich’s Motion to Compel, with the exception of Interrogatory Number 4. The Court DENIES the Department’s Motion for Protective Order, with the exception of Interrogatory Number 4. The Department must fully respond to Popovich’s discovery requests and identify the work-product and attorney-client privilege objections with respect to Interrogatory Number 4 with the particularity contemplated by Trial Rule 26(B)(5) within forty-five (45) days of this Order. Consistent with the requirements of Indiana Trial Rule 37(A)(4), the Court will schedule a hearing regarding the propriety of an award of expenses by separate order.

In Nick Popovich v. Indiana Department of State Revenue (2nd motion), a 6-page opinion, Judge Wentworth writes:
This matter involves Nick Popovich’s Second Motion to Compel requesting that the Court order the Indiana Department of Revenue to produce certain original documents for use at a deposition. The Court denies Popovich’s Motion. * * *

“The vital resource of [this Court’s] time should be spent on discovery issues rarely and sparingly.” Howard v. Dravet, 813 N.E.2d 1217, 1223 (Ind. Ct. App. 2004). The expectation that the movant will make a reasonable effort to resolve discovery disputes with the opposing party before moving to enforce, modify, or limit discovery holds true even in instances where, like here, the entire discovery process has been imbued with acrimony. See n.1. Therefore, for all of the above-stated reasons, the Court DENIES Popovich’s Second Motion to Compel. Consistent with the requirements of Indiana Trial Rule 37(A)(4), the Court will schedule a hearing regarding the propriety of an award of expenses by separate order.

Posted by Marcia Oddi on Friday, April 25, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - More on "Panel reviews Rep. Eric Turner’s denial of ethics violations"

Updating this ILB post from April 24th, the Indiana Senate Democrats blog, The Briefing Room, has posted Rep. Eric Turner's 13-page response to the Ethics Committee interrogatories.

Posted by Marcia Oddi on Friday, April 25, 2014
Posted to Indiana Government

Ind. Courts - "Democrats in the race for Marion County Superior Court judge"

Ebony Chappel of the Indianapolis Recorder has a rundown of the Democratic candidates who will be on the primary ballot May 6th for Marion County Superior court. "The Republican candidates running for Superior Court will be featured in the May 2 edition of the Recorder."

"There are 16 seats up for election and the top eight Democratic and top eight Republican vote getters will be the candidates to advance to the general election in November." Eleven Democratic candidates are listed.

Posted by Marcia Oddi on Friday, April 25, 2014
Posted to Indiana Courts

Ind. Courts - SD Ind. "the 6th busiest federal district court in U.S., with 3,498 cases filed in latest year"

Mark Wilson of the Evansville Courier & Press reported this week in a long story - here are some quotes from the story as it appears in the Clark County News & Tribune:

EVANSVILLE — Indiana’s federal courts outpaced the nation for prisoner petitions, civil rights and Social Security cases filed last year, feeding a growing demand on its federal judges.

With its rising number of both civil and criminal case filings, the United States District Court for the Southern District of Indiana has grown to become the sixth busiest district court in the country, according to federal court statistics.

Yet the court, which covers 60 Indiana counties and Indianapolis, Evansville and Terre Haute, has not had a judgeship added since 1978.

There were 3,498 cases filed in district court for the year ending Sept. 30, 2013 — a 14.5 percent increase over the previous period.

Those figures included 2,975 civil cases and felony criminal cases involving 474 defendants. Drug cases — 167, of which only 18 involved marijuana — accounted for most of the new criminal defendants in federal court last year, followed by fraud, firearms and explosives and sex offense cases.

Prisoner petitions for habeas corpus [judicial review] and other reasons made up 30 percent of the Southern District’s new civil cases last year, compared to about 20 percent for other districts. Civil rights cases accounted for nearly 20 percent and Social Security cases 10 percent.

As the number of cases continues to increase so does the time it takes to resolve them. The median time between filing and trial for civil cases in the district increased from 32 months in 2010 to almost 36 months in 2013, said Southern District Clerk Laura Briggs.

“It is fair to say that is a reflection of the significant caseload increase since 2010,” she said. * * *

The five judges and one senior judge of the Southern Indiana federal court district handled an average of 724 cases per during the 12-month period between Sept. 30, 2012 and 2013 — numbers weighted to account for the complexity of case types.

That compares to a national judicial caseload average of 545 cases or 553 cases per judge for the other Indiana, Illinois and Wisconsin federal district courts that make up the 7th Circuit Court of Appeals.

The general standard used for determining the need for an additional judgeship is 430 weighted cases per judge, Briggs said.

“We’re very close to being declared an ‘emergency district’ but it seems like we’re always right on the edge,” [Chief Judge Richard L.] Young said.

He attributes the increasing caseload to the number of prison facilities in the Southern District and the increasing population in the Indianapolis metropolitan area.

Those prisons include Indiana’s maximum security Wabash Valley Correctional Facility and the United States Penitentiary both near Terre Haute.

“We’ve been authorized for another judge since 1997. Actually, our numbers would justify probably two or three additional judges,” Young said.

However, Congress has yet to approve that judgeship. A Judicial Conference led by United States Supreme Court Chief Justice John Roberts and made up of the chief judges from each appeals court circuit and a representative from each district court governs the federal judicial system.

It can recommend adding more judges, but it can’t fund or appoint them. Young said it appears unlikely that Congress will appoint additional judges for the district anytime soon. * * *

The Southern District has four divisions, with courthouses in Indianapolis, Evansville, Terre Haute and New Albany. It’s five judges share duties, splitting their time between cases in Indianapolis and the other divisions. The judges are assisted by a senior judge — a partially retired judge who helps out — and seven magistrate judges.

Young presides over Evansville cases but frequently finds himself on the bench in Indianapolis as well.

“All of the judges are working hard. Technology helps some. We are working long hours and trying to get the issues resolved in all these cases, but the higher the number of cases, the longer it takes to complete them,” Young said.

Rising caseloads take a toll on support staff, too, Briggs said.

“We are fortunate to have a dedicated and skilled staff, but they have labored under the increasing strain. I do not feel there has been any diminishment to the quality of work produced, but the stress level has risen and hours worked has increased,” she said.

Posted by Marcia Oddi on Friday, April 25, 2014
Posted to Indiana Courts

Thursday, April 24, 2014

Ind. Decisions - Updating: One of the COA opinions today is not new, and what's wrong with that

Updating this ILB post from earlier today, with respect to the ILB's comments on the COA's corrected opinion in Taylor v. State, the ILB has received this note (posted with permission) from Chief Judge Nancy Vaidik:

Hi Marcia;

I don’t think that you have seen the full order in this case — it appears the clerk’s docket does not reflect the full order. Below is a copy of the order vacating the prior opinion, albeit unsigned (as I only have the unsigned version in my computer), where we ordered a copy sent to all parties and counsel, Lexis, West, the trial court, and all other sources to which decisions/opinions of our Court are sent. Also, the order indicates the change which was a change “to the effective date of PL 181-2014, which will not affect the substance of the decision.” Today the refiled (new) opinion was filed.
____________

ORDER

JASON TAYLOR,
Appellant,

vs.

STATE OF INDIANA,
Appellee.

CAUSE NO. 45A03-1310-CR-406


On April 17, 2014, this Court issued its For Publication opinion. Thereafter, this Court determined that there was an error in the opinion.

Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:

1. On its own motion, this Court has determined that the April 17, 2014 For Publication opinion is recalled, withdrawn, and vacated. Within ten (10) days of the date of this order, this Court will issue a substitute opinion with technical corrections to the effective date of P.L. 181-2014, which will not in any way affect the substance of the decision reached in this Court’s April 17, 2014 opinion. Accordingly, the time periods for filing rehearing or transfer shall commence as of the date of issuance of the later-filed (substitute) opinion.

2. The Clerk of this Court is directed to send a copy of this order to all parties and counsel of record, the trial court, West/Thomson/Reuters, Lexis, all other sources to which decisions/opinions of this Court are sent, and the Lake Circuit and Superior Courts Clerk.

3. The Lake Circuit and Superior Courts Clerk is directed to file a copy of this order under Lower Cause Number 45G01-0309-FB-49, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders.

ORDERED this __ day of April, 2014.

Vaidik, C.J., May, J., concur.

The ILB responded:
Dear Chief Judge Vaidik

Thanks for your note. No, I had not seen the full order; unfortunately those are not posted, all the public sees is what is included in the online docket. With your permission, I would like to post it now, along with your note.

The problem is that many people, including trial judges and lawyers, keep up with new cases as they are filed either from the online court website itself, or via the ILB and the Ind. Lawyer. Both publications rely on the courts' online opinions.

As I've written, I think the way these new opinions are corrected needs to be rethought. Labeling the face of the opinion with perhaps "Corrected opinion, replaces the version filed XX", plus attaching the full order to the newly filed version, would go a long way to solving the problem.

In my experience, the 7th Circuit does not post a corrected opinion, but does issue and post online an order indicating the changes. Here is a good example from last year.

I also pointed out to the CJ that the Indianapolis Star today has a story reporting on today's opinion as new (rather than simply corrected) [ILB at 8 PM: the Star has now corrected the story], while a number of other papers had stories on the opinion when it was initially filed a week ago. This April 17th story, from the NWI Times, includes a copy of the opinion.

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 2 NFP) [One of the opinions is not new, and what's wrong with that]

For publication opinions today (3):

Jason Taylor v. State of Indiana , a 9-page opinion filed April 24, appears to be intended to replace the earlier opinion, filed April 17, about which the ILB had this post on April 21 pointing to an error re the effective date of the 2014 expungement statute amendments.

I recognized the opinion, but many readers might not, and there is nothing to indicate it is a corrected version of the April 17th opinion. Indeed, it has a new filing date. Currently, both versions can be accessed online. A docket entry indicates the earlier version was withdrawn, but normally attorneys do not review the docket of each case they read. Further, the entry does not indicate what the changes are:

04-21-2014
HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:
1. ON ITS OWN MOTION, THIS COURT HAS DETERMINED THAT THE
APRIL 17, 2014 FOR PUBLICATION OPINION IS RECALLED, WITHDRAWN,
AND VACATED. WITHIN TEN (10) DAYS OF THE DATE OF THIS ORDER,
THIS COURT WILL ISSUE A SUBSTITUTE OPINION WITH TECHNICAL
CORRECTIONS TO THE EFFECTIVE DATE OL P.L. 181-2014, WHICH WILL
NOT IN ANY WAY AFFECT THE SUBSTANCE OF THE DECISION REACHED IN
THIS COURT'S APRIL 17, 2014 OPINION. ACCORDINGLY, THE TIME
PERIODS FOR FILING REHEARING OR TRANSFER SHALL COMMENCE AS OF
THE DATE OF ISSUANCE OF THE LATER-FILED (SUBSTITUTE) OPINION.
FOR THE COURT, NANCY H. VAIDIK, CHIEF JUDGE
VAIDIK, C.J., MAY, J., CONCUR.
(ORDER REC'D 04/21/14 @ 3:36 PM) ENTERED ON 04/21/14 KF
Kudos to the panel for correcting the opinion the same day the problem was pointed out.

But the process the appellate courts use to correct filed opinions leaves much to be desired. On March 24th the ILB had an entry headed "This morning's Indiana Supreme Court opinion is not new, and what's wrong with that," detailing two earlier similar situations, both involving Supreme Court opinions. A snippet from that post discusses an even earlier, 2013, post:

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.

In short, the ILB is writing here to call for the Indiana appellate courts to address the problem of dealing with corrected opinions. Incidentally, Indiana's problems were also the focus of a post from a blog, Citing Legally, run by Peter W. Martin, the Jane M.G. Foster Professor of Law, Emeritus, at Cornell, as I mention in the March 24th ILB post.

In Donnetta Newell v. State of Indiana , an 8-page opinion, Sr. Judge Shepard writes:

Donnetta Newell appeals her conviction of intimidation, contending among other things that evidence suggesting she was engaged in an altercation involving a meat cleaver in the office at her apartment complex should have been inadmissible in her trial on a charge she subsequently threatened the manager. We affirm. * * *

Here, Growe testified that, based on Newell’s past interactions with him, she was aware his duties included reporting problems to the apartments’ manager. Furthermore, her threat against Young raised a security issue, and a reasonable person could conclude that Growe would have to act on that threat. There is sufficient evidence for the finder of fact to conclude Newell knew that her statement would be transmitted to Young. See Walls v. State, 993 N.E.2d 262, 268 (Ind. Ct. App. 2013) (defendant communicated a threat against a police officer by telling the officer’s son, another police officer, that he would kill the father for arresting him), trans. denied. * * *

There is no indication in the record that the court overestimated the value of the desk incident or that it inflamed prejudice on the part of the court. To the contrary, throughout the trial the court carefully barred evidence of Newell’s prior bad acts and admitted evidence of the desk incident only after she opened the door during her testimony. The court thus did not abuse its discretion in admitting evidence of the incident that led to Newell’s eviction.

In Brandon Robey v. State of Indiana, a 20-page opinion, Judge Bradford writes:
At some point in the late summer or early autumn of 2010, Appellant-Defendant Brandon Robey caused his six-or-seven-year-old biological daughter, A.P., to fondle his penis and then forced her to fellate him. At some later point, Robey inserted his penis into A.P.’s vagina and anus before ejaculating after rubbing his penis between her thighs. Following a jury trial, Robey was found guilty of four counts of Class A felony child molesting and two counts of Class C felony child molesting. After trial, Robey admitted that he was a habitual offender and a habitual substance offender. Robey contends that the trial court erred in denying his motion to correct error on the basis of alleged juror misconduct, he was denied a fair trial by the admission of what he alleges was impermissible vouching testimony, the prosecutor committed misconduct by improperly vouching for a witness, and his habitual offender admission lacked a sufficient factual basis. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Bryan Swineford v. State of Indiana (NFP)

Charles K. Corn v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "David Camm speaks to ISU students about wrongful conviction"

Grace Schneider of the Louisville Courier Journal has a long story, with video (although I can't get them to play in this Indianapolis Star version), on David Camm's to a criminology class at Indiana State University Wednesday. Some quotes:

TERRE HAUTE, Ind. – In his first public speaking appearance since he was acquitted of murdering his wife and two children last October, David Camm said he's trying to rebuild his life — despite the 13 years he spent behind bars.

The former Indiana State Police trooper spoke to a wrongful convictions criminology class at Indiana State University Wednesday. He looked trimmer, having lost 40 pounds since his release, and said he's trying to stay focused on regaining his health, physically and emotionally. * * *

In the third trial, Camm said his lawyers hired experts whose "hard science" debunked the crime-scene reconstruction witnesses and blood-spatter experts which the prosecution employed. He said he got more of a fair shake during the trial because Special Prosecutor Stan Levco "was held to the letter of the law."

The most dramatic moment of his 35-minute talk came when a student asked a question about when the jury returned its verdict last fall. He said he looked into the faces of the jurors and a few smiled at him as they entered the courtroom and took their seats.

But he refused to think he might be acquitted. "I'm waiting to hear three 'Nots.' When I heard that third 'not' I realized it was over," he said.

The class burst into applause.

Camm said afterward that he is talking with a Louisville law firm about suing former Prosecutor Stan Faith and possibly others for their negligence in handling his case. "Things are [happening] as we speak," Camm said, declining to say when a suit may be filed.

He is currently embroiled in civil litigation that his former in-laws, Janice and Frank Renn, filed actions years ago to prevent him from recovering more than $600,000 in life insurance and 401K fund stemming from his family's death.

The Renns' lawyer had contended that Camm wasn't entitled to the money because he was responsible for the murders. Now that he's been acquitted, Camm said, "we're attempted to resolve it."

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Indiana Courts

Ind. Gov't. - "Panel reviews Rep. Eric Turner’s denial of ethics violations"

Here are some stories on Eric Turner's hearing yesterday before the House statutory ethics committee.

From Barb Berggoetz of the Indianapolis Star:

The House Ethics Committee on Wednesday delayed making a decision about whether Rep. Eric Turner broke any ethics rules when he lobbied behind the scenes against a nursing home construction moratorium that could have cost him and his family millions of dollars.

Turner, the second-highest ranking member of the House, did not testify and was not at the meeting, but the six committee members reviewed written responses to questions he answered from Chairman Rep. Greg Steuerwald and ranking Democratic member Clyde Kersey.

In those statements, he said he violated no House rules because he did not vote on the proposed moratorium — which failed to pass the legislature. Turner also wrote that he disclosed every financial interest in nursing home companies that was required under a state law designed to reveal legislators’ potential conflict of interests. * * *

The ethics committee, which rarely meets, gathered at the request of House Speaker Brian Bosma, R-Indianapolis. He asked members on March 20 to consider concerns over whether Turner violated the House code of ethics or other House rules during his discussions about the nursing home moratorium in a private Republican caucus meeting.

Turner came under fire for working behind the scenes to kill a measure that would have temporarily halted new nursing home construction. Some Republican lawmakers said they felt Turner’s efforts represented a conflict of interest because his son and daughter led opposition to the measure, and he has financial interests in numerous nursing home entities.

Records reviewed by The Star indicate he has been involved in at least 15 companies with ties to the industry since 1997. The Associated Press reported that Turner owns 38 percent of Mainstreet Property Group, which develops senior care facilities and is owned by his family members. Mainstreet led opposition to the moratorium during the legislative session.

The three Democrats and three Republicans on the committee didn’t offer any criticism of Turner during the hourlong meeting. The committee will reconvene at 2 p.m. Wednesday to consider any action and adopt a report to send to Bosma.

Steuerwald, R-Avon, said he and Kersey, D-Terre Haute, will craft a report for the committee to consider. * * *

House ethics rules explicitly prohibit lawmakers from sponsoring or voting on issues in which they have a direct and substantial financial interest. But the rules don’t prohibit an involvement in public and private debate or behind-the-scenes advocacy during caucus meetings.

When asked after the meeting if Turner violated the spirit of the House ethics code, Kersey said, “There’s a lot of things that we don’t know anything about, of course. What went on in caucus stays in caucus. As far as everything else, he followed the rules.”

Asked if it’s morally wrong for a lawmaker to talk to fellow legislators about a bill over which he has millions of dollars on the line, Steuerwald responded, “Our charge is to take a look at the facts and apply them to our current House rules and the House code of ethics. That’s what our committee will be making a determination upon.”

Also after the meeting, Toby McClamroch, Turner’s attorney, said, “If they want to change the policies or want to change the rules, they need to examine the rules themselves. Code of ethics were just adopted by the House four months ago.

“He (Turner) operated under that code of ethics and the facts that were stated in there certainly were consistent with the code of ethics,” he said. “So, we’re pleased with the (committee’s) direction.”

From Chelsea Schneider's story in the $$ Evansville Courier & Press, headed "Ethics hearing could change Indiana House rules," some quotes:
On Wednesday, the committee reviewed Turner’s answers to a series of questions members had asked about his business interests and his actions in the 2014 legislative session. The questions were answered under oath. The committee will meet next week to discuss an advisory opinion and the conclusion of its review of Turner’s actions.

“We tried to get to the bottom of this and cover every base in terms of what happened,” said committee member Clyde Kersey, D-Terre Haute.

Turner did not publicly vote on the construction ban or sponsor legislation on the nursing home industry. Both practices are barred in the House’s ethics code. Turner wrote in testimony that he disclosed his interests and role in his son’s business to House Republicans and that the House’s ethics rules allows members to speak in their areas of expertise. Turner also wrote that he didn’t publicly offer testimony or debate the proposed construction ban while in committee or on the House floor.

The current ethics code does not address whether members should lobby on an issue of which they have a direct interest. Ethics Committee Chairman Rep. Greg Steuerwald, R-Avon, said he relies on the expert opinion of his colleagues. Steuerwald noted he did not find any ethics rules which apply to caucus.

“The present rules say that each one of us are to express our knowledge and expertise within our field that’s part of what we have with the citizen legislature,” Steuerwald said. “Each of us brings to the table a different expertise, so I think it’s important everybody shows those things.”

The committee will meet over the summer to discuss possible changes to ethics rules and the disclosure form.

Rep. Gail Riecken, D-Evansville, a member of the committee, said she wants to see changes to the disclosure form, which would take legislation to amend.

“Our statement of economic interest needs to be tightened,” Riecken said, “and there needs to be more transparency somehow. We’ve got to do that.”

Turner issued a statement after the hearing thanking the committee for its work.

“I thank Chairman Steuerwald and the House Ethics Committee for conducting a thorough review of the facts, and I was pleased to answer the questions presented to me,” Turner said in prepared statement. “I am confident the Ethics Committee will conclude that I have acted within the House Rules and the House Code of Ethics, as I have for my entire 24-year legislative career.”

From Niki Kelly's story in the Fort Wayne Journal Gazette, some quotes:
The members – three Republicans and three Democrats – focused on the letter of the law in the House rules and its code of ethics.

Both say a member with a conflict of interest cannot vote on or sponsor legislation affecting him or her personally.

Turner, R-Cicero, did neither. Instead, he is accused of trying to sway his colleagues in a private House Republican caucus against the nursing home moratorium. The bill died in the waning hours of the legislature.

“We found no House rules or ethics rules that apply to caucus itself,” said Rep. Greg Steuerwald, R-Danville, chairman of the Ethics Committee.

Turner acknowledged in a statement that he has an ownership stake in Mainstreet Capital Partners, which has an interest in Mainstreet Property Group. His son, Zeke Turner, is CEO of Mainstreet Property, and his daughter, Jessaca Turner Stults, is Mainstreet’s registered lobbyist.

The businesses build nursing homes. Turner claimed the construction ban would have had “no significant effect” on Mainstreet’s business model, but an Associated Press report said he stood to lose millions in future profits.

Turner admitted in the written interrogatories sent by the Ethics Committee that he spoke on the bill in caucus but said he prefaced it with disclosure of his family’s financial involvement.

He said he offered his “particular expertise on the nursing home industry and the nursing home moratorium.”

Turner also pointed to a House ethics rule that says: “Every member shall give freely of his or her particular expertise during a discussion or debate upon a given proposition.”

The committee is also examining whether Turner accurately filled out his statement of economic interests.

Rep. Clyde Kersey, D-Terre Haute, said that in 2005, Turner listed every business he and his wife were involved in – but since then, he has not.

Turner said that according to the law, he didn’t have to report all the companies that a parent company owned.

From an AP story in the Gary Post-Tribune:
Turner appears to have met all the House’s financial disclosure requirements. But none of those rules required him to tell the public that he makes upward of $1 million each time Mainstreet Property Group completes another project.

Documents obtained by the AP show that Turner owns a 38 percent stake in Mainstreet Property Group through another company. Mainstreet, which is operated by his son, builds nursing homes throughout the state and then sells the homes to a Canadian company, HealthLease, which was founded by Turner’s son.

The last time the House Ethics Committee reviewed the actions of a House lawmaker was in 1996, when Rep. Charlie Brown, D-Gary, and former Rep. Sam Turpin, R-Brownsburg, were put under the microscope. Turpin was later indicted by a grand jury for taking money from gambling interests while running the powerful House Ways and Means Committee.

Turner had been in the running to lead the Ways and Means panel in 2012 but Republican lawmakers voiced concerns about his conflicts of interest with Bosma and the chairmanship went to Rep. Tim Brown, R-Crawfordsville, instead.

Julia Vaughn, policy director of Common Cause Indiana, said Wednesday’s hearing proves lawmakers should not police themselves. She noted that Turner’s financial stakes were much greater than those of Turpin, who failed to disclose $46,000 in payments he received in relation to a riverboat casino project.

“Mountains and molehills,” she said, shortly after hearing ended. “We are certainly talking about a much greater economic interest. And let’s not forget charges were filed against Rep. Turpin in that case, and it was certainly small potatoes (compared to Turner).”

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Indiana Government

Environment - "Victims of toxic water meet skepticism at SCOTUS"

That is the headline of this important story by Richard Wolf of USA Today. Some quotes from the long story:

WASHINGTON -- A divided Supreme Court seemed mostly dubious Wednesday that federal claims for environmental damages can be brought after state deadlines have passed, signaling a potential setback for thousands of former Marines and their families exposed decades ago to contaminated water.

The little-noticed case before the court concerned corporate liability for land found to be contaminated decades after the pollution occurred, and several justices sympathized with the landowners' plight. But they didn't sound inclined to strike down a state law that foreclosed legal claims. * * *

North Carolina, home to both conflicts, has a 10-year "statute of repose" that sets an outer deadline for claims to be filed. Unlike a statute of limitations, which usually begins when an injury is recognized, the clock ticks from the date of the final contamination — even if residents remain unaware until decades later.

A provision added in 1986 to federal Superfund legislation was intended to help victims by giving them two years to file claims from the date they discover the cause of their injuries. In CTS Corporation v. Waldburger, the claims came more than two decades after the electronics plant closed down. The water pollution at Camp Lejeune wasn't noticed for at least 12 years after the last well came on line.

Wednesday's case came to the Supreme Court from the 4th Circuit Court of Appeals, which sided with 23 landowners seeking damages and remediation because their land was contaminated with toxic chemicals from 1959 to 1985. It wasn't until 2009 that landowners learned their water could cause liver and kidney damage, heart ailments and cancer.

Similarly, the last wells contaminated with industrial solvents such as trichloroethylene (TCE), benzene and other chemicals at the Marine Corps base came on line in 1985. Under North Carolina law, that means claims should have been filed by 1995. But no one knew of the danger until 1997. * * *

Several justices expressed ignorance Wednesday about the differences between statutes of repose and the better known statutes of limitations. "I never heard of this distinction," Justice Antonin Scalia said. "This was new for me," added Justice Anthony Kennedy. [ILB emphasis]

But they and others -- notably Chief Justice John Roberts -- indicated the congressional law intended to give victims time to sue may not overcome North Carolina's statute of repose. Only four states have those statutes.

"The purpose of the statute of repose is not to preserve latent causes of action," Roberts said. "It's quite the opposite. It's to put an end to, in particular, latent causes of action that haven't been brought."

John Korzen, director of the Appellate Advocacy Clinic at Wake Forest University School of Law, which brought the original appeal, said that's not what Congress wanted to do.

"Congress's purpose was to preserve claims, no matter what the period was," Korzen said. "Congress was concerned about people not having their day in court."

At least two justices -- Ruth Bader Ginsburg and Elena Kagan -- appeared to side with the victims. Ginsburg expressed concern that if the court denies them a course of action, other states may pass statutes similar to North Carolina's to protect companies from successful claims.

"There was never a time when these plaintiffs had an action that could be brought," Ginsburg said, because they didn't discover the contamination until the 10-year statute had run out.

When Brian Murray, the lawyer for CTS Corp., said Congress in 1986 specifically sought to help victims avoid statutes of limitations but not statutes of repose, Kagan said, "That's a very legally sophisticated Congress you're asking us to imagine."

Michael Doyle of McClatchy Washington Bureau also has a good story, that begins:
WASHINGTON — Raw emotions bubbled just below the surface Wednesday as the Supreme Court considered a crucial North Carolina groundwater pollution case.

For experts, the case called CTS Corp. v. Waldburger centers on the relationship between state and federal laws and the ticking of the courthouse clock. Simply put, it’s about how long people have to sue polluters when they’ve been harmed. Being the law, though, it’s rarely that simple.

“This is angels on the head of a pin, isn’t it?” Justice Antonin Scalia asked Wednesday, after one abstract exchange in an argument that periodically seemed to favor CTS.

More from the story:
The ensuing litigation crashes into a North Carolina “statute of repose,” which requires that certain lawsuits be filed within 10 years of the last allegedly harmful act. This is supposed to protect corporations or other property owners from an endless threat of litigation.

“The statute of repose is intended to provide certainty at the back end to a defendant so it can order its affairs, have insurance policies that make sense,” Joseph R. Palmore, assistant to the solicitor general, told the justices Wednesday.

Brian J. Murray, the Chicago-based attorney for CTS Corp., added Wednesday that the time limits help “avoid vexatious litigation designed to shake down settlements 40, 50 and 60 years after you’ve abandoned a site.”

The time limits pushed by CTS Corp. and the Obama administration seemed to appeal to Chief Justice John Roberts Jr. in particular. All eight of his questions Wednesday were aimed at the other side, which is often a reliable sign of which way a justice is leaning.

The time limits imposed in North Carolina and a few other states also mean, though, that the 10-year limit may slam the courthouse doors shut before an individual even discovers he’s been exposed. This happened at Camp Lejeune and at the former CTS Corp. site.

The legal question pressed Wednesday was whether Congress, through [CERCLA], pre-empted the state’s 10-year limit. A provision of the federal environmental law starts the hazardous-waste litigation clock ticking only after someone discovers harm, rather than the longer-ago moment that the harmful acts ended.

“Congress was concerned about people not having their day in court,” John J. Korzen, the director of the Appellate Advocacy Clinic at Wake Forest University School of Law, told the justices Wednesday, adding that “Congress wanted polluters to be on the hook as long as it took to clean up.”

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Environment

Ind. Decisions - More on: The status of the five Indiana same-sex marriage cases

In this April 22nd post, I wrote:

In a phone conference involving counsel in all five pending cases, Judge Young yesterday, Arpil 22nd, scheduled a hearing on May 2 at 9:30 Evansville time in Evansville with respect to the respective motions for summary judgment and for a preliminary injunction filed by the Lambda Legal plaintiffs (Baskin)and the Love plaintiffs. Those are the last two cases on the above list. Note that Niki Quasney and Amy Sandler, who received the temporary restraining order, are part of the Baskin lawsuit.
Today Tim Evans has more about that hearing in this Indianapolis Star story. The story begins:
Attorneys for the state and five couples who filed a lawsuit challenging Indiana’s ban on same-sex marriage will ask a federal judge next week to resolve the case — with each side seeking a ruling in its favor.

The couples want a decision that forces the state to allow same-sex couples to marry in Indiana and that grants recognition of gay marriages performed in other states where they are legal.

The state wants the court to uphold Indiana law that defines marriage as the union of one man and one woman.

Regardless of how U.S. District Judge Richard L. Young rules, the decision is expected to be appealed to the 7th U.S. Circuit Court of Appeals — joining a raft of federal court rulings nationally that appear to be pushing the issue closer to the steps of the U.S. Supreme Court.

ILB: Although there are cases pending in many other circuits, I believe this would be the first to reach the 7th Circuit. More from the story:
[T]he state and the five couples behind the lawsuit are seeking a summary judgment to resolve the case without a trial. A summary judgment, according to law.com, is “a court order ruling that no factual issues remain to be tried and therefore a ... complaint can be decided upon certain facts without trial.”

The approach typically allows cases to be resolved much faster.

“The attorney general’s office has a duty to defend the statute passed by the legislature,” spokeswoman Erin Reece said in an email to The Indianapolis Star, “and the state will move forward to the next stage of this case before the trial court.”

A memorandum filed by gay-rights legal organization Lambda Legal in support of the five couples cites three reasons the state cannot justify its stance. They include the argument that there is “no rational relationship between the marriage ban and any asserted interest related to procreation or the promotion of optimal parenting.”

“Indiana law does not condition persons’ right to marry on their abilities or intentions of having or rearing children, but permits those who are ‘sterile and the elderly,’ or simply uninterested in childbearing to marry,” the document says.

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - COA upholds ruling that man winning $2 million while separated from his wife has to give her only 2.5 percent of the winnings

Yesterday's Court of Appeals opinion (3rd case) in In re the Marriage of: Jose de Jesus Carrillo Perez and Maria Guadalupe Carrillo Perez, Maria Guadalupe Vidrios Zepeda f/k/a Maria Guadalupe Carrillo Perez v. Jose de Jesus Carrillo Perez is the subject of a story in today's Indianapolis Star, reported by Tim Evans. Some quotes:

The decision upholds a 2012 Allen Superior Court ruling in which Jose De Jesus Carrillo Perez was ordered to pay his ex-wife, Maria Guadalupe Vidrios Zepeda, $10,000 each year for five years from the money he won on a scratch-off ticket in 2011.

The couple married in February 2002. They separated in March 2006, but neither filed for legal separation or divorce at the time.

“During the next six years,” the court order said, “the couple spoke only two or three times, never commingled assets, had separate bank accounts, and generally lived as single individuals.”

In January 2011, Carrillo Perez won the $2 million. That March he filed for divorce. It was granted June 19, 2012.

After Carrillo Perez won the lottery, his estranged wife wanted a share of it, said Fort Wayne attorney Mark C. Chambers, who represented Carrillo Perez. He said Vidrios Zepeda initially asked for $1.4 million.

“The interesting thing for us was that the parties were separated physically, but they didn’t file for divorce,” Chambers said. “In the legal scheme, they were still married and the assets they accrued under standard divorce law would belong to both of them, and the presumption would be that they would be split 50-50.

“But this case was unique. When they split up, the wife took everything, and there was almost no contact for nearly six years until Jose won the lottery.”

In ruling that Vidrios Zepeda was not entitled to an equal split of the marital assets, including the lottery receipts, the Court of Appeals said Allen Superior Court Judge Charles F. Pratt “found that the extended physical separation, during which time no funds were ever commingled and each person lived as an individual, justified limiting (Vidrios Zepeda’s) equitable interest in the lottery winnings.”

Judges in “separate property” states such as Indiana may divide assets “in any manner that is just and reasonable, and that determination depends on the facts of the case,” said Margaret Ryznar, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

“Often the court will divide marital assets in a proportion resembling 50-50, but there is room for departure depending on the court's judgment,” she explained.

“Here, the departure is not surprising given that the husband and wife were living entirely separate lives by the time of the lotto winnings. Thus, while this is an interesting case to see how an Indiana court would divide lotto winnings in an estranged marriage, the result may differ in the next case depending on the facts of that marriage.”

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "The Privatization Backlash" story in The Atlantic

From Molly Ball of The Atlantic, a long story titled "The Privatization Backlash: For decades, city and state governments have seen contracting as a cost-saving panacea. But past experience has left some of today's policymakers more skeptical." A photo of parking meters leads the story and begins with the Chicago parking meter deal. There are two references to Indiana in the story:

But some Republicans have also turned against privatization out of a desire for fiscal responsibility. In Ohio, Republican Governor John Kasich recently abandoned his push to lease the Ohio Turnpike to a private operator, deciding instead to have the state issue bonds backed by future toll revenue. The decision may have been influenced by the experience of nearby Indiana, which leased a 157-mile state road to an Australian-Spanish consortium and drew public criticism when toll rates doubled in five years. As with the Chicago meters, the government quickly spent most of its lump-sum payment and now faces decades bound by a restrictive contract that gives it little control over a major roadway.

"Privatization has potential rewards, but a lot of it is really just about shifting money around for political reasons," said Phineas Baxandall, a senior analyst at the U.S. Public Interest Research Group and author of a report on toll roads called Private Roads, Public Costs. "There are a lot of dangers in terms of loss of control over public policy, not getting enough revenue for these assets, as well as a lack of transparency." * * *

Privatization proponents say contracting horror stories are overblown. Leonard Gilroy, director of government reform for the free-market Reason Foundation and editor of its comprehensive Annual Privatization Report, noted that other cities, such as Indianapolis, followed Chicago's lead by privatizing their parking meters without a problem. (On the other hand, other cities, such as Pittsburgh, shied away from privatizing their meters.) "Is privatization a magic wand? Is it always going to come in and save you money? No," Gilroy said. "You have to do this well. You have to do your due diligence. You have to do a good contract and then you have to monitor and enforce that contract."

[h/t @urbanophile]

Posted by Marcia Oddi on Thursday, April 24, 2014
Posted to Indiana Government

Wednesday, April 23, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Charla P. Richard v. State of Indiana , a 6-page opinion, Sr. Judge Shepard writes:

When a police dog alerts to the presence of narcotics in a vehicle, does an officer have probable cause to arrest and thus search the vehicle’s passenger? On the facts of this case, we answer yes and therefore affirm. [ILB earlier had this erroneously listed as a NFP]
In Co-Alliance, LLP v. Monticello Farm Service, Inc. , an 11-page opinion, Sr. Judge Shepard writes:
We conclude that Indiana should follow the majority rule on agreements to modify the priority of liens securing interests in a borrower’s assets.

Here, the lender in first position agreed to subordinate part of its lien in favor of a third-position lender, in effect a partial assignment that reduced the extent of its first position. Such a contract should neither harm nor help the second-position lender, who was not a party to the agreement.

We think recognizing such agreements is consistent with the Uniform Commercial Code and Indiana common law. * * *

The trial court properly found that the subordination agreement gave Monticello first priority in the remaining $181,000 in 2010 crop proceeds. It therefore correctly granted Monticello’s motion for partial summary judgment and denied Co-Alliance’s.

In In re the Marriage of: Jose de Jesus Carrillo Perez and Maria Guadalupe Carrillo Perez, Maria Guadalupe Vidrios Zepeda f/k/a Maria Guadalupe Carrillo Perez v. Jose de Jesus Carrillo Perez, a 6-page opinion, Judge May writes:
Maria Guadalupe Vidrios Zepeda appeals the division of the marital estate in her dissolution proceeding. She alleges the trial court abused its discretion when it awarded her only 2.5% of her ex-husband’s lottery winnings. We affirm. * * *

Because the language of the admission did not preclude the trial court from awarding Maria only two point five percent of her husband’s lottery proceeds and Maria fails to overcome the strong presumption that the trial court considered and complied with the applicable statute, the trial court did not abuse its discretion.

In Matthew P. Wilhoite v. State of Indiana, an 8-page opinion, Judge May writes:
Matthew P. Wilhoite appeals his conviction of Class B felony “Conspiracy to Commit Attempted Armed Robbery.” He asserts his conviction should be overturned because he was convicted of a crime that does not exist and because his right to an impartial jury was violated. Because he has not demonstrated fundamental error, we affirm. * * *

[W]e agree that the State referenced a non-existent crime when it listed “Conspiracy to Commit Attempted Robbery” on the charging information as the crime committed.

Nevertheless, Wilhoite has not demonstrated fundamental error. The purpose of a charging information is to provide a defendant with notice of the crime so that he can prepare a defense. Gilliland v. State, 979 N.E.2d 1049, 1060 (Ind. Ct. App. 2012). “An information that enables an accused, the court, and the jury to determine the crime for which conviction is sought satisfies due process. Errors in the information are fatal only if they mislead the defendant or fail to give him notice of the charge filed against him.” * * *

Despite the erroneous title given to his crime, the information indicated elements for conspiracy to commit armed robbery and the jury instructions informed the jurors of the elements they needed to find Wilhoite guilty of conspiracy to commit armed robbery, including “the intent to commit the crime.” (Id.) Thus, the fact that the erroneous name of the crime listed at the top of the charging information did not amount to fundamental error.

Wilhoite also asserts he was denied his constitutional right to a jury of his peers because he is “non-white [and] was convicted by what he believes was an all-white jury . . . .” We are unable to consider Wilhoite’s assertion because he has not provided us with an adequate record to permit a meaningful review. * * * Although we acknowledge the difficulty Wilhoite presumably would have in assembling a record that would permit us to review this issue, we decline to infer fundamental error from a silent record.[4] * * *
__________
[4] Wilhoite also urges us to overturn a court policy by which all information collected from prospective jurors is shredded. Wilhoite does not provide documentation of this policy, and the relief he requests –requiring the trial court to change its alleged policy of shredding documents related to jury selection and requiring the trial court to include a question about race on the jury questionnaire – appears to be a form of relief that we are not able to provide.

NFP civil opinions today (0):

NFP criminal opinions today (9):

Dustin E. McCowan v. State of Indiana (NFP)

Timothy Robertson v. State of Indiana (NFP)

Vincent Smith v. State of Indiana (NFP)

Nicole Snodgrass v. State of Indiana (NFP)

Dalvinder Singh v. State of Indiana (NFP)

Nestor Canenguez-Ramirez v. State of Indiana (NFP)

Charla P. Richard v. State of Indiana

Raymond Cantu v. State of Indiana (NFP)

Joseph Pennington v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 23, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Resources for this afternoon's meeting of the House ethics committee

The Statutory Committee on Ethics meets today 2 PM in Room 404 of the Statehouse to consider the case of Rep. Eric Turner. There is no agenda posted. The left column of the page linked lists the committee members. Notice that, unlike other legislative committees, the membership is 3 republicans and 3 democrats. That is because the membership is set by statute, IC 2-2.1-3. Notice also that like other session and interim committee meetings, the meeting this afternoon will be video streamed.

Over the past few days there have been several good stories on Rep. Turner and the upcoming meeting, including:

Also relevant is this March 21st post in the ILB, where I ask why should legislative caucuses be secret at all? Quoting the Knoxville, Tenn. News: "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." Otherwise, there is no legislative transparency, positions are hashed out in the majority caucuses, behind closed doors, followed by a pro forma floor vote.

See also this April 14th ILB post, quoting the House Code of Ethics, and this April 17th ILB post, quoting the legislative ethics statute.

Posted by Marcia Oddi on Wednesday, April 23, 2014
Posted to Indiana Government

Tuesday, April 22, 2014

Ind. Courts - Documents filed yesterday in Lee v. Pence, the same-sex marriage recognition suit by Indiana police officers and retired firefighters

As promised earlier today, here are the documents filed by the plaintiffs yesterday in the case of Lee v. Pence:

Plaintiffs' brief in support of their motion for summary judgment begins:
Plaintiffs are entitled to summary judgment because the Defendants have violated the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs consist of four same-sex couples lawfully married in states other than Indiana. For the purposes of this litigation, the Plaintiffs do not ask the Court to order the State of Indiana to issue marriage licenses to the four couples, who have been lawfully wed in other states. Plaintiffs ask only that Indiana recognize their out-of-state marriages as possessing the same validity as out-of-state marriages between persons of different sexes. Plaintiffs ask the Court to negate Indiana’s presumed power to treat their marriages as null and void. In short, Plaintiffs ask the Court to vindicate their right to remain married.

Plaintiffs, all legally married in other states, are the victims of the discriminatory intent and effect of I.C. § 31-11-1-1 (referred to hereinafter as the “Marriage Non-Recognition Law” or the “Non-Recognition Law”). The Plaintiffs’ right to have their marriages recognized by Defendants, i.e., to stay married while in the State of Indiana, is a fundamental interest protected by the Equal Protection and Due Process Clauses. The State may only burden the exercise of Plaintiffs’ right to remain married when it has a compelling interest, and by means narrowly tailored to achieve that end. But there is no compelling or even substantial interest here. Indeed, Plaintiffs defy the Defendants to identify a single legitimate state interest that is rationally related to the Marriage Non-Recognition Law. * * *

The Plaintiffs include four married same-sex couples who ask that their lawful marriages solemnized outside of Indiana be recognized by the Indiana Public Retirement System ("INPRS"), which administers the 1977 Police Officers' and Firefighters' Pension and Disability Fund ("Pension Fund"). One member of each of the four couples is either currently working as a police officer or is a retired firefighter.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Indiana Courts

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

For publication opinions today (3):

In Shelly Bailey v. Lance Bailey, a 12-page, 2-1 opinion, Judge Barnes writes:

The sole issue we address is whether the trial court erred in modifying custody when neither party requested a modification of custody. * * *

In sum, Mother’s agreement that the trial court could enter a Parallel Parenting Order was in no way a concession that the trial court could modify the children’s physical custody to joint custody. Neither Mother nor Father ever filed a petition requesting a change in custody. Furthermore, neither party gave any hint during the evidentiary hearing that he or she desired a change in custody. * * *

We therefore conclude the trial court abused its discretion in sua sponte modifying physical custody of the children. * * *

We reverse the trial court’s modification of physical custody of the children and remand for the trial court to make all necessary corrections to its May 23, 2013 order to reflect this reversal, including its recalculation of Father’s child support obligation. The Parallel Parenting provision of that order may remain in effect, on condition that it is revised to reflect Mother’s primary physical custody of the children and Father’s scheduled visitation. Reversed and remanded.

CRONE, J., concurs.
BAKER, J., dissents with separate opinion. [which begins, at p. 10] I respectfully dissent. As acknowledged by the majority, “[c]ounsel for Mother agreed that the trial court had [the] power” to enter a parallel parenting time order based on the pleadings.

In In the Matter of the Adoption of B.C.H., a Minor, an 18-page opinion with a concurring opinion, Judge Pyle writes:
T.H. (“Grandfather”) and C.H. (“Grandmother”) (collectively, “Grandparents”) appeal the trial court’s order denying their motion for relief from judgment and motion to correct error concerning their son-in-law’s (“Stepfather”) adoption of their minor granddaughter, B.C.H. We affirm. * * *

MATHIAS, J., concurs in result with opinion.
BRADFORD, J., concurs.

[J.Mathias concurring opinion begins on p. 17] Because I would conclude that Stepfather was required to obtain Grandparents’ consent to his adoption of B.C.H. pursuant to Indiana Code section 31-19-9-1(a)(3), but that Grandparents had actual notice of the adoption proceedings and did not attempt to contest the adoption, I concur in result. * * *

Although Grandparents’ consent to the adoption was not sought, Grandparents had actual notice that Stepfather had initiated adoption proceedings. But Grandparents failed to intervene in or to contest the adoption proceedings; therefore, I would hold that Grandparents cannot challenge the decree of adoption at this late date. For this reason, I concur in the result reached by the majority.

In Randy E. Black v. State of Indiana, a 12-page opinion, Judge Barnes writes:
Randy Black appeals his conviction for Class C felony forgery.

Black raises two issues, which we restate as: I. whether the trial court erred by not ruling on Black’s pro se request for an early trial; and II. whether trial counsel was ineffective for not pursuing an early trial. * * *

Black has not established that the trial court was required to respond to his pro se motion for an early trial or that trial counsel was ineffective for failing to pursue and early trial or discharge. We affirm.

NFP civil opinions today (1):

State of Indiana, Indiana Bureau of Motor Vehicles, and Kent Schroder as Commissioner of Moter Vehicles v. Matthew E. Patty (NFP)

NFP criminal opinions today (3):

Desmond E. Lewis v. State of Indiana (NFP)

Corey Bates v. State of Indiana (NFP)

Conway Jefferson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Lake County "Judicial vacancy draws crowd of applicants"

Bill Dolan of the NWI Times reports:

CROWN POINT | Some 21 attorneys, several with judicial experience, have applied to fill a vacancy in the Lake Superior Court, Civil Division.

The Lake County Judicial Nominating Commission, a panel of lawyers and lay people, will hold interviews of all applicants May 7 and 8. They will select three finalists whose names will be forwarded to Gov. Mike Pence, who is expected to name the new judge from among them early this summer.

Court Room 4's bench has been vacant since the Jan. 8 death of Judge Gerald Svetanoff. Senior Judge Thomas Webber is presiding until the governor selects a permanent replacement.

See the story for the 21 names.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Indiana Courts

Courts - "SCOTUS Affirms Michigan Ban On Race-Conscious College Admissions"

Scott Neuman of NPR has this story on the decision this morning in Schuette v. Coaltion to Defend Affirmative Action.

Adam Liptak of the NY Times has this story.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Courts in general

Ind. Decisions - The status of the five Indiana same-sex marriage cases

Updating this ILB post from yesterday, here is a longer version of Charles Wilson's story for the AP. Some quotes:

In the 11-page order issued Friday, Young said he granted the request partly because the couple is likely to succeed in having Indiana's gay marriage ban declared unconstitutional. He also said that Quasney's terminal illness required urgent action.

"The Equal Protection Clause requires states to treat people equally under the law," wrote Young, who was appointed in 1998 by then-President Bill Clinton. "If the state wishes to differentiate between people and make them unequal, then it must have at least a legitimate purpose."

He also said his decision was due in part to a wave of similar rulings in other states, including two that dealt with terminally ill partners. * * *

Attorneys are due to present arguments May 2 over the couple's request for a preliminary injunction that would permanently bar Indiana from enforcing its gay marriage ban against their union, Castillo said.

The attorney general's office said in a statement Monday that it would continue to defend Indiana's gay marriage ban at the next stage in court.

"County clerks are still prohibited by law from issuing marriage licenses to other same-sex couples," spokesman Bryan Corbin said.

Indiana Solicitor General Thomas Fisher argued at the April 10 hearing in Evansville that the state has an interest in limiting marriage to couples who can have children. But Young noted in the order that the state routinely recognizes the marriages of couples who are too old to reproduce, and gay couples can form families in other ways.

He also wrote that the state's decision to not recognize gay marriages performed out of state didn't hold up because Indiana recognizes other marriages that take place outside of the state and violate Indiana laws, such as marriages between first cousins.

Jill Disis of the Indianapolis Star did a story March 14th that included a helpful side-bar distinguishing the five lawsuits, which are now all consolidated under Judge Young:The ILB has learned:The ILB shortly will be posting briefs in support of motions for summary judgment and for a preliminary injunction in Lee v. Pence. The ILB will post other documents as they may become available.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Ind Fed D.Ct. Decisions

Law - "People looking for a lawyer are turning to the Internet first, survey finds"

See the story here, via the ABA Journal.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to General Law Related

Ind. Decisions - “Our view is the university has a common law lien on a transcript for services provided”

That is a quote from a story this morning by Seth Slabaugh in the Muncie Star-Press. More from the story:

MUNCIE — Ball State University is appealing court rulings that would require it to release the official college transcript of a student who left the school with an unpaid tuition balance.

Last year, a Lake County judge ordered the university to release the transcript of Jordan Irons, who enrolled at Ball State in the fall of 2011 but withdrew in the spring of 2012.

The university’s appeal of the trial court’s ruling to the Indiana Court of Appeals was recently dismissed, but Ball State will ask the Indiana Supreme Court to review the case. * * *

Ball State’s policy withholds official college transcripts until debts are paid in full. * * *

“Our view is the university has a common law lien on a transcript for services provided,” [Jim Williams, an attorney representing Ball State] said. “The analogy is if you took your car in to get it fixed. The mechanic has a lien on the car until the bill is paid. Technically, the mechanic can withhold the car until the bill is paid.”

However, Lake County Circuit Court Judge George Paras ruled: “The Legislature has not created a statutory lien that would allow a university to withhold a student’s transcript for failure to pay tuition. The Legislature’s silence on this subject suggests that our Legislature has chosen not to bestow a state university with this sort of remedy ... If the [Legislature] wanted to grant BSU a lien on their transcript, it could. In the instant case, BSU has no retaining lien.”

Neither Irons nor Ball State cited any Indiana case law on the issue. The university cited a federal bankruptcy case from Wisconsin that Paras did not find convincing on the issue in this case. “As such, this is apparently an issue of first impression (a completely original issue of law),” Paras wrote.

He added, “importantly,” that Ball State can follow normal collection procedures, including filing a lawsuit, to collect “the alleged outstanding debt, if any.” * * *

Appeals Court Judge Michael P. Barnes, a former county prosecutor in South Bend, wrote: “The transcript simply is not like the irreplaceable documents — securities, receipts, deeds, leases or promissory notes — mentioned in (Allstate Insurance v Scroghan).”

The Court of Appeals opinion, decided April 14th, is Ball State Univeristy v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Backyard Chickens Growing In Popularity Among Hoosiers"

Mary Kuhlman of the Indiana News Service reported on April 17:

(Indianapolis, Ind.) – Raising chickens in the city is becoming increasingly popular as more Hoosiers move toward eating locally.

Goshen officials this week reversed an earlier decision and will allow residents to raise chickens at their homes.

Karen Schulte-Coman helped get a similar ordinance passed in South Bend. She says her family raises chickens because they are an easy, fresh food source and promote sustainability. * * *

Other cities with ordinances allowing chickens include Evansville, Indianapolis and Bloomington.

Meanwhile, on Saturday, the NY Times ran a story by Corey Kilgannon, titled "In Queens, Chickens Clash With the Rules." The long story begins:
Sylvia Saye held a basket of multicolored eggs.

“We won’t need to color them this year,” she said, looking at the eggs, which were already a pretty mix of blonde, tan, brown and light blue — and fresh from the henhouse on the side of her home in Queens.

Keeping chickens in New York City has become a popular hobby, especially in precincts of Brooklyn where foodies and do-it-yourselfers prize locally grown food. Ms. Saye, 48, bought a dozen heritage chickens last July to provide free-range eggs for her daughter, Scarlett, 5, because she wants to serve foods that are free of hormones.

“I got them for nutritional reasons,” Ms. Saye said. “You can’t buy these eggs in a supermarket.”

Ms. Saye bought a $2,500 coop and had fencing installed to protect the chickens from predators. But a month ago, she learned of a different type of threat to her chickens: the stringent restrictions that homeowners in her neighborhood are supposed to abide by.

Ms. Saye lives in Forest Hills Gardens, a private neighborhood nestled in one of the more pristine sections of New York City. It is renowned for its stately country garden style, multimillion-dollar Tudor and Georgian homes, and for its strict regulations, which forbid the keeping of backyard chickens.

ILB: The ILB has had a long list of urban chicken entries, here are some of them.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court disciplines out-of-state attorney

In In the Matter of: Neil J. GREENE, a 5-0 order filed April 16th and posted yesterday, the Supreme Court writes in part:

Respondent is licensed to practice law in the state of Illinois but not in the state of Indiana. Franciscan Alliance Inc. ("Franciscan") is a nonprofit corporation with its headquarters in Mishawaka, Indiana. Franciscan operates 11 hospitals in Indiana and two in Illinois. In late 2011, Respondent was hired by Franciscan to assist with obtaining payment for medical care provided to patients who had been injured in accidents.

Respondent furnished Franciscan hospitals with his letterhead stationery. The hospitals sent a letter using Respondent's letterhead and his firm's signature block ("Discharge Letter") to injured patients when they were discharged. The Discharge Letter stated that Franciscan had partnered with Respondent "to help you have insurance pay your hospital bills related to the accident." The Discharge Letter stated that this service was provided at no cost to the patient, that an experienced team of patient advocates and attorneys would work with the patient to gather relevant information, and that the team would then contact the proper parties to get the patient's hospital bills paid.

The Discharge Letter obscured the relationship between Franciscan and Respondent, as well as the purpose of Respondent's services, it implied that Respondent was offering the patient a service for which he would normally charge, and it created the impression that Respondent was offering to advocate on behalf of the patient even though Respondent was actually advocating on behalf of Franciscan.

If the patient did not respond to the Discharge Letter, Respondent's practice was to send a second letter, and if necessary, a third letter, with an enclosed questionnaire. In these letters, Respondent indicated that he was acting on behalf of the hospital that had retained his office.

Since the initiation of an investigation by the Commission, Respondent has ceased the use of the Discharge Letter. Respondent has formed Hospital Reimbursement Services Inc.

("HRS") to provide services to Franciscan, discharged patients now receive communications on Franciscan letterhead, and Respondent no longer identifies himself as a lawyer when communicating with patients and third parties in conducting HRS business. * * *

Discipline: The parties propose the appropriate discipline is for Respondent to be indefinitely barred from acts constituting the practice of law in this state, including temporary admission, solicitation of clients, and identifying himself as a lawyer in the course of conducting HRS business in Indiana and/or on behalf of Indiana entities, until further order of the Court, plus the costs of this proceeding. The parties agree that HRS should not be barred from providing medical billing services to Franciscan as long as Respondent does so in circumstances that are distinct from providing legal services to clients.

The Court, having considered the submissions of the parties, now approves the agreed discipline. For Respondent's professional misconduct, the Court bars Respondent from acts constituting the practice of law in this state, effective immediately until further order of the Court, consistent with the terms set forth above.

Posted by Marcia Oddi on Tuesday, April 22, 2014
Posted to Ind. Sup.Ct. Decisions

Monday, April 21, 2014

Ind. Decisions - COA posts a second for publication opinion today

In Moran Electric Service, Inc., and Threaded Rod Company, Inc. v. Commissioner, Indiana Department of Environmental Management, City of Indianapolis, Ertel Manufacturing Corp., an 18-page opinion, Judge Barnes writes:

Threaded Rod Company, Inc., (“Threaded Rod”) and Moran Electric Service, Inc., (“Moran”) (collectively, “Appellants”) appeal the trial court’s denial of their motions to intervene and motions for preliminary injunction in litigation between the Indiana Department of Environmental Management (“IDEM”), the City of Indianapolis (“the City”), and Ertel Manufacturing Corporation (“Ertel”). We reverse and remand.

Appellants raise two issues, which we restate as:
I. whether the trial court properly found that it did not have subject matter jurisdiction over Appellants’ claims; and
II. whether the trial court properly denied Appellants’ motions to intervene. * * *

In 2008, the City brought a civil action against Ertel to compel Ertel to reimburse the City for its clean-up costs. In 2009, the trial court entered summary judgment for the City and found that Ertel was liable to the City for cleanup costs. * * *

In July 2011, IDEM, the City, Ertel, and various insurance companies entered into an Administrative Agreed Order (“Administrative Order”) and a Settlement and Release Agreement (“Ertel Settlement Agreement”). * * *

IDEM agreed to issue a No Further Action Letter (“NFA Letter”) to Ertel when the remedial goals were met.

As part of the two agreements, the insurance companies paid $1,000,000 to IDEM. * * *

In January 2013, Threaded Rod filed a petition to intervene in the civil action between IDEM and Ertel. Threaded Rod also filed a motion for a temporary restraining order, motion for preliminary injunction, a request for a hearing, and alternatively, a motion for clarification of the trial court’s October 2011 order. Threaded Rod argued that the contamination on the Ertel site had migrated to the Threaded Rod site, that the $846,000 was intended to be used to clean up the Ertel site and other sites impacted by the contamination on the Ertel site, and that the funds should be preserved to address concerns on the neighboring properties. According to Threaded Rod, IDEM had abdicated its responsibility to clean up contaminants emanating from the Ertel site in violation of the trial court’s October 2011 order. Moran filed a separate motion to intervene and joined in Threaded Rod’s other motions. The City also filed a petition to intervene, which the trial court granted. * * *

IDEM argued that Appellants were not entitled to intervene in the action and that the trial court lacked subject matter jurisdiction because the exclusive jurisdiction to review IDEM’s actions rested with the administrative process pursuant to the Administrative Orders and Procedures Act (“AOPA”). The City argued that the motions to intervene were untimely and, alternatively, that Appellants were not entitled to intervene.

On April 19, 2013, the trial court issued an order denying the requests to intervene and the requests for a preliminary injunction. The trial court found that it lacked subject matter jurisdiction to address Appellants’ arguments pursuant to Indiana Department of Environmental Management v. Raybestos Products, Co., 897 N.E.2d 469 (Ind. 2008), corrected on reh’g by 903 N.E.2d 471 (Ind. 2009), cert. denied. * * *

The trial court erred when it determined that it did not have subject matter jurisdiction. However, under the doctrine of primary jurisdiction, this action should be stayed until the administrative action is final. We also conclude that the trial court erred by denying Appellants’ motions to intervene. We reverse and remand for proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: 7th Circuit decides a second Indiana case today, a 2-1 opinion re "judicial districts" under the FDCPA

Updating this ILB post from Oct. 31, 2013, where the 7th Circuit panel concluded, 2-1, that:

The district court dismissed Suesz’s claim after finding Marion County Small Claims Courts were not judicial districts for the purposes of the FDCPA. We agree, and affirm the dismissal of Suesz’s complaint.
the 7th Circuit heard oral argument in the case again last Friday, April 18, en banc.

The ILB attempted to obtain the briefs via PACER, but was stopped by this warning: "Warning: you will be billed for the total number of pages (this query is not subject to the 30-page limit on PACER charges)."

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

Ind. Decisions - Written order in Baskin v. Bogan request for emergency recognition

Here is Judge Young's April 18th written order supporting his bench ruling April 10th in the case of Baskin v. Bogan.

As Charles D. Wilson of the AP writes in this new story:

A federal judge says attorneys defending Indiana’s gay marriage ban haven’t shown any good reason to not recognize the marriage of a lesbian couple, one of whom has a terminal illness.

Judge Richard Young’s order dated Friday outlines the rationale behind his April 10 decision to grant the couple a temporary restraining order barring the state from enforcing its gay marriage ban against them.

Young says he granted the request in large part because Niki Quasney and Amy Sandler, who were marrided in Massachusetts, are likely to succeed in their bid to have Indiana’s gay marriage ban declared unconstitutional.

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (1):

In Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pamela Sandefur v. Utica Township, John Durbin, Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, et al. , a 12-page opinion, Judge Kirsch writes:

Old Utica School Preservation, Inc. (“Old Utica”), Kenneth Morrison, Scott Sandefur, and Pamela Sandefur (collectively, “the Citizens”) appeal the trial court’s order granting summary judgment in favor of Utica Township, John Durbin as Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, Anthony Glotzback, and Barbara Williar (collectively, “Jacobs Well”). The Citizens raise the following restated issue for our review: whether the trial court erred when it found that the Citizens did not have standing to seek declaratory judgment and granted summary judgment, dismissing the Citizens’ action. We reverse and remand. * * *

We note that, in determining that the Citizens did not have standing to bring this claim, the trial court only discussed whether the Citizens had standing as parties to the contract or as third-party beneficiaries. The trial court did not make any findings regarding the Citizens’ standing under the public standing doctrine, which the Citizens argued both in their response to the motion for summary judgment and in their motion to correct error. Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court’s judgment and facilitate appellate review, but are not binding upon this court. FLM, 973 N.E.2d at 1173. We will affirm upon any theory or basis supported by the designated materials. Id. We therefore proceed to determine if the Citizens have standing under the public standing doctrine. * * *

Applying the rulings in Cittadine and Berkshire, we conclude that the Citizens, and others residents of the township, have an interest in the proper administration of the School for park and recreation purposes. It is apparent that a public right, the enjoyment of the School for park and recreation purposes, is at issue because the statutory language in Indiana Code section 20-23-6-9(d) states that the school property is to be offered to the township as a gift for park and recreation purposes and that the deed shall state that the township is required to use the property for park and recreation purposes. We, therefore, conclude that the Citizens have standing to proceed with their claim under the public standing doctrine.

We note that the statutory language provides no guidance as to what townships are to do with the school property in situations such as Utica Township faced here in which it is no longer feasible to maintain the school property for park and recreation purposes. In adopting Indiana Code section 20-23-6-9, the legislature did not provide what should happen to school property when, or if, it is no longer used for park and recreation purposes in the future. It is unclear whether the property must be used for park and recreation purposes in perpetuity or if it reverts back to the school corporation when it is no longer used for those purposes or if the township can lease the property for uses that may or may not be exclusively for park and recreation purposes. We conclude only that the Citizens have standing to bring a claim under the public standing doctrine. In reaching this conclusion, we express no opinion on the issue whether the lease between Utica Township and Jacobs Well, Inc. complies with the statutory restriction on the use of the property for park and recreation purposes. We, therefore, reverse the trial court’s dismissal of the Citizens’ complaint and remand for further proceedings on their claims.

BAILEY, J., concurs.
FRIEDLANDER, J., concurs with separate opinion. [which reads in full]
I fully concur in the conclusion that the Citizens have standing, pursuant to the Public standing doctrine, to pursue their claim. I write separately to express my opinion that the final paragraph of the lead opinion constitutes dicta. For purposes of resolving the present appeal, we need go no further than the determination that the Citizens have standing. This is not to say, however, that I disagree with the sentiments expressed in the final paragraph. This case illustrates that the statutes enacted by our legislature fail to address certain situations and circumstances that might arise when disposing of school buildings. Although it is not relevant to our holding in the present case, I agree with my colleagues that these gaps merit the General Assembly’s attention. Subject to these comments, I fully concur in the lead opinion.

NFP civil opinions today (0):

NFP criminal opinions today (5):

James Clark v. State of Indiana (NFP)

Rodney S. Perry, Sr. v. State of Indiana (NFP)

Laura Jones v. State of Indiana (NFP)

Thomas D. Dillman v. State of Indiana (NFP)

Yansie G. Norment v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 18, 2014

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

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Indiana Transfer Lists

Indiana Decisions - More on "No judicial discretion in some expungement cases"

Referring to this ILB entry from earlier this morning, on the Court of Appeals decision April 17th in Jason Taylor v. State of Indiana, Indianapolis attorney Tyler Helmond writes:

Thanks for your story on Jason Taylor v. State of Indiana. I was wondering, the Taylor opinion says HEA 1155 is effective July 1, 2014, but the language from the legislation indicates it is [EFFECTIVE UPON PASSAGE] and “an emergency is declared for this act.” Does this seem inconsistent with the court’s opinion?
I responded:
Darn, I didn't catch that, but you are correct and I even have an earlier post headlined Ind. Courts - The new expungement changes took effect March 26th. What are they?

But I don't think it impacts the court's opinion with respect to this defendant. I expect his expungement efforts in Lake County took place before March 26, 2014.

Mr. Helmond responded:
I think you are right. I don’t think it has any impact on the merits of that case, but it may cause confusion as to what the effective date really is.
Here is HEA 1155. The Court's statement that it is effective July 1, 2014 is found in footnote 1 at p. 8.

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Ind. App.Ct. Decisions

Law - "What happens to your digital assets when you die?"

The Lafayette Journal Courier today has published this story by Sue Doerfler of the Arizona Republic. It begins:

Deciding who gets what when we die is difficult enough when it comes to divvying jewelry, collectible baseball cards, family heirlooms, houses and cars.

It can be even trickier to arrange control of our digital assets.

People's virtual legacies include e-mail, photo-sharing and social-media accounts. However, because of laws and user-service agreements, our heirs may have trouble gaining access to them, even if they have the passwords.

Plus, most of us don't include digital assets in our estate plans, experts say. This also can create problems for heirs.

Digital-asset planning is a fairly new concern for consumers as well as estate planners.

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to General Law Related

Ind. Courts - "Opponents of same-sex unions called federal Judge Richard Young an activist judge who was unilaterally trampling the law"

That is according to this opinion piece today by Maureen Hayden of CNHI in the New Albany News & Tribune. The ILB has not seen these criticisms. Today's report begins:

INDIANAPOLIS — When U.S. District Judge Richard Young recently ruled in favor of a lesbian couple seeking recognition of their out-of-state marriage, opponents of same-sex unions called him an activist judge who was unilaterally trampling the law. The label didn’t resonate with those who know Young well.

Among them is Randall Shepard, the retired chief justice of Indiana’s Supreme Court. Shepard, who was appointed to the bench by a Republican, has known Young, a Democratic appointee, for more than 30 years.

“He’s a person of great rectitude,” said Shepard, describing the 60-year-old grandfather who’s been on the federal bench since 1998. “You don’t hear anybody question whether he’s partial or impartial.”

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Ind Fed D.Ct. Decisions

Indiana Decisions - "No judicial discretion in some expungement cases"

The April 17th Court of Appeals opinion in Jason Taylor v. State of Indiana (ILB summary here, 5th case) was the subject last Friday of a story by Dan Carden in the NWI Times. Some quotes:

Judges do not have discretion to deny a valid request for expungement of a low-level felony or misdemeanor criminal record, the Indiana Court of Appeals ruled Thursday.

In the first legal test of the state's 2013 expungement law, the appellate court reversed Lake Superior Judge Salvador Vasquez's decision to reject the expungement request of a Valparaiso man who pleaded guilty in 2004 to sexual misconduct with a minor, a Class D felony that Vasquez reduced to a Class A misdemeanor in 2006 after the perpetrator successfully completed probation.

Vasquez claimed a provision in the expungement law requiring him to consider the victim's response to the expungement petition gave him the option of denying the request for expungement.

But in a 3-0 ruling written by Chief Judge Nancy Vaidik, a Porter County native, the appellate court determined the statue's declaration that a judge "shall order" a low-level felony or misdemeanor conviction expunged, provided other conditions are met, bars judges from rejecting those expungement petitions.

"It is well settled that the use of the word 'shall' is construed as mandatory language," Vaidik said. "Had the Legislature intended the expungement of conviction records to be discretionary, it would have used the word 'may' instead of the word 'shall.'"

Vaidik notes the law says judges "may" grant expungement requests for more serious felonies, indicating the General Assembly preferred judicial discretion in some cases and favored automatic expungement in others. * * *

State lawmakers earlier this year, in House Enrolled Act 1155, eliminated the requirement that a judge consider a victim impact statement in expungement cases, effective July 1, and simplified the expungement process to make the erasure of criminal records for now law-abiding citizens nearly automatic in most cases.

ILB: The opinion discussed these legislative changes in two footnotes to the opinion. Here is the first:
House Enrolled Act 1155 was signed by Governor Mike Pence on March 26, 2014, and will be effective July 1, 2014. While not directly applicable to this appeal, the changes it makes gives us further information about the legislature’s intent behind Chapter 35-38-9.

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Ending the Taboo on Citing Memorandum Decisions

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

You have likely heard of or even played a board game called Taboo. Working in teams, players “take turns describing a word or phrase on a drawn card to their partner without using five common additional words or phrases also on the card.” Points are scored when the word is guessed, but players “lose for saying one of the off limits words or phrases.”

The current version of Appellate Rule 65(D) shares some parallels with the popular board game. Lawyers can cite to any Indiana Supreme Court opinion and to about 25% of Indiana Court of Appeals’ decisional law — but the remaining 75% of that court's jurisprudence, found in not-for-publication (NFP) memorandum decisions, is taboo. Except under very narrow circumstances*, those NFP decisions “shall not be cited to any court . . . .”

Those opinions, though, are easily accessible on Lexis, Westlaw, and CaseMaker — and often provide helpful analysis when considering an issue. As previously discussed on this blog, the legal significance of some of those opinions are difficult to distinguish from published opinions.

Each year when researching and writing on an issue of Indiana law, some of my first-year legal writing students express puzzlement and disbelief about the limitation, which I explain as a relic of an era when memorandum decisions were not posted on the internet or available on Westlaw or Lexis.

That era ended several years ago, and the rule should be amended to reflect the modern reality. With your help, it can. As explained on the Indianapolis Bar Association’s website:

The Rules Committee of the Indiana Supreme Court has proposed changing this rule to allow citation of memorandum (non-for-publication) decisions as persuasive precedent. The proposed rule makes clear: “A party or attorney has no duty to cite a memorandum decision.” The new rule would not create additional work for lawyers. In many cases, lawyers will find and continue to rely on ample binding (published) authority. In cases without helpful controlling precedent, under the new rule, lawyers need not resort to other jurisdictions to find support, but instead may rely on relevant memorandum (not-for-publication) decisions within Indiana as persuasive precedent.

A Task Force of the Indianapolis Bar Association Appellate Practice Section crafted this proposal, which the executive committees of the Appellate Practice, Criminal Justice, and Litigation sections each respectively supported. The proposal was ultimately approved for submission to the Rules Committee by the IndyBar Board of Directors at its December 2013 meeting.

You are encouraged to share your comments on the proposed rule. Feedback is essential to the Rules Committee and ultimately the Indiana Supreme Court justices in deciding whether to adopt a proposed rule or to make changes to the proposal. Without it, this rule will not be approved.

Comments can be short or lengthy. Consider beginning with an introduction of yourself (including years in practice and practice areas(s)) before explaining your experience with the current rule and your reasons for supporting the change. You may wish to identify any specific instances where you have encountered and been unable to cite helpful memorandum decisions. Alternatively, a concise statement of your support for the rule will be valued.

Comments must be sent no later than May 13, 2014 and be addressed to:
RulesComments@courts.in.gov

OR

Lilia G. Judson
Executive Director
Indiana Supreme Court
Division of State Court Administration
30 South Meridian Street
Suite 500
Indianapolis, IN 46204

____________
*The exceptions are “to establish res judicata, collateral estopped, or law of the case.”

Posted by Marcia Oddi on Monday, April 21, 2014
Posted to Schumm - Commentary

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/21/14):

Thursday, April 24

Next week's oral arguments before the Supreme Court (week of 4/28/14):

Thursday, May 1

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/21/14):

Thursday, April 24

Next week's oral arguments before the Court of Appeals (week of 4/28/14):

Wednesday, April 30

Thursday, May 1

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, April 21, 2014
Posted to Upcoming Oral Arguments

Thursday, April 17, 2014

Ind. Gov't. - "AP Exclusive: Turner had more than $4M at stake in nursing home fight, has made millions more"; plus ILB resources

Updating this ILB post from April 14th, Tom LoBianco of the AP reports late this afternoon:

During much of the debate during the 2014 session, it appeared [Rep. Eric] Turner's son, developer Zeke Turner, had the most to lose if the five-year moratorium was enacted. But a financial document obtained by The Associated Press shows that Eric Turner had as much or more at stake because he owns 38 percent of Mainstreet Property Group, which builds nursing homes in Indiana and other states.

The information is included in a private offering from a subsidiary of Mainstreet Property Group looking to raise money for a proposed nursing home in Bloomington. The document refers to Eric Turner as a 50 percent owner of Mainstreet Capital Partners, which owns nearly 76.5 percent of Mainstreet Property Group.

Turner has consistently denied any wrongdoing. He issued a statement Thursday saying the moratorium would have had "no significant effect" on his business because investments in new facilities would simply have moved to other states. He acknowledged, as he has previously, that he holds an ownership stake in Mainstreet but did not disclose the amount.

"Consistent with the House Code of Ethics, I provided my particular expertise during discussions in caucus and disclosed I am an investor in an entity that invests in Mainstreet Property Group," Turner said. * * *

In a press release sent during the middle of the legislative fight, Mainstreet argued that five projects underway would be blocked by the ban. According to another Mainstreet financial document, two of the projects — in Lafayette and Terre Haute — were expected to net Mainstreet $5.4 million and $4.8 million, respectively.

In the case of those two facilities, Eric Turner stood to lose nearly $3.9 million if the ban had passed.

The Cicero Republican kept his distance from the issue in public, recusing himself from votes and abstaining from comment in hearings, including one where his son testified. But he lobbied other House Republicans in private meetings during the last two days of the legislative session and was successful in helping killing the legislation, several Republicans who were in those meetings told the AP.

House Ways and Means Chairman Tim Brown, R-Crawfordsville, said earlier this week that he knew of Turner's interest in the nursing home industry.

"Eric and I are friends and have had a lot of private conversations, so I'm aware of what's going on in Eric's life, yes," Brown said.

He didn't answer directly when asked if he had any concerns about Eric Turner taking actions in caucus that could reap him millions of dollars. Instead he offered a concern many lawmakers have: that stricter ethics rules could violate the spirit of Indiana's part-time Legislature, which brings in elected officials who are not full-time politicians.

Although most lawmakers have careers outside the Statehouse, ethics rules bar them from taking direct actions in the General Assembly that would directly benefit them or their family.

It's unlikely that Turner's actions violated that rule because his discussions occurred during private meetings of the House Republican caucus, which is not considered an official forum.

ILB Resources: The House announced today that its "Statutory Committee on Ethics" will meet next Wed., April 23, at 2 PM in Room 404 of the Statehouse. No word on whether it will be videocast.

Intrigued at why it was designated the "Statutory Committee," I found this statute, IC 2-2.1-3. Sec. 5 of this law creates the legislative ethics committees. Sec. 6, from 1974, requires each committee "to recommend a code of ethics for their respective houses by not later than 30 days after the first session day of each legislative session." (I linked to the House code in this earlier post; BTW, the Senate does not appear to have a Code of Ethics.)

Sec. 7 sets out other powers and duties of the committees, including:

(1) may receive and hear any complaint which alleges a breach of any privilege of the appropriate house, misconduct of any member or any violation of the respective code of ethics,
regardless of when the breach, misconduct, or violation is alleged to have occurred;
(2) may obtain information with respect to any complaint filed pursuant to this section and to that end may compel the attendance and testimony of witnesses, and the production of pertinent books and papers;
(3) may recommend whatever sanction is appropriate with respect to a particular member as will best maintain in the minds of the public a good opinion of the conduct and character of members of the general assembly;
(4) may recommend legislation to the general assembly relating to the conduct and ethics of members of the general assembly ....
The ILB has obtained and is posting a prescient 2006 Indiana Law Review article on legislative ethics, authored by Ed Feigenbaum. The title: "Legislative Ethics in Indiana: A Matter of Perception - And Perception Matters." It begins:
Few things are as critical to the effective and efficient performance of a democracy as the understanding by public officials that public service is a public trust. The system can only function properly if those responsible for legislating, implementing, and adjudicating our laws are motivated by public service, rather than by self-interest.

In a state such as Indiana, where service in the General Assembly is a parttime responsibility, this altruistic motivation becomes even more important as lawmakers must insulate—or separate—themselves from assorted outside influences that might adversely affect their ability to make impartial decisions and vote on matters without having their motives questioned over the perception or reality of those actions.

Posted by Marcia Oddi on Thursday, April 17, 2014
Posted to Indiana Government

Ind. Courts - More on: "Community Concerned About Brown Co. Courthouse Expansion"

Updating this ILB post from April 3rd, Laura Lane of the $$ Bloomington Herald-Times reports today:

Months after taxpayers said “no” to financing a plan to expand the Brown County Courthouse, the building is still short on space and violating disability access laws as county officials again try to convince residents to support a tax increase for an expansion.

Last fall, citizens on both sides of the issue carried petitions and gathered signatures from Brown County residents for and against the courthouse plan. The final tally was 8-1 against a tax hike for the project.

But county officials want to move forward and say they must at least bring the building into compliance with the Americans with Disabilities Act by making the restrooms wheelchair accessible and building ramps in the circuit courtroom, where stairs lead to the judge’s office.

Other options are adding on to the existing courthouse in the center of Nashville, or building a new facility adjacent to the law enforcement center just east of town.

During a meeting this week, about 50 citizens showed up to hear more and to speak their minds. * * *

The project would likely be financed by a $6.5 million bond issue. A resident with property assessed at $100,000 would pay an additional $22 per year in property taxes to fund the project.

The discussions in hope of reversing the tide against a courthouse expansion will continue over the next few months as county officials decide how to proceed.

Brown County Commissioner John Kennard said it will cost about $70,000 to bring the historic brick courthouse into compliance with the Americans with Disabilities Act, which requires that public buildings be accessible to people in wheelchairs.

Since there have been no formal citizen complaints filed regarding the lack of access, the county has not yet been forced to comply with the federal law. Kennard said he wants to make the improvements, but hesitates to spend the money since the alterations night be affected by a future expansion plan.

“From our study, the most logical answer is remodeling and expanding the existing courthouse. It’s old and fits the motif of the town,” Kennard said. “I think we have to at least make the building accessible. ... We are out of money, but we have to look at that and start somehow, and there’s no reason to do this twice if we go with the expansion.”

Posted by Marcia Oddi on Thursday, April 17, 2014
Posted to Indiana Courts

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

For publication opinions today (5):

In Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O'Mailia, and James O'Mailia, a 29-page opinion, Judge Brown writes:

GEICO General Insurance Company (“GEICO”) appeals from the trial court’s Findings of Fact and Conclusions of Law Addressing Plaintiff’s Motion for a New Trial, entered on March 21, 2013, as well as from the court’s Final Order entered on June 5, 2013, in favor of Cheryl A. O’Mailia and James O’Mailia (collectively, the “O’Mailias”). GEICO raises three issues, which we consolidate and restate as whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. Additionally, the O’Mailias request appellate attorney fees pursuant to Ind. Appellate Rule 66(E). We reverse and also deny the O’Mailias’ request for appellate attorney fees. * * *

The issue is whether the court erred in awarding attorney fees to the O’Mailias based upon GEICO litigating in bad faith. * * *

Here the parties agree that GEICO did not violate the rules of discovery. There was no interrogatory or other tool of discovery related to the Florida Information, and accordingly GEICO was under no duty to supplement its discovery under Ind. Trial Rule 26(E). Under the circumstances, in which GEICO was not under a duty to disclose the Florida Information and it researched the scope of its duty to disclose before deciding not to do so, we conclude that GEICO did not litigate in bad faith. Accordingly, we reverse the trial court’s attorney fee award under Ind. Code § 34-52-1-1(b)(3). * * *

ROBB, J., concurs.
BARNES, J., concurs with separate opinion. [which begins, at p. 28] I concur with the majority that the award of attorney fees be reversed. I do so with some hesitation, though, because I believe that trial by ambush and rabbit-out-of-the-hat moments are not to be favored in our courtrooms.

In Teresa Fry n/k/a Teresa Dolan v. Michael Fry, a 12-page opinion, Judge Robb writes:
When Michael and Teresa Fry divorced in 2005, they agreed regarding child custody, parenting time, and support for their child, J.F. In addition, they agreed that Michael could exercise parenting time with respect to Teresa’s prior-born daughter, K.D., at his option. In 2012, Michael filed an emergency petition for modification of custody with respect to both children, alleging that Teresa suffers from a degenerative illness that renders her unable to adequately care for them. The trial court granted the petition, ordering that Michael have primary physical custody of both children and Teresa have supervised visitation. Teresa later filed a Trial Rule 60(B) motion for relief from judgment, seeking to void the order modifying custody as to K.D. The trial court denied the motion for relief and reaffirmed its previous orders. Teresa appeals the trial court’s denial of her motion for relief as to K.D. only, raising the sole issue of whether the trial court had jurisdiction in this post-dissolution matter to determine custody of K.D., who was not a child of the marriage. Concluding the trial court had jurisdiction and committed no legal error, we affirm. * * *

The trial court did not commit any legal error in considering Michael’s emergency petition, and Teresa does not dispute an emergency existed as found by the trial court in its July 26, 2012, order. The trial court’s order awarding custody of K.D. to Michael is therefore affirmed.

In Geoffrey A. Gilbert v. Melinda J. Gilbert, a 21-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not abuse its discretion in granting Mother’s request to relocate because she had a good faith and legitimate purpose for relocating, and the move was not contrary to the Children’s best interests. Additionally, we conclude that Mother is not entitled to appellate attorney fees because Father’s appeal is not frivolous or in bad faith. Affirmed.

BARNES, J. concurs
ROBB, J. dissents with separate opinion [which begins, at p. 16] As noted by the majority, when a parent subject to a custody or parenting time order wishes to relocate and the other parent objects, the relocating parent must prove that the relocation is made in good faith and for a legitimate reason. If the relocating parent makes this showing, then the objecting parent must prove that the relocation is not in the child’s best interest. The majority decides that the record clearly supports the trial court’s conclusion that Mother desired to relocate in good faith and for a legitimate reason. I respectfully dissent.

In Charrise Belton v. State of Indiana, an 8-page opinion, Judge Bradford writes:
On March 7, 2013, Appellant-Defendant Charrise Belton was riding in a vehicle driven by her then-boyfriend, Tacolby Calloway. Belton waited in the vehicle while Calloway entered a home located near the intersection of 33rd Street and Orchard Avenue in Indianapolis. Calloway appeared to be under the influence of drugs when he exited the home approximately thirty minutes later. Calloway subsequently became upset with Belton and threatened to assault her. Fearing for her safety, Belton drove away from Calloway. Belton was stopped by a member of the Indianapolis Metropolitan Police Department for a traffic infraction approximately one-half of a mile away.

The State subsequently charged Belton with Class A misdemeanor driving while suspended. Following a bench trial, the trial court found Belton guilty as charged and imposed a 365-day suspended sentence. On appeal, Belton contends that the State did not present sufficient evidence to negate her necessity defense. Concluding that the evidence presented by the State was insufficient to negate Belton’s necessity defense, we reverse.

In Jason Taylor v. State of Indiana , a 9-page opinion, Chief Judge Vaidik writes:
Jason Taylor pled guilty to a Class D felony and was sentenced to eighteen months all suspended to probation in August 2004. Under his plea agreement, he was permitted to petition the court to reduce his conviction to a Class A misdemeanor if he successfully completed the terms of his probation. After successfully completing eighteen months of probation, he petitioned the trial court and it entered judgment as a Class A misdemeanor. In 2013, the Indiana legislature passed Indiana Code chapter 35-38-9, which allows convicted criminals to petition for expungement of previous crimes. Taylor appeals the denial of his petition for expungement under Indiana Code section 35-38-9-2. Although Taylor met all of the requirements in Indiana Code section 35-38-9-2(d), the trial court denied Taylor’s petition for expungement. Indiana Code section 35-38-9-2 states that if all conditions of the statute are met, the trial court shall order the conviction expunged. Nonetheless, the trial court denied the expungement relying on Indiana Code section 35-38-9-9(d), which requires a trial court to consider a victim’s statement before deciding on expungement. We determine that the word “shall” in Section 35-38-9-2(d) is mandatory language requiring expungement. And such an interpretation does not render Section 35-38-9-9(d) meaningless because that section applies to other parts of the statute where the trial court does have discretion to deny a petition for expungement. Therefore, we reverse the trial court. [Emphasis by ILB]
NFP civil opinions today (3):

In Re: the Marriage of: Gordon Somerville v. Effie K. Somerville (NFP)

Patrick R. Taylor v. Jason Evans, Curtis Evans, and Chrystal Evans (NFP)

Barbara Wiggles v. Sandlian Management Corporation d/b/a U-Stor Self-Storage (NFP)

NFP criminal opinions today (7):

Joshua Cornett v. State of Indiana (NFP)

K.P. v. State of Indiana (NFP)

Michelle D. Gauvin v. State of Indiana (NFP)

Thomas Curtis Edmond v. State of Indiana (NFP)

Gwendolyn F. Jones v. State of Indiana (NFP)

Daniel Torres v. State of Indiana (NFP)

Ben L. Macon v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 17, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - New Tax Court opinion, filed April 17th

In Larry G. Jones and Sharon F. Jones v. Jefferson County Assessor, a 6-page opinion, Judge Wentworth writes:

This matter is currently before the Court to decide whether the failure of Larry and Sharon Jones to timely request and file the Indiana Board of Tax Review’s administrative record warrants a dismissal of their original tax appeal. Given the particular facts of the case, the Court finds that their failure does not warrant a dismissal.

Posted by Marcia Oddi on Thursday, April 17, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on the Elkhart Four appeals

Yesterday, after posting about an unsuccessful St. Joseph County trial court challenge to a felony-murder charge, the ILB added, about another felony-murder case, now on appeal:

Here is an Oct. 9, 2013 ILB post on the "Elkhart Four" case.

Here is the docket of the appeal of two of the Elkhart defendants (Blake Layman and Levi Sparks) to the Court of Appeals.

Several amicus briefs have been filed in support of these two appellants. Here is one of the amicus briefs, this one submitted by the Indiana Public Defender Council. Notice footnote 1 on p. 3, which begins:

Although this Court cannot overrule an Indiana Supreme Court case, it can — and appropriately has — expressed its respectful disagreement and urged the Indiana Supreme Court to reconsider precedent.
The appeals of two of the "Elkhart Four" have been consolidated into this appeal. The third defendant who was tried (one of the four entered into a plea), Anthony Sharp, is appealing separately. Here is the docket in the Sharp appeal.

The ILB now has obtained a copy of the State of Indiana's 61-page brief in Layman/Sparks.

In addition, the ILB has obtained a copy of the amicus brief prepared for the Juvenile Law Center by Marsha Levick, who is now the attorney of record for the JLC.

Finally, for now, the ILB has obtained a copy of the brief of Appellant/Defendant Blake Layman. I'm told the Layman reply to the State's brief will be filed shortly.

The ILB has not yet obtained a copy of the brief of the second defendant in this appeal, Levi Sparks.

Posted by Marcia Oddi on Thursday, April 17, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Appeals court judges hear arguments in Martinsville school shooting lawsuit"

Zach Myers of FOX59 has a good report on yesterday's Court of Appeals oral argument in MSD of Martinsville v. Rebecca Jackson et al, held at Taylor Universty in Upland, Indiana. From the story:

UPLAND, Ind. (April 16, 2014)– More than three years after two students were injured in a shooting at Martinsville West Middle School, the legal battle continues.

Michael Phelps is already serving a 30-year sentence following his conviction in the March 2011 shooting. But now, the victims in the shooting are going after the Metropolitan School District of Martinsville with a lawsuit. The families of Chance Jackson and Brandon Kent say school officials didn’t do enough to keep the two boys safe.

Attorneys for both sides gave oral arguments before three Indiana Appeals Court Judges Wednesday. The Appeals Court is hearing the case after another judge denied the school district’s motion to dismiss it.

Attorneys for Jackson and Kent argued that staff members at the school didn’t follow their own safety plan well enough to keep Michael Phelps from entering the school on the morning of the shooting. Phelps had been previously banned from school property.

“We’re not arguing against the plan,” said Ian Thompson who represents Kent’s family. “But the failure of these staffers, who specifically knew that Micahel Phelps was, for lack of a better term, public enemy number one at this point. This kid had threatened to blow up the school three weeks prior to this incident.”

Tom Blessing, who represents Chance Jackson and his mother, argued that school staff members failed to prevent Phelps from entering the building.

“So then, Phelps goes by this bike rack within I believe ten for fifteen feet, as the testimony shows, of two staff members who are standing right there and don’t see him.”

The focus of the arguments is important as it pertains to immunity under state law. School officials argue that having the safety plan in place should give the school district immunity.

Attorney Tony Overholt, representing Martinsville Schools, compared the arguments to Monday morning quarterbacking.

“Anybody can always come along and say.. you could have done more, you should have done more, you should have spent more money, you should have done this, you should have done that,” he said.

The school district also countered the victims’ arguments by turning attention back on Chance Jackson himself. The district claims Jackson could have done more to avoid Phelps on that morning. The district says Jackson had several warnings about Phelps coming to the school to confront him, and the two boys had a long history of trash talk between them.

“Chance Jackson was told three times that morning, Michael Phelps is going to come and kick your a**,” Overholt said.

Judges Paul Mathias, Margret Robb and Cale Blackford will decide what happens next. While the Indiana Appeals Court can often come back with a decision in four to six weeks, Judge Mathias said it could take two months with this case. He noted the potential implications for school districts across the state.

Posted by Marcia Oddi on Thursday, April 17, 2014
Posted to Indiana Courts

Ind. Courts - "Eight plaintiffs added to Clark Drug Court suit"

Adding to the long list of stories about the Clark County Drug Court program, Charlie White of the Louisville Courier Journal reports:

Eight more Clark County Drug Court program participants are now listed in a federal civil-rights lawsuit, doubling the number of those claiming their rights were violated by county officials involved with its embattled treatment program.

Most in the suit, including the new plaintiffs, say they were jailed longer than the 72 hours allowed before conducting required hearings or having attorneys appointed to represent them.

Some of the plaintiffs claim they were arrested by drug court workers with no arrest powers and faced improper searches or the possibility of being in violation of drug court. The court was suspended in mid-February by the Indiana high court after allegations of unlawful conduct by drug court staff and practices harmful to participants.

“I’ve been trying to figure out why it was being run the way it was,” said Louisville attorney Mike Augustus, who filed the amended complaint in U.S. District Court in New Albany last week. * * *

U.S. District Judge Sarah Evans Barker is expected to decide whether to certify it as a class-action suit.

Augustus believes the number of plaintiffs will rise from 16 to more than 40 based on the “nature of addiction, combined with the consistently applied unconstitutional practices of Clark County Circuit Court 2,” he wrote in the latest complaint. There are currently more than 70 participants remaining in the program.

Posted by Marcia Oddi on Thursday, April 17, 2014
Posted to Indiana Courts

Wednesday, April 16, 2014

Ind. Decisions - Supreme Court posts a second opinion today

In Ronnie Jamel Rice v. State of Indiana, an 11-page, 5-0 opinion, Justice Massa writes:

Ronnie Jamel Rice appeals the trial court’s sentencing order, arguing it improperly relies on non-statutory aggravators as a basis for imposing a sentence of life imprisonment without parole. Because we believe the order as revised comports with our precedent and does not represent an abuse of the trial court’s discretion, we affirm. * * *

We find the trial court’s revised order meets the test outlined in Harrison and the trial court did not abuse its discretion. Further, Rice fails to persuade us that his sentence is inappropriate. For these reasons, we affirm the trial court.

Posted by Marcia Oddi on Wednesday, April 16, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one, re parole conditions

In David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; et al., a 51-page, 5-0 opinion, Justice David writes:

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program. * * *

We therefore reverse the trial court’s grant of summary judgment in favor of the Parole Board with respect to Bleeke’s additional parole conditions 4, 5, 17, 19, and 20, and remand with instructions that it enter an order enjoining the Parole Board from enforcing those conditions. We summarily affirm the Court of Appeals opinion below [see the ILB summary of the Jan. 23, 2013 COA opinion] with respect to its analysis of Bleeke’s additional parole conditions 8, 15, 17, and 19, and his challenges to Ind. Code §§ 11-13-3-4(g) and 35-42-4-11, and remand with instructions that the trial court also enter an order enjoining the Parole Board from enforcing conditions 8 and 15 unless it clarifies them first, and enjoining the Parole Board from enforcing those statutory parole conditions derived from the unconstitutionally overbroad labeling of Bleeke as an “offender against children.” But we affirm the trial court’s grant of summary judgment in favor of the Parole Board with respect to Bleeke’s remaining additional conditions.

And we likewise affirm the trial court’s grant of summary judgment to the Parole Board with respect to Bleeke’s claims about the constitutionality of the SOMM program. The program is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control, and its requirements do not violate the Fifth Amendment’s privilege against self-incrimination.

Posted by Marcia Oddi on Wednesday, April 16, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 9 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of M.P., Minor Child, and her Father M.J.P., M.J.P. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Daniel Dodd v. State of Indiana (NFP)

Katrina Baker v. State of Indiana (NFP)

Jeffrey L. Daniel v. State of Indiana (NFP)

Ontorio Frye v. State of Indiana (NFP)

Philip H. Chamberlain v. State of Indiana (NFP)

Jimmy Isbell v. State of Indiana (NFP)

Bryan J. Fields v. State of Indiana (NFP)

Chas J. Harper v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 16, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Motion to dismiss felony-murder charge denied"

Some quotes from a long story by Madeline Buckley of the South Bend Tribune:

SOUTH BEND -- An attorney for a man who was allegedly involved in a home invasion during which the homeowner shot one of the intruders asked a judge to dismiss the felony murder charge, arguing that it should not apply in cases where an accomplice is the victim.

St. Joseph Superior Court Judge Jane Woodward Miller on Tuesday denied the request, but the motion offers a glimpse into potential future appeals arguments that could challenge current case law on the controversial Indiana statute. * * *

In a motion filed in March, defense attorney Charles Lahey argued that the language of the state’s felony murder statute is at odds with a 1999 Supreme Court decision that determined the charge can be applied when an accomplice is killed in the act of committing a felony.

Palmer no question is incorrectly decided,” Lahey said at a hearing on Tuesday, referring to the Supreme Court case, Palmer v. State.

In Palmer, a panel of judges [sic.] upheld Jesse Palmer’s conviction of felony murder after a correctional officer shot and killed Palmer’s accomplice to a kidnapping.

Lahey referenced a similar case in Elkhart in which a jury convicted three teenagers of felony murder after a homeowner shot and killed an accomplice in a burglary gone awry.

ILB: Palmer v. State is a 3-2, 1999 Indiana Supreme Court opinion, written by Justice Dickson, who is now Chief Justice. He was joined by Justices Boehm and Selby, who are no longer on the Court. The two dissenters, Justice Sullivan and CJ Shepard, also are no longer on the Court. From the dissent:
I do not believe that our statutes authorize the imposition of liability for murder where the defendant's co-perpetrator is the victim.

Our felony murder statute provides: "A person who ... kills another human being while committing or attempting to commit... kidnaping ... commits murder, a felony." Ind.Code § 35-42-1-1. Palmer here did not kill another human being; his co-perpetrator was killed by a law enforcement official. Under the terms of the felony murder statute, Palmer is not guilty of felony murder.

From the majority:
The felony murder language of our murder statute provides: "A person who ... [k]ills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, or carjacking; ... commits murder, a felony."[6]

The statutory language "kills another human being while committing" does not restrict the felony murder provision only to instances in which the felon is the killer, but may also apply equally when, in committing any of the designated felonies, the felon contributes to the death of any person.

The South Bend Tribune story continues:

The case of the “Elkhart Four,” as it is popularly known, sparked resistance to what some said was an unfair application of the felony murder statute.

The three teenagers who went to trial have appealed the conviction and are awaiting a decision from the court, which could lead to a challenge of the Palmer decision down the road.

Lahey acknowledged the uphill battle involved in persuading a local trial judge to rule against the Palmer Supreme Court decision, but he said Indiana is in the minority in its interpretation of a felony murder statute.

“The defendant respectfully urges this court to refuse to follow that holding based on the plain language of the statute,” Lahey’s motion reads.

St. Joseph County Chief Deputy Prosecutor Ken Cotter asked the judge to deny the motion to dismiss the charge, noting that the Palmer decision has been upheld many times.

“The defendant should have known and knew the act could cause someone’s death,” Cotter said.

[Judge] Woodward Miller did deny the motion, saying she does not find the application of the felony murder statute to be unconstitutional [sic.].

“I understand our state is in the minority but I don't find it an unreasonable minority to be in,” she said.

Here is an Oct. 9, 2013 ILB post on the "Elkhart Four" case. Here is the docket of the appeal of two of the Elkhart defendants to the Court of Appeals. Several amicus briefs have been filed in support of the appellants. Here is one of the amicus briefs, this one submitted by the Indiana Public Defender Council. Notice footnote 1 on p. 3, which begins:
Although this Court cannot overrule an Indiana Supreme Court case, it can — and appropriately has — expressed its respectful disagreement and urged the Indiana Supreme Court to reconsider precedent.

Posted by Marcia Oddi on Wednesday, April 16, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Hyperlinking is now available in the U. S. District Court for the Southern District of Indiana"

From a notice dated April 11, 2014:

Hyperlinking is now available in the U. S. District Court for the Southern District of Indiana. Attorneys may file documents with active hyperlinks within e-filed documents. Hyperlinks will allow immediate access by the reader to the referenced materials, i.e., CM/ECF filings, case and statute citations, attachments, and exhibits. (Attorneys should check each judge’s practices and procedures to see if hyperlinks are a requirement.) When utilized by attorneys, hyperlinks in briefs and other court filings will provide quick, easy, and pinpoint access to particular sections of a case, specific page numbers, or to specific filings in the court's record. Hyperlinking will allow Judges to quickly and easily review case-supporting materials.

The court will also be issuing court documents with active hyperlinks, and the court-issued documents will continue to be available via the Notice of Electronic Filing ("NEF") email system. NOTE: Even though attorneys can utilize the one “free look” to the e-filed documents associated with the NEF – accessing other CM/ECF hyperlinked documents contained within the main document will be subject to normal PACER fees, and any hyperlinks to Westlaw or LexisNexis citations will require attorneys to login to those services.

For detailed instructions on hyperlinking, please refer to the Attorney Guide to Hyperlinking in the Federal Courts, which can be located on the court’s website.

ILB: Reviewing The Attorney Guide to Hyperlinking, linked above, is essential.

Note also the sentence I highlighted above: "Attorneys should check each judge’s practices and procedures to see if hyperlinks are a requirement." The judges vary as to whether they make their practices and procedures readily available online. Going down the list in the left margin here, I've added a link to the practices and procedures documents of those judges providing such information:

Magistrate judges: None of the copies of practices and procedures linked above make any reference to hyperlinks as of this writing.

Posted by Marcia Oddi on Wednesday, April 16, 2014
Posted to Indiana Courts

Environment - "Federal Appeals Court upholds Obama EPA rule on toxic air emissions"

James Bruggers reported yesterday in the Louisville Courier Journal in a story that began:

There is big news in the air quality world today.

A major piece of the Obama administration's strategy to clean up power plant pollution has survived a critical test by securing a favorable ruling before a federal Appeals Court.

Later in the story:
A number of states including Kentucky joined industry in trying to get the rule overturned. A spokeswoman for Kentucky Attorney General Jack Conway, who has been trying to bolster his coal cred in advance of a potential run for governor, said she could not comment while the decision was still under review. Indiana also joined the opposition to the mercury and air toxics rule.
Neela Banerjee of the LA Times had a story headed "Appeals court upholds EPA limits on air toxicity: The U.S. Court of Appeals for the D.C. Circuit rejects challenges from both sides of the issue, finding that EPA limits on emissions from coal-fired power plants are valid," that began:
WASHINGTON — A federal appeals court Tuesday upheld the Environmental Protection Agency's first-ever limits on air toxics, including emissions of mercury, arsenic and acid gases, preserving a far-reaching rule the White House had touted as central to President Obama's environmental agenda.

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit found that the rule regulating power plants "was substantively and procedurally valid," turning aside challenges brought by Republican-led states that had argued it was onerous and environmental groups that had contended it did not go far enough.

This story from Reuters includes the name of the opinion: White Stallion Energy Center v. EPA, U.S. Court of Appeals for the District of Columbia Circuit, 12-1100.

Posted by Marcia Oddi on Wednesday, April 16, 2014
Posted to Environment

Ind. Decisions - Out-of-state attorney reactions to two recent Indiana Supreme Court opinions

Scott H. Greenfield, a NY attorney, writes in Simple Justice, A Criminal Defense Blog about our Supreme Court's March 25th opinion in Joanna S. Robinson v. State of Indiana, a case where the testimony of the arresting officer and the record from his video camera were somewhat at odds. A Public Defender Blog, from "I am Gideon. I’m a public defender in the fictional state of Connecticut," has a less measured response.

Carolyn Elefant, the DC attorney and well-known writer of myShingle.com, had a post April 14th titled "An Indiana Ethics Opinion That May Kill Legal Start Ups." The opinion at issue is In the Matter of Anonymous, a Supreme Court disciplinary opinion from April 11th. A few quotes from her post:

Via the Legal Profession Blog, comes a recent Indiana ethics decision reprimanding a lawyer who’d practiced 41 years without incident for participating Law Tigers , a site that helps members of the public find a motorcycle attorney. Trouble is, in pursuit of a single Tiger that may purportedly cause harm to the public, the Indiana Supreme Court now has the entire fledgling industry of legal matchmaking platforms by the tail. * * *

But what’s worst about the Indiana Supreme Court’s ruling is that no site is safe – including the recent crop of VC-backed client matchmaking sites. Take UpCounsel , a site that small businesses can use to find lawyers. * * *

The way that I read the Indiana Supreme Court opinion, I don’t see any principled way to distinguish LawTiger from the new crop of matchmaking platforms. Which means that the Indiana court decision will have a chilling effect on lawyers in Indiana – and potentially other jurisdictions. And while the Indiana Court may view that as a triumph, in the long run a far worse fate awaits.

Posted by Marcia Oddi on Wednesday, April 16, 2014
Posted to Ind. Sup.Ct. Decisions

Tuesday, April 15, 2014

Ind. Gov't. - More on follow-up on: "State to lose $63M in tobacco payments next year"

In this post April 14th the ILB mentioned it wasn't able to find the case docket (CSS) for this lawsuit on mycase. A reader has just sent me this note:

The copy of the Dec. 2013 "State Of Indiana’s Motion To Vacate The September 11, 2013, Final Arbitration Award Entered By The Arbitration Panel In The 2003 NPM Adjustment Dispute Proceedings" has a typo in the Cause No.: "CAUSE NO. 49D07-99702-CT-0236." The CCS is online at http://mycase.in.gov/default.aspx under Case Number 49D07-9702-CT-000236 and the "Style" [cause name] is "State Of Indiana Exrel, et. al. vs. Philip Morris, Incorporated, Et Al,, et. al."
This solved the problem, use the case # in bold above if you want to check the Chronological Case Summary.

Posted by Marcia Oddi on Tuesday, April 15, 2014
Posted to Indiana Government

Courts - "Courtroom Sketch Artist: Art Lien" [Updated]

New Hampshire Public Radio has an over 10-minute interview with Art Lien, courtroom sketch artist. Here is Lien's worth-visiting website. See also two earlier ILB posts on Mr. Lien.

[Updated at 7 PM]
As it turns out, the NYTimes today has a story by Alexandra Stevenson on a new book titled “The Illustrated Courtroom: 50 Years of Court Art,” which:

brings together the work of five courtroom illustrators who chronicled famous trials of the last half-century, including those of David Berkowitz, the so-called Son of Sam; Charles Manson; the Watergate burglars; and O. J. Simpson. The artists — Howard Brodie, Aggie Kenny, Bill Robles, Richard Tomlinson and Ms. Williams — have brought financial chieftains, psychopaths and petty criminals to life for the world outside the courtroom.
The Times story includes a slide show of some of the illustrations. And here is the blog of the book authors, with many illustrations.

Posted by Marcia Oddi on Tuesday, April 15, 2014
Posted to Courts in general

Law - "Who Is Responsible for the Student Loans After Divorce?"

Charles Wells' "Wealth Mnagement" column in the $$ WSJ April 13th is sub-headed "Misconceptions abound, but how educational debt is divided may depend on where you live." A few quotes:

Legal experts say one of the most common misconceptions about dividing debt in a divorce is the belief that educational debt incurred before a marriage always becomes shared, marital debt once a couple gets hitched.

New York divorce attorney Cari Rincker says her mother once quipped that she couldn't wait for Ms. Rincker to "get married because half of [her] student debt will be his."

Ms. Rincker, who is single, had to correct her mother: Generally, educational debt incurred before a marriage is considered separate property and barring some predetermined contractual agreement, it stays that way after a divorce. "My law-school-loan debt is forever mine," Ms. Rincker says. "No spouse will ever be liable" for it. * * *

Debt division can get a little trickier when the student loans are taken out during the marriage. The person responsible for paying the loans isn't necessarily the person whose name is on them. Indeed, how educational debt is divided may depend on where you live and who benefited from the borrowed money.

Posted by Marcia Oddi on Tuesday, April 15, 2014
Posted to General Law Related

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

In U.S. v. Henderson (ND Ind., Miller), a 10-page opinion, Judge Bauer writes:

Marcus Henderson (“Henderson”) was indicted for being a drug user in possession of firearms in violation of 18 U.S.C. § 922(g)(3). Prior to trial, the district court judge denied Henderson’s motion to suppress evidence seized during a protective sweep of his home. A jury found Henderson guilty, and the district court judge sentenced him to thirty-nine months’ imprisonment, followed by three years’ supervised release, and the payment of a $100 special assessment. On appeal, Henderson contends that the firearms were discovered pursuant to an unconstitutional search because the protective sweep of his home was unreasonable. For the reasons that follow, we affirm. * * *

The sole issue raised by Henderson on appeal is his claim that the protective sweep was unreasonable because there were no articulable facts that Henderson’s house harbored an individual who posed a threat to those on the scene after Henderson exited.

Posted by Marcia Oddi on Tuesday, April 15, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Lucas H. Jackson v. State of Indiana ,, a 6-page opinion, Judge Pyle writes:

Lucas H. Jackson (“Jackson”) appeals the trial court’s revocation of his probation. We reverse.

Issue. Whether the trial court abused its discretion by revoking Jackson’s probation based upon Jackson being charged with an additional offense. * * *

Here, the only probation violation alleged by the State was that criminal charges had been filed against Jackson in Kentucky. The only evidence submitted at the evidentiary hearing was a copy of the indictment against Jackson and the probation officer’s assertion that the indictment constituted a violation of Jackson’s probation that he not commit another crime during probation. The trial court did not determine, by a preponderance of the evidence, that Jackson had actually committed a new criminal offense. Instead, the trial court determined that Jackson was in violation of probation by merely “being charged with a new offense[.]”

Based on the record before us, we conclude that the trial court abused its discretion by revoking Jackson’s probation and we reverse the trial court’s revocation of Jackson’s probation. See, e.g., Martin, 813 N.E.2d at 391 (holding that the fact criminal charges were filed against a probationer did not warrant revocation of probation); Heaton, 984 N.E.2d at 617 (holding that to revoke a defendant’s probation based on the allegation that he committed a new criminal offense, the trial court must find that the evidence established by a preponderance of the evidence that the defendant committed a new criminal offense).

NFP civil opinions today (2):

Antrone Crockett v. Clair Barnes and Mark Sevier (NFP)

Patricia Leslie v. Liberty Dialysis, Inc., Liberty Dialysis-Lebanon, LLC., Witham Memorial Hospital, and NLMP, Inc. (NFP)

NFP criminal opinions today (7):

Tammy Carter v. State of Indiana (NFP)

Edrece Bryant v. State of Indiana (NFP)

Mark Conner v. State of Indiana (NFP)

Lloyd W. Mezick v. State of Indiana (NFP)

Regina Choice v. State of Indiana (NFP)

Kenton T. Winder v. State of Indiana (NFP)

Jason R. Barton v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 15, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - "Marion County's gun rule stands ... for now"

That is the headline to a fascinating story this morning, reported by John Tuohy in the Indianapolis Star. Some quotes:

The City-County Council voted Monday to let residents in outlying Marion County continue to discharge weapons recreationally, fearing that banning it would violate state law.

Corporation Counsel Andy Seiwert said passing a ban could open the city up to lawsuits because a 2011 gun bill passed by the Indiana General Assembly prohibits cities from passing their own, tougher ordinances.

"The risk of enacting a ban has a great downside," Seiwert said before the meeting.

But a ban has been on the books in ­Indianapolis since at least 1975. It prohibits target practice, hunting and random shooting of guns. Violators are subject to a fine.
City lawyers discovered that the ordinance was actually "void," or unenforceable, because of the state law. Councilwoman Angela Mansfield pressed ahead anyway with an ordinance that would expand the ban to the outer county. She said those once-rural areas are now developed and populated and it was dangerous to allow guns to be discharged there.

Councilman Will Gooden said state law allows citizens to sue municipalities that pass their own gun laws.

"My concern is we are exposing ourselves to extreme consequences, ­extreme liability and extreme costs," Gooden said.

Councilman Ben Hunter called the state law "an affront to home rule" but agreed it was too chancy to challenge it.

Proponents of expanding the ordinance said residents near the White River and Keystone Avenue have been terrified by duck hunters in recent years. They argued it is only a matter of time until someone is struck by gunfire.

Councilwoman Christine Scales, an ordinance proponent, said after the meeting the council had put money ahead of safety.

"We are talking about people's lives, and we are concerned about cost," she said.

It was not immediately clear whether the city needs to repeal its ban to comply with state law.

ILB: Indianapolis has not always suffered from this fear of lawsuit - recall, for example, the various adult bookstore ordinances.

This same question has been considered in Hammond, and perhaps Evansville. The Court of Appeals, in Dykstra v. City of Hammond, considered a case where the city was sued to remove gun ordinances from its books. The ILB has a number of posts on the case, including this one from March 17, 2013, which quoted from a NWI Times story:

HAMMOND | The Indiana Court of Appeals upheld a ruling Friday that two area residents are not adversely impacted by city gun restrictions now voided by state law.

Samuel Dykstra, who lives in Highland and attends college in Hammond, and Michelle Bahus, of Hammond, had sued the city, alleging their rights were violated because gun regulations are still present in city code. * * *

“We feel like the city of Hammond, and Mayor (Thomas) McDermott specifically, intentionally want to leave the ordinances on the books, so they influence people's behavior,” said Guy Relford, the residents' attorney.

The appeals court found that, regardless of whether the ordinances were still in code, the restrictions were voided by a 2011 state law that essentially bars local governments from regulating firearms except in courtrooms.

The ordinances had restricted guns from city buildings or at any city board or commission meeting.

The appeals court stated the city had not adopted or enforced an ordinance in violation of the state law since it took effect in July 2011. The law was meant to curb future gun restrictions or future enforcement of ordinances in place prior to the state law taking effect, the ruling states.

See also this ILB post from March 19, 2013, which comments on the fact that the Hammond opinion had been designated as NFP (it was later changed to FP, and subsequently the Supreme Court denied transfer), and on the fact that the City of Evansville was facing a similar lawsuit in trial court, but the judge had postponed his decision until the Court of Appeals ruled in the Hammond case. Unfortunately, the ILB does not know the outcome of the Evansville case, because the Evansville Courier & Press at about that time went behind a total paywall.

Posted by Marcia Oddi on Tuesday, April 15, 2014
Posted to Indiana Government | Indiana Law

Monday, April 14, 2014

Ind. Gov't. - More on "Top Indiana lawmaker, family had millions on line in nursing home fight"

Updating this April 10th ILB entry, the Fort Wayne News-Sentinel today contains another AP story by Tom LoBianco on the ethics questions involving Rep. Eric Turner. Rep. Turner is Speaker Pro Tempore of the Indiana House. Some quotes from today's story:

INDIANAPOLIS — Members of the House Ethics Committee who will take up Rep. Eric Turner's case face daunting tasks as they try to answer two questions:
  • Did their powerful colleague violate any ethics rules in privately lobbying against a measure that would have hurt his family's business?

  • And are their own ethics rules substantial enough?
At the center of the inquiry is the Turner family's lucrative nursing home construction business and legislation this past session that would have banned construction of new facilities. * * *

House rules bar formal and public actions that directly benefit a lawmaker. Turner recused himself from votes publicly, but Republican lawmakers say he spoke up in private meetings of the House Republican caucus in the last two days of the legislative session and was successful in killing the ban.

The ethics committee appeared ready to meet last week, but the meeting was pushed off indefinitely. When its members do return, they'll tackle some pointed questions about Turner's actions, ethicists say. * * *

Turner has yet to speak publicly about his arguments inside the Republican Caucus this year. But he was asked about the issue last year, when he worked behind the scenes to clear a path for a multimillion-dollar contract for Utah-based Insure Rite, which was being represented at the Statehouse by his daughter, Jessaca Turner Stults. Asked at the time if he was representing his personal interest or that of his constituents, he scoffed and said he always looks out for the people who elected him first. * * *

Republican House Speaker Brian Bosma first promised an ethics review last spring, following news reports about lawmakers with conflicts of interest. But it was not until Turner's lobbying was reported this year -- and Democratic Party Chairman John Zody called for an investigation of his actions -- that Bosma sought the review.

The relative strength of the House's own ethics rules, and whether they contain too many loopholes, will be one of the chief issues the ethics panel takes on when it meets.

The ILB has located the brief Code of Ethics adopted by the Indiana House of Representatives. Perhaps relevant to the Turner question are paragraphs 5 and 6 of the Code, which appear to be in conflict:
No member of the House of Representatives shall sponsor or cast a vote on any legislative matter, except budget or general revenue bills, that might reasonably be expected to directly result in a substantial increase of his or her non-legislative income. * * *

Every member shall give freely of his or her particular expertise during a discussion or debate upon a given proposition; in doing so the member shall, insofar as it is possible, present the positions of all sides of the proposition.

Recall that the stories report: "Turner recused himself from votes publicly, but Republican lawmakers say he spoke up in private meetings of the House Republican caucus in the last two days of the legislative session and was successful in killing the ban." Notice that the Ethics Code does not seem to be clear even about whether a member who has recused himself from voting on a bill may speak about the bill during public floor debate, much less in private caucus.

Compare this to the judicial branch of government. As I understand it, when a justice recuses at the Supreme Court, he or she leaves the conference room when the case is internally discussed by the other justices. And the recused justice certainly does not participate in oral argument.

Posted by Marcia Oddi on Monday, April 14, 2014
Posted to Indiana Government

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

For publication opinions today (1):

In Ball State Univeristy v. Jennifer Irons, In re the Marriage of: Jennifer Irons, Wife, and Scott Irons, Husband , a 12-page, 2-1 opinion, Judge Barnes writes:

Ball State University (“BSU”) appeals the trial court’s order to release the college transcript of Jennifer Irons’s child, Jordan. We dismiss. * * *

Although BSU did not have a right to appeal the trial court’s order compelling the delivery of the transcript under Appellate Rule 14(A)(3), it could have asked the trial court to certify the order for an interlocutory appeal pursuant to Appellate Rule 14(B). Because BSU failed to have the order properly certified, we must dismiss this appeal.

This appeal was not properly brought under Appellate Rule 14(A)(3). Consequently, we dismiss the appeal.

ROBB, J., concurs.
BROWN, J., concurs in part and dissents in part with separate opinion. [that begins] I concur with the majority’s denial of Jennifer’s request for appellate attorney’s fees but respectfully dissent from the majority’s conclusion that the order does not constitute an interlocutory appeal of right. As the majority notes, Ind. Appellate Rule 14(A)(3) provides an appeal as a matter of right when the appealed order “compel[s] the delivery or assignment of any securities, evidence of debt, documents or things in
action.” Here, the appealed order does exactly that – compels the delivery of a document – by requiring BSU to immediately release an official transcript while admittedly tuition debt remains due and owing.

NFP civil opinions today (4):

Paula Rorer (Hubbard) v. William Shane Rorer (NFP)

In re the Marriage of: Annette M. Huseman, f/k/a Annette M. Mantis v. Angelo N. Mantis (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: J.J. and A.J. (Minor Children) and S.J. (Father) v. Indiana Department of Child Services (NFP)

Jay Darland and Kathleen Darland v. Elizabeth Rupp (NFP)

NFP criminal opinions today (3):

Tyrone A. Thompson v. State of Indiana (NFP)

Jeremy J. Holden v. State of Indiana (NFP)

Donald William Myers, III v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 14, 2014
Posted to Ind. App.Ct. Decisions

Courts - The process for filling the upcoming vacancy resulting from Judge Barker's decision to take senior status

Here is a news release:

Washington, D.C. – Senators Joe Donnelly and Dan Coats today announced the process for candidates interested in the upcoming vacancy on the U.S. District Court for the Southern District of Indiana. Judge Sarah Evans Barker recently announced her intention to take senior status effective June 30, 2014.

Donnelly said, “I thank Judge Sarah Evans Barker for her thirty years of service on the U.S. District Court for the Southern District of Indiana. We have been very lucky to have the benefit of her wisdom and judgment. A Mishawaka, Indiana native, she has dedicated most of her career to government service. In addition to her tenure on the District Court, Judge Barker served as a U.S. Attorney for the Southern District of Indiana, an Assistant U.S. Attorney, and on the staff of a U.S. Senator, U.S. Senate Committee, and a U.S. Representative. She has also spent time in private practice. I look forward to working with Senator Coats to review applications of qualified candidates to replace Judge Barker on the District Court.”

Coats said, “I thank Judge Barker for her many years of distinguished service on the federal bench and wish her the best during this transition to senior status. Hoosiers are fortunate that we will continue to benefit from her wisdom. Federal judges are appointed for life and play a crucial role in our judicial system. One of my Constitutionally defined duties as a Senator is to provide advice and consent to the President on federal judicial nominees, and I take this responsibility seriously.”

To apply, interested candidates should visit www.donnelly.senate.gov/judge and be prepared to submit an application highlighting their qualifications for the position and reason for seeking nomination to the U.S. District Court for the Southern District of Indiana. Applications are due no later than 5 PM EDT on Monday, May 12, 2014.

Posted by Marcia Oddi on Monday, April 14, 2014
Posted to Courts in general

Courts - More on: Ohio federal judge to rule valid out-of-state SSMs must be recognized within Ohio

Updating this ILB post from April 4th, today Ohio U.S. District Judge Timothy S. Black issued the opinion he earlier promised.

Chris Gridner of BuzzFeed has the story and ruling here.

Posted by Marcia Oddi on Monday, April 14, 2014
Posted to Courts in general

Ind. Decisions - Transfer list for week ending April 11, 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, April 11, 2014. It is two pages (and 23 cases) long.

Five transfers were granted last week:

Also of interest on the transfer list for last week is that the Supreme Court has denied transfer to both appellant and appellee by a 3-1 vote in the case of IBM v. ASC Human Services. See this ILB post from earlier today for more information.

Posted by Marcia Oddi on Monday, April 14, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court denies transfer in an IBM case

The Supreme Court has denied transfer to both appellant and appellee by a 3-1 vote in the case of IBM v. ASC Human Services. This leaves in place the Nov. 26, 2013, Court of Appeals opinion. Here is the COA summary of its opinion:

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

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

We affirm.

Note that this is NOT the Feb. 13, 2014 Court of Appeals opinion (State of Indiana, acting on behalf of the Indiana Family & Social Services Administration v. International Business Machines Corporation) affirming the trial court’s award of $40 million in assignment fees and $9,510,795 in Equipment fees to IBM.

Posted by Marcia Oddi on Monday, April 14, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - A follow-up on: "State to lose $63M in tobacco payments next year" [Updated]

The ILB had several entries on this topic in 2013.

The ILB has now obtained and is posting a copy of the Dec. 2013 "State Of Indiana’s Motion To Vacate The September 11, 2013, Final Arbitration Award Entered By The Arbitration Panel In The 2003 NPM Adjustment Dispute Proceedings."

The ILB has been unable to determine the status of this case, filed in Marion County Superior Court. (Perhaps a reader can help?)

And why is all this suddenly news again?

For one, the issue was raised during the recently ended legislative session, e.g. this NUVO story headed "Lawmakers confused by cut in state's tobacco funds."

For another
, although there has been no sign of a ruling in the Indiana trial court challenge, a decision was reached last week in a similar challenge in Pennsylvania, another of the five states whose payments have been reduced because of lack of diligent enforcement of the MSA in 2003.

Here are some quotes from an April 10th story by Jeff Frantz at PennLive:

Last fall, an arbitration panel ruled that in 2003 the Commonwealth hadn't strictly enforced all the provisions in the landmark Tobacco Master Settlement Agreement. As a result, the arbiters ruled, Pennsylvania would receive about $150 million from the settlement this year, instead of the $330 million check the state typically receives every April.

The state appealed the ruling.

Knowing less money could be coming in this year, the state reduced funding for non-mandated programs like the CURE grants that settlement money helps to fund.

Thursday, Philadelphia Court of Common Pleas Judge Patricia McInerney modified the arbiters' ruling. While Pennsylvania won't receive its full sum, McInerney's order means it will only lose out on about $60 million this year.

Here, from The Pennsylvania Record, is an April 13th story by Jon Campisi. Some quotes:
The commonwealth will recoup $120 million from the Tobacco Master Settlement Agreement that was withheld because of an arbitration panel’s finding that Pennsylvania failed to “diligently enforce” tobacco tax collection laws.

The news stems from a decision by Philadelphia Common Pleas Court Judge Patricia McInerney, who determined that the arbitration panel ignored the plain language of the 1998 master settlement agreement, which did not allow for such a financial shift. * * *

The commonwealth argued that the panel’s final award disregarded the law and was “wholly irrational.”

Kane’s office contended that the panel announced the definition and the factors it would rely upon for the first time in the final award, or after the evidence was presented.

The panel also applied its own “manufactured definition irrationally,” the commonwealth had stated in its November 2013 motion.

The motion noted that the arbitration panel anchored its final award to the number of lawsuits Pennsylvania brought to enforce the settlement agreement and its collection rate of 44 percent.

However, the commonwealth’s litigation policy focused on those entities with significant noncompliant sales, the motion had stated.

The motion also noted that in 2003, Pennsylvania prosecuted a total of six civil actions against noncompliant companies, including five that represented 80 percent of applicable tobacco sales in Pennsylvania.

Three other states, Colorado, North Dakota and Illinois, however, failed to bring any civil litigation against noncompliant companies, yet those states were found diligent by the panel, Pennsylvania argued.

Here is the 57-page Pennsylvania trial ruling. It likely will be appealed.

[Updated at 12:52 PM] In answer to the ILB question re the status of the action in Marion County Superior Court, Bryan Corbin, Public Information Officer, Office of the Indiana Attorney General, responds:

The State’s appeal still is pending before the Marion County Superior Court, the motion to vacate is currently in briefing and a hearing is scheduled for mid-July.

Posted by Marcia Oddi on Monday, April 14, 2014
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 4/21/14):

Thursday, April 24

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, April 15

Wednesday, April 16

Next week's oral arguments before the Court of Appeals (week of 4/21/14):

Thursday, April 24

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, April 14, 2014
Posted to Upcoming Oral Arguments

Friday, April 11, 2014

Ind. Decisions - Supreme Court issues private reprimand in attorney advertising case

In In the Matter of: Anonymous, a 7-page, 5-0 opinion, the Court writes:

We find that Respondent engaged in attorney misconduct by making false or misleading communications regarding legal services and by failing to include an office address in a public communication. For this misconduct, we conclude that Respondent should receive a private reprimand.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. * * *

[This case concerns respondent's involvement with the American Association of Motorcycle Injury Lawyers, Inc. ("AAMIL") and their website]

The Commission charged Respondent with violating these Professional Conduct Rules1 prohibiting the following conduct:
7.1: Making false or misleading communications regarding services, e.g., statistical data, information based on past performance, testimonials.
7.2(c): Failing to include an office address in a public communication.
7.3(d): Accepting referrals from an unqualified referral service.
7.3(e): Improperly giving something of value for a recommendation.
7.5(a)(4): Use of an improper trade name. * * *

Under the totality of the circumstances of this case, the Court agrees with the hearing officer's conclusions that the average viewer would not differentiate between Respondent and the statements about Law Tigers on the AAMIL website and that Respondent is therefore responsible for objectionable content on the website. The Court concludes that Respondent violated current Rule 7.1 and prior Rule 7.2(d) through his association with the AAMIL website. * * *

Remaining charges. The hearing officer found that the Commission had failed to adequately establish its remaining charges. This Court will defer to the hearing officer's findings on these issues. * * *

The hearing officer recommends that Respondent be given no discipline harsher than a private reprimand. The Commission concedes that a private reprimand would be within the range of appropriate discipline in this case. Accordingly, the Court will impose a private reprimand for Respondent's misconduct.

Posted by Marcia Oddi on Friday, April 11, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Analysis of the Indiana Supreme Court’s First Quarter Opinions (Criminal Cases)

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

Has the unanimity that marked the first year of the newly comprised Indiana Supreme Court continued? Is a year an unusually long time to wait for an opinion from the Indiana Supreme Court? This post tackles both questions and more through an analysis of opinions in criminal cases decided in the first quarter of 2014.*

The parties, lawyers, and interested public have been waiting more than a year for an opinion in the high profile Brewington v. State case. The case was transmitted to the Indiana Supreme Court on March 26, 2013. Oral argument was held September 12, 2013. Nearly seven month later, still no opinion. Although I won’t predict an outcome, based on the oral argument questioning and subsequent delay I would be surprised if the opinion is unanimous; the writing of separate opinions and accompanying revision(s) of the draft majority opinion generally add considerably to the time it takes to decide a case.

The following chart considers the timing of opinions, authorship and unanimity, and whether the Court of Appeals and trial court were affirmed or reversed in the criminal cases decided last quarter.

Nine Month Average

The wait from arrival at the Supreme Court to the rendering of an opinion ranged from 167 days in an appeal from the State involving credit time (State v. Lotaki) to nearly a year in the high profile Christopher Smith v. State appeal that addressed a principal’s failure to “immediately” report child abuse. The average was 278 days.

That time period can be broken into three general categories. The shortest period is from the transmission of a case to the Supreme Court to a decision on whether to grant transfer. This took only two and a half weeks in some cases to just under two months in the only juvenile delinquency appeal decided last quarter. Adult criminal cases are generally sent directly to each justice to evaluate before the Court’s weekly conference, while juvenile delinquency (and most civil cases) are delayed a few weeks while a memo is prepared by staff attorneys in the Supreme Court Administration office. Excluding the one juvenile appeal, the court took an average of just three weeks to make a transfer decision.

After transfer is granted, oral argument is generally scheduled, although the order setting argument may not be issued for several weeks or longer. Arguments were heard in as short as two months (Robinson) or as longer than six months (Smith and Coats). The average delay from transfer grant to oral argument was 140 days.

Finally, after hearing oral argument, the Indiana Supreme Court sometimes decided criminal cases in as short as two months (Alexander) or longer than six months (Robinson). The average was 133 days.

Decline in Unanimity

Only six of the nine opinions (67%) were unanimous. Inman generated a concurring opinion from Justice Massa, while Robinson and Smith each generated dissenting opinions written by Justice Rucker. Not surprisingly, the cases with separate opinions took longer (an average of 171 days from oral argument) than the unanimous opinions, which were issued more quickly (only 104 days after argument). Considering the total period of time from arrival at the supreme court, the two per curiam opinions were the quickest to receive a decision (an average of only 204 days), which is expected because the Court usually issues per curiam opinions in straightforward cases in which the justices are unanimous.***

Trial courts fared well in transfer opinions; the Court of Appeals did not

The trial court was affirmed in seven of the nine cases in which the supreme court issued opinions. What is more, the importance of deferring to trial courts was emphasized in at least two of the cases. In Keck, which was decided along with Robinson, Justice Massa explained:

when it comes to suppression issues, appellate courts are not in the business of reweighing evidence. And we reiterate that principle today; our trial judges are able to see and hear the witnesses and other evidence first-hand. But the appellate bench, in a far corner of the upper deck, doesn’t provide such a clear view. Remote from the hearing in time and frequently in distance, we review a cold paper record. Thus, unless that record leads us to conclude the trial judge made a clear error in his findings of fact, we will apply the law de novo to the facts as the trial court found them.
The only two cases in which the trial court was reversed were appeals by the State. In Coats, the supreme court reversed a trial court’s refusal to commit an incompetent defendant suffering from Alzheimer’s disease to the Division of Mental Health and Addiction (DMHA): “By finding Coats not competent to stand trial but refusing to order commitment, the trial court did not follow the law as it is written.” In Lotaki, the trial court erred by ordering jail credit time for a mandatorily consecutive sentence.

Finally, although the supreme court sometimes reaches the same result as the court of appeals, a grant of transfer was almost always greeted with a different outcome during the past quarter. The two exceptions were Keck, in which the court of appeals had affirmed the trial court’s grant of a motion to suppress, and I.T., where the supreme court disagreed with the court of appeals’ dismissal of the State’s appeal but nevertheless reached the same outcome in favor of the juvenile by “constru[ing] the Juvenile Mental Health Statute’s limited immunity as prohibiting both use and derivative use of a juvenile’s statements to prove delinquency.”
___________________
*A separate post will provide similar analysis for civil cases decided during the first quarter.

**The first four columns in the chart consider the number of days for various time periods of each appeal to the Indiana Supreme Court: transmission on transfer to grant of transfer; grant of transfer to oral argument; oral argument to opinions; and the total amount of time. If one or more of these steps did not occur in a case, the box was left blank. The next two columns address the authoring justice (by initials) and any dissenting justices. U=unanimous opinion; C=concurring opinion. Finally, the last two columns consider whether the outcome of the court of appeals’ opinion and the trial court’s decision were affirmed or reversed by the supreme court.

***Although not a criminal case and therefore excluded from this analysis, the justices issued a per curiam opinion last quarter in the Judge Kimberly Brown judicial ethics case. That non-unanimous decision was issued only 32 days after the Commission’s reply brief was filed.

Posted by Marcia Oddi on Friday, April 11, 2014
Posted to Schumm - Commentary

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: J.F. & N.F. (Minor Children), and A.M. (Father) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Randall Langford v. State of Indiana (NFP)

G.W. v. State of Indiana (NFP)

Ray A. Brooks v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 11, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - " A Marion County Judge is expected to rule by the end of the month on when Indiana drivers can begin applying for new vanity license plates again"

That is the lede to this WISHTV story April 9th by Troy Kehoe, who reports on a court hearing Wednesday:

The legal battle surrounding the program has been ongoing since July when former BMV Commissioner Scott Waddell suspended the state’s personal license plate (PLP) program following a lawsuit filed by Greenfield Police Corporal Rodney Vawter.

Vawter claimed the agency’s decision to revoke his personalized plate, which reads “0INK” next to a Fraternal Order of Police logo, was unconstitutional.

The American Civil Liberties Union, which filed the lawsuit on Vawter’s behalf, filed a motion in November requesting a summary judgment, or immediate ruling in the case. The motion contends that “there are no contested issues of fact,” and that Vawter and others in the class action lawsuit are entitled to “appropriate injunctive and declaratory relief.”

The motion for summary judgment comes in the wake of an I-Team 8 investigation in October that found inconsistencies in how the BMV decides what personal license plate requests to approve and deny.

ACLU Attorney Ken Falk cited many of the examples uncovered by I-Team 8′s investigation during Wednesday’s hearing before Judge James Osborn, arguing that decisions are made arbitrarily by an appointed panel of BMV employees using a “rough guideline” of examples. The BMV admitted that plate approval requests “may depend on who is making the decision that day,” according to depositions cited in court.

“That’s a First Amendment violation,” Falk told I-Team 8 following the hearing. “The standards governing plates are so vague, so amorphous, and so subject to individual discretion, that’s it’s unconstitutional. And, that’s demonstrated by the examples of what plates are approved and what plates are not approved.”

Falk also told the Judge that the BMV’s policy on how personal plates are approved and denied is not available to the public, as required by law. He also argued the BMV’s commissioner does not have the legal authority to suspend the program.

More from the story:
But, the BMV, represented by the Indiana Attorney General’s office, argued that Vawter had not appealed his plate revocation prior to filing his lawsuit, as required by Indiana law. It also argued that since its plate approval process relies on a “policy” rather than a “rule” it does not have to be disclosed to the public in order to be valid.

“The question is: is this government speech or private speech,” said Deputy Attorney General Betsy Isenberg in court. “License plates belong to the state. That makes the plate, and everything on it, government speech.”

“I just think that’s wrong,” Falk responded. “There’s no case in America that supports that, and there are many, many cases that say exactly to the contrary. It’s silly to argue that when I put “GO IU” on my plate that that’s government speech,” Falk responded. The plate is owned by the government, sure. But, as I said in court, so are parks. And, no one would think that if I’m protesting in a park that somehow that becomes government speech.”

Both sides have asked for an immediate ruling on their behalf. Judge Osborn asked both sides to submit their final court orders by April 21. His ruling is expected to be issued shortly after that, Falk said.

Posted by Marcia Oddi on Friday, April 11, 2014
Posted to Indiana Government

Ind. Decisions - "Federal judge orders Indiana to recognize marriage of gay couple before one partner dies"

Here is the AP take on yesterday's SD Ind. decision (earlier posts here and here). Some quotes from Charles D. Wilson's story:

INDIANAPOLIS — A federal judge ordered Indiana on Thursday to recognize the out-of-state marriage of a gay couple before one of the women dies of cancer. The decision, specific to the couple, doesn't affect other lawsuits challenging Indiana's ban on same-sex marriages.

U.S. District Court Judge Richard L. Young in Evansville granted the request by Niki Quasney and Amy Sandler for a temporary restraining order that forces Indiana to recognize "this particular couple's out of state marriage," said Paul Castillo, an attorney for the national gay rights group Lambda Legal, who represented them.

The state must recognize their marriage immediately, Castillo said. "They have to be treated as any other married couple," he said.

Quasney said she felt grateful for the judge's ruling.

"We are so thankful that we can move forward and concentrate on being with each other. Our time together and with our daughters is the most important thing in the world to me," Quasney said in a statement. Sandler and Quasney, of Munster, had asked Indiana to recognize their 2013 marriage that took place in Massachusetts, one of 17 states where gay marriage is legal. Indiana does not recognize same-sex marriages performed inside or outside of the state.

Indiana Solicitor General Thomas Fisher argued that Indiana's current law "does not allow for hardship exceptions," attorney general's spokesman Bryan Corbin said in a statement after the ruling.

Young's decision doesn't affect other lawsuits challenging Indiana's gay marriage ban.

Posted by Marcia Oddi on Friday, April 11, 2014
Posted to Ind Fed D.Ct. Decisions

Thursday, April 10, 2014

Ind. Gov't. - "Top Indiana lawmaker, family had millions on line in nursing home fight"

Tom LoBianco of the AP has a new, devastating report, via the Columbus Republic, on what Rep. Eric Turner stood to lose if a proposed ban on construction of new nursing homes in Indiana had become law this year. The story begins:

INDIANAPOLIS — A top Indiana lawmaker, his family and investors in their company risked losing millions in future profits if a proposed ban on construction of new nursing homes in Indiana had become law this year, an Associated Press review has found.

Instead, the bill died after intense private lobbying by Republican House Speaker Pro Tem Eric Turner, who now faces scrutiny over his actions on legislation that would have directly affected his family.

Public and private financial documents show Turner and other direct investors in Mainstreet Property Group rely on building new nursing homes to make money, generating returns of up to 600 percent in some cases. Each deal for a new home that Mainstreet completes with HealthLease Properties in Canada, an affiliated company in which Turner and his family are also investors, can net investors a collective $2 million or more.

Turner, R-Cicero, maintains that business model would have survived the proposed moratorium, and a ban simply would have led them to do business in other states.

Financial analysts who reviewed a private Mainstreet financial document for The Associated Press disagreed, concluding that the Indiana ban would have drastically cut into the company's profits by placing the state — where many of its facilities are located and others are planned — off limits.

Turner's private lobbying against the ban in the final two days of the legislative session has drawn scrutiny from Statehouse leaders, with fellow Republican House Speaker Brian Bosma ordering the House Ethics Committee to investigate Turner's actions.

Supporters of the moratorium, which would have halted new construction for five years, argued it was needed to keep the market from being flooded and prevent older facilities from going out of business. But opponents of the ban, including Turner and his children, argued it violated free market principles.

The bill died after Turner's push during private meetings of the House Republican Caucus, where decisions are frequently made before lawmakers return to public debate.

"It looks like he stood to benefit the most from this bill dying," said Tim Sadler, a business consultant and president of the Fairfax Group, which operates nursing homes in Indiana.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Indiana Government

Courts - "Federal Appeals Court Hears Arguments Over Utah’s Same-Sex Marriage Ban"

Here is Chris Geidner report in BuzzFeed on this morning's oral argument (see ILB post here) before the 10th Circuit panel.

More reports will be added to this post...

[Update] Here is a direct link to the audio of today's oral argument. (h/t/ @AppellateDaily)

[More] Here is Joan Biskupic's story for Reuters.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Courts in general

Ind. Decisions - More on: SD Ind. grants emergency request for immediate, 28-day recognition of the out-of-state marriage of one Indiana couple

Attorney General Zoeller's office has issued this statement re today's decision:

EVANSVILLE, Ind. -- On Thursday in the U.S. District Court for the Southern District of Indiana, Chief Judge Richard L. Young granted a temporary restraining order (TRO) instructing the Indiana State Department of Health on how it should issue a death certificate concerning two plaintiffs, Nikole Quasney and Amy Sandler, in Baskin et al. v. Bogan et al., a legal challenge to Indiana’ s marriage law, and instructing the State to recognize the marriage of those two plaintiffs only. Thursday’s TRO applies solely to Quasney and Sandler only; it does not apply to the other plaintiffs in the Baskin case, nor to any of the plaintiffs in four other legal challenges to Indiana’s marriage law, nor to anyone else in Indiana. The temporary restraining order is in effect only until May 8 and the Court will schedule a preliminary injunction hearing soon on the plaintiffs’ request to extend the order indefinitely. At the preliminary injunction hearing, both sides will have the opportunity to make their arguments.

Because the temporary restraining order involves two plaintiffs and one death certificate only, it does not apply in any way to marriage licenses of others. County clerks in Indiana will be notified that there is no change in legal requirements for granting marriage licenses as a result of this TRO. County clerks still are prohibited by law from issuing marriage licenses to same-sex couples.

Defending the State of Indiana, the State Department of Health and the marriage statute is the State’s lawyer, the Indiana Attorney General’s Office. At Thursday’s hearing in federal court in Evansville, Solicitor General Thomas M. Fisher of the Attorney General’s Office presented the State’s legal argument that under the current rule of law, the marriage statute does not allow for hardship exceptions, and the relief the plaintiffs sought could not now be granted. Temporary restraining orders cannot be appealed; so the legal issue will be considered again and more fully at the Court’s upcoming preliminary injunction hearing.

Five legal challenges to the marriage statute are assigned to Chief Judge Young in U.S. District Court. The Indiana Attorney General’s Office is defending the State and statute in all five cases.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Ind Fed D.Ct. Decisions

Environment - More on "Don’t let legislators decriminalize poaching"

Updating this ILB post from Feb. 17, 2014, which quoted a letter to the editor in the Indianapolis Star, signed by Jeff Wells, President, Indiana Conservation Officers Organization, Maureen Hayden of CNHI has a story this afternoon in the Clark County News & Tribune, headed " Some outdoor recreational laws being eliminated in Indiana: Law eases dozens of penalties, removes some crimes ." Some quotes:

A law that takes effect July 1 ... will significantly change the state's boating, hunting and fishing rules. It eases dozens of penalties, removes some crimes and gives judges, prosecutors and state conservation officers more discretion over enforcement.

More violators will be cited with an infraction and fine — like a speeding ticket — rather than face the threat of jail, a criminal record and the loss of hunting, fishing and boating privileges.

Poaching a deer will still be illegal, for example, but it will no longer be a crime for a boat owner to post his license number in the wrong place on the vessel — unless it’s done to deceive law enforcement.

More penalties will be discretionary. A first-time offense of poaching a deer now carries an automatic $500 fine. Under the new law, it will be up a judge to impose the fine.

The changes were part of a larger effort to rewrite Indiana’s criminal code to make punishments more fitting of their crimes. Supporters say the law still protects natural resources but without such a heavy hand.

“If the law said you could only catch and keep a fish that was 14 inches long, it was a crime if it was 14 and a half inches,” said Rep. Jud McMillin, R-Brookville, whose district includes Brookville Lake, which attracts about 1 million visitors a year. “We need to reserve our criminal penalties for real crimes.”

Sen. Brent Steele, R-Bedford, crafted the changes last summer as a member of the Legislature's Criminal Sentencing Policy Study Committee. It’s the same group that pushed the General Assembly to increase prison time for violent and sex offenders this year while lowering sentences for low-level drug and non-violent offenders.

Steele wanted to decriminalize even more offenses policed by the state's Department of Natural Resources than what ended up in the final bill.

He argued that prosecutors, busy with other crimes, were refusing to take cases from DNR officers or allowing offenders to plead to lesser offenses. His solution: Use more civil infractions that don't require a prosecutor to prove an offender's guilt beyond a reasonable doubt. * * *

The Indiana Wildlife Federation wanted to see the bill stalled and sent to a summer study committee. It also cites concerns about diminishing the deterrent effect that Crider prizes.

“We're concerned about the unintended consequences of the law,” said Barbara Simpson, the federation's executive director.

Some DNR officers privately opposed the changes, as well. But DNR officials have publicly supported them, saying important penalties have been left intact and conservation officers have the discretion needed to enforce the rules with common sense.

Conservation officers previously had no discretion, noted DNR law enforcement spokesman Lt. Bill Brown in an email. While the impact of the changes is still unknown, he wrote, “it is anticipated that this bill will serve the citizens, the natural resources and the officer very well in the future.”

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Environment | Indiana Law

Ind. Courts - Still more on "Tippecanoe Superior Court judge regrets sending campaign email on work computer, account"

Updating this ILB post from Feb. 27th, Ron Wilkins reports today in the Lafayette Journal Courier:

A special prosecutor will handle the investigation into whether Tippecanoe Superior 4 Judge Gregory Donat should be charged for a Feb. 25 campaign email sent from his publicly owned computer and email account.

Tippecanoe County Prosecutor Pat Harrington filed paperwork Wednesday recusing himself and his office from the case to avoid the appearance of impropriety.

Harrington’s filing requested that Todd Meyer, Boone County prosecutor, be appointed to oversee the review of the Indiana State Police investigation findings when the report is completed. If Harrington’s equest is approved, Meyer will also then decide whether Donat should be charged.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Indiana Courts

Ind. Decisions - SD Ind. grants emergency request for immediate, 28-day recognition of the out-of-state marriage of one Indiana couple

Updating this post from earlier this morning, SD Ind. Chief Judge Richard Young has, per this Indy Star story by Jill Disis:

... this morning granted an emergency request to force Indiana to immediately recognize the marriage of a lesbian couple who wed in Massachusetts.

Judge Richard Young heard arguments in Evansville, where attorneys for Amy Sandler and Niki Quasney argued for immediate recognition of the couple's Massachusetts marriage via a temporary restraining order. Quasney, of Munster, was diagnosed in 2009 with ovarian cancer and is terminally ill.

The order will last for 28 days. A preliminary injunction hearing is scheduled at that time. * * *

The state argued that its definition of marriage is based on protections for children who come out of unplanned pregnancies and that granting temporary restraining orders are not a matter of emotional equity but of legal rights.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Law - Responsible Property Transfer Act repealed this session

The long-time (since 1996) Indiana Responsible Transfer Law was repealed this session, as part of HEA 1005, a bill concerning "government reduction." The repeal involve both the definitions, found in various sections of IC 13-11, and the law itself, IC 13-25-3, which is repealed by SECTION 81, at p. 45. (BTW, you can no longer reliably find repealers by looking at the end of a bill.) The repeal goes into effect July 1. This unpublicized repeal comes as a surprise to the ILB.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Environment | Indiana Law

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

For publication opinions today (2):

In HRC Hotels, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company, a 12-page opinion, Chief Judge Vaidik writes:

Myers Y. Cooper Corporation (“Myers Cooper”) requested a variance for its property to build a pet day-care facility. At the hearing, I-465 LLC, the owner of an adjacent Hilton Homewood Suites Hotel, protested due to the noise that would be caused by pets staying so close to its hotel. After the Marion County Metropolitan Development Commission Board of Zoning Appeals (“BZA”) granted the variance, HRC Hotels, LLC (“HRC Hotels”), the parent company of I-465 LLC, filed a petition for judicial review in the trial court. Myers Cooper responded, arguing that HRC Hotels lacked standing to file the petition for judicial review. After the deadline to file a review petition, HRC Hotels filed a motion to amend the petition for judicial review to substitute I-465 LLC as the real party in interest. The trial court dismissed HRC Hotels’s petition concluding that HRC Hotels lacked standing to file a petition for judicial review and therefore the trial court lacked subject-matter jurisdiction to consider HRC Hotels’s motion to substitute the real party in interest. HRC Hotels now appeals.

We conclude that the standing requirements under Indiana Code section 36-7-4-1603 are procedural rather than jurisdictional. Therefore, HRC Hotels’s alleged lack of standing when the petition was filed does not deprive the trial court of subject-matter jurisdiction. Because the trial court does have subject-matter jurisdiction to consider HRC Hotels’s motion to amend its petition for judicial review, it should substitute I-465 LLC as a real party in interest and hear the merits of the petition for judicial review. We reverse the trial court’s decision and remand for further proceedings.

In Michael Johnson v. State of Indiana, a 20-page opinion, Judge Pyle writes:
Issues: 1. Whether Johnson knowingly, voluntarily, and intelligently waived his right to a jury trial on all of his charges. 2. Whether the trial court abused its discretion in denying Johnson the right to cross-examine the victim about past sexual conduct.3. Whether the State presented sufficient evidence to prove beyond a reasonable doubt that Johnson committed Class B felony rape and Class D felony intimidation. * * *

Affirmed.

MATHIAS, J., concurs.
BRADFORD, J., concurs in result with opinion. [which begins, at p. 20 of 20] I agree with the majority that Johnson has waived any argument he might have had concerning I.B.’s testimony about her sexual history with Johnson. I would reach that conclusion, however, on the more fundamental basis that Johnson made no offer of proof as to what I.B.’s testimony would have been.

NFP civil opinions today (1):

Richard Brown and Janet Brown v. City of Valparaiso, Indiana (NFP)

NFP criminal opinions today (5):

Monterius D. Sharp v. State of Indiana (NFP)

Dawayne J. Thomas v. State of Indiana (NFP)

John Orville Study v. State of Indiana (NFP)

Adam W. Powell v. State of Indiana (NFP)

Jamie L. Strickler v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Ind. App.Ct. Decisions

Courts - Lost or unfinished court transcripts issue arises again

The ILB has had many entries over the years on lost or unfinished court transcripts.

Earlier this month the NY Post run a story headed "Rogue alcoholic court reporter kept writing ‘I hate my job.’" The story, by Rebecca Rosenberg, Reuven Fenton and Bruce Golding, began:

An alcoholic Manhattan court stenographer went rogue, channeling his inner “Shining” during a high-profile criminal trial and repeatedly typing, “I hate my job, I hate my job” instead of the trial dialogue, sources told The Post.

The bizarre antics by Daniel Kochanski, who has since been fired, wreaked havoc on some 30 Manhattan court cases, sources said, and now officials are scrambling to repair the damage.

The headline from the more staid NYT was "Stenographer, Fired Over Drinking Problem, Left Headaches for Appellate Courts." From the long story, reported by James C. McKinley Jr.:
The missing records from State Supreme Court in Manhattan, including the 2010 mortgage-fraud trial of Aaron Hand, highlight a major pitfall in relying solely on stenographers to safeguard the official record of trials, as most courts in New York State do, appellate lawyers said.

“Why are we in this 18th-century system where someone is taking it down in their own indecipherable notes?” said Claudia Trupp, a supervising attorney at the Center for Appellate Litigation, which is handling Mr. Hand’s appeal. * * *

The omissions in Mr. Kochanski’s trial records, which were kept on dozens of compact discs, have led the Appellate Division of State Supreme Court to order prosecutors and defense lawyers to hold “reconstruction hearings” in some cases, at which the lawyers, witnesses and judge try to recall what was said in court.

In Mr. Hand’s fraud trial, Mr. Kochanski’s notes omit two days of the jury selection proceedings, and the Appellate Division has ordered a reconstruction, which will take place April 29.

Ms. Trupp said the appeals of Derrick Miller, who was convicted of grand larceny, and Brandon Lewis, who was convicted of assault, were each delayed for more than seven months while lawyers tried to piece together what was said. In Mr. Lewis’s case, the judge’s instructions to the jury were missing, she said.

On April 7th, the NYT ran a debate on its opinion pages, on the question "Are Court Stenographers Necessary?" You may read the various positions here.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Courts in general

Ind. Decisions - "Court of Appeals decision creates uncertainty for Lake County adoptions"

Some quotes from Bill Dolan's story today in the NWI Times:

CROWN POINT | Local judges are changing their court procedures in the wake of a ruling that could unsettle the validity of hundreds of Lake County adoptions.

Beginning this week, Lake Juvenile Court will no longer hear petitions for adoptions or guardianships over minors, under orders signed by Circuit Court Judge George Paras and Chief Superior Court Judge Jon Pera.

Instead, those cases now will be filed either in Lake Circuit Court or Lake Superior Court, Civil Division.

This reverses 14 years of Superior Court policy to keep adoptions and guardianships in juvenile court, which oversees other family law cases such as child abuse and neglect cases, and disputes over paternity and child support.

It also signals concern about whether the old policy creates technical defects in adoptions the juvenile court had approved since 2000. The Indiana Department of Child Services recently expressed concern these hundreds of adoptions are "at risk," according to a court of appeals document.

The Court of Appeals opinion, filed March 12, 2014 (and not identified in the story), is 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 .

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Ind. App.Ct. Decisions

Courts - More on: Thursday in the 10th Circuit, constitutionality of Utah same sex marriage ban review

Also today, as noted in this ILB post yesterday, "all eyes are focused on the 10th Circuit," to paraphrase the headline from The Deseret News quoted in this How Appealing post.

Indiana is represented in this 10th Circuit action, as Attorney General Zoeller has authored and filed an amicus brief on behalf of the State of Indiana supporting the State of Utah in opposing same-sex marriage.

And a piece of until now unreported news. Our Indiana attorney general on Friday, April 4th authored and submitted an amicus brief in the Fourth Circuit same-sex marriage challenge, Bostic v. Schaefer. Here is the amicus brief. The following states joined Indiana on its amicus brief: Alabama, Alaska, Arizona, Colorado, Idaho, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Utah and Wyoming.

Interestingly, in this opinion piece in the Sunday, April 6th LaPorte Herald-Argus, Indiana Attorney General Greg Zoeller writes:

As Indiana attorney general, I have been asked why my office is defending [ Indiana's traditional marriage definition law] in court when some AGs in other states are not defending their states' traditional marriage laws from similar lawsuits.

I explain that I took an oath to represent and defend Indiana's state government and its existing statutes. I don't make the laws — that's the Legislature's job — but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.

This is not personal advocacy on my part or by the lawyers who work in my office. Whenever the State of Indiana is sued, you - the taxpayers and citizens of the state — are really being sued collectively, and you are entitled to counsel.

The long opinion piece does not, however, explain why our Attorney General has elected to author and submit amicus briefs in courts across the county, defending the statutes of these other states when they have been sued.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Courts in general

Ind. Courts - Ind. federal court this morning to hear motion to order Indiana to recognize immediately the marriage of a lesbian couple from Munster

From a news release from Lamba Delta:

(Evansville, IN, April 9, 2014) — On Thursday, April 10th at 9:30am CT, a federal court will hear Lambda Legal’s motion to order the state of Indiana to recognize immediately the marriage of a lesbian couple from Munster. Amy Sandler and Niki Quasney and their two children seek immediate relief from Indiana’s refusal to recognize the legal marriages of same-sex couples entered into in another state as Ms. Quasney has been diagnosed with stage four cancer and likely cannot wait any longer for the protections of marriage.

The case, Baskin v. Bogan, was filed by Lambda Legal on March 10th in the United States District Court in the Southern District of Indiana. Lambda Legal is seeking the freedom to marry in Indiana as well as the recognition of legal out of state marriages of same-sex couples. Plaintiffs include four Indiana couples who wish to marry in their home state of Indiana as well as one couple legally married in Massachusetts but urgently in need of having their marriage recognized in Indiana. Amy Sandler and Niki Quasney have been together for 13 years and have two children. Ms. Quasney was diagnosed with stage-four ovarian cancer in 2009 and the couple cannot wait any longer for the protections of marriage.

See earlier ILB post here.

Posted by Marcia Oddi on Thursday, April 10, 2014
Posted to Indiana Courts

Wednesday, April 09, 2014

Courts “'Copyright troll' Prenda Law completely bombs at appeals court"

That "appeals court" would be the 7th Circuit.

How Appealing
has collected the links in two posts today, here and here.

The quoted headline is from this story by Joe Mullin of Ars Technica. Both Judge Diane Sykes and Chief Judge Diane Wood were on the panel, along with Judge Michael Kanne.

Posted by Marcia Oddi on Wednesday, April 09, 2014
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides Indiana case April 7th

In USA v. Stephanie Donelli (SD Ind., Barker), a 10-page opinion, Judge Hamilton writes:

Defendant Stephanie Donelli appeals the 60-month prison sentence she received after pleading guilty to wire fraud and tax evasion. She argues that the district court made a procedural error by failing to address her diagnosis of a mental illness, bipolar II disorder, which Donelli now calls a “principal argument in mitigation.”

Since our decision in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), we have required sentencing judges to address a defendant’s principal arguments in mitigation when those arguments have recognized legal merit. See, e.g., United States v. Vidal, 705 F.3d 742, 744 (7th Cir. 2013); United States v. Chapman, 694 F.3d 908, 913–14 (7th Cir. 2012); United States v. Gary, 613 F.3d 706, 709 (7th Cir. 2010). Our cases do not show clearly, however, what is necessary for a defendant’s mitigation argument to trigger the district court’s duty to explain under Cunningham. Donelli asserts that briefly mentioning her bipolar disorder at sentencing was enough to require a response from the district court.

We disagree, and we affirm Donelli’s sentence for two independent reasons. First, she failed to present the fact of her diagnosis as a principal argument in mitigation relevant to her sentence. Second, she waived her claim of a Cunningham procedural error by telling the district court at the close of her sentencing hearing that she had no objection to her sentence apart from the fact that the sentence was above the guideline range.

Posted by Marcia Oddi on Wednesday, April 09, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In State Farm Fire & Casualty Company a/s/o Kenneth Burkhart v. H.H. Niswander , a 10-page opinion, Chief Judge Vaidik writes:

State Farm appeals the trial court’s award of attorney’s fees against it for filing a groundless lawsuit. Before the filing of its complaint against H.H. Niswander, State Farm received a report from its experts about the cause and origin of the fire involved in this case. There was no evidence in the report that H.H. Niswander was negligent or caused the fire. For two-and-a-half years, State Farm continued to litigate its claim against H.H. Niswander requiring it to incur attorney’s fees. Even after State Farm’s expert at a deposition testified that H.H. Niswander was not at fault, State Farm refused to dismiss the claim until the court dismissed it. We affirm the trial court’s dismissal and award of attorney’s fees to H.H. Niswander.
In K.L. v. E.H., a 22-page, 2-1 opinion, Judge Brown writes:
K.L. (“Mother”) appeals the trial court’s order granting the petition for visitation filed by E.H., the paternal grandfather of Mother’s child. Mother raises two issues which we revise and restate as: I. Whether the trial court abused its discretion in excluding certain evidence; and II. Whether the trial court abused its discretion in granting the paternal grandfather’s petition for visitation. We affirm. * * *

For the foregoing reasons, we affirm the trial court’s order.

BARNES, J., concurs.
ROBB, J., concurs in part and dissents in part with separate opinion.

In In re the Order for the Payment of Attorney Fees and Reimbursement of Expenses, State of Indiana v. Jeffrey Cook, an 11-page opinion, Chief Judge Vaidik writes:
Indiana Code section 33-37-2-4 governs the State’s liability for costs of offenses committed by inmates in state correctional facilities. Pursuant to this section, the trial court appointed both a public defender and appellate counsel for Jeffrey Cook, who stabbed to death another inmate at Pendleton Correctional Facility in Madison County, Indiana. Although the State did not contest paying Cook’s public defender $23,488.29 in attorney fees and expenses, it contested paying Cook’s appellate counsel $5232.35 in attorney fees and expenses. The State believed that Section 33-37-2-4 required the State to pay only trial costs, not appellate costs. Instead, the State believed that Madison County should pay the costs of Cook’s appeal. We, however, find that Section 33-37-2-4, which recognizes the financial burden placed on counties containing state correctional facilities, shifts that burden to the State for both trial and appellate costs. Thus, the trial court properly ordered the State to pay Cook’s appellate counsel $5232.35 in attorney fees and expenses.
NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: G.G. (Minor Child), And A.S. (Mother) & G.G., Jr. (Father) v. The Indiana Department of Child Services (NFP)

Risha Warren v. Review Board of the Indiana Department of Workforce Development and Springs Valley Community School Corp. (NFP)

NFP criminal opinions today (5):

Abelardo Perez-Romero v. State of Indiana (NFP)

Matthew McKinney v. State of Indiana (NFP)

Roger T. Fox v. State of Indiana (NFP)

Antione Marshall v. State of Indiana (NFP)

Zar Dyson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 09, 2014
Posted to Ind. App.Ct. Decisions

Environment - “I come from Indiana where people rely on coal,” said Janet McCabe

That is a quote from this story today in the LCJ by Gannett Washington reporter Maureen Groppe on Ms. McCabe's testimony yesterday before the Senate Environment and Public Works Committee. (ILB background here.) More:

WASHINGTON – Janet McCabe, the former state air regulator nominated to be the nation’s top air official, called on her Indiana experience to assure senators Tuesday that she’s sensitive to the economic impact of environmental regulations.

Testifying at her confirmation hearing, McCabe said that when she was at the Indiana Department of Environmental Management she worked with both Indiana industries and public health and environmental groups to improve air quality while supporting business.

“I come from Indiana where people rely on coal,” said McCabe, who has been nominated to head the Environmental Protection Agency’s Office of Air and Radiation.

McCabe told the Senate Environment and Public Works Committee that her experience as head of air quality for IDEM from 1998 to 2005 taught her that “government works best when all perspectives are at the table.”

Posted by Marcia Oddi on Wednesday, April 09, 2014
Posted to Environment

Ind. Gov't. - "An inside look at just how much—and, sometimes, how little—Indiana lobbyists lavish on our lawmakers"

That is the headline to this Indianapolis Monthly article by Adam Wren.

Posted by Marcia Oddi on Wednesday, April 09, 2014
Posted to Indiana Government

Courts - "A Speedy, Supersized Verdict Against Takeda and Lilly"

The WSJ Law Blog has this post today by Josh Gershman that begins:

How long is 45 minutes?

It’s about half the time it takes to fly from New York to D.C. It’s shorter than an episode of ‘Game of Thrones’ and the average daily commute.

It’s also how much time a federal jury in Louisiana reportedly took to come up with the figure of $9 billion, the amount in punitive damages they say Takeda Pharmaceutical Co. and its marketing partner, Eli Lilly should pay for allegedly hiding cancer risks associated with their Actos diabetes drug.

Takeda, Japan’s biggest drug maker, was ordered to pay $6 billion, while Lilly was hit with a penalty of $3 billion. Both companies said they disagreed with the verdict and would vigorously challenge it.

Posted by Marcia Oddi on Wednesday, April 09, 2014
Posted to Courts in general

Courts - Thursday in the 10th Circuit, constitutionality of Utah same sex marriage ban review

Pete Williams of NBC News had this story yesterday that began:

he constitutionality of banning same-sex marriage comes for the first time ever before a federal appeals court this week, as challenges pile up nationwide on an issue moving rapidly through the legal system.

A three-judge panel of the Tenth Circuit Court of Appeals in Denver will hear oral arguments Thursday about a ruling four months ago that struck down the ban on marriage for gay couples in Utah.

Permitting same-sex marriage, the state argues in its appeals court filing, would impose a new definition, "shifting the public meaning of marriage away from a largely child-centric institution."

Such a move toward a more adult-oriented view would "pose real, concrete risks to children — especially in future generations," the state says.

But lawyers for the challengers respond in their submission that laws like Utah's "do nothing to encourage opposite-sex couples to marry or have children and serve only to stigmatize and harm same-sex couples and their children."

How Appealing has links to stories here and here. This post links to interesting stories about the attorneys involved.

"National, local businesses file briefs supporting same-sex marriage" is the headline to this long story by Dennis Romboy in the Deseret News.

Posted by Marcia Oddi on Wednesday, April 09, 2014
Posted to Courts in general

Tuesday, April 08, 2014

Environment - More on "Senate to consider Hoosier Janet McCabe for top EPA post"

Updating this post from April 7th, here is the videocast of this morning's public hearing of the U.S. Senate Committee on Environment and Public Works on the nomination of Janet McCabe, President Obama's nominee to head the EPA's Office of Air and Radiation. Also available on the same page are the opening remarks of Ms. McCabe.

Ms. McCabe's introductory remarks begin a little after the 34-minute mark. Her husband, Jon Larimore, and children are seated behind her.

The Hill this afternoon has a story by Laura Barron-Lopez headed "EPA nominee stirs up deep-seated climate views in Senate." The story begins:

A Senate hearing on the nominee for a top Environmental Protection Agency (EPA) post had lawmakers battling over carbon emissions limits and extreme weather events on Tuesday.

Janet McCabe, President Obama's nominee to be assistant chief of the EPA's Office of Air and Radiation, fielded a fair amount of questions, but spent a majority of her time watching Senators duke it out over whether climate change exists or not.

Democrats on the Environment and Public Works Committee defended McCabe and the EPA's proposed carbon pollution standards for new and existing coal-fired power plants.

Sen. Barbara Boxer (D-Calif.), chairwoman of the committee, had few questions for McCabe, whom she called "eminently qualified." Instead, Boxer used her time to slam Republicans for trying to derail the EPA carbon emissions rules.

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to Environment

Ind. Decisions - Attorney disciplined for commingling client and attorney funds

In In the Matter of: Frank W. Hogan, a Supreme Court disciplinary order filed April 3 and posted yesterday, a 4-0 opinion in which CJ Dickson did not participate, the Court writes:

Stipulated Facts: Respondent commingled personal funds, his client funds, and funds of his law firm in an attorney trust account. From January through April 2013, Respondent made 46 disbursements from the trust account for personal or business purposes. Because he kept insufficient records, he is unable to identify the source, payee, and/or client beneficiary of five disbursements from his trust account. During this same time period, Respondent made approximately 23 cash withdrawals from his trust account, and he made approximately 14 disbursements from his trust account via electronic transfer. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, effective date of this order, all stayed subject to completion of 18 months of probation. * * *

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

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court disciplines former Schererville town judge Deborah A. Riga

This Sept. 11, 2008 ILB post quotes a story from the Gary Post-Tribune that begins:

Just two weeks before she is scheduled to report to federal prison, the state Supreme Court Disciplinary Commission has suspended the law license of former Schererville Town Judge Deborah Riga.

The move is a prelude to the court permanently revoking her license following her sentence of 15 months in prison on a mail fraud conviction, said Donald Lundberg, executive secretary to the disciplinary commission.

That was nearly 6 years ago. Today the Supreme Court has posted this 4-page, 5-0, detailed disciplinary order (filed April 3rd): In the Matter of: Deborah A. Riga Gardner. Some quotes:
Respondent was charged on August 5, 2004, with several federal crimes based on actions while she served as a town judge. On June 12, 2006, the court accepted Respondent's guilty plea to four counts of "Mail Fraud for the Purpose of Executing a Scheme and Artifice to Defraud, Aiding and Abetting," in violation of 18 U.S.C. §§ 1341 and 1346. The district court delayed the sentencing to allow her to cooperate with the government and testify against another defendant on public corruption charges. On July 10, 2008, the district court sentenced her to concurrent 15-month sentences on each of the four counts, ordered her to pay restitution of $5,770.39 to the Town, and $6,350 to the State of Indiana-Lake County, and dismissed the remaining charges.

Based on these convictions, the Court entered an order of interim suspension on September 4, 2008, which is still in effect. See Matter of Riga, 894 N.E.2d 563 (Ind. 2008). * * *

[Included in the facts in mitigation] (4) other penalties have been imposed upon Respondent for her misconduct, including a felony conviction and imprisonment; (5) Respondent volunteers a significant amount of time to organizations dedicated to philanthropic endeavors; (6) there has been extensive delay in these disciplinary proceedings, none of which is attributable to Respondent. * * *

Discipline: The parties propose the appropriate discipline is a five-year suspension without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

ILB: It appears to have been 4 to 5 years since Riga was released from prison, and the interim suspension, first imposed when she entered prison, has continued in effect during that period and until the date of this order. This "extensive delay" in the disciplinary proceedings is not explained, other than that it was not attributable to Riga. On top of that, the Court has now imposed "a five-year suspension without automatic reinstatement," which went into effect the date of this order, April 3, 2014.

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Michael A. Ney v. Susan A. Ney (Beery) (NFP)

Melissa K. Klabunde v. Kirk A. Klabunde (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Problems with the appellate docket [Updated]

Readers the past few days have been reporting problems with the Clerk's Appellate Docket.

Attorneys use the docket to keep track of the status of their cases. A search by attorney should yield all that attorney's cases. Instead, currently keying in your name appears to produce nothing.

In fact, it just produced "We're sorry. Your search for "XXX, Open Cases" did not return any results" for every name I tried. From a reader:

Even when I called the clerk's office, they could not get it to work. And I am not the first.

The clerk's office sent me to a person who sent me to JTAC who said they do not handle this.

[Updated at 12:43] A reader writes:
It still seems to be working if you key in your attorney number rather than your name.
Another reader just wrote:
The only way I can get the search by attorney function to work is by entering my first name where it asks for my last name and my last name where it asks for my first name. Weird.
ILB: I hope that is not a symptom of a broader problem, involving other docket data.

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to Indiana Courts

Ind. Courts - "Judge: Killer must cover tattoo before 3rd trial"

From the Louisville Courier Journal this morning:

A Floyd County judge on Monday ordered William Clyde Gibson to grow out his hair to cover a tattoo saying “Death Row X3” before his June trial in the murder of a Charlestown woman.

Floyd Superior Court Judge Susan Orth issued the order during a pretrial hearing for Gibson, 56, of New Albany, who faces the death penalty in the murder of Stephanie Kirk, 35, of Charlestown.

This March 20th LCJ story by Grace Schneider tells more about the the tattoo. Some quotes:
Thursday’s hearing [March 20th] exposed a new tattoo — “death row x 3” imprinted on the back of Gibson’s shaved head. That posed legal questions for [Judge] Orth whose role is to ensure Gibson receives fair trials and that all proceedings are free of incriminating signs or messages, even ones the defendant has had inscribed on himself.

It’s a problem because “that could prejudice a jury,” [Prosecutor] Henderson said, adding that the only solution may be to force Gibson to grow out his hair to cover the dark blue letter.

Orth ordered Gibson to remain in the Floyd County jail, delaying his return to state’s Death Row in Michigan City while she researches the matter. She also ordered Gibson be given no haircuts or sharp objects.

Floyd Sheriff Darrell Mills said he met with Orth and Henderson about the inscription, adding that he’s certain Gibson could not have given such a well fashioned tattoo to himself. Also, he couldn’t have had it etched while he’s been in Floyd’s custody because he’s kept in a solitary cell and escorted anywhere by two to three officers as a precaution after “many threats against my staff.”

“There are some issues with it,” Mills said of the tattoo. “What a dumbass.”

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to Indiana Courts

Law - "The Christmas Tree Fee Quietly Takes Root;" Reminiscent of "Got Milk?"

This post Friday by Joe Palazzolo of the WSJ Law Blog reports that:

A federal regulation that took effect this week imposes a 15-cent assessment on every Christmas tree cut and sold in the U.S. or imported into the country.

The reason behind the fee: to fund a national marketing program.

These are trying times for Christmas tree growers. An industry task force on tannenbaums reported that the market share for fresh-cut Christmas trees in the U.S. declined by 6% from 1965 to 2008, while the market share for artificial trees increased by 655% in that same period.

A few years ago, the task force pleaded with the federal government for help, and this week the U.S. Department of Agriculture put a present under its tree: a regulation that creates a marketing program to match the heavy advertising the fake-tree industry does so well.

Included in the regulation, which was first published in 2011 but takes effect now, is the 15-cent assessment to pay for the program. * * *

The USDA received more than 500 comments on the regulation. The Heritage Foundation, for one, urged the agency to withdraw the rule, calling it “an inappropriate use of governmental power in a society based on free markets, limited government, and individual freedom.”

ILB: This looks a lot like the milk, pork, beef, mushroom, etc. checkoff programs that were successfully challenged in the lower courts in 2004. These these ILB posts from 2004, including this one quoting the Omaha World-Herald:
The U.S. Supreme Court could decide as early as Monday whether it will hear arguments defending the constitutionality of the beef and pork checkoffs. The two checkoffs, which use money from livestock sales for ad promotions, have each been ruled unconstitutional in separate appeals courts. * * *

The Eighth U.S. Circuit Court of Appeals had ruled in a South Dakota case that livestock producers should not have to be required to help fund the advertising campaign. * * * Last October, the Sixth U.S. Circuit Court of Appeals upheld an earlier ruling to end the mandatory pork checkoff program. The U.S. Department of Agriculture appealed the decision. In both cases, judges rejected the argument that the checkoffs are tantamount to government speech and therefore not subject to the First Amendment.

But in May of 2005, the SCOTUS ruled otherwise, according to this story from Iowa Public Television dated May 27, 2005:
On a vote of 6-to-3, the U.S. Supreme Court this week upheld the constitutionality of the Beef Checkoff program. The High Court ruled the government was within its rights to force all U.S. beef producers to pay for multi-million dollar advertising and research initiatives.

Established by Congress in 1985, the Beef Checkoff program requires farmers and ranchers to pay a $1.00-per-head fee on cattle sold in the United States. Those funds, which amount to more than $80 million per year, are administrated by a government-appointed group to support promotion and research programs. * * *

The Supreme Court's decision means the beef checkoff will continue without interruption. And experts in agricultural law claim the ruling may revive cases where mandatory participation has been overturned in other courts including the Washington Apple checkoff, the Florida Citrus Box Tax, and the California grape checkoff.

From a May 24, 2005 Chicago Tribune story:
While the ruling will allow the beef promotion campaign to continue uninterrupted, it may also have a major impact on more than a dozen other federally sanctioned checkoff campaigns that promote everything from pork and soybeans to mohair and milk. About half of the other programs--which created such ad slogans as "Got Milk?" and "Pork: The Other White Meat"--are being challenged in court for violating free speech.

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to General Law Related

Ind. Courts - COA: "One-time meth use does not equal neglect"

In the Matter of: L.P., a Child Alleged to be a Child in Need of Services, K.K., Mother v. The Indiana Department of Child Services, a decision yesterday from the Court of Appeals, is the subject of a story today in the Indianapolis Star by Marisa Kwiatkowski. Some quotes:

An Indiana mother’s one-time use of methamphetamine did not mean her child was neglected and in need of court intervention, the Court of Appeals ruled Monday.

The appellate court reversed a juvenile court judge’s determination that a woman’s son was a Child in Need of Services, leading to his removal from her home.

The ruling calls into question a “zero tolerance policy” at a local office of the Indiana Department of Child Services. DCS officials say the policy is being expanded statewide. * * *

During the hearing, [Sullivan Superior Court Judge Robert Springer] commended the woman’s “exemplary” conduct during the proceedings, but said meth had caused “tragic” effects in the county. The judge said he agreed with DCS’ “zero tolerance” for it.

The Court of Appeals overturned Springer’s ruling, noting that while meth may be an epidemic, it did not appear the boy was “seriously impaired or endangered and in need of care and supervision unlikely to be provided without coercive intervention of the court.”

Posted by Marcia Oddi on Tuesday, April 08, 2014
Posted to Ind. App.Ct. Decisions

Monday, April 07, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Sheaff Brock Investment Advisors, LLC v. David Morton , a 17-page opinion, Judge Najam writes:

Sheaff Brock Investment Advisors, LLC (“Sheaff Brock”) appeals the trial court’s grant of summary judgment in favor of David Morton on Morton’s claims that Sheaff Brock breached its employment agreement with Morton and violated Indiana’s Wage Claims Act. * * *

The trial court did not err when it concluded that Sheaff Brock breached its contract with Morton when it unilaterally applied an amended compensation structure to client accounts already under management. And the trial court did not err when it concluded that Morton’s additional compensation constitutes a wage under the Wage Claims Act. Accordingly, Morton is entitled to attorney’s fees, including appellate attorney’s fees. Finally, the trial court did not err when it entered summary judgment in favor of Sheaff Brock on Morton’s constructive fraud claim. Thus, we remand to the trial court for proceedings not inconsistent with this opinion. Affirmed.

In Umbrella Family Waiver Services, LLC v. Indiana Family and Social Services Administration , a 10-page opinion, Sr. Judge Barteau writes:
Umbrella Family Waiver Services, LLC (“Umbrella”), appeals the trial court’s denial of its Verified Petition for Judicial Review. We affirm. * * *

The plain, ordinary, and usual meaning of Indiana Code section 12-15-22-1 provides that if FSSA determines that a provider has violated a statute or rule, it may select termination as a sanction. The statute cannot reasonably be read as stating that every termination is necessarily a sanction. Furthermore, Indiana Code section 12-15-22-1 does not bar FSSA from adding to provider agreements a paragraph allowing either party to terminate the contract without cause. To the contrary, the General Assembly has given FSSA broad authority to prepare provider agreements, as noted above. See Ind. Code § 12-15-11-3. Umbrella has failed to demonstrate that FSSA exceeded its statutory authority.

In In the Matter of: L.P., a Child Alleged to be a Child in Need of Services, K.K., Mother v. The Indiana Department of Child Services, a 6-page opinion, Judge Bailey writes:
K.K. (“Mother”) appeals the determination that her child, L.P., was a Child in Need of Services (“CHINS”). She presents the sole issue of whether the evidence was sufficient to support that determination. We reverse. * * *

Here, our review of the evidence likewise reveals a single use of methamphetamine, outside the presence of the child. The State acknowledges this, but urges that we reach a conclusion opposite that in Perrine because “since Perrine was decided in 2007, methamphetamine use has been recognized as an epidemic.” * * *

The factual finding of an isolated use of methamphetamine, without more, does not support the conclusion of law that L.P. was a CHINS. Reversed.

In Kevin J. Mamon v. State of Indiana , a 5-page opinion, Sr. Judge Shepard writes:
A contention that certain evidence admitted at trial was the product of unreasonable search or seizure, the Indiana Supreme Court has explained, does not ipso facto describe an error vitiating the need for a contemporaneous objection. * * *

Appellant Kevin J. Mamon asserts that the state trooper who stopped him for following too closely in a construction zone did not have reasonable suspicion to do so. He thus says the convictions for offenses like criminal recklessness (speeding off, after the stop, at 80 m.p.h.) must be reversed notwithstanding his failure to raise the issue at trial. * * *

In the current case, as in Brown, there is no claim of evidence fabrication or willful malfeasance on the part of law enforcement. To the contrary, Mamon argues Wilson merely misunderstood the law governing tailgating. Mamon does not dispute the truth of Wilson’s testimony and related exhibits. Like the Supreme Court in Brown, we see no grounds for reversal.

NFP civil opinions today (3):

Christian Dailey v. David Building Group (NFP)

North Central Cooperative, Inc. v. John R. Garrison (NFP)

Andre Botley v. Dilmar Sanchez (NFP)

NFP criminal opinions today (2):

Trena Marie Gagliardo v. State of Indiana (NFP)

Lakila Gill v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 07, 2014
Posted to Ind. App.Ct. Decisions

Courts - Michigan's "Plea for quicker ruling on same-sex marriage"

Lyle Denniston of SCOTUSblog had an interesting post Friday that began:

On Friday, state officials in Michigan, seeking to move a test case on same-sex marriage onto an even faster track, asked the U.S. Court of Appeals for the Sixth Circuit to put that question before the full, en banc court without waiting for different three-judge panels to rule. All four states within the Sixth Circuit’s geographic area now have appeals on that issue pending at the appeals court, the new petition noted.

Posted by Marcia Oddi on Monday, April 07, 2014
Posted to Courts in general

Ind. Decisions - Transfer list for week ending April 4, 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, April 4, 2014. It is two pages (and 22 cases) long.

Two transfers were granted last week:

Transfer was denied in In Re the Paternity of I.B., K.H. v. I.B. b/n/f L.B. by a 3-2 vote with a written dissent. See details here.

Posted by Marcia Oddi on Monday, April 07, 2014
Posted to Indiana Transfer Lists

Ind. Gov't. - "Hogsett is committed to routing out corruption" but who is the "bribe-taking state court judge"?

The quotes are from CNHI's Maureen Hayden's story April 4th in the Rushville Republican. It begins [ILB emphasis]:

INDIANAPOLIS – Joe Hogsett was being vetted for the job of U.S. Attorney four years ago when he asked a federal judge for advice.

That judge observed that there hadn’t been a high-profile public corruption case in the southern district of Indiana since the early 1990s, when federal investigators separately brought down a bribe-taking state court judge and a well-connected union president caught skimming dues.

The judge cited two possibilities for the dearth of corruption cases, Hogsett recounted recently: “One, we have the most honest, ethical, above-the-board public officials in the entire land. Or, two, somebody is asleep at the switch.”

ILB: Well, that caught my eye! "A bribe-taking state court judge"?

Turns out it was a bribe-taking Marion County Superior Court judge, Michael T. Dugan II. Here is the May 15, 1990 7th Circuit opinion in United States v. Michael T. Dugan, II, detailing his offenses. As I recall, Mr. Dugan was in my law school class in the late 1960s.

Posted by Marcia Oddi on Monday, April 07, 2014
Posted to Indiana Government

Environment - "Senate to consider nominee Janet McCabe for top EPA post"

Laura Barron-Lopez wrote Friday in The Hill's Energy IssueWatch Newsletter:

A Senate panel is set to consider President Obama’'s nominee for a top post within the Environmental Protection Agency next week, which will likely stir up the fight over contentious climate change regulations.

On Tuesday, the Senate Environment and Public Works Committee will hold a hearing on the nomination of Janet McCabe for assistant administrator of the EPA'’s Office of Air and Radiation, which she currently occupies in an acting capacity.

McCabe has testified before Congress multiple times in the past year on the administration’'s carbon emissions limits for coal-fired power plants, and the science behind a number of the agency'’s regulations.

Senate Republicans on the committee like Sen. David Vitter (R-La.) who fiercely opposes Obama’s climate change policies and the power plant regulations could put up a fight over McCabe’'s nomination. Vitter and his fellow Republicans know McCabe plays a crucial role in finalizing the rules, which are a key piece of Obama’s second-term legacy.

ILB: Here is the website of the U.S. Senate Environment and Public Works Committee, with a link to the upcoming Tuesday, April 8th full Committee hearing entitled, “Hearing on the Nominations of Janet G. McCabe to be the Assistant Administrator for Air and Radiation of the U.S. Environmental Protection Agency (EPA), Ann E. Dunkin to be the Assistant Administrator for Environmental Information of the EPA, and Manuel H. Ehrlich, Jr., to be a Member of the Chemical Safety and Hazard Investigation Board.” The hearing begins at 10:00 AM.

Here are earlier ILB posts
on Ms. McCabe.

Posted by Marcia Oddi on Monday, April 07, 2014
Posted to Environment

Ind. Courts - "Are Indiana's Newly-Expunged Convictions Still Available for Impeachment?" [Updated]

The ILB received this note last week:

I noticed you’ve been posting more on the new expungement provisions. I thought you might find this article of interest, addressing whether litigants will still be able to impeach witnesses with those expunged convictions. It’s been accepted by the Indiana Law Journal Supplement, and is available through SSRN.

Graham Polando, Magistrate
St. Joseph Probate Court
South Bend, Indiana

Here is the SSRN abstract:
Indiana's Evid. R. 609 provides that a potentially-impeaching criminal conviction is inadmissible if "the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated." Indiana has recently enacted a new expungement procedure for many criminal convictions. Courts will soon be faced with the question, then, whether expungement is such an "equivalent procedure."

This essay contends that it is not -- that Courts should allow, for impeachment purposes, evidence of expunged convictions, but should likewise allow the witness's proponent to introduce evidence of the expungement.

[Updated at 1:23 PM] Here is a link to the ILB's April 3rd post, "The new expungement changes took effect March 26th. What are they?"

In addition, the Court of Appeals will be hearing an oral argument concerning expungement on Wed., April 10th, in Indianapolis Metropolitan Police Department v. Donald Prout. Details are in this post from early this morning.

Posted by Marcia Oddi on Monday, April 07, 2014
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, April 10

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

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, April 8

Wednesday, April 10

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

Tuesday, April 15

Wednesday, April 16

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, April 07, 2014
Posted to Upcoming Oral Arguments

Sunday, April 06, 2014

Courts - Status of marriage equality cases across the nation, as of last Friday, April 4th

See the article by Chris Geidner, with a colorful map of the federal circuits, here at BuzzFeed.

Posted by Marcia Oddi on Sunday, April 06, 2014
Posted to Courts in general

Friday, April 04, 2014

Courts - Ohio federal judge to rule valid out-of-state SSMs must be recognized within Ohio; status of states bordering Indiana [Updated again]

Lyle Denniston reports this afternoon in a SCOTUSblog post that begins:

A federal judge in Cincinnati, who had already ruled that same-sex couples married in other states must have some legal rights when they live or give birth in Ohio, said Friday that he will shortly rule that they must have full marital equality. Thus, a case that started out as a dispute over names on birth certificates would be transformed into a broader decision that Ohio must recognize valid gay and lesbian marriages performed elsewhere.

During a hearing in his court on Friday, U.S. District Judge Timothy S. Black disclosed that he plans to issue the new ruling within ten days. The entry on the docket confirming his intention can be read here. State officials told news organizations in Ohio that they would promptly appeal to the U.S. Court of Appeals for the Sixth Circuit.

The case is Henry v. Wymyslo (District Court docket 14-129). * * *

Lawyers for the couples have been attempting in recent weeks to get their case expanded into a challenge to any Ohio provision that bars recognition of out-of-state same-sex marriages. On Friday, the judge indicated he would allow that, and struck down all such restrictions.

The case, however, does not involve Ohio’s ban on new same-sex marriages within the state. The voters of Ohio approved that ban in 2004 by a margin of sixty-two to thirty-eight percent.

Last December, in another case, Judge Black ruled that Ohio must treat same-sex couples who were married in other states the same, for purposes of entering a spouse’s name on the death certificate of the other spouse.

Status of states bordering Indiana:In Indiana, as posted here yesterday, federal Judge Richard Young this afternoon is holding a conference via telephone on whether a Temporary Restraining Order and Preliminary Injunction should be granted permitting recognition of their marriage to a lesbian couple who reside in Indiana, where one partner is terminally ill and the couple was legally married outside Indiana.

[Updated at 3:45] Barbara Berggoetz ‏@barbberg has tweeted: U.S. Dist Ct. Judge Richard Young set April 10 hearing on temporary restraining order filed by gay couples challenging Ind. marriage law.

[Updated at 3:56] From a reader:

Judge Young held a pretrial conference this afternoon in all five of the same sex marriage cases. Plaintiffs' Dispositive motions/Preliminary injunction motions are due by April 21st. The court is holding a hearing in Evansville on April 10, 2014 regarding the temporary restraining order sought by Lambda Legal on behalf of its clients.

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Courts in general

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

For publication opinions today (0):

NFP civil opinions today (3):

In re: the Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Uberhor and Angela S. Ubelhor (NFP)

Shawna Gallagher v. Jacob Gallagher (NFP)

In re: the Marriage of: Carrie A. Chapman v. Stephen L. Chapman (NFP)

NFP criminal opinions today (2):

Bruce E. Phillips v. State of Indiana (NFP)

Corey Coleman v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court denies transfer in: In re Paternity of I.B. [Revised/Updated]

On March 13th the Supreme Court heard oral argument in the case of Paternity of I.B., K.H. v. L.B. You may view the oral argument here.

Today the Court has posted an order, filed yesterday, denying petition to transfer in the case, stating:

This matter is before the Indiana Supreme Court on a petition to transfer jurisdiction filed by Appellant pursuant to Appellate Rule 57, following the Court of Appeals opinion issued on October 7, 2013. See In re Paternity of I.B., No. 34A02-1305-JP-401 (Ind. Ct. App. 2013) (mem. dec.) The Court has reviewed the decision of the Court of Appeals. Any record on appeal that was submitted has been made available to the Court, along with all briefs filed in the Court of Appeals and all the materials filed in connection with the request to transfer jurisdiction. Also, the Court has heard oral argument on the transfer petition. Each member of the Court has had the opportunity to voice that Justice’s views on the case in conference with the other Justices, and each has voted on the petition.

Being duly advised, the Court now DENIES Appellant’s petition to transfer jurisdiction. This appeal is at an end.

The Court DIRECTS the Clerk to certify the Court of Appeals’ decision as final and to send copies of this order to all counsel of record.

Interestingly, at least to the ILB, this Court of Appeals ruling, which has now been examined in detail by the Supreme Court, including through briefing and oral argument, after which the Supreme Court has elected to deny transfer, STILL MAY NOT be cited as precedent in a future case, because it was designated as Not for Publication by the Court of Appeals panel.

[Updated 4/5/14] Either the ILB completely spaced out yesterday, or what was initially a one-page transfer denial has morphed into a denial with a 2-page dissent. Whatever, add the following to the above quoted passage:

Rucker, David, and Massa, JJ., concur.

Dickson, C.J., dissents to the denial of transfer with separate opinion, in which Rush, J., joins.

I respectfully dissent from the denial of transfer and would prefer for this Court to address whether DNA evidence should be required whenever a child may face the risk of losing the presumption of being the biological child of the birth mother's husband. * * *

Only DNA testing can satisfy the high standard of proof required to rebut the presumption of paternity—evidence that is "direct, clear, and convincing," Fairrow, 559 N.E.2d at 600, and that disproves the presumption "conclusively," Buchanan, 256 Ind. at 124, 267 N.E.2d at 157.

For this reason, I believe that in any proceeding in which the presumption of biological paternity is potentially impinged, DNA testing, if available, should be mandatory as the exclusive way of providing conclusive, direct, clear, and convincing evidence to rebut the presumption. Without supporting DNA genetic evidence, courts should not make any judicial determination that a child's biological father is someone other than the biological mother's husband when the child was born. Nothing less should suffice.

I would grant transfer so that this Court can consider adopting this new evidentiary requirement.

Rush, J., joins.

The fact that this transfer petition failed by a 3-2 vote also colors my original observations about the Court of Appeals opinion still being NFP after the oral argument and transfer denial.

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Decisions - Supreme Court decides one today, re insurance coverage issues & statute of limitations

In Christopher Groce and Tracey Groce v. American Family Mutual Insurance Company, and Michael A. Meek, a 7-page, 5-0 opinion, Chief Justice Dickson writes:

In the litigation of this dispute between the plaintiffs, Christopher and Tracey Groce, who were insured under a homeowners policy issued by American Family Mutual Insurance Compa-ny and obtained through insurance agent Michael Meek, the trial court granted summary judg-ment for the defendants on various grounds including that the plaintiffs failed to commence the action within the applicable statute of limitations. Finding the statute of limitation defense appli-cable, the Court of Appeals affirmed. Groce v. Am. Family Ins., Co., 986 N.E.2d 828, 833 (Ind. Ct. App. 2013). We granted transfer to reconsider the applicability of Filip v. Block, 879 N.E.2d 1076 (Ind. 2008), but conclude that the analysis of the Court of Appeals was sound. * * *

In conclusion, we find from the undisputed facts that the Groces, in the exercise of ordinary diligence in reviewing their homeowners insurance policy, could have timely discovered that the company's replacement cost liability was capped at the dwelling loss coverage limit, contrary to their claim for negligent procurement of inadequate or wrong coverage. For this reason, the statute of limitations in this case began to run no later than the first policy renewal after the alleged statements of Meek to Tracey Groce on August 18, 2003. The trial court was correct to grant summary judgment on the basis of the applicable two-year statute of limitations.

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: ALL CAPS ARE ALL WRONG

Supplementing Prof. Schumm's post today, ALL CAPS ARE ALL WRONG, if you are dealing with paper documents you indeed may have to struggle to read them.

But if you are dealing with a long MS Word document, for instance, you can use Change Case by selecting the text that you want to change the case of, clicking Change Case (on the Home tab, in the Font group), and then clicking the capitalization opinion you want: UPPERCASE, lower case, Sentence case, etc.

For an easier and quicker answer, in your browser, bookmark this website - Text-case Converter. As it directs: "Simply paste the text you want to convert into the text area below, click on one of the buttons (generally "Sentence case") and let the tool to do the work for you." It works instantly.

I tested it on an some appellate court docket entries I have struggled to decipher in the past, such as the Judge Kimberly Brown docket. Compare the following:

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
INDIANA SUPREME COURT
(NOTICE REC'D 03/05/14 @ 1:00 PM) ENTERED ON 03/05/14 KF
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
indiana supreme court
(notice rec'd 03/05/14 @ 1:00 pm) entered on 03/05/14 kf

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Indiana Courts

Courts - Impact of the Iowa same sex marriage opinion 5 years ago

The Des Moines Register is doing a look-back on the ruling with several stories. Here, from the April 3rd issue, is the introduction to a long article by Sharyn Jackson:

The unanimous Iowa Supreme Court ruling that legalized same-sex marriage five years ago today had a profound effect on the ongoing movement for equality for gays and lesbians and on three of the justices who decided the case — and lost their jobs because of it.

When Chief Justice Marsha Ternus and Justices Michael Streit and David Baker faced a retention election in November 2010, they met a backlash-fueled campaign, funded in part by out-of-state interest groups. A combined three decades of experience on the Iowa Supreme Court ended in a single day.

The former justices have continued their careers as attorneys: Ternus is a lecturer and trial consultant in Des Moines, Streit is an arbitrator at the Des Moines firm of Ahlers & Cooney, and Baker is a mediator in Cedar Rapids.

They also continue to stand up for judicial independence, as they did in 2012, when they received the prestigious John F. Kennedy Profile in Courage Award.

"We knew that our decision would be unpopular with many people, and we even knew in the back of our minds that we could lose our jobs because of our votes in that case," Ternus said in her acceptance speech. "But we took an oath of office in which we promised to uphold the Iowa Constitution without fear, favor or hope of reward, and that is what we did."

A second campaign in 2012 to unseat Justice David Wiggins failed. The remaining Varnum v. Brien justices, current Chief Justice Mark Cady and Justices Daryl Hecht and Brent Appel, face retention votes in 2016.

The Des Moines Register spoke with Baker and Streit about how the case changed their careers and changed Iowa, and with legal experts and opponents who were instrumental in their ouster. Ternus and the sitting justices declined to comment for this story; their words come from archival material.

Access the story for the interviews.

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Courts in general

Ind. Courts - ALL CAPS ARE ALL WRONG

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

After trying to read an appellate record for about ten minutes, both my eyes and head hurt. Why? ALL CAPITAL LETTERS. The two-and-a-half page, single-spaced police report was painful, but then I got to nearly forty pages of the trial court’s instructions to the jury—and not a single lower case letter.

Although Indiana has made strides toward plain language instructions, at least some judges are still subjecting jurors to pages of ALL CAPS TEXT RECITING THE IMPORTANT LEGAL PRINCIPLES OF THE CASE. The Indiana Jury Rules (like all of the Indiana court rules) are not written in ALL CAPS—and jury instructions should not be either. As a legal typography blog explains: “All-caps paragraphs are an example of self-defeating typography. If you need readers to pay attention to an important part of your document, the last thing you want is for them to skim over it. But that’s what inevitably happens with all-caps paragraphs, because they’re so difficult to read.” Jury Rule 26 requires jurors be given copies of the instructions to retain during deliberations; we should at least put them in a form that doesn’t add to the burden of jury service.

The anguish of ALL CAPS extends beyond these trial court documents. Although some lawyers were taught in law school that argument point headings in appellate briefs should be in ALL CAPS, most texts no longer support this view.* As the leading text now explains, conventions such as all capital letters “no longer make sense. They come from the days before word processors; typewriters did not allow much flexibility.” Mary Beth Beazley, A Practical Guide to Appellate Advocacy 193 (3d ed. 2010). Bolded text is much easier to read and WILL NOT SUGGEST THAT YOU ARE SCREAMING AT YOUR READER.**
________________
* Argument point headings are the entire sentences prefaced with a Roman numeral used in the argument section of a brief. Short section headings, such as SUMMARY OF THE ARGUMENT and CONCLUSION, are generally and appropriately in all capital letters.
**See Ruth Ann Robbins, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, J. of the Assoc. of Legal Writing Directors (Fall 2004) (including the heading, “Stop screaming at me in rectangles: Why all capital letters just don’t work”) (posted on the Seventh Circuit’s website).

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Indiana Courts

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

In U.S. v. Lori Hargis (SD Ind., Young), a 7-page opinion, Judge Rovner writes:

Lori Hargis solicited Leslie Vashaun White to burn down her house so that she could collect a settlement from her insurance company. Hargis was charged with conspiracy to use fire to commit wire fraud, see 18 U.S.C. § 844(m), and unlawful structuring of cash withdrawals to avoid financial reporting requirements, see 31 U.S.C. §§ 5313, 5324(a)(3), 5322(a). She pleaded guilty to the conspiracy charge in exchange for the government dismissing the structuring charge, and the district court imposed an above-guidelines sentence of 60 months imprisonment. She asserts on appeal that the district court erred when it applied upward adjustments for obstruction of justice, see U.S.S.G. § 3C1.1, and her aggravating role in the offense, see id. § 3B1.1(c). She also challenges the reasonableness of her above-guidelines sentence. Because the facts justify the district court’s decision to apply the upward adjustments, and the district judge adequately explained his rationale for imposing the 60-month sentence, we affirm the district court’s judgment.

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Ind. (7th Cir.) Decisions

Environment - "Global warming comment sets off tempest at IDEM"

The Indianapolis Star has a story today by John Russell that begins:

Keith Baugues is not a scientist, but that didn't stop him on a recent wintry day from expressing skepticism about global warming — something that is broadly accepted in the scientific community.

After weeks of heavy snow and freezing air, he had had enough. He took to a governmnent message board one day in February, complaining that his normal 45-minute commute had turned into a painful three-hour slog. "Anyone who says global warming is obviously suffering from frostbite," he wrote.

Baugues would later say he was only joking. But he wasn't just any government bureaucrat. Baugues is assistant commissioner in the Office of Air Quality in the Indiana Department of Environmental Management, the man in charge of cleaning up Indiana's air.

In a state that traditionally ranks near the top for pollution and coal production — both of which are thought to contribute to global warming — his words rubbed his own employees the wrong way.

Reaction was swift, according to remarks posted to the message board reviewed by The Indianapolis Star. Several IDEM staff members wrote that the comment flew in the face of nearly unanimous scientific consensus and offended and embarrassed them.

ILB: Baugues occupies the IDEM position earlier held by Janet McCabe - see this Feb. 16, 2014 ILB post about McCabe, currently acting head of the U.S. Environmental Protection Agency’s Office of Air and Radiation, "the national equivalent of McCabe's long-time job in Indiana, as Indiana's top air regulator until Gov. Daniels took office in 2005."

Some may draw comparisons to the stories about recent changes to the North Carolina environmental agency reported in this Feb. 28, 2014 ILB post, quoting a NYT story headed "Coal Ash Spill Shows How a State Watchdog Was Defanged," including this quote:

Current and former state regulators said the watchdog agency, once among the most aggressive in the Southeast, has been transformed under Gov. Pat McCrory into a weak sentry that plays down science, has abandoned its regulatory role and suffers from politicized decision-making.

The episode is a huge embarrassment for Mr. McCrory, who worked at Duke Energy for 28 years and is a former mayor of Charlotte, where the company is based. And it has become yet another point of contention in North Carolina, where Republicans who took control of the General Assembly in 2011 and the governor’s mansion last year have passed sweeping laws in line with conservative principles. They have affected voting rights and unemployment benefits, as well as what Republicans called “job-killing” environmental regulations, which have received less notice.

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Environment | Indiana Government

Ind. Courts - "Former ChaCha employee files harassment lawsuit"

Per an @IBJnews tweet: "Former ChaCha employee files harassment lawsuit, dating back to July Twitter kerfuffle, re: owner's alleged affair."

The link leads to this IBJ story by Dan Human, along with a link to the complaint.

Posted by Marcia Oddi on Friday, April 04, 2014
Posted to Indiana Courts

Thursday, April 03, 2014

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

For publication opinions today (1):

In Jeffrey M. Miller and Cynthia S. Miller v. Federal Express Corporation and 500 Festival, Inc., a 20-page opinion, Judge Mathias writes:

Jeffrey M. Miller and Cynthia S. Miller (“the Millers”) appeal the Marion Superior Court’s grant of summary judgment in favor of Federal Express Corporation (“FedEx”) and 500 Festival, Inc. (“500 Festival”) on the Millers’ claim of defamation and intentional infliction of emotional distress. The Millers appeal, claiming: (1) that the Defendants failed to preserve evidence, and (2) that the Defendants are not immune from suit under the federal Communications Decency Act. * * *

On March 18, 2010, the Indianapolis Business Journal (“IBJ”) published an article on its website regarding the allegations and controversy surrounding the construction of the culinary school. Several comments regarding this article were posted to the IBJ website. The Millers allege that several of these comments were defamatory. * * *

I. Preservation of Evidence. The Millers first claim that the trial court erred in granting summary judgment because both of the Defendants failed to preserve evidence for discovery. Specifically, the Millers refer to certain computer records or files that the Defendants had in their possession. * * *

However, we need not pursue the discovery issues concerning the contents of the hard drive on Wilson’s computer, and we do not think that 500 Festival’s failure to preserve the contents of this computer required the trial court to deny summary judgment in favor of 500 Festival. Both of these issues are mooted by the fact that both FedEx and 500 Festival are immune from the claims brought by the Millers.

II. Immunity Under The Communications Decency Act

The trial court granted summary judgment in favor of 500 Festival and FedEx based on its conclusion that these defendants were protected from liability by operation of the federal Communications Decency Act (“CDA”). On appeal, the Millers claim that the trial court’s conclusion was erroneous. * * *

Congress made a policy choice not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages. * * *

Thus, the question before us is whether 500 Festival and FedEx qualify as providers of an “interactive computer service” for purposes of Section 230(c)(1). The Millers argue that neither 500 Festival nor FedEx provided an interactive computer service, but are instead employers providing computer services to their employees via third-party ISPs. * * *

Here, the designated evidence clearly establishes that both 500 Festival and FedEx provide or enable computer access for multiple users on their respective computer networks to access the Internet by means of the servers on each network. We conclude that this is all that is required under Section 230(c)(1) to be considered a provider of an interactive computer service. * * *

[T]he Millers’ actual complaint seeks to hold 500 Festival and FedEx liable as publishers of the statements. Thus, their claims are barred by Section 230(c) of the CDA. * * *

Conclusion. Although there may have remained a genuine issue of material fact concerning spoliation of evidence under state law, the trial court properly granted summary judgment in favor of 500 Festival and FedEx, finding each to be sued in their capacity as a publisher of the information at issue and concluding that, as such, these defendants were immune from the Millers’ claims under Section 230(c) of the federal Communications Decency Act because these defendants are providers of an interactive computer service. Affirmed.

NFP civil opinions today (1):

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

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, April 03, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - The new expungement changes took effect March 26th. What are they?

Here is a memo dated March 31, 2014 sent to all Indiana trial judges, clerks and court administrators by Jeffrey S. Wiese, Director of Trial Court Management, Division of State Court Administration.

H.E.A. 1155 which makes changes to the Expungement Law (I.C. 35-38-9) was effective March 26, 2014. Many of these changes clarify issues the judiciary had with the original 2013 law.

Two Common Questions:

1. Are filing fees required?

The 2014 General Assembly deleted the 2013 language mandating petitioners pay civil filing fees and also the language prohibiting any fee waivers/reductions however no specific language was added prohibiting the assessment of filing fees. After discussion with the Indiana Judicial Center and the State Board of Accounts, we are interpreting this change to mean the normal civil filing fees required by I.C. 33-37-4-4 should be assessed for all expungement cases (except expungement of arrests that did not result in a conviction or juvenile adjudication where no filing fee is required) however fee waivers/reductions are now allowable.

2. What is confidential under the new law?

I.C. 35-38-9-10(i) makes the expungement petition and expungement order confidential. This new statutory provision protects the confidentiality of the information in the petition/order however this does not make the entire civil case confidential. Care should be taken to ensure no confidential information is included in the CCS.

Attached is a:

I hope this information answers your questions about the 2014 changes.

Revised model petitions and orders should be available on courts.IN.gov very soon.

Posted by Marcia Oddi on Thursday, April 03, 2014
Posted to Indiana Courts

Law - "Taken: Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes."

From a very long, August 12, 2013 article in The New Yorker, written by Sarah Stillman, on civil forfeiture and how it impacts the poor:

“We all know the way things are right now—budgets are tight,” Steve Westbrook, the executive director of the Sheriffs’ Association of Texas, says. “It’s definitely a valuable asset to law enforcement, for purchasing equipment and getting things you normally wouldn’t be able to get to fight crime.” Many officers contend that their departments would collapse if the practice were too heavily regulated, and that a valuable public-safety measure would be lost.

But a system that proved successful at wringing profits from drug cartels and white-collar fraudsters has also given rise to corruption and violations of civil liberties. Over the past year, I spoke with more than a hundred police officers, defense attorneys, prosecutors, judges, and forfeiture plaintiffs from across the country. Many expressed concern that state laws designed to go after high-flying crime lords are routinely targeting the workaday homes, cars, cash savings, and other belongings of innocent people who are never charged with a crime.

Posted by Marcia Oddi on Thursday, April 03, 2014
Posted to General Law Related

Ind. Courts - More on: Indiana lesbian couple seeks State's emergency recognition of SSM performed outside Indiana

Updating this ILB post from April 1, which linked to the March 31st memorandum in support of the motion that the claims of Amy Sandler and Niki Quasney be heard on an emergency basis, here is Chief Judge Young's order April 1 re a telephonic conference on April 4th:

... in order to address the Plaintiff Quasney and Sandler’s Motion for Temporary Restraining Order and Preliminary Injunction filed on March 31, 2014.
Here is Jill Disis' brief Indianapolis Star story today that begins:
A terminally ill Munster woman and the woman she married in Massachusetts could find out as soon as Friday whether Indiana will be ordered to recognize their marriage.

Amy Sandler and Niki Quasney on Monday became the latest same-sex couple to challenge Indiana’s gay marriage ban when they joined a lawsuit filed last month in U.S. District Court for the Southern District of Indiana. * * * Unlike the other couples, however, Sandler and Quasney are requesting immediate recognition of their marriage. Quasney was diagnosed in 2009 with ovarian cancer.

Posted by Marcia Oddi on Thursday, April 03, 2014
Posted to Indiana Courts

Ind. Courts - "Community Concerned About Brown Co. Courthouse Expansion"

Updating this ILB post from Sept. 15, 2013, headed "Petitioners ax plans to fix Brown County Courthouse," Will Healey of Indiana Public Media reported April 1:

More than 50 Brown County residents attended a Community Conversation last night to discuss the future of the Brown County Courthouse.

A committee of residents and government officials presented research on the project to the public who signed petitions of remonstrance to block a Courthouse renovation plan put forward by the County Commissioners last fall. Residents were concerned over the location, cost, and how fast the proposed project was moving.

President of the Brown County Commissioners John Kennard says this conversation was about making sure the citizens of Brown County are well-informed this time around.

“What had happened the first time that we did this which was nine months ago, the time limits were so short, and that’s an excuse but it’s a fact, that we did not have the time to educate the public on what the plusses and minuses were,” Kennard said.

Among the findings presented, were the pros and cons of the three options on the table: keep the status quo, renovate and add on to the current courthouse, or build a new courthouse next to the Brown County Jail and Law Enforcement Center.

Those in attendance shared a wide array of concerns, including parking needs at the proposed LEC site, whether a new, larger courthouse was really necessary, and what would come of the historic courthouse if a new one is built.

Posted by Marcia Oddi on Thursday, April 03, 2014
Posted to Indiana Courts

Wednesday, April 02, 2014

Ind. Gov't. - Federal Court Upholds Plymouth’s Local Ordinance in DOJ Challenge

The City of Plymouth’s local ordinance calculating longevity pay for a police officer who was on leave for service in the Air Force Reserve has been upheld in a challenge by the Department of Justice. I'm told the case law out there dealing with the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) is kind of sparse so it is a bit unique.

Here is the 9-page opinion from the ND Ind., Judge James T. Moody.

And here is a news release with the details, from Sean Surrisi, Plymouth City Attorney.

Posted by Marcia Oddi on Wednesday, April 02, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Can't find the Clerk's docket anymore?

If you are used to using the old Clerk's Docket, or using it as a jumping off place to the New Docket, you may find that the old link no longer works.

Instead, go directly to the New Docket using this link, or access it from the Appellate Clerk's homepage (via Case Search at upper right).

Posted by Marcia Oddi on Wednesday, April 02, 2014
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (1):

Lore Futrell v. KGRP, Inc. d/b/a The Kroger Co. (NFP)

NFP criminal opinions today (6):

David S. Healey v. State of Indiana (NFP)

Sharico Blakely v. State of Indiana (NFP)

Jaquari Daquion Dodd v. State of Indiana (NFP)

Tehlynn Trotter v. State of Indiana (NFP)

Christopher A. Fields v. State of Indiana (NFP)

Darvelle White v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, April 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Deer as livestock? What other farmer lets people pay to shoot his livestock for trophies?

This week the Indianapolis Star has been running Ryan Sabalow's lengthy and powerful, four-part series on the deer farming industry. A few quotes from the introduction:

The Star investigation found that more than half the states that allow high-fence hunting provide little or no oversight of how deer and elk are killed. So, while the killing of livestock is governed by humane slaughter rules, and the taking of wildlife is governed by hunting laws, anything goes on preserves in most states. The industry counters criticism of this fact by saying the market regulates itself, that hunters naturally eschew unethical behavior.

But The Star investigation found case after case of hunters so obsessed with trophy antlers that they were willing to blur ethical lines. The Star talked with industry insiders and hunters across the country who said the very act of shooting farm-raised deer inside fences shouldn't be called hunting.

Today's final chapter is titled "What can happen if preserve owners make the rules." Here are some quotes:
PERU, Ind. – For seven days in January 2005, a jury in a federal courtroom heard tales from a now-notorious Indiana hunting preserve of deer being drugged and even a sick deer propped up in a 1-acre pen so a hunter could shoot a $15,000 trophy.

Jurors heard testimony from an outdoor television celebrity, a corporate CEO, a country music star and an ex-NFL quarterback, some of whom paid substantial sums to shoot deer in enclosures so small that prosecutors dubbed them "killing pens." One shot his deer only minutes after it was released from a trailer.

When the prosecution rested its case, the defense team called only one witness — an accountant. He testified that the preserve owner, Russ Bellar, had paid taxes on the deer.

The message was clear to those familiar with the legal complexities surrounding the captive-deer industry: Bellar was saying that he owned the deer; they were no longer part of the publicly owned wild herd from which their ancestors had been taken generations ago. To Bellar, these deer were livestock. His livestock. And the clear implication was that he could do whatever he wanted with them.

Bellar ended up spending nine months in a federal prison. But his argument lives on, and the laws that put him in prison might not. In fact, the principle behind Bellar's argument has been used by lobbyists across the country and has taken root in the law in numerous states where farms and preserve owners seek to fend off stronger disease controls and hunting ethics rules. * * *

As the lobbyists push their agenda, the crucial debate on those disease and ethics issues appears tangled in arguments about definitions and which agency has oversight. In effect, Bellar's argument is carrying the day.

With such lobbying, the preserves have already carved out a free-wheeling niche between the laws and the agencies governing livestock and wildlife. The killing of livestock and wild deer is regulated in most states. But The Indianapolis Star's investigation revealed that in most states that allow fenced hunting, virtually anything goes on the preserves. Baiting deer? Shooting deer in small pens? Selling specific deer to be shot? It's all good. Practices that landed Bellar in prison are perfectly legal in some states. * * *

Who owns the deer?

Each state regulates the captive-deer industry differently. Some have resolved basic issues about whether the animals are classified as livestock. Indiana has not.

Its experience is an example of what can happen when those issues aren't resolved and agencies try to shoehorn a hybrid industry into regulatory structures that were created separately for agriculture and wildlife.

The captive deer industry has aspects of both, which irks its critics.

"These are livestock while they're being raised, but the moment they're released into the game preserve, they become wildlife and available for the hunt," said Jerry Wheeler, founder of Hoosiers for Ethical Hunting. "It's a magic transformation."

Is it really hunting if the animal was raised in captivity from birth? Is it really agriculture if the animal is hunted, rather than slaughtered? And what other farmer lets people pay to shoot his livestock for trophies? Such questions have surrounded the captive-deer industry for years, and they were central to the Bellar case.

The Indiana Department of Natural Resources considered Bellar's deer to be wildlife subject to game laws. And when Bellar agreed to plead guilty to violating a federal game law and two counts of conspiracy in 2005, the DNR's argument appeared to have won. Bellar was sent to a federal prison for nine months and agreed to pay $575,000.

Within a few months, the DNR issued an order attempting to shut down the dozen or so high-fence preserves then in Indiana. The preserves filed a lawsuit, and the DNR action was blocked.

Around the time of Bellar's indictment, state Rep. Bill Friend, R-Macy, asked Indiana's attorney general to examine the laws governing captive deer. The attorney general's report revealed that Indiana law contained a number of inconsistencies. One area of the law said all wildlife was considered part of a public trust, owned by the state and managed by the DNR. But various laws also let breeders own deer as long as they had permits from the state. Other provisions even allowed for some deer to be classified as domestic animals or livestock.

But there was a catch.

The attorney general's report said deer classified as livestock could not be hunted. They had to be killed in licensed slaughterhouses using humane slaughter techniques. The law clearly did not anticipate the deer industry as it evolved.

"Indiana's existing statutes and rules do not directly address many of the questions surrounding the complicated and controversial issue of hunting privately owned deer kept on private property," then-chief counsel Greg Zoeller wrote.

Zoeller, now the state's attorney general, called on the legislature to clear up the law. Legislators, however, balked. It wasn't until 2013 that a county court ruled the animals were livestock and the DNR therefore had no jurisdiction. The state plans to appeal. For the time being, the DNR is not enforcing hunting laws on the four preserves still operating in Indiana. For now, the preserve owners are free to set their own standards.

As if to emphasize the ambiguity surrounding this industry, however, another county court in Indiana issued a contradictory opinion last year, ruling that the DNR has at least some oversight. [ILB emphasis]

ILB: This Oct. 3, 2013 ILB post covers the Harrison County ruling and links to both the Harrison County and Owen County trial court decisions.

A notice of appeal was filed in the Harrison County decision, Whitetail Bluff v. DNR (31C01-0508-PL-000033), on 11/1/2013. Nothing is showing up yet in the appellate docket.

The ILB has had many entries on the canned hunting issue. Here is a list.

Posted by Marcia Oddi on Wednesday, April 02, 2014
Posted to Indiana Government

Law - ILB's entry in the 2014 ABA Peeps in Law contest

This is the 6th year the ABA has sponsored an annual diorama contest, Peeps in Law. The ABA announcement includes:

After we have received all the submissions and gloated lovingly about how talented our readers are, voting begins! You will have from April 9 to April 21 to ponder which of our Peeps in Law dioramas deserves the grand prize and eternal glory, and we will announce the winners on Earth Day, April 22. The top three dioramas will receive prizes from Just Born, the makers of Peeps.
The ILB will remind you to vote during the April 9 to 21st period. For now though you can admire all the entries so far in this ABA gallery. The ILB's entry, in keeping with the ILB's simple and direct style, is titled "Three examples of Bad Peeping."

Posted by Marcia Oddi on Wednesday, April 02, 2014
Posted to Indiana Law

Law - "Top 50 Criminal Law Blogs"

Sentencing Law Blog points to a list of the "Top 50 Criminal Law Blogs." The list looks useful.

Notice that there is no blog related to Indiana. On the other hand, the list includes the Texas Criminal Law blog at #24, but its most recent post was from Aug. 10, 2013. I've only looked at a few on the list but several of these blogs appear to me to be "ghosted," containing occasional posts with generalized articles.

Some of the blogs are aimed at marketing, while others are aimed at other lawyers. An example perhaps of both is the Dallas Criminal Defense Lawyer Blog at #37, which is fun to read.

Posted by Marcia Oddi on Wednesday, April 02, 2014
Posted to General Law Related

Tuesday, April 01, 2014

Ind. Courts - Indiana lesbian couple seeks State's emergency recognition of SSM performed outside Indiana

Thanks to Chris Geidner of BuzzFeed, who has just tweeted: "Yesterday, @LambdaLegal filed a motion in Indiana seeking immediate recognition of a same-sex couples' marriage." From the Lambda Legal news release:

Today, Lambda Legal asked a federal court to order the State of Indiana to recognize the marriage of a lesbian couple in Munster. Amy Sandler and Niki Quasney and their two children seek immediate relief from Indiana’s ban on marriage for same-sex couples as Ms. Quasney was diagnosed with stage IV cancer and cannot wait any longer for the protections of marriage.
This March 13th ILB post reports the initial filing of the complaint in the Lambda Legal lawsuit, Baskin v. Bogan, in the U.S.District Court in the Southern District of Indiana. The news release continues:
Today’s filings add Amy Sandler and Niki Quasney of Munster Indiana, and Henry Greene, Glenn Funkhouser and their son of Carmel, Indiana as plaintiffs. Lambda Legal has asked that Niki’s and Amy’s claims now be heard on an emergency basis.
Here is the memorandum in support of the motion, filed March 31st.

Posted by Marcia Oddi on Tuesday, April 01, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In Michael E. McClellan v. State of Indiana, a 9-page opinion, Judge Robb writes:

In this interlocutory appeal, Michael McClellan appeals the trial court’s denial of his motion to dismiss the charge pending against him. McClellan raises one issue, whether the trial court erred in denying his motion to dismiss because his right to a speedy trial under the federal and state constitutions was violated. Concluding the trial court failed to evaluate McClellan’s speedy trial claim under the appropriate framework, we remand for a new hearing on McClellan’s motion to dismiss. * * *

The length of the delay acts as a triggering mechanism; a delay of more than a year post-accusation is “presumptively prejudicial” and triggers the Barker analysis. * * *

The delay was due to the court issuing summons and warrants to McClellan at an outdated address. McClellan argues that the State had an obligation to serve him earlier, especially since he was on home detention and the State should have been aware of his correct address. The State argues that the delay was not deliberate and that the trial court found that the State had no affirmative burden to know McClellan’s address. * * *

We remand to the trial court to hold a new hearing on McClellan’s motion to dismiss based on the speedy trial right using the four-factor balancing test established by Barker v. Wingo and its progeny and to determine whether McClellan’s motion to dismiss should be granted. Remanded.

NFP civil opinions today (2):

Scriptfleet, Inc., a Florida Corporation f/k/a Network Express, Inc. v. In Touch Pharmaceuticals, Inc., an Indiana Corporation as successor in interest to MHP Pharmacy, LLC (NFP)

Anthony Taylor v. Mark R. Sevier, Superintendent of Miami Correctional Facility (NFP)

NFP criminal opinions today (1):

Jeffery Spinks v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, April 01, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re sentencing

In Bryant E. Wilson v. State of Indiana, a 9-page, 5-0 opinion, Justice David writes:

When a defendant is convicted for multiple crimes arising out of a single course of criminal conduct, Indiana’s sentencing statutes provide trial courts with some discretion in ordering the individual sentences for those crimes to run consecutively or concurrently. Here, a defendant’s aggregate sentence was imposed in such a way that one of the individual sentences was effectively a hybrid—it was ordered partially concurrent to the other sentences, and partially consecutive.

Is this form of sentence permissible? Because trial courts are limited to sentences authorized by statute, and because the relevant provisions of the Indiana Code here do not authorize such a hybrid sentence, the answer must be “no.” We therefore remand this case to the trial court for resentencing.

In 1995, a jury found Bryant Wilson guilty of rape as a class A felony, criminal deviate conduct as a class A felony, and armed robbery as a class B felony. The trial court sentenced him to forty-five years for each of the class A felony convictions and twenty years for the class B felony conviction. The forty-five-year sentences were ordered to be served concurrent to one another, but the twenty-year sentence was split: fifteen years were to be served concurrent with the forty-five-year sentences, and five years were to be served consecutive to them. The result was an aggregate sentence of fifty years. * * *

We granted transfer, thereby vacating the Court of Appeals opinion. Wilson v. State, 993 N.E.2d 625 (Ind. 2013) (table); Ind. Appellate Rule 58(A). We did not hold oral argument, but to supplement Wilson’s pro se brief we requested additional briefing from the Public Defender of Indiana and other interested parties as to whether the imposition of a partially consecutive sentence is permissible. We thank the Public Defender of Indiana, and Professors Charles MacLean, James Berles, and Adam Lamparello (collectively, “the Amicus Professors”) of the Indiana Tech Law School in Fort Wayne, for responding and providing their additional insights. [ILB: In this regard, see footnote 3 at p. 6] * * *

Chief Judge Robb was correct when she said that “sentencing is a creature of the legislature and [] we are limited to sentences that have been expressly permitted by the legislature.” Wilson, 988 N.E.2d at 1224. “[C]ourts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute.” * * *

It seems apparent that Wilson’s original sentencing court intended to give Wilson the maximum sentence possible. So it imposed the maximum penalties for each individual conviction, and in support cited a number of aggravating factors, including Wilson’s prior felonies and the fact that he was on parole when he committed the offenses at issue here. It then tried to arrange those individual sentences in a way that also maximized Wilson’s aggregate sentence. But in trying to accomplish this last step, it erred.

There are a number of ways that Wilson’s aggregate sentence of fifty years can be effectuated by the trial court on remand, if it is merited. Imposing a partially consecutive sentence for one of the individual convictions is not one of them.

Conclusion. We reverse the trial court’s denial of Wilson’s motion to correct erroneous sentence, and remand so that he may be resentenced for his rape, criminal deviate conduct, and armed robbery convictions. In doing so, the trial court may not exceed the aggregate term of fifty years that Wilson received in his original sentence.

Posted by Marcia Oddi on Tuesday, April 01, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - New Tax Court opinion, filed March 31st

In Tannins of Indianapolis, LLC v. Indiana Department of State Revenue, a 7-page opinion, Judge Wentworth writes:

This case asks whether Tannins of Indianapolis, LLC is entitled to the purchase for resale exemption on its 2009, 2010, and 2011 purchases of programmable cards that operate its wine sample dispensing equipment. The Court finds that Tannins’ purchases of the cards are not exempt. * * *

Tannins claims that its purchases of tasting cards are exempt from sales and use
tax under Indiana Code § 6-2.5-5-8(b) because it resold them to its customers. * * *

This Court has consistently explained that for a resale to exist, the buyer and seller must separately bargain for the property in exchange for the payment of consideration. * * *

For the above-stated reasons, the Court finds that Tannins’ purchases of tasting cards are not exempt from use tax under Indiana Code § 6-2.5-5-8(b), the purchase for resale exemption. The Court therefore AFFIRMS the Department’s final determination.

Posted by Marcia Oddi on Tuesday, April 01, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Law - "Indiana expungement law gives woman a fresh start"

Well, maybe not.

This story in the Louisville Courier Journal, by Aubrey Woods, repeats something the ILB has commented on earlier. Expungement covers only official records. If your expungement efforts become the focus of a news story, your name and story will likely turn up for years in internet searches. From the long story:

SEYMOUR, Ind. – In June 2008, KB [the ILB has elected to use initials] pleaded guilty to a Class D felony charge of attempted possession of a controlled substance in Jackson Circuit Court.

It’s a decision that has followed her on job interviews across the country over the past five years, the 25-year-old woman said.

A state law that went into effect July 1 has allowed the former Seymour resident to erase her criminal conviction.

Jackson County Prosecutor AmyMarie Travis said she could not comment on specific cases such as KB’s, but she has concerns about the law because it can allow people to mask previous problems such as internal theft from potential employers.

But Travis also acknowledges she would urge a family member to take advantage of the law if they could.

KB now wants others with similar criminal convictions to know there’s hope.

“I think it will help a lot of other people,” KB said.

She was the first person to file a petition for expungement of her record in Jackson County, and only about a half-dozen more have filed requests in the county, Chief Deputy Prosecutor Jeff Chalfant said. * * *

KB said she learned about the state expungement law when she was working as an intern at the Statehouse during the most recent session.

“I immediately called my lawyer’s office to figure out what I needed to do,” she said.

KB was eligible. That process came to a successful conclusion March 14 when KB and Johnson attended a hearing in front of Senior Judge Frank W. Guthrie in Jackson Circuit Court. * * *

KB said her life has changed since her conviction.

“I don’t do those things anymore,” she said of the events that led to her arrest.

She said she’s always had a job and is doing a lot of “right” things like volunteering in the community.

KB said having her record expunged just seemed to be a new beginning.

She also recently obtained a job with a technology company in Columbus.

KB said the state law is a good for people such as herself who committed a criminal act years ago.

“It doesn’t have to hinder you from getting employment,” she said. “You don’t have to have your record following you the rest of your life.”

Really, I wish people would stop volunteering for these stories.

Posted by Marcia Oddi on Tuesday, April 01, 2014
Posted to Indiana Law

Ind. Gov't. - Is David Lott Hardy immune from criminal prosecution despite violating state ethics rules?

Yesterday the Court of Appeals heard oral argument in the case of former Indiana Utility Regulatory Commission head, David Lott Hardy. Watch the argument here.

Here is coverage of the argument, from Jacob Rund, a reporter for TheStatehouseFile.com. Some quotes:

In August 2012, the state filed charges accusing David Lott Hardy of inappropriately assisting an IURC employee and holding secret meetings with Duke Energy executives. Last fall, Superior Court Judge William Nelson dismissed the charges and a month later, the office of the Attorney General filed a notice appealing the decision. * * *

During his trial in Marion Superior Court, Hardy faced four charges of official misconduct - all class D felonies. The first charge accused Hardy of talking to Duke Energy officials about a job for Scott Storms, who was then an IURC administrative law judge working on a case involving construction of a Duke power plant.

The second, third, and fourth charges claimed illegal acts of secret communication occurred among Hardy and Duke Energy officials between 2008 and 2010. The charges claimed Hardy violated his duty as a public servant by failing to disclose communication with various Duke Energy officials concerning pending proceedings involving the company's Edwardsport facility.

Nelson dismissed the charges against Hardy based on an amendment passed by the Indiana General Assembly to correct a poorly written law.

Before the amendment, the law allowed for any violation of procedure - even one noncriminal in nature - to be charged as official misconduct.

After Indiana Inspector General David Thomas filed a report in 2010 noting problems with the legislation, lawmakers quickly refined it to only include criminal behavior. * * *

The main question at hand is whether the amendment - which became effective in the summer of 2012 - could be viewed as retroactive and would then include Hardy's alleged violations during 2008-2010.

David Hensel, Hardy's defense attorney, argued the amendment is indeed retroactive and should lead to the subsequent dismissal of all charges.

Hensel pointed to the timely manner in which the legislature responded to the report of loose language in the law by the Inspector General as a main reason why the amendment should also apply to Hardy's situation.

"The speed... that seems to be the critical factor," he said. "The speed at which the legislature responds to notification of a defect in the law and a request to remedy that defect."

Hensel also cited a previous court ruling that contained language naming the speed of response by the legislature to a problem with a law as a determining factor of the lawmaker's original intent.

Ellen Meilaender, a deputy attorney general representing the state, argued there is no evidence that the General Assembly intended for the amendment to be retroactive.

"There is no evidence clearly showing an implicit intent by the legislature for retroactive application; in fact, the evidence supports the opposite conclusion," said Meilaender in a written argument.

Also in her written argument, Meilaender denounced the defendant's reasoning that the change by the legislature constitutes lawmakers' belief that the law is "defective."

"The fact that the Inspector General asked the legislature to "clarify" the law does not prove that the legislature agreed that the statute was defective as opposed to just a decision that the legislature no longer like the reach of the statute," she said.

Following Monday's Appeals Court hearing, Attorney General Greg Zoeller issued a statement affirming his belief that Hardy should be held accountable for his actions.

"For the public to have confidence in our laws there must be public accountability; and individuals who hold positions of public trust ought to be held to a very high standard," said Zoeller. "My office, working with the prosecutor, maintains that the official misconduct statute that was on the books in 2010 should be enforce against this defendant, since the legislature when it changed the law in 2012 did not make the change retroactive."

From an unattributed AP story in the Bloomington Herald-Times:

Hardy's attorneys say the Marion County judge did the right thing. Lawyer David Hensel said the revised misconduct law applies only to specific criminal offenses by public officials, not merely to violations of ethical or administrative rules. He said the Indiana General Assembly made those changes in 2012 when the state inspector general sought clarification as a result of the Duke-related scandal.

"There was an ambiguity in the statute," Hensel said. "Once it became aware of it, it acted quickly."

But Deputy Attorney General Ellen Meilaender said the law wasn't vague as applied to Hardy, because it clearly prohibited officials from taking part in private discussions related to decisions in which they were involved.

"But aren't some communications permissible?" asked Judge Paul Mathias.

"Yes, but these weren't," Meilaender said.

Judge Cale Bradford asked Hensel what the state could do about cases like Hardy's if it couldn't bring charges.

"It feels like you ought to be able to do something about somebody who does something like this," Bradford said.

Hensel said the former regulator had already paid a harsh penalty. "Mr. Hardy lost his job," he said.

The ILB wrote about this issue in a Sept. 9, 2013 post, which included this ILB observation:
More credible might be an assertion that the lack of a retroactivity clause clearly indicates the General Assembly did NOT intend for it to apply retroactively.

And yesterday's ruling raises the question of whether not only this, but any statute the General Assembly enacts after having been urged to by the Inspector General (or by the Court), is intended to apply retroactively, unless the new law provides otherwise! -- which would be the direct opposite of the way statutes have been applied for decades...

Posted by Marcia Oddi on Tuesday, April 01, 2014
Posted to Indiana Government

Environment - More on: Mounds Lake reservoir plan opposed by environmental groups

Updating this lengthy March 10th ILB post, Seth Slabaugh of the Muncie Star-Press has a long story today that begins:

MUNCIE — The star-nosed mole, the clamp-tipped emerald green dragonfly and the shining lady’s-tresses orchid could get in the way of plans to build the controversial Mounds Lake reservoir.

The Indiana Native Plant and Wildflower Society (INPAWS) says the reservoir would flood an ice age fen that is home to rare species and undermine the state’s nature preserves act, “which has not faced such a challenge since its passage in 1967.”

The $350 million lake would be created by damming the White River in Anderson, creating a reservoir over what is now seven miles of free-flowing river from Anderson upstream to an area north of Daleville.

According to an upcoming article in The INPAWS Journal, “as the reservoir drama unfolds, proposals will surface that natural resources lost through flooding will be mitigated by replacing them elsewhere through habitat restoration.”

The author, Lee Casebere, retired assistant director of nature preserves for the Indiana Department of Natural Resources, writes, “In this case ... how do you replace a glacially created, ground-water-fed complex system whose parts are not fully known or understood? It can’t be done.”

Kevin Tungesvick, a local restoration ecologist, recently told bird watchers from the Robert Cooper Audubon Society the fen (a type of wetland) “is so hydrologically and geologically complex ... you cannot recreate this setting. In other words ... fens are not created by men; fens are created by ice ages.” * * *

State law prohibits the taking of nature preserves for any other use except another public use and only after a finding by the natural resources commission of the existence of an imperative and unavoidable public necessity for the other public use and with the approval of the governor.

Although today's article (which should be read in full) quotes two statements from developers that "Mounds Lake is still just a concept, 'a good idea,' the Anderson Corporation for Economic Development reports," as the ILB wrote in its earlier post:
The "Mounds Lake on the White River" project has a sophisticated website, access it here.

Posted by Marcia Oddi on Tuesday, April 01, 2014
Posted to Environment