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Friday, May 30, 2014

Courts - "From 'scraggly' kid to Federal judge, Muncie native recalls his journey"

Updating this Jan. 31st ILB post, headed "Courts - "Muncie native joins U.S. Court of Appeals"," Thomas St. Myer writes today in the Muncie Star-Press in a lengthy story that begins:

MUNCIE — Dozens of men and women shook his hand, exchanged hugs or posed for pictures with Robert Wilkins after his speech Thursday afternoon in the Cornerstone Center for the Arts Colonnade Room.

Wilkins smiled throughout as he caught up with old friends. One person after another walked up to him and said, “I’m so proud of you” or “It’s an honor to meet you.” Wilkins humbly responded, “Thank you” a countless number of times and posed for his final picture about 45 minutes after delivering an uplifting speech at the 22nd annual Muncie Black Expo Luncheon.

“It is overwhelming,” said Wilkins, a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit.

From later in the story, a notable account:
One moment that stood out to Wilkins as he reflected on the past 25 years occurred in 1992 when the Maryland State Police pulled over a vehicle, occupied by him and three other family members, for speeding.

Wilkins told the luncheon crowd that the police officer insisted on searching the vehicle for drugs. Wilkins and his passengers refused to consent to the search, and the situation soon escalated.

“He made us wait for a drug-sniffing dog he brought to the scene, even though he was aware I was a public defender,” Wilkins said. “I told him the name of the Supreme Court case that said he shouldn’t be doing what he was doing and none of that mattered.

“No drugs were found and we were let go, but just the indignity of all of it was a little too much to bear.”

Wilkins filed a lawsuit and won a landmark settlement against the state of Maryland. The lawsuit exposed that the Maryland State Police targeted black drivers. Wilkins negotiated in the settlement for the police to collect data on who they stop and search. Maryland broke ground as the first state police to collect that type of data, a practice now implemented by 46 states and the District of Columbia.

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Courts in general

Ind. Courts - Imprisoned William Conour seeks reimbursement from restitution fund

Adding to a long list of earlier ILB posts re William Conour, a former Indianapolis attorney now in prison, Tim Evans of the Indianapolis Star has this lengthy story today headed "Conour, behind bars, wants feds to pay him back nearly $200,000." A sample:

Indianapolis attorney Timothy Devereux, a former Conour associate who now represents some of Conour’s victims, said his clients have so far received only small amounts from the restitution fund. All of them, he said, are still waiting for full compensation.

In his new motion, which Conour filed independently and without knowledge of his court-appointed public defenders, he now contends his guilty plea to one count of wire fraud was tied to a single case. That means he is obligated to repay only that victim, who was due $450,000. By his calculation, Conour said, he has made full restitution and the government owes him $184,214 from the $634,214 that has been seized.

Devereux said Conour’s new claim runs counter to his statement in court last October.

“That is not an argument he made under oath at his sentencing,” he said. “He readily admitted they all were his victims.”

Three days after Conour filed the request seeking reimbursement of the $184,214, his two federal public defenders, Michael Donahoe and Joseph Cleary, asked Young for permission to withdraw from the case.

Donahoe declined to comment, but their motion notes that another federal public defender assigned to assist with Conour’s pending appeal also was granted permission earlier this month to withdraw from the case “based upon conflict” with Conour.

Conour’s new filing “further establishes the conflict that currently exists between Mr. Conour and the (Indiana Federal Community Defender),” the motion says. “Mr. Conour has continuously expressed his dissatisfaction with the representation provided by the IFCD and his attorneys of record.”

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Indiana Courts

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

For publication opinions today (5):

In Depuy Orthopaedics Inc. and, Johnson & Johnson v. Travis Brown, et al., a 15-page opinion, Judge Pyle writes:

In this interlocutory appeal, DePuy Orthopaedics and Johnson & Johnson (collectively “DePuy”) appeal the denial of its motion to dismiss on the grounds of forum non conveniens, governed by Indiana Trial Rule 4.4(C). * * *

For the aforementioned reasons, we find that the trial court abused its discretion in denying DePuy’s motion to dismiss on forum non conveniens grounds. We reverse and remand to the trial court for issuance of the appropriate order dismissing this case for refiling in Virginia or Mississippi.

In re the Paternity of V.A., (Minor Child), R.A. v. B.Y.

In Re: The Paternity of V.A., a Minor Child, R.A. Father v. B.Y., Mother

Joseph Fuentes v. State of Indiana

Jose M. Santana v. State of Indiana

NFP civil opinions today (4):

In the Matter of the Termination of the Parent-Child Relationship of: O.V., Minor Child, J.V., Mother v. Indiana Department of Child Services (NFP)

Thomas H. Kramer, Member and Manager of Domus Property Investments, LLC v. Mark Kramer, and Domus Property Investments, LLC (NFP)

In Re the Marriage of: Michelle Schlotterback and Terry Schlotterback, Terry Schlotterback v. Michelle Schlotterback (NFP)

Alma Stanbary v. Madison-Jefferson County Library (NFP)

NFP criminal opinions today (6):

Brooke Tubbs v. State of Indiana (NFP)

Charlie S. Hines III v. State of Indiana (NFP)

Dietrich D. Smith, Jr v. State of Indiana (NFP)

Ronald Buttermore v. State of Indiana (NFP)

Raven McGinty v. State of Indiana (NFP)

Jeremiah Workman v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - New entry on Brewington docket

The Daniel Brewington docket has this new entry:

05-23-2014 APPELLANT'S MOTION TO WITHDRAW APPEARANCE (2) CERTIFICATE OF
SERVICE (2) BY MAIL 05/23/14. **ATTYS. MICHAEL SUTHERLIN AND
SAMUEL ADAMS** ENTERED ON 05/28/14 MC

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Public may never know why Indiana judge gave convicted rapist no prison time"

Charles Wilson of the AP reported Tuesday evening in the Fort Wayne News-Sentinel:

INDIANAPOLIS — The public may never know the entire reason why an Indianapolis judge gave a convicted rapist no time in prison because the county where the man was sentenced apparently is the only one in Indiana that doesn't require its judges to state their reasons in writing.

An Indianapolis woman told reporters last week that she felt sucker-punched by the punishment that Marion County Judge Kurt Eisgruber gave her ex-husband on May 16: eight years in home detention and a 12-year suspended sentence for raping her while she was drugged or asleep. Wise, 52, was convicted last month of one count of rape and five counts of criminal deviate conduct.

"His sentence could have been between six years suspended or 100 years in prison," said Joel M. Schumm, a law professor at Indiana University's McKinney School of Law in Indianapolis. Prosecutors had sought a 40-year prison term. * * *

Schumm said those attacking the judge will probably never entirely know what led to his decision, because while a couple of judges in Marion County do it anyway, there is no requirement that judges prepare a written sentencing order outlining their rationale as in other counties. The judge has not commented on the ruling.

"That's the problem with this, is everybody is attacking him or attacking the sentence, but they don't have any idea why he issued the sentence," Schumm said. The complete reasoning behind the sentence may never be known unless someone can access an audio recording or transcript of the hearing, he said. That could be difficult to arrange not only for potential listeners but also for the court reporter, and could potentially take weeks.

Sentencing orders are generally just a few pages long and outline the pros and cons that led to the sentencing. A pre-sentence report might also shed some light, but those are confidential. "It's just a lot easier for the interest of the public and confidence in the criminal justice system. Being able to see the judge's reasoning in a sentencing order would go a long way in that," Schumm said.

See the related ILB post here, from May 23rd.

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Indiana Courts

Environment - "Head of Miss. environmental agency to resign"

Fascinating public records story Wednesday by Emily Le Coz and Geoff Pender, of The Clarion-Ledger. Some quotes:

Mississippi Department of Environmental Quality chief Trudy Fisher announced in an email to employees Wednesday she will resign her position later this summer after eight years on the job. * * *

Fisher's surprise decision comes one week after a Hinds County Chancery Court hearing during which her agency's wholesale redaction of public records came under fire. DEQ blacked out hundreds of pages of invoices totaling roughly $6 million.

Among the purchases were first-class airfare for Fisher and a private contractor, Amy Whitten. The reason for and destination of their trip was redacted.

DEQ attorneys argued the invoices were protected by attorney-client privilege and the attorney work product doctrine. Judge Denise Owens has yet to decide the matter.

It's unclear whether that case had any bearing on Fisher's decision to resign, but plaintiff attorney Matt Eichelberger said it likely didn't help.

"While we cannot speculate on the reasons for Ms. Fisher's decision to resign as director of the Department of Environmental Quality," Eichelberger said, "her decision certainly doesn't change my client's position that the documents he's requested are public record and should be released."

Eichelberger represents journalist and consultant Michael Rejebian. * * *

Fisher, who was first appointed by Gov. Haley Barbour in January 2007, led the agency as Mississippi recovered from two major disasters – first Hurricane Katrina and then the Deepwater Horizon oil spill.

Here is the earlier story, headed "DEQ defends redacting turned-over invoices."

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Environment | General Law Related

Ind. Courts - "Federal lawsuit filed over alleged sexual exploitation" by a New Castle school counselor

Douglas Walker's story yesterday in the Muncie Star-Press reported:

NEW CASTLE — A 2013 graduate of New Castle Community Schools has filed a federal lawsuit alleging he was the target of sexual exploitation by a school counselor.

The allegations in the suit — filed last week in U.S. District Court in Indianapolis — are nearly identical to those made in a criminal case, also pending in federal court, against Darrell Hughes, a 55-year-old Muncie man who worked for several years as as behavioral specialist at a New Castle alternative school.

Hughes was indicted by a U.S. District Court grand jury in April on three counts of sexual exploitation of minor boys.

* * * [The teen is] not one of the victims referred to in the criminal cases. * * *

The suit alleges the teen was a victim of sexual harassment and gender discrimination, noting Hughes targeted only male students. It seeks both compensatory and punitive damages.The ILB has obtained a copy of the 15-page complaint; access it here.

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Indiana Courts

Courts - "SCOTUS Upholds Law Enforcement's Qualified Immunity"

The NPR Nina Totenberg story from Tuesday reports:

In two decisions handed down Tuesday, the Supreme Court made it more difficult for citizens to sue law enforcement officers for their conduct. Both decisions were unanimous.

The central issue in both was the doctrine of "qualified immunity," which shields public officials from being sued for actions that fall short of violating a clearly established statutory or constitutional right.

Lyle Denniston wrote this post about one of the two cases; he begins:
Expanding the authority of police to use deadly force to stop a high-speed chase on streets and highways, the Supreme Court ruled Tuesday that police may start shooting at the fleeing vehicle and keep on shooting until they are satisfied that the threat to safety is at an end. The ruling had mostly unanimous support, but two of the nine Justices had qualms about the number and sequence of shots fired in this particular case.

The decision in Plumhoff v. Rickard grew out of a chase ten years ago that crossed a state line from Arkansas into Tennessee, and continued even after police had appeared to have the fleeing car cornered on the streets of Memphis. At that point, as the driver still tried to get away, the police opened fire, and kept shooting as the car sped away and then crashed, with both the driver and a passenger killed.

The action of police throughout, the Court ruled, did not violate the constitutional rights of the driver. The lawsuit was filed by the driver’s daughter. The Court did not rule on whether the estate or relatives of the dead passenger might have a constitutional claim.

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Courts in general

Ind. Courts - Annual list of Suspended Attorneys

The Indiana Supreme Court has just posted the annual order, listing attorneys who are suspended for failure to pay registration fees or to comply with educational or IOLTA requirements. The list has been posted by the Court here; as in past years, it is scanned and not searchable. According to the order:

Although the suspension is effective as of the date of this order for purposes of the reinstatement procedures that must be followed andlor any reinstatement fees that must be paid for reinstatement, the Court directs that the proscription against the actual practice of law will go into effect at 12:01 a.m. Eastern Daylight Savings Time on Thursday, July 3, 2014. The delay from the date of this order to the suspension date is for the sole purpose of allowing time for copies of this order to be sent, received, and acted upon by the suspended attorneys.
Marion County begins on pp. 6.

The ILB has created a searchable version of the 16-page list; access it here.

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Indiana Courts

Ind. Courts - More on: Even more on: State DNR appeals high fence hunting ruling to the COA

This is the ILB's third post in a row on the State's appeal of the Harrison County trial court ruling in DNR v. Whitetail Bluff, which held that:

The deer purchased by Whitetail Bluff and offspring thereof, are privately owned and are not the property of the people of the State of Indiana. Therefore the animals are not subject to regulation by DNR by virtue of the provisions of Indiana Code §14-22-1-1.
Yesterday's posts are here and here.

Indianapolis Star reporter Ryan Sabalow, who wrote the series earlier this year on the captive-deer industry, reports today in a story headed "AG appeal calls unregulated high-fence hunting 'absurd and dangerous.'" Some quotes:

Even though deer on Indiana's four fenced preserves are privately owned, they're still wild animals, the state's attorneys argued in a brief filed with the Indiana Court of Appeals.

As such, they fall under the regulatory authority of the Department of Natural Resources, which is the "sole administrator and arbiter of hunting in Indiana."

The brief is the latest salvo in a legal and legislative stalemate over high-fence hunting in Indiana. In 2005, the DNR issued an order attempting to shut down the state's fenced deer hunting preserves, after a case in which deer bred for big antlers were being shot in enclosures so small that officials called them "killing pens." The preserves sued, challenging the order.

Last year, a Harrison County judge ruled that the DNR had no authority over captive-deer hunting because the animals on the preserves were privately owned. They are sold as part of a boutique agricultural industry that breeds deer with antlers sometimes twice as large as the record for animals killed in the wild. Valuable breeding bucks and does can command six-figure prices.

The status of the animals remains unclear, however. Less than a year before the Harrison County ruling, an Owen County judge tossed out another case challenging the DNR's authority.

The attorney general's office is appealing the Harrison County case, saying that removing DNR's authority to regulate hunting on the preserves would create "a regulation-free environment where individuals can hunt without a license, out of season, with weapons not typically used for hunting and with blatant disregards for Indiana's safety and ethical hunting standards." * * *

Currently, the state's four preserves are offering hunts without oversight from wildlife officials, and hunting methods aren't governed by agricultural humane slaughter standards. An Indianapolis Star investigation published earlier this year revealed disease risks in the growing captive deer industry and showed that most states that allow high-fence hunting do not regulate hunting practices on the preserves.

In the brief, the state's attorneys say that if the deer are classified as livestock instead of wildlife, as the preserve owners argue, state law actually forbids them from being hunted.

For more than 10 years, Indiana's lawmakers have been unable to reach agreement on high-fence hunting legislation, which is introduced almost annually. A bill that would have set regulatory standards for preserves was narrowly defeated this year in the Senate.

Attorney General Greg Zoeller said he decided to appeal the Harrison County case in an effort to clarify the law because state lawmakers have been unable to.

Posted by Marcia Oddi on Friday, May 30, 2014
Posted to Indiana Courts

Thursday, May 29, 2014

Ind. Courts - More on: State DNR appeals high fence hunting ruling to the COA

Updating this entry from earlier this afternoon, which included a copy of the State's brief in DNR et al. v. Whitetail Bluff LLC et al, appealing the Harrison County trial court ruling, the ILB has now received the amicus brief supporting DNR filed on behalf of Indiana Wildlife Federation, Indiana Deer Hunters Association, and Indiana Chapter of the Wildlife Society. Here is the summary of argument:

Indiana law prohibits the practices Rodney Bruce engages in. These practices are referred to as "canned hunting," which is shooting captive-raised deer in pens, often for trophy purposes only.
  • Indiana law mandates the regulation of "wild animals," whether privately owned or property of the people of the State (this regulatory regime is consistent with the history of conservation in America and the Seven Pillars of Wildlife Management).
  • Indiana law prohibits taking (killing) deer except when a statute or DNR rule explicitly permits it.
  • Indiana law prohibits private ownership of d eer except under a properly issued game breeder's permit for a deer (cervidae) livestock operation.
  • Deer raised in licensed game breeding (cervidae livestock) operations may not be hunted.
  • Indiana law prohibits the sale of deer - alive or dead - except by a holder of a game breeder's license.
Those who operate" canned hunting" pens in Indiana have propagated the myth that Indiana law is unclear, that their operations fall into a gray area, or that - as the Harrison Circuit Court found - the State does not have authority to regulate privately owned deer.

These myths are far from the truth. Indiana law prohibits the activities that constitute "canned hunting." Bruce and other "canned hunting" owners do not have game breeder's licenses (Bruce had one, but gave it up in 2005). They have no legal right to privately own deer. Their business model - which is based on selling individual deer at prices based on the size of their antlers - violates the statute prohibiting the sale of deer for any purpose by anyone other than a licensed game breeder.

Indiana's plan for regulating deer hunting is consistent with the North American model of wildlife conservation, which hunters, anglers, and other sportsmen initiated more than 150 years ago. The North American model preserves the stock and habitat of wildlife by limiting hunting, insisting on fair-chase hunting practices, and treating the herd as a public trust, owned by all the people. In this model, which differed from European practices, the hunters themselves (exemplified by Teddy Roosevelt) pushed government to regulate their own hunting practices to preserve resources for future generations.

The trial court erred in concluding that Bruce's operation was beyond the reach of Indiana's statutes and DNR's rules because he privately owns the deer. To the contrary, the law prohibits the practices carried out in his "canned hunting" operation.

The docket in Ind. Dept. of Natural Resources, et al. v. Whitetail Bluff is available here.

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Indiana Courts

Ind. Courts - AG Zoeller appeals high fence hunting ruling to the COA

Here are some quotes from AG Zoeller's news release, issued today:

INDIANAPOLIS – Seeking clarity from the courts, the Indiana Attorney General’s Office on Wednesday filed a legal brief in an appeal of a lawsuit over who may regulate deer in high-fenced hunting enclosures.

As state government’s lawyer, the Attorney General’s Office represents the Indiana Department of Natural Resources in the appeal DNR et al. v. Whitetail Bluff LLC et al., filed in the Indiana Court of Appeals. The brief asks the appeals court reviewing a Harrison County trial court’s decision to find that the regulatory authority of the DNR applies both to publicly owned and privately owned wild animals, and find that the DNR can regulate a high-fenced hunting operation.

“Without a clear statute and with conflicting court rulings, additional clarity is needed from the appellate courts,” Indiana Attorney General Greg Zoeller said.

The State’s brief asks the Indiana Court of Appeals to reverse the Harrison County Circuit Court’s summary judgment ruling of September 27, 2013, and underscore that the DNR has legal authority to regulate the hunting of deer in privately owned high-fenced facilities. Two separate trial court rulings – one in Owen County and the other in Harrison County – contradict each other and the State seeks a consistent appellate opinion applicable statewide.

The ILB has posted in the past both trial court rulings, from Harrison County and Owen Couty: they were summarized and linked at the end of this April 2nd post

Here is a copy of the State of Indiana's brief in DNR v. Whitetail Bluff, filed yesterday with the Indiana Court of Appeals.

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 17 NFP)

For publication opinions today (3):

In Indianapolis Metropolitan Police Department v. Donald A. Prout, a 14-page opinion, Judge Crone writes:

Donald A. Prout, a full-time deputy with the Marion County Sheriff’s Office (“MCSO”), also worked security part time at a grocery store and a bus station. An MCSO detective was asked to investigate accusations that Prout was being paid by MCSO while he was working his other jobs. The detective obtained documents from MCSO and Prout’s other employers indicating that his work schedules overlapped on four occasions. Prout was asked to explain the discrepancies, but he refused. The detective filed a probable cause affidavit, which resulted in Prout being charged with four counts of class D felony theft. Those charges were later dismissed due to unspecified evidentiary problems.

Prout filed a petition to expunge his arrest record, asserting that the charges against him were dropped because no offense was committed and there was no probable cause. The Indianapolis Metropolitan Police Department (“IMPD”) objected to Prout’s petition. At a hearing on the petition, Prout presented evidence that his work schedules had not overlapped. The trial court issued an order granting Prout’s petition, finding that he had committed no offense and that no probable cause existed to support either the filing or the prosecution of the charges.

On appeal, IMPD argues that the issue of whether probable cause existed to file charges is irrelevant and that Prout failed to carry his burden to establish that no probable cause existed when the charges were dismissed and that no offense was committed. We conclude that the trial court did not abuse its discretion in concluding that no offense was committed and therefore affirm.

In Floyd William Treece v. State of Indiana, a 14-page opinion, Judge Crone writes:
Treece appeals the revocation of his community corrections placement. He argues that the trial court abused its discretion in revoking his community corrections placement because (1) the TCCC did not have the authority to reject his placement in community corrections for a rule violation he committed while assigned to the CTP because the CTP is a DOC program and the DOC is not statutorily authorized to reject an inmate’s placement in community corrections as a disciplinary action; and (2) the trial court failed to consider the progress he made toward rehabilitation during his DOC commitment. We conclude that the CTP is a TCCC program and that the statutes governing the DOC’s disciplinary actions do not apply to TCCC. Therefore, TCCC had the authority to reject Treece from his placement in community corrections for a violation he committed while in the CTP. We also conclude that the trial court was not required to consider his progress toward rehabilitation when determining whether his rule violation warranted revocation of his community corrections placement. We conclude that he committed an act of violence, and therefore the trial court did not abuse its discretion in revoking his community corrections placement. Therefore, we affirm. We also remand for the trial court to clarify its sentencing order.
In Guardianship of Phyllis D. Hayes, an Adult, Joann Hayes and Dianna Hale v. Kenneth J. Hayes, a 17-page opinion, Judge Barnes writes:
Jo Ann Hayes and Dianna Hale appeal the trial court’s denial of their motion for summary judgment and the trial court’s order concluding that the execution of an option contract by their mother, Phyllis Hayes, to their brother, Kenneth Hayes, was enforceable. We affirm. * * *

Jo Ann and Dianna have not established that the trial court erroneously denied their motion for summary judgment or that the trial court’s conclusion that Phyllis was not acting under undue influence when she executed the option contract was clearly erroneous. We affirm.

NFP civil opinions today (4):

Holly and Christopoher Dunn, Holly and Benjamin Rothenbush, and Tomi and Michael Meyer v. Kathryn Davis and For the Children Medical Mission Foundation, Inc. (NFP)

Anthony Flores v. Blake A. Hudson (NFP)

R.C. v. J.Q. (NFP)

In re the Paternity of T.T.: D.T. v. S.B. (NFP)

NFP criminal opinions today (13):

Mauricio Reyes-Flores v. State of Indiana (NFP)

Lance Stover v. State of Indiana (NFP)

Ray A. Chamorro v. State of Indiana (NFP)

Danny Shane Claspell v. State of Indiana (NFP)

Dejuan D. Cox v. State of Indiana (NFP)

Robert L. McFall v. State of Indiana (NFP)

Akeem Turner v. State of Indiana (NFP)

Steven Sullivan v. State of Indiana (NFP)

Gabriel Senteney v. State of Indiana (NFP)

Latroya Rucker v. State of Indiana (NFP)

Betty Woods v. State of Indiana (NFP)

Dennis Knight v. State of Indiana (NFP)

Mardel Hill v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Obama judges tip appeals courts to Democrats"; 7th Circuit unaffected

So reads the headline to this Al Kamen piece in In the Loop, a Washington Post blog. Included is a chart titled "A shift in circuit." However, the 7th Circuit remains the same, the chart shows it 7-3 when Obama was elected, and 7-3 today.

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today

In Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire & Marine Insurance Co. d/b/a Zurich Northland Insurance Co., Travelers Indemnity Co. of America, a 6-page, 5-0 opinion, Justice Massa writes:

Derek Asklar appeals the trial court’s order of summary judgment capping Empire Fire and Marine Insurance Co.’s liability for underinsured motorist coverage at $75,000. Because the truck at issue was registered and garaged in Indiana, we agree with our Court of Appeals that Indiana law applies. But as issues of material fact remain regarding the applicable level of coverage, we reverse the trial court and remand for further proceedings. * * *

Because we agree with our Court of Appeals and Appellants that Indiana law applies, but find questions of fact unresolved by the record before us, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Is App. Rule 65(D) more honored in the breach than the observation?

The deadline has passed for submitting comments to the Rules Committee on the proposal to amend Appellate Rule 65(D) to permit Not-for-Publication (NFP) opinions to be cited. But the ILB has gathered some additional research that might be worthy of consideration.

The dilemma lawyers find themselves in with respect to Rule 65(D) was well stated by Professor Joel Schumm in this April 15, 2011 post:

In the course of research a lawyer finds a really helpful NFP. They want to use the rationale (or even quote some of the language) but cannot cite it because it's NFP. If they use it and don't cite, they commit plagiarism. If they use it and cite it, they violate the Appellate Rules. If they don't use it at all, they are probably failing to make important points that would help their case.
In this May 9th, 2014 ILB post about an appellate practice CLE seminar, Prof Schumm wrote:
A number of speakers suggested the citation of memorandum decisions happens with some regularity. No one condemned the practice, and one clerk mentioned it won’t get lawyers into trouble but should be done in a footnote. The clerk will read the unpublished opinion that lawyers cite — despite the lawyer’s complete disregard of the rule.

Appellate litigation should be a level field where everyone plays by the same rules. This rule seems outdated to me — but it’s still a rule. Lawyers should email their comments on the proposed changes by next Tuesday instead of ignoring the rule.

Another attorney wrote to the ILB this week:
I’ve had two appeals in the last year where the attorneys (well respected appellate attorneys) cited NFP for their substantive value … with impunity.
Judicial Admonitions Against Citing NFPs

Through a Google Scholar search for "Appellate Rule 65(D)" the ILB has been able to locate a number of Court of Appeals opinions reprimanding attorneys who have referenced NFPs. The results include:

And as recently as this month, during a May 14th oral argument, two Court of Appeals judges quite sternly reprimanded an attorney for citing NFP opinions in his brief.

From about 25 minutes in:

CJ Vaidik: You're aware of the fact that you can't cite nonpublished opinions, aren't you?

Attorney: I am aware that some judges accept them and some don't.

CJ: No. The rules provides that you are not to cite not for publication opinions and you have done so in this case and there's not some judges that accept them and some judges don't. The rules are the rules. So I wonder, as I look through your brief, what rules you have chosen to follow and what rules you haven't.

Attorney: [apologizes and offers to withdraw the case cited]

CJ: I'll tell you right now, as far as I'm concerned it is cut out of the brief and no one is considering it.

From about 40 minutes in:
J.Barnes: More of an observation than a question, I wish that the slavish detail and punctiliousness you ascribe to 34(C) would have been observed with regard to the unpublished memorandum decision.
But these admonitions do not appear to be universally followed by the court itself. May the appellate courts use NFP cases as precedent, or refer to them at all, while attorneys are prohibited from so doing by court rule?

Instances Where NFP Opinions Have Been Cited by the Supreme Court and the Court of Appeals, Despite Rule 65(D)

Near the end of this Oct. 27, 2008 post, the ILB quoted from three 2008 Court of Appeals opinions which referenced or relied on NFP opinions.

At the time, the ILB noted: "Two of these examples were sent to me by a reader; I happened on to the third. There appears to be no way to search for these citations, which refer to the case number rather than to the N.E.2nd cite, past the time when the case would have been published in the NE Reporter."

New Research. But this month the ILB heard from an attorney who has devised a Westlaw search showing that NFPs frequently have been cited by the appeals courts. What follows are some results of the search. The bottom line - review of just 200 of the more than 10,000 NFP decisions revealed that almost every active Court of Appeals judge has either written or been part of a panel decision citing NFP decisions. Although Rule 65(D) provides that NFP decisions can be cited only "to establish res judicata, collateral estoppel, or law of the case," the following table shows that the Court of Appeals is sometimes citing them for reasons other than those allowed by Rule 65(D). Although this is a small sample, most of the dozen cases listed rely on NFPs as precedent.

The attorney adds another interesting note - many NFPs are being cited by secondary sources (Indiana and others) for substantive legal points. For example, NFP decision Bell Financial Community Credit Union v. Nagy, 862 N.E.2d 726 (Ind.Ct.App. 2007) has been cited by twelve different secondary sources; NFP decision Stillwell v. Deer Park Mgmt., 877 N.E.2d 227 (Ind. Ct. App. 2007) has been cited by seven.

Writing Judge (Panel) Opinion Unpublished Decisions) Cited
Dickson (unanimous SCT) Kosarko v. Padula, 979 N.E.2d 144, 149 (Ind. 2012) Loudermilk v. Jet Credit Union, No. 49A02–1006–PL–665, 2011 WL 5927428, *2–*3 (Ind.Ct.App. Nov. 29, 2011)
Barnes (concurring) Peterink v. State, 971 N.E.2d 735, 738 (Ind. Ct. App. 2012) aff'd in part, vacated in part, 982 N.E.2d 1017 Tumbleson v. State, No. 90A02–1107–CR–613, 2012 WL 172873 (Ind.Ct.App. Jan. 20, 2012)
May (Brown) Bocanegra v. State, 969 N.E.2d 1026, 1030 (Ind. Ct. App. 2012) Arline v. State, 959 N.E.2d 402 (Ind.Ct.App.2011), Jones v. State, 957 N.E.2d 214 (Ind.Ct.App.2011), and Stewart v. State, 873 N.E.2d 1144 (Ind.Ct.App.2007), trans. denied
Crone (Riley, Bailey) Cruser v. State (NFP), 973 N.E.2d 107 (Ind. Ct. App. 2012) Bailey v. State, No. 49A02–1106–CR–487, slip op. at 3 (Ind.Ct.App. Feb. 3, 2012)
Robb (Barnes, Bradford) M.J. v. State (NFP), 958 N.E.2d 497 (Ind. Ct. App. 2011) D.H. v. State, 950 N.E.2d 36, *1 (Ind.Ct.App.2011)
Bailey (Freidlander, Kirsch) Old Path Baptist Church v. Washington Cnty. Health Dep't (NFP), 888 N.E.2d 1288 (Ind. Ct. App. 2008) Lewis v. Washington County Health Dept., No. 88A01–0608–CV–354, slip op. at 1, (Ind. Ct.App. June 25, 2007)
Kirsch (Riley, May) Smiley v. State [NFP], 883 N.E.2d 228 (Ind. Ct. App. 2008) Creech v.. State, No. 35A02–0612–CR–1140 (Ind.Ct.App. Aug. 6, 2007)
Darden (Baker, Robb) Thomas v. State [NFP], 865 N.E.2d 724 (Ind. Ct. App. 2007) Guzman v. State, 857 N.E.2d 28, 28 (Ind.Ct.App.2006)
Friedlander (Crone) Trustcorp Mortgage Co. v. Metro Mortgage Co., 867 N.E.2d 203, 212 (Ind. Ct. App. 2007) Bozarth v. Todd & Langley Const., 857 N.E.2d 449 (Ind.Ct.App.2006)
Darden (Mathias, Kirsch) Blackman v. State, 868 N.E.2d 579, 585 (Ind. Ct. App. 2007) New v. State, 858 N.E.2d 255, 256 (Ind.Ct.App.2006)
Baker (dissenting) Robinson v. State, 799 N.E.2d 1202, 1207 (Ind. Ct. App. 2003) Best v. State, No. 32A01-0305-PC-191, 797 N.E.2d 873 (September 24, 2003)
Robb (Baker, Freidlander) Reed Sign Servs., Inc. v. Reid, 760 N.E.2d 1102, 1103 (Ind. Ct. App. 2001) Salsbery v. Lalsbery, 34A02-9912-CV-840, slip op., 736 N.E.2d 350 (Ind.Ct.App.2000)

Note: You may look up the opinions yourself using the links in the table. The ILB has also prepared a list of the references the opinions in the table make to the NFPs listed. Access it here.

Summing Up

As stated at this beginning of this post, lawyers who find a NFP opinion on point may face a dilemma, as may attorneys who conscientiously follow the rules. Appellate court panels sometimes admonish lawyers for not obeying the prohibition of Rule 65(D), but some panels are also citing NFPs as precedent themselves, or otherwise referencing them. App.Rule 65(D) does appear to be more honored in the breach than the observation, by both the bench and bar.

Does this mean adherence to Rule 65(D) should be strictly enforced? Or should the Rule, which already has lost all rationale for its existence (see May 9th post), be liberalized or discarded entirely?

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Indiana Courts

Ind. Law - "Dean Resigns Abruptly at Indiana Tech Law School"

Yes, according to this story by Karen Sloan in The National Law Journal, as well as other reports:

The dean of the fledging Indiana Tech Law School has resigned less than a year after the school opened its doors.

Administrators at the university in Fort Wayne, Ind., released a brief statement on May 23 announcing that Peter Alexander two days earlier had left his both his position running the law school and his tenured spot on the faculty. They offered little explanation—only that Alexander felt he had achieved the goals he set out and wanted to pursue opportunities elsewhere. * * *

“I must admit it surprised me,” said Allen County Superior Court Judge David Avery, who also serves as president of the Allen County Bar Association in Fort Wayne. “I just don’t know what the circumstances are. There’s nothing I can recall hearing or seeing that would explain him resigning. I was not aware of any problems or disputes.”

Alexander was instrumental in getting the new law school off the ground and worked closely with the local legal community to generate support for the project. Indiana Tech hired him as dean in 2012, before it broke ground on a $15 million facility. Alexander served as dean of Southern Illinois University School of Law from 2003 to 2009. He spent the year after his Indiana Tech hiring planning a curriculum, hiring faculty, meeting with local legal leaders and recruiting students.

Original plans called for an inaugural class of 100 students. Ultimately, about 30 students were there when the school opened in August 2013, although Alexander tried to minimize concern about the future at the time. * * *

University leaders have named the associate dean for academic affairs, andré douglas pond cummings — who does not capitalize his name — as interim dean. He served on the law faculty at West Virginia University College of Law before moving to Indiana Tech.

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Indiana Law

Ind. Courts - More on: What’s Unfortunately Missing in the Now-National Rape Sentence Story: A Sentencing Order

Rochester attorney Ted Waggoner asked the ILB this week: "Did you see, in the sentencing entry, that Wise had done 250 days’ time in jail?" The reference is to the court file of David Wise, linked via this ILB post by Prof. Schumm.

As reported in this recent IndyStar story, "[Judge] Eisgruber's sentence requires Wise to be on a monitoring device for eight years, allowed to go only to work." The ILB has seen no report that Mr. Wise remains employed.

Posted by Marcia Oddi on Thursday, May 29, 2014
Posted to Ind. Trial Ct. Decisions

Wednesday, May 28, 2014

Ind. Decisions - Tax Court posts one today

In David A. McKeeman, Sr., and Karen A. McKeeman v. Steuben County Assessor, an 8-page opinion, Sr. Judge Fisher writes:

This case concerns whether the Indiana Board of Tax Review erred in upholding David and Karen McKeeman’s 2006 real property assessment. The Court finds it did not.

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court decides two, made available late today

In Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Dalta, Inc. and Beta Psi Chapter of Delta Tau Delta, et al., a 13-page, 5-0 opinion, Chief Justice Dickson writes:

After the acute alcohol ingestion death of their 18-year-old son, Johnny Dupree Smith, a freshman pledge of the Beta Psi Chapter of Delta Tau Delta fraternity at Wabash College, the plaintiffs, Stacy Smith and Robert Smith, brought this wrongful death action against Delta Tau Delta (the national fraternity)1; its Wabash College local affiliate chapter—Beta Psi Chapter of Delta Tau Delta (the local fraternity); Wabash College; and Thomas Hanewald and Marcus Manges. The trial court granted the national fraternity's motion for summary judgment and, finding no just reason for delay, entered a judgment in favor of the national fraternity, thus per-mitting the plaintiffs to bring this appeal as to the national fraternity. Ind. Trial Rule 54(B). The Court of Appeals affirmed the trial court. Smith v. Delta Tau Delta, 988 N.E.2d 325 (Ind. Ct. App. 2013). We now grant transfer to examine the issues presented in light of our recent decision in Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014), which presented factual similarities and related questions of law.

In the present case, as to the national fraternity, the plaintiffs' amended complaint pre-sents three theories of liability. Count I claims negligence per se for engaging in hazing in viola-tion of Indiana Code section 35-42-2-2. Count II alleges negligence in furnishing alcoholic bev-erages to a minor, in violation of Indiana Code sections 7.1-5-7-8 and 7.1-5-10-15.5. Count III asserts a claim of negligence based upon breaches of an assumed duty (a) to protect freshman pledges from hazing and excessive alcohol consumption, (b) to protect freshman pledges from the reasonably foreseeable criminal acts of third parties, and (c) to render aid to the plaintiffs' decedent after it became clear that he could not care for himself. The plaintiffs' claims in each of these counts are predicated on the alleged negligence of the national fraternity "through [its] agents and officers."

The national fraternity's motion for summary judgment asserts that there are no genuine issues of material fact and (1) that the individual members of the local chapter were not acting as agents of the national fraternity and thus it is not liable for the actions of the individual members of the local chapter with respect to any of the counts; (2) that there is no allegation or evidence that the national fraternity itself furnished alcoholic beverages or knew that the plaintiffs' dece-dent was visibly intoxicated; (3) that the national fraternity did not assume any duty to control the hazing and alcohol consumption at the local chapter; and (4) that the plaintiffs' decedent was more than 50% at fault for his own death as a matter of law, precluding the recovery of damages under the Indiana Comparative Fault Act. See Ind. Code § 34-51-2-1 et seq. * * *

The trial court correctly granted the national fraternity's motion for summary judgment. We affirm the judgment of the trial court.

See this May 8 ILB post mentioning this case, plus this summary of the Feb.13th Supreme Court opinion in Yost. Also related, last week Doug Masson sent me this link to a Feb. 19 feature article in The Atlantic, titled "The Dark Power of Fraternities: A yearlong investigation of Greek houses reveals their endemic, lurid, and sometimes tragic problems—and a sophisticated system for shifting the blame," written by Caitlin Flanagan.

In Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D., a 9-page opinion, Chief Justice Dickson writes:

This appeal challenges a summary judgment in a wrongful death medical malpractice case brought by the deceased patient's husband as administrator of her estate. The defendant physician sought summary judgment on grounds that the plaintiff's complaint was barred by the applicable statute of limitations. The trial court granted the motion and, finding no reason for delay, entered final judgment against the plaintiff. The Court of Appeals affirmed in a memo-randum decision. David v. Kleckner, No. 49A02-1301-MI-13, 989 N.E.2d 843 (Ind. Ct. App. June 14, 2013) (table). We now grant transfer and reverse the trial court. * * *

We find that the holding in Manley applies equally here. In Manley, we found the defendants were not entitled to summary judgment because "there remain[ed] a genuine issue of material fact as to both the trigger date and, if within the two-year limitation period, whether the plaintiffs filed their complaint within a reasonable time." 992 N.E.2d at 675. The designated materials in the present case show that Larry promptly consulted an attorney after his suspicions arose, obtained medical information release forms, used those forms to obtain Lisa's medical records, and then returned the medical records to his attorney for evaluation by medical experts. We find that it was not necessarily an unreasonable delay for this action to be commenced on July 1, 2011, and that the plaintiff may be found to have filed within a reasonable time if the trigger date occurred within the statutory window. The plaintiff has thus established "an issue of fact material to a theory that avoids the defense." Manley, 992 N.E.2d at 674; Herron, 897 N.E.2d at 448; Overton, 896 N.E.2d at 502 (all three cases quoting Boggs, 730 N.E.2d at 695). The defendant is not entitled to summary judgment on his defense asserting the medical malpractice statute of limitations.

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court accepts certified question in bankruptcy case

Here is the order, In the Matter of Dennis Alan Howell, Debtor.

The question certified from the United States Bankruptcy Court for the Northern District of Indiana is:

Under Indiana Code [section] 27-1-12-14(e), does the phrase “dependent upon such person” modify only “any relative,” or does the phrase modify “spouse,” “children,” and “any relative”?

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Ind. Sup.Ct. Decisions

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

In Bunn v. Khoury Enterprises (SD Ind., Lawrence), a 16-page opinion, Judge Kanne writes:

Joshua Bunn quit his job at a Dairy Queen franchise and sued the franchisee, his former employer, under the Americans with Disabilities Act. Bunn, who is vision-impaired, believed that the employer failed to accommodate his disability as required by law and that it subjected him to illegal disparate treatment when it reduced his scheduled hours during the winter months. The district court granted the employer’s motion for summary judgment on all claims, and Bunn appealed. After disposing of an initial procedural argument, we find that Bunn’s failure-to-accommodate claim falls short because the employer did reasonably accommodate Bunn’s disability. Next, we find that his disparate treatment claim fails because he has not introduced sufficient evidence to create a triable issue of material fact and because the undisputed facts show that the defendant is entitled to judgment as a matter of law. We affirm the judgment of the district court in all respects. * * *

Bunn’s procedural argument asks us to wrest away from the district court its discretion to interpret and apply its own local rules. We decline to do so. His failure-to-accommodate claim fails because Khoury in fact provided a reasonable accommodation, and his disparate treatment claim fails because he has not produced sufficient evidence to create a triable issue of fact under any method of proof. We AFFIRM the judgment of the district court.

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

Ind. Courts - "Judge John G. Baker celebrates 25th year on Court of Appeals"

Some quotes from a release by the Court of Appeals:

INDIANAPOLIS – Judge John G. Baker of the Court of Appeals of Indiana will celebrate his 25th anniversary on the court on June 2. He is the longest-serving member of the current court and the sixth longest-serving member in the court’s 113-year history. Judge Baker has written almost 4,600 majority opinions for the court.

Judge Baker was appointed to the Court of Appeals in 1989 from Monroe County, where he served 13 ½ years on the Monroe County and Superior Courts. Prior to that he was in private law practice in Monroe County. * * *

Significant developments during Judge Baker’s Court of Appeals service:

  • The court had 12 judges from four geographic districts when he joined the court; it now has 15 judges from five districts.
  • A 1988 constitutional amendment altered the court’s jurisdiction and caseload by shifting a large portion of the Supreme Court’s criminal docket to the Court of Appeals.
  • Computers (in a word).
  • The professionalization of the judiciary

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 21 NFP)

For publication opinions today (4):

Melisa R. Digbie v. Review Board of the Indiana Department of Workforce Development and Eaglecare LLC

Craig Alvey v. State of Indiana

A.H. v. State of Indiana

Tyrece Robertson v. State of Indiana

NFP civil opinions today (4):

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

Rachel M. Swaney and Eric Swaney v. Chrysler Group LLC and Grieger's Motor Sales, Inc. (NFP)

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

Jesse Clements v. Davina Curry (NFP)

NFP criminal opinions today (17):

Jeremy L. Honaker v. State of Indiana (NFP)

Napoleon Wilson v. State of Indiana (NFP)

Jory D. Peters v. State of Indiana (NFP)

Idowa Hood v. State of Indiana (NFP)

Gary Maxwell v. State of Indiana (NFP)

Johnnie Winford v. State of Indiana (NFP)

Mercedes Jones v. State of Indiana (NFP)

Jeffrey Duncan v. State of Indiana (NFP)

Kevin A. Deubner v. State of Indiana (NFP)

Deandrew Russell v. State of Indiana (NFP)

Vincent W. Hren v. State of Indiana (NFP)

Michael Widup v. State of Indiana (NFP)

William Crockett v. State of Indiana (NFP)

Rashawn Speed v. State of Indiana (NFP)

Steve D. Boyd v. State of Indiana (NFP)

Justin M. Alexander v. State of Indiana (NFP)

Jason Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Ind. App.Ct. Decisions

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

Recall this ILB post from Nov. 17, 2013, quoting a story by Teresa Auch Schultz of the Gary Post-Tribune that began:

The dozens of lawsuits filed in northern Indiana by Malibu Media appear, at first, to be basic copyright infringement claims.

The company makes videos, and the suits accuse defendants of downloading some of those videos illegally, without paying for them.

But the videos are pornographic movies, and some of the 56 defendants in U.S. District Court in Hammond say Malibu and its attorneys are using the threat of embarrassment to get them to pay thousands of dollars without a fight.

Yesterday the Electronic Frontier Foundation had a story about the fate of another, similar lawsuit. Some quotes:
Washington, D.C. - Striking a crushing blow against a legal linchpin of the copyright troll business model, a federal appeals court held today that copyright holders may not abuse the legal process to obtain the identities of thousands of Internet users.

"This decision is a crucial victory," said Electronic Frontier Foundation (EFF) Intellectual Property Director Corynne McSherry. "We are thrilled that a higher court has recognized that it is unfair to sue thousands of people at once, in a court far from home, based on nothing more than an allegation that they joined a BitTorrent swarm."

The plaintiff in this case, AF Holdings, sought the identities of more than 1,000 Internet users that it claims are linked to the illegal downloading of a copyrighted pornographic film. Over the protest of the Internet service providers that received subpoenas for those identities, a lower court approved the disclosure of the names. EFF, joined by the American Civil Liberties Union, the ACLU of the Nation's Capital, Public Citizen, and Public Knowledge, urged the U.S. Court of Appeals for the District of Columbia Circuit to reverse that ruling and help keep the legal process fair and balanced by requiring AF Holdings to show it has a good faith basis for going after these defendants.

Read on to see how the trolls operate. Also yesterday, The Volokh Conspiracy featured quotes from the opinion.

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Indiana Courts

Ind. Gov't. - "After deaths, state rep says Indiana is neglecting child protection agency"

Michael Puente reports from Chicago Public Media WBEZ91.5 in a long story and audio, subtitled "Despite low pay and burdensome caseloads, Indiana's DCS has returned more than $118 million to the state." Some quotes:

Months after three young children died in a Hammond, Indiana house fire, a veteran Indiana lawmaker says the state has deprived the Department of Children Services of much-needed funds in order to ‘pad’ its budget surplus.

The charges raise fresh questions about the ability of the agency to carry out its mission of protecting children from abuse and neglect. * * *

Several parties, from a juvenile judge to the city of Hammond to the birth parents themselves, have been criticized for not preventing the deaths. But many wonder how DCS allowed the children, who were living in foster care just months prior to the fire, to return to a home with no running water, heat nor electricity.

“Maybe the whole system, the laws failed these people,” says DCS Director Mary Beth Bonaventura. “Could we have done things better? Probably. Again, I don’t know the case intimately. I wasn’t the judge. I didn’t hear the evidence.

Bonaventura was appointed head of Indiana DCS in March 2013 following the ouster of the previous director over an ethics scandal.

“I think without question this is the most important job in the state,” Bonaventura told WBEZ in an exclusive interview last month.

Long before Bonaventura took that job, DCS was already facing scrutiny for its handling of several child abuse and neglect cases.

It still hasn’t been officially determined if the three children in the Hammond house fire died because of neglect. But, in the wake of that incident and others, some see a pattern of neglect from those who oversee DCS down in Indianapolis. They say the agency, with 34-hundred employees scattered throughout 92 counties, doesn’t get enough money or resources to properly do its job. And they point to other cases where kids may have fallen through the cracks as a result. * * *

The average pay of a DCS family case manager is $35,000 a year – this from a state with a $2 billion surplus.

“It doesn’t do us any good to have a surplus that’s built on the backs of Hoosiers, on the backs of the less fortunate. And these kids have nobody to speak for them but the state,” said Indiana State Rep. Mara Candelaria Reardon, a Democrat from Munster in Northwest Indiana.

The veteran Democratic lawmaker takes issue with DCS budget cuts under recent Republican administrations. But more than that, she says DCS has also been giving money back under a process called reversion.

$62 million in 2011 alone according to state records, nearly 14 percent of that year’s DCS budget.

In fact, in the last five years, the child protection agency has returned more than $118 million to state coffers.

There is much more in the lengthy story.

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Indiana Government

Ind. Courts - "Motorist Sues After Officer Takes Forced Urine Sample"

The subhead to the story in theNewspaper.com, "a journal of the politics of diriving": "Cops use catheter in invasive procedure against Indiana motorist whose blood alcohol level was below the legal limit." The story begins:

A motorist whose blood alcohol level was below the legal limit earlier this month filed a $11 million federal lawsuit against Schererville, Indiana for allowing its police force to use a catheter to forcibly obtain a urine sample from him two years ago.

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Indiana Courts

Ind. Courts - "Tenn. man sentenced for threatening an Indiana judge"

From a May 24th story in the Lafayette Journal Courier:

A Tennessee man has been sentenced to two years in prison after sending an envelope containing a white powder to a Tippecanoe County judge last fall.

Daniel J. Porter, 29, pleaded guilty Wednesday to one count of sending a threatening letter through the mail.

He was sentenced to two years in prison and three years supervised release by Judge Tom Varlan of the U.S. District Court, Eastern District of Tennessee.

According to court records, Porter sent the envelope on or about Oct. 10 from Knoxville to a judge in Lafayette via U.S. mail.

The envelope addressed to Tippecanoe Circuit Court Judge Don Daniel contained a letter concerning a case assigned to Daniel.

Porter later indicated to law enforcement that the powder was powdered milk and was nontoxic, according to records.

"When interviewed, Porter stated that he had hoped his letter would scare the judge," Porter's plea agreement states.

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Indiana Courts

Courts - "Others Fade, but Judge Judy Is Forever: At 71, She Still Presides"

Most recently, the ILB posted about Judge Judy on January 26th of this year.

This long story by Brooks Barnes appeared in the May 23rd NY Times. Some quotes:

Her flagship 30-minute program has been renewed for three more seasons. Coming in the fall is “Hot Bench,” a new syndicated show that she created; its cases will be argued before a three-person panel, a twist for the court genre. “She is an absolute force of nature,” said Armando Nuñez, chief executive of the CBS Global Distribution Group.

Well, yes. But beyond her singular talent for showmanship — a tut-tut here, a barked order there — why is “Judge Judy” bucking television’s downward trend?

Social media is one answer. About a year ago, after resisting, Judge Sheindlin agreed to dive into sites like Twitter and Facebook, hiring her grandson, Casey Barber, 25, to lead the effort. She also began regularly posting videos on a site called What Would Judy Say?, where she dispenses pearls of wisdom and poses questions to her fans. (A recent one: “Should parents be fined for children’s bullying?”)

Perhaps because she is revealing more of her off-bench personality, which is more playful and warm, Judge Sheindlin has become a less polarizing figure, according to the Q Scores Company, which measures the likability of public figures. “She has always had high levels of believability and trustworthiness, but people have started to have a much more balanced perception of her and like her more, especially when she uses a bit more humor,” said Henry Schafer, the research firm’s executive vice president.

Mr. Schafer said his company’s March survey showed that Judge Sheindlin had a score of 19, on par with Oprah Winfrey. To compare, Katie Couric had a 12. * * *

Judge Sheindlin, who tapes only 52 days a year, for which CBS pays her an estimated $47 million, has her own theories about her program’s continued popularity.

“People take comfort in order,” she said. “I also move swiftly, as opposed to a justice system and a government that is slow and meandering.” In other words, “Judge Judy,” which features real small-claims cases, offers people a fantasy — a legal system as they would like it to be.

“There are so many injustices in this world, and her show gives me 30 minutes of escape every day where I know the right decision will be made,” said Pat Wager, a longtime fan from Naples, Fla., who attended a recent taping of “Judge Judy.” “She’s the voice of reason in America,” Ms. Wager added, noting that most episodes contain a positive message about the importance of personal responsibility. * * *

“Judge Judy” is very much a Hollywood product, but the unedited proceedings are surprisingly courtlike. * * *

Tiny and tan, Judge Sheindlin, formerly a prosecutor and a judge in New York City, was relaxed and wickedly funny off camera. * * *

The “Judge Judy” star could easily have a larger business empire, but she has turned down endorsement and licensing offers.

“I’m a judge,” she said. “I’m not a judge who sells dog food or a judge who sells toothpaste.”

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Courts in general

Ind. Decisions - Tax Court posts one, on May 27th

In Hamilton County Assessor v. SPD Realty, LLC, a 10-page opinion, Judge Wentworth writes:

The Hamilton County Assessor appeals the Indiana Board of Tax Review’s final determination that SPD Realty, LLC’s real and personal property qualified for a charitable purposes exemption for the 2009 tax year. The Court affirms. * * *

The Assessor has asked the Court to reverse the Indiana Board’s final determination for three reasons. Specifically, the Assessor contends that the Indiana Board’s final determination is contrary to law and unsupported by substantial evidence because 1) New Life did not occupy and use the property for a charitable purpose; 2) SPD did not own the property for a charitable purpose; and 3) the property was not predominately used for charitable purposes.* * *

[1] * * * Accordingly, there is substantial evidence to support the Indiana Board’s finding that New Life occupied and used the property for a charitable purpose.

[2] * * * Therefore, the Court has no basis for reversing the Indiana Board’s finding that SPD owns the property for a charitable purpose.

[3] * * * Here, the evidence shows that in the four months the property was used and occupied, it was used 100% of the time for the charitable purpose of operating a tissue bank. Therefore, the Indiana Board’s final determination that SPD’s property was predominately used for charitable purposes is not contrary to law.

Posted by Marcia Oddi on Wednesday, May 28, 2014
Posted to Ind. Tax Ct. Decisions

Tuesday, May 27, 2014

Courts - "Support for same-sex marriage reaches a 'tipping point'"

Overview by Brad Knickerbocker at The Christian Science Monitor. It begins:

Support for same-sex marriage in the United States has reached a “tipping point,” according to the Gallup polling organization, a significant if not surprising development in a relatively recent social phenomenon that remains jarring to some older Americans but no big deal to younger people.

“For proponents of marriage equality, years of playing offense have finally paid off as this movement has reached a tipping point in recent years – both legally and in the court of public opinion,” Gallup notes in reporting that such support has “solidified above the majority level.”

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

In John Alden v. State of Indiana , a 6-page opinion, Judge Pyle writes:

John Alden (“Alden”) appeals the trial court’s denial of his motion to prohibit the release of his criminal record. We reverse and remand. * * *

On June 4, 2013, Alden filed a motion to prohibit the release of his criminal record. He argued that he met the requirements of Indiana Code § 35-38-8-5, which at the time allowed courts to restrict access to the conviction records of qualifying offenders eight years after they completed their sentences. Alden served his motion on the Hancock County Prosecutor but not any other State entities. Shortly after Alden filed the motion, the Indiana Legislature repealed Indiana Code § 35-38-8-5. * * *

On appeal, Alden disputes both of the trial court’s conclusions. He argues that he was not required to serve notice to affected state agencies because he served notice to a deputy prosecutor, which constituted notice to the State. In response, the State reiterates the trial court’s conclusion that Alden was required to serve notice to the entities impacted by his motion—in particular the Attorney General and the Indiana State Police Central Repository (“ISPCR”). Second, Alden argues that the trial court abused its discretion when it denied his motion as a result of the Legislature’s repeal of the statute. He contends that the repeal should have a prospective, rather than retroactive, effect. Except for a brief statement in a footnote, the State does not address the merits of this second argument and focuses solely on the issue of proper notice.

A. Notice * * *

Alden’s motion was a new filing with respect to his criminal conviction rather than a new cause of action. As such, he fulfilled the notice requirements of Indiana Criminal Rule 18 by serving the Hancock County Prosecutor, the adverse party “of record.” See id.

B. Repeal
As we have found that Alden’s notice was sufficient, we must determine whether the trial court abused its discretion in denying his motion on the basis that the Legislature repealed Indiana Code § 35-38-8-3. * * *

Instead, we find Indiana Code § 1-1-5-6 dispositive. Section 1-1-5-6 “applies to the repeal of a statute or part of a statute that has expired,” and provides that “[t]he repeal does not affect the validity of an action taken under the statute or part of the statute before its expiration.” I.C. § 1-1-5-6. While Indiana courts have never interpreted this provision of the Indiana Code, its plain language indicates that a party has a right to pursue an action allowed by statute even if that statute is later repealed, as long as the party undertakes the action prior to the repeal. Accordingly, because Alden filed his motion before the Legislature repealed Indiana Code § 35-38-8-3, we conclude that the repeal did not affect the validity of his action. Thus, the trial court abused its discretion when it denied his motion on the basis that the Legislature had repealed the statute. We remand to the trial court for the trial court to consider the merits of Alden’s motion.

NFP civil opinions today (5):

Richard M. Tallman v. State of Indiana, Indiana Department of Natural Resources, et al (NFP)

In Re: The Paternity of A.G.P. M.O. v. R.K.P. (NFP)

Tamara J. Shidler, surviving spouse of Michael R. Shidler v. Dennis G. Lockrey, M.D., and Sigma Medical Group, LLC, d/b/a Sigma Med Express Care, and James D. Pike, D.O., et al. (NFP)

Dana Banks v. Evans Limestone Co. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of L.B. and J.B., W.B. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Troy A. Bratton v. State of Indiana (NFP)

Chukwuemeka Chidebelu-Eze v. State of Indiana (NFP)

Marquise Lee v. State of Indiana (NFP)

Timothy E. Gabehart v. State of Indiana (NFP)

Breondon D. Pinkston v. State of Indiana (NFP)

Jackie Robson v. State of Indiana (NFP)

James E. Robinson v. State of Indiana (NFP)

Leonel H. Arellano v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Ind. App.Ct. Decisions

Courts - "DOJ reverses no-recording policy for interrogations"

Dennis Wagner reported May 21st in the Arizona Republic in a long story that begins:

Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they've been prohibited by policy from making audio records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice quietly has reversed that directive by issuing orders May 12 that audio recording, preferably with video, is presumptively required for interrogations of suspects in custody, with some exceptions.

There was no news release or news conference to announce the radical shift. But a DOJ memorandum obtained by The Arizona Republic spells out the changes that will begin July 11.

The Huffington Post has posted a copy of the new policy.

Indiana
changed its policy in 2009. See this Sept. 23, 2009 ILB post headed "State raising the bar on taped interrogations: Recently adopted rule is among the most stringent in the U.S."

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Courts in general

Ind. Courts - "Black box recorders in cars raise privacy concerns"

Tim Evans of the Indianapolis Star reports today on the admissibility of information from automobile data recorders, or "black boxes." Some quotes:

Regardless of which side of that debate you fall on, experts say, the "event data recorders" are here to stay. The information they provide about speed, acceleration, braking and impact is being used in a growing number of Indiana court cases.

Marion County Deputy Prosecutor Tom Hirschauer said data from the recorders — a sort of poor cousin to the black boxes long common in airplanes [ILB: or not, as the auto recorders may be more advanced] — are now being used in an estimated 70 percent of criminal prosecutions in Marion County involving traffic accidents that result in serious injuries or fatalities. That is up from about 20 percent just a few years ago.

"The question we normally ask in an investigation is whether speed and braking were a factor?" Hirschauer explained.

That question can often be answered by the data collected by the black box recorders.

"It tells us exactly what the vehicle was doing at the exact moment of impact and in the seconds just prior," he said. "It's real-time data from the vehicle. We are able to tell if a vehicle was accelerating, how much the throttle was open, the speed, whether the brakes were on or off."

The majority of new vehicles have recorders, and the federal government is expected to soon make them mandatory. Recorders operate whenever a vehicle is running, continually capturing information about key systems on a small hard drive.

The information is saved in half-second intervals, writing over itself every five to 20 seconds. When the airbag is deployed, a snapshot of the seconds before the crash is captured. While all recorders monitor speed and braking data, some also collect data related to engine RPMs, sudden swerves and rollovers. * * *

[Richard R. Ruth, a retired Ford engineer who runs a consulting business that provides expertise in automotive restraint systems and event data recorders] said the laws around the country are unclear on whether a warrant is needed to obtain recorder data, but a 2011 appellate ruling in California determined a warrant is unnecessary.

About a dozen states, but not Indiana, require a warrant, and a bill has been introduced in the U.S. Senate that would require a warrant or the owner's consent before police could seize an event data recorder.

"In the United States, your home is your castle," Ruth said. "But the jury is still out on whether that extends to your vehicle."

In Marion County, Hirschauer said police obtain a search warrant from a judge before extracting data from a recorder. That eliminates any question about violating the 4th Amendment prohibition on unlawful search and seizure.

ILB: The ILB has located two earlier posts on auto black boxes. A 2004 LCJ story raised concerns about use of data from cars' black boxes in court. A 2005 ILB post was headed "Car's Black Box Evidence Ruled Admissible in New York," and also discussed a NW Indiana trial court case.

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending May 23, 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, May 23, 2014. It is one page (and 15 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS Strikes Down Florida Law on Execution Standards of Mentally Retarded"

That is the WSJ headline to this morning's SCOTUS opinion, subheaded "Justices Rule that 70 IQ Cutoff for Exemption from Execution is Too Rigid." The case is Hall v. Florida. The Sentencing Law blog has a little more.

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Courts in general

Courts - " From a diverse group of judges, a unanimous opinion on same-sex marriage"

A lengthy Washington Post story today by Robert Barnes begins:

The headlines are so consistent, they could be written by a computer: “Judge strikes down state ban on gay marriage.”

But the federal judges who have supplied an unbroken wave of victories across the country to supporters of same-sex marriage are more diverse than their rulings would suggest: white and black, gay and straight, nominated by Democrats (most of them) and chosen by Republicans (a few of them).

In Michigan, the message was delivered by a judge who took the bench while Ronald Reagan was president. In Utah, it came from someone who had barely celebrated his first anniversary as a judge.

What they share is a judicial view that would have been unthinkable a generation ago: The Constitution requires that the fundamental right to marry be extended to gay couples.

See also the map, "The changing landscape on same-sex marriage."

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Courts in general

Ind. Decisions - "Shocking rape sentence puts judge in spotlight"

That is the headline to Kristine Guerra's long story today in the Indianapolis Star. (See also this ILB post from May 21st, and this commentary by Prof. Schumm on May 23rd.)

It is hard to pull quotes from this lengthy story - read it in full.

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Error/typo in Yellowbook opinion

A reader points out a likely spell-check induced error on p. 9 of the Court of Appeals opinion May 22nd in Yellowbook.

Near the end of the first full paragraph on p. 9, "release and/or interpretation clause." should read "release and/or integration clause."

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Ind. App.Ct. Decisions

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

From Monday, May 26, 2014:

From Sunday, May 25, 2014:

From Saturday, May 24, 2014:

From Friday afternoon, May 23, 2014:

Posted by Marcia Oddi on Tuesday, May 27, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/26/14):

Thursday, May 29

Next week's oral arguments before the Supreme Court (week of 6/2/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/26/14):

Next week's oral arguments before the Court of Appeals (week of 6/2/14):

Wednesday, June 4

Thursday, June 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 Tuesday, May 27, 2014
Posted to Upcoming Oral Arguments

Sunday, May 25, 2014

Courts - "Final Word on U.S. Law Isn’t: SCOTUS Keeps Editing"

On July 23, 2013, the ILB has a long post headed "Ind. Courts - Current process for dealing with corrected appellate opinions poses perils." The ILB has had earlier posts (as early as 2007) on the same topic, plus a number of more recent ones. I had planned to pull all these together into a new post, with as its focus the 7th Circuit's published correction to its Paintball opinion. That is still my intent. But first, this morning Adam Liptak had an astonishing Sunday NYT front-page story about the Supreme Court of the United States that begins:

WASHINGTON — The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.

The upcoming, but not until December, Richard Lazarus, 87-page law journal article is available in draft form here. It is titled "The (Non)Finality of Supreme Court Opinions," and begins with an amusing notice about it not being the final version.

[More] There are many comments on the article from NYT readers. Here are two I particularly like:

Posted by Marcia Oddi on Sunday, May 25, 2014
Posted to Courts in general

Friday, May 23, 2014

Ind. Courts - "Colts owner Jim Irsay charged with 2 counts of impaired driving"

Mark Alesia and Tim Evans have posted a lengthy story this evening on the charges filed against Jim Irsay that begins:

Minutes before the court closed for Memorial Day weekend, Indianapolis Colts owner Jim Irsay was charged with two misdemeanor counts of impaired driving in connection with his March arrest in Carmel.

Formal charges were filed against Irsay in Hamilton Superior Court. Following his arrest, police had filed four preliminary charges of felony drug possession, but they were not included in the prosecutor's formal charges today.

Irsay is charged with operating a vehicle while intoxicated and operating a vehicle with a controlled substance in the body. Prosecutors allege he had "oxycodone and/or hydrocodone" in his system when a Carmel police officer pulled him over at 11:40 p.m. on March 16.

An initial hearing is scheduled for June 19. A news release from the Hamilton County prosecutor said the office wouldn't comment on the case until it's resolved.

The story includes photos and a video.

In addition, the story links to the 37-page arrest report.

In addition, here is a link to the press release of the Hamilton County prosecutor, the one-page information, and the affidavit for probable cause.

Posted by Marcia Oddi on Friday, May 23, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Andrew J. Rogers v. Sigma Chi International Fraternity, Theta Pi of Sigma Chi, Ancil Jackson, Brian Mifflin, Jr., and Joshua Kearby , a 17-page opinion, Judge May writes:

Andrew J. Rogers appeals summary judgment for Sigma Chi International fraternity (“the International”), its Terre Haute chapter (“the Chapter”) (collectively, Sigma Chi”), and three individuals: Ancil Jackson, Brian Mifflin, Jr., and Joshua Kearby, (the “Individual Defendants”). Rogers alleges the defendants should have protected him from being assaulted at a party. He argues on appeal:
1) Sigma Chi had a duty to protect him under premises liability principles because the Chapter had possession of the premises where he was injured;
2) the defendants had a duty to protect him under negligence principles because the assault was foreseeable or because the defendants assumed such a duty; and
3) the International was vicariously liable for the acts of the persons at the premises because it had apparent authority over them as Sigma Chi’s agents.
We affirm.

In August 2008, Rogers was injured when he was attacked at a party hosted by Daniel Johnson, who was renting a house in Terre Haute (“the Premises”) with the Individual Defendants and Bladen Nading. The Premises was owned by R2r Properties, LLC, which the record does not reflect was in any way related to Sigma Chi. The lease provided the tenants would pay all utilities and could not use the Premises for any purpose other than a private dwelling.

The Individual Defendants were all members of Sigma Chi, but the Chapter’s president did not live there and Sigma Chi mail was not delivered there. Sigma Chi did not pay rent on the Premises. There were Greek letters in individual bedrooms, but not on the outside of the house or in the yard. The tenants paid the expenses for the gatherings they held there.

The Chapter had a house until spring of 2008, when it was repossessed and its residents were evicted. Thereafter, students who were Sigma Chi members had to live in university housing or private dwellings. * * *

Rogers was a student at Northwestern University. He and three other friends of Johnson drove to Terre Haute to attend the party. While Rogers was intoxicated, another guest, Dana Scifres, punched him in the eye while Rogers sat on the floor. Scifres was not a member of Sigma Chi. * * *

[T]here was “not substantial evidence in this case to support a finding defendant had the control necessary to be considered a ‘possessor of the land.’” Nor was there substantial evidence in the case before us to permit a finding Sigma Chi had the control necessary to be considered a ‘possessor” of the Premises where Rogers was injured. * * *

There was no evidence the International knew Scifres would be there or that he was violent. Summary judgment on the ground the attack was not foreseeable was appropriate. * * * Nor did the defendants assume a duty to protect Rogers against an attack. * * *

We decline to hold the presence of fraternity materials in a private residence amounts to a manifestation by an international fraternity that the tenants of that residence are acting as the fraternity’s agents. Summary judgment for the defendants on that ground was not error. * * *

Conclusion. Sigma Chi did not have possession of the premises where Rogers was injured, the defendants had no duty to protect him from the assault, and the International was not vicariously liable for the acts of the persons at the premises because it had no actual or apparent authority over them. We therefore affirm.

ILB: As noted in this post from May 8th, two other national fraternity cases currently are pending before the Indiana Supreme Court.

In In the Matter of the Civil Commitment of C.P., C.P. v. Community Hospital North/Gallahue Mental Health, a 7-page opinion, Judge May writes:

C.P. appeals her 90-day involuntary commitment to Community North Hospital (“the Hospital”). She acknowledges she is mentally ill but asserts the hospital did not prove she was gravely disabled or dangerous to herself. Because a psychiatrist’s testimony provided clear and convincing evidence that C.P. was gravely disabled, we affirm.
In Kenneth Griesemer v. State of Indiana, a 17-page, 2-1 opinion, Judge May writes:
Kenneth Griesemer appeals his conviction of Class A misdemeanor patronizing a prostitute. He argues he was entrapped. * * *

Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law, and we must reverse Griesemer’s conviction. Reversed.

BAKER, J., concurs.
VAIDIK, C.J., dissents with separate opinion. [[which begins, at p. 12]I respectfully disagree with the majority’s view that there was not sufficient evidence to rebut Griesemer’s entrapment defense. Specifically, I believe that the State proved that Griesemer was predisposed to commit the offense because the State established that Griesemer was not reluctant to commit the offense. Therefore, I would affirm Griesemer’s conviction for Class A misdemeanor patronizing a prostitute.

NFP civil opinions today (6):

Agav Properties, Avrohem Tkatch, and Elisheva Tkatch v. The City of South Bend and The South Bend Fire Department (NFP)

Town of New Pekin, Indiana v. Gail Stewart and Kermit Stewart (NFP)

R & M Construction, Inc., and Lake County Trust Company, as Trustee Under a Trust Agreement Dated May 17, 1989 and Known as Trust No. 1901 v. Twin Lakes Utilities, Inc. (NFP)

Michael Nero v. Citimortgage, Inc. (NFP)

In re the Marriage of: Carla Weiler v. Kevin P. Weiler (NFP)

EMR Consulting, Inc. v. Review Board of the Indiana Department of Workforce Development and Laura Shipp (NFP)

NFP criminal opinions today (3):

Christopher Bell v. State of Indiana (NFP)

Adrian Walton v. State of Indiana (NFP)

Ronald DeWayne Thompson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 23, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - What’s Unfortunately Missing in the Now-National Rape Sentence Story: A Sentencing Order

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

The headline almost writes itself: "Home Detention for Rapist." Like many, I was surprised when the story broke last week. I’m not surprised it has continued. I’m disappointed, though, that the whole story is not being told. We are given bits and pieces from some of the people involved, but we don’t have access to the audio or transcript of the sentencing hearing. Orders detailing the judge’s reasons for imposing sentence are not prepared in Marion County, unlike the rest of the state.

The Court File

So, imagine that you're an interested member of the public (or a reporter who was not able to attend the sentencing hearing). You wonder why Marion County Criminal Court 1, Judge Kurt Eisgruber. gave a sentence of home detention to a man convicted of rape and other sex crimes. You stop by the office to look at the court file. Here's what you'll find.*

It’s a quick and somewhat cryptic read. You can see the crimes for which the defendant was convicted and the length of the sentence. The few additional comments, translated into normal-person-speak:

That’s right. That’s it. If you’re wondering why home detention instead of prison (or probation, which is an option for a first-time offender convicted of B felony rape), you’re not going to find the answer anywhere in the court file.

No Sentencing Order

Marion County is unique in this regard. Judges in most, if not all, of the other 91 counties issue a sentencing order shortly after imposing sentence. The order, which recaps much of what has been said in court in imposing sentence, highlights the aggravating and mitigating factors the judge considered and the reasons for imposing the specific sentence.

Although the oral statement in the courtroom is very important to those in attendance, few people are there, and the written sentencing orders prepared elsewhere in Indiana go a long way in fostering public understanding of the process and sentence in a specific case.

As the Indiana Supreme Court has noted in several cases [emphasis added]:

An attempt by the sentencing judge to articulate his [or her] reasons for a sentence in each case should in itself contribute significantly to the rationality and consistency of sentences. A statement by the sentencing judge explaining the reasons for commitment can help both the defendant and the public understand why a particular sentence was imposed. An acceptance of the sentence by the defendant without bitterness is an important ingredient in rehabilitation, and acceptance by the public will foster confidence in the criminal justice system.

A statement of reasons is especially important in cases resolved by trial, after which the judge has broad sentencing discretion. The statement is much less important in guilty plea cases that offer the court little or no discretion in imposing sentence.

The Indiana Supreme Court has recognized the “very high volume” of criminal cases in Marion County in seemingly exempting it from the requirement of a written judgment of conviction and sentence. Drafting a sentencing order, though, is time well-spent, especially in a case like this one.

Audio of the Hearing?

Can the public listen to the audio of the sentencing hearing? Possibly —- but barring some special permission from the Indiana Supreme Court, you can’t share it and we can’t post it here. A 2012 informal opinion from the Indiana Public Access Counselor concluded:

The [Indiana Supreme Court’s Public Access to Court Records] Handbook provides that creating a copy of the audio record is probably the most efficient and least time consuming method to provide public access. The court reporter indicated that a copy of the hearing existed on hard drive and CD. If the Court is able to make a copy of the CD, the recording is not declared confidential, and providing the recording complies with the Court’s management of its audio recording pursuant to AR 9(D)(4) and Indiana Judicial Conduct Rule 2.17, it may do so. The Court may also issue in conjunction with providing a copy of the CD an order specifically limiting its use and barring the recipient from broadcasting the received record in any manner. The Court would further be allowed to charge you a fee pursuant to IC 5-14-3-8.
Don’t Attack the Judge

To those attacking Judge Eisgruber and calling him all sorts of names, please stop. You are certainly free to disagree with the sentence and criticize the decision he made. The Indiana Supreme Court has explained, though, that there is “no right answer as to the proper sentence in any given case.”

Moreover, this is nothing close to a minimum sentence. A first-time offender convicted of B felony rape faces a sentence range of six to twenty years with an advisory sentence of ten years. No prison time is required; no home detention time is required. The judge could have imposed a six-year suspended sentence under the governing statute. Instead he imposed the advisory sentence on each count and even ran two of those consecutively —- for a sentence of twenty years -— with eight of those served on home detention and the remaining twelve suspended.

What does this mean? If Mr. Wise violates any of the many conditions of home detention or probation, he may well end up serving something close to the twenty years (less good time credit) in prison.
____________________
* Because I know some judges will be reading this, I include here a pet peeve (shared by the ILB). When someone requests to see a public document (like the court file in the Wise case), please train your staff to simply hand it over. If the person requesting it looks shady or sinister and likely to take something from it, your staff can keep an eye on them. But court staff should not ask the individual to identify himself or herself or ask, “Who are you with?” It doesn’t matter. It’s a public document. Anyone can see it for any reason. (Oh, and by the way, I don’t think I look shady or sinister?)

Posted by Marcia Oddi on Friday, May 23, 2014
Posted to Schumm - Commentary

Courts - Paying For Prestige: What do law schools pay federal appeals judges?

The National Law Journal has this lengthy, interesting story by Zoe Tillman - some quotes:

Law schools paid federal appeals judges anywhere from several thousand dollars for a lecture to nearly $278,000 for full-semester teaching in 2012 — at once buying prestige and giving students a direct line to some of the judiciary's top legal minds.

Senior Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit was the top earner, receiving $277,906 from New York University School of Law, according to the most recent financial disclosure reports judges must file under federal law. NYU Law paid $190,528 to D.C. Circuit Senior Judge Harry Edwards.

Ginsburg and Edwards were among five senior judges who reported law school salaries of at least $100,000, according to the disclosures.

All told, these judges were among 57 active and senior appeals judges reporting income from U.S. law schools. The NLJ reviewed 257 financial reports released in late 2013 and this year. Together, the judges earned nearly $2 million for teaching and lecturing as they navigated a thicket of ethics rules that restrict activity off the bench. The latest reports covered information from 2012. * * *

Judges Frank Easterbrook of the Seventh Circuit * * * earned $29,000 from the University of Chicago Law School, where he taught before becoming a judge. * * *

Chief appellate judges must approve paid teaching jobs. Seventh Circuit Chief Judge Diane Wood said she makes sure a judge is current on his or her work. Then she checks that the job is legitimate.

"It has to be real teaching — it has to be students sitting there in the room," she said. Wood, who taught before becoming a judge, earned $26,955 for teaching at Chicago Law.

Judges were most often hired as adjuncts. Adjuncts on average earn between $1,500 to $3,500 per credit, depending on the school, said Marcia McCormick, a professor at Saint Louis University School of Law. Courses usually range from one to three credits. * * *

Judges can be paid for teaching and lecturing at law schools and bar associations, but they can't accept honoraria. The judiciary describes an honorarium as a payment for an "appearance, speech or article" outside of approved activities.

Charles Geyh, a professor at Indiana University Maurer School of Law – Bloomington, said the honorarium rule was meant to stop organizations from throwing money at judges to curry favor.

"Does it actually buy access? Probably not. But it creates perception issues the judiciary is mindful of," he said.

Posted by Marcia Oddi on Friday, May 23, 2014
Posted to Courts in general

Ind. Courts - Proposed rule change would shorten time for transcript prep for appeal from 90 days to 30 days

The ILB has posted in the past (see this Aug. 19, 2013 post by Prof. Schumm) that one of the biggest factors in length of time an appeal takes is the time it takes for transcript preparation. The video transcript pilot project begun in 2012 was aimed at addressing this problem. (The ILB has heard that this pilot project has not met with success.)

Today the Supreme Court Committee on Rules of Practice and Procedure has asked for comments on a proposed rule change:

The goal of the proposed changes is to reduce the time from the conclusion of a case in the trial court to the issuance of an appellate decision. The standard for completion of a transcript established by the American Bar Association is thirty days. The federal courts also abide by a 30 day time limit. Only three states other than Indiana have a time limit as long as ninety (90) days.

The primary proposed change is found in Appellate Rule 11(B). After the appellant files the Notice of Appeal the time for a Court Reporter to file the transcript with the trial court clerk or Administrative Agency would be reduced from ninety days to thirty days. Under Rule 11(C), motions for extensions of time will be disfavored and only granted in extraordinary circumstances. The changes to Rule 11 necessitated other changes to the Appellate Rules.

The goal of the proposed changes is to reduce the time from the conclusion of a case in the trial court to the issuance of an appellate decision. The standard for completion of a transcript established by the American Bar Association is thirty days. The federal courts also abide by a 30 day time limit. Only three states other than Indiana have a time limit as long as ninety (90) days.

The primary proposed change is found in Appellate Rule 11(B). After the appellant files the Notice of Appeal the time for a Court Reporter to file the transcript with the trial court clerk or Administrative Agency would be reduced from ninety days to thirty days. Under Rule 11(C), motions for extensions of time will be disfavored and only granted in extraordinary circumstances. The changes to Rule 11 necessitated other changes to the Appellate Rules.

The goal of the proposed changes is to reduce the time from the conclusion of a case in the trial court to the issuance of an appellate decision. The standard for completion of a transcript established by the American Bar Association is thirty days. The federal courts also abide by a 30 day time limit. Only three states other than Indiana have a time limit as long as ninety (90) days.

The primary proposed change is found in Appellate Rule 11(B). After the appellant files the Notice of Appeal the time for a Court Reporter to file the transcript with the trial court clerk or Administrative Agency would be reduced from ninety days to thirty days. Under Rule 11(C), motions for extensions of time will be disfavored and only granted in extraordinary circumstances. The changes to Rule 11 necessitated other changes to the Appellate Rules.

The deadline for submitting comments is June 23, 2014. Comments can be sent via email or in writing to RulesComments@courts.in.gov.

Details about the proposed rule changes can be found at http://courts.in.gov/4211.htm.

The proposal includes quite a number of other changes, including: Appellate Rule 9 would be changed to reduce from thirty (30) days to seven (7) days the time a party has to make payment arrangements with the Court Reporter for preparation of the appellate transcript.

Posted by Marcia Oddi on Friday, May 23, 2014
Posted to Indiana Courts

Thursday, May 22, 2014

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

New deputy clerk named? The ILB has learned that some applicants for the position (probably all but one of those who were interviewed) have now received letters in the mail saying that someone else has been selected. But the ILB has seen no announcement.

Note: Yes indeed, I posted this earlier today, but through a mechanical glitch, it disappeared.

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 6 today (and 11 NFP)

For publication opinions today (6):

In Robert R. Setree, II, and Beverly L. Setree v. River City Bank, a 13-page opinion, Judge Riley writes:

Appellants-Defendants, Robert R. Setree, II and Beverly L. Setree , appeal the trial court’s summary judgment in favor of Appellee-Plaintiff, River City Bank, granting River City the right to foreclose on the Setrees’ real estate. We affirm.

The Setrees raise three issues on appeal, one of which we find dispositive and which we restate as: Whether principles of full faith and credit required the trial court to consider the judgments of a Kentucky court res judicata to the instant cause. * * *

Because we conclude that the Kentucky judgments had acquired subject matter jurisdiction and personal jurisdiction over the parties before it, we must afford full faith and credit to these opinions. * * *

Here, res judicata is more properly defined as issue preclusion. The same issues — the Setrees’ failure to pay Indiana property tax pursuant to their 2007 Note and their right to cure — between the same parties — the Setrees and River City—governed the Kentucky cases and this appeal.

In In the Matter of the Paternity of B.C., M.B. and N.S. v. J.C. , an 18-page opinion, Judge Brown writes:
M.B. and N.S. appeal the Montgomery Circuit Court’s denial of their motion to correct error following an order on custody and parenting time in a paternity action filed by J.C., and the Marion Superior Court’s denial of their motions to correct error following the dismissal of their guardianship and adoption action. M.B. and N.S. raise three issues which we consolidate and restate as whether the Montgomery Circuit Court or the Marion Superior Court had jurisdiction to determine the custody of B.C. We reverse and remand. * * *

Because the petition for adoption and the paternity action were pending at the same time, the court in which the petition for adoption had been filed had exclusive jurisdiction over the custody of B.C. See Ind. Code § 31-19-2-14; see also Ind. Code § 31-14-21-13 (“Upon notice that a court in which an adoption is pending has assumed jurisdiction of a paternity action under IC 31-19-2-14, the court in which the paternity action was pending shall stay all proceedings in the paternity action until further order from the court in which the adoption is pending.”). Accordingly, the Montgomery Circuit Court could not properly exercise jurisdiction to enter its July 5, 2013 order as the Marion Superior Court had exclusive jurisdiction over the custody of B.C., and the Marion Superior Court erred when it dismissed the guardianship and adoption proceedings. We reverse the Montgomery Circuit Court’s July 5, 2013 order and remand with instructions for the Marion Superior Court to comply with all provisions of Ind. Code §§ 31-19 and 29-3.

For the foregoing reasons, we reverse the Montgomery Circuit Court’s July 5, 2013 order, the Marion Superior Court’s August 6, 2013 order dismissing the guardianship, and the Marion Superior Court’s August 6, 2013 order dismissing the Guardian’s petition for adoption, and remand for proceedings consistent with this opinion. Reversed and remanded.

In Yellowbook Inc. f/k/a Yellow Book Sales and Distribution Company, Inc. v. Central Indiana Cooling and Heating, Inc. and Lawrence E. Stone aka Larry Stone, a 13-page opinion, Judge Riley writes:
Yellow Book raises three issues on appeal, which we restate as follows:
(1) Whether the trial court erred by concluding that Yellow Book failed to credit certain Central Indiana payments totaling $19,717.10;
(2) Whether the trial court erred by concluding that Stone properly cancelled an advertising contract with Yellow Book; and
(3) Whether the trial court erred by concluding that Yellow Book is not entitled to recover prejudgment interest and reasonable attorney’s fees. * * *

Based on the foregoing, we conclude that (1) the trial court erred when it concluded that Yellow Book failed to credit certain Central Indiana payments under Contracts 1 and 2; (2) Contract 3 was induced by fraud and is rescinded; and (3) Yellow Book is entitled to pre-judgment interest and reasonable attorney’s fees for amounts owed under Contracts 1 and 2. Affirmed in part, reversed in part, and remanded with instructions.

In Maddox T. Macy v. State of Indiana , a 10-page opinion, Judge Robb writes:
Maddox Macy appeals her conviction for resisting law enforcement, a Class A misdemeanor. Macy raises a single issue for our review: whether there was sufficient evidence to prove Macy forcibly resisted a law enforcement officer. * * *

Concluding Macy’s acts of opening Officer Bowland’s police car door and refusing to place her feet inside the car were not acts constituting forcible resistance, we reverse.

In Julian Tuggle v. State of Indiana, a 19-page opinion, Judge Baker writes:
This case is about an individual who initially lied to the police when he told them that he was only a victim of an armed robbery and shooting. In actuality, the evidence later showed that appellant-defendant Julian Tuggle was also an actual perpetrator of Murder, a felony.

After Tuggle was admitted to Wishard Hospital (Hospital) in Indianapolis with a gunshot wound, a police detective was dispatched to the scene, commenced an investigation, and secured the clothing that Tuggle had worn into the hospital. The detective inferred that the clothing that Tuggle wore when the crimes were committed contained evidence of a crime, including a bullet hole and/or blood.

Although the detective seized the bag of Tuggle’s clothing, no search or DNA testing was performed on the items until the police obtained a search warrant. However, after various tests were conducted on the clothing, a reported murder victim’s DNA was discovered on Tuggle’s clothing that the detective had secured. Tuggle was tried, convicted, and sentenced for the victim’s murder.

Tuggle challenges the detective’s seizure of the bag and the admission of the clothing into evidence, as well as the sufficiency of the evidence. We conclude that Tuggle’s Fourth Amendment Rights under the United States Constitution and his rights in accordance with Article I Section 11 of the Indiana Constitution were not violated. The evidence demonstrated that the detective acted lawfully and reasonably in seizing the bag of Tuggle’s clothing without a warrant. Also, the evidence was properly admitted at trial, and we conclude that the evidence was sufficient to support Tuggle’s conviction for murder. Thus, we affirm the judgment of the trial court.

In Craig Bakari Thomas v. State of Indiana , a 13-page opinion, Judge Riley writes:
Appellant-Defendant, Craig Bakari Thomas (Thomas), appeals his conviction for two Counts of criminal deviate conduct, Class B felonies, Ind. Code § 35-42-4-2; and one Count of sexual battery, a Class D felony, I.C. § 35-42-4-8. We affirm.

Thomas raises two issues on appeal, which we consolidate and restate as: Whether the State committed prosecutorial misconduct during its closing argument. * * *

Thomas asserts that the State violated his Fifth Amendment rights on two separate instances during its closing argument. * * *

Based on the foregoing, we conclude that, although the State committed prosecutorial misconduct in its first statement, the error was harmless. Additionally, with respect to the second statement, we find that the State did not commit prosecutorial misconduct.

NFP civil opinions today (5):

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

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

Larry Powell v. Vanessa Powell (NFP)

David W. Reed v. Jennifer Reed (NFP)

Megan M. Hatzell v. Tyler A. Hatzell (NFP)

NFP criminal opinions today (6):

Jeremy Riffert v. State of Indiana (NFP)

Darren L. Sivley v. State of Indiana (NFP)

William A. Parks v. State of Indiana (NFP)

Sylvester Smith v. State of Indiana (NFP)

Jerry L. Siers v. State of Indiana (NFP)

Thomas H. Fuller, III v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Second Gibson murder trial set to go June 16"

Updating earlier ILB entries about murder defendant William Clyde Gibson, including several about his head tattoo, reading “Death Row X3,” Grace Schneider of the Louisville Courier-Journal reported yesterday afternoon:

New Albany’s William Clyde Gibson will face a second capital murder trial — this one in the death of Stephanie Kirk — starting June 16 in Floyd Superior Court.

Jury selection will begin June 2 before heading into a one- to two-week trial beginning in mid-June, Judge Susan Orth and the parties agreed at a final pre-trail hearing Wednesday.

To choose a jury untainted by pre-trial publicity, the judge, prosecutors, defense lawyers and Gibson will go to Vanderburgh County next month to select 12 jurors and four alternates who will be transported to New Albany and housed in the area during the proceedings. * * *

Last month, he was sentenced to 65 years in Hodella’s murder after accepting a deal to plead guilty. Gibson is accused of strangling the 35-year-old Kirk, then burying her body in his yard. His lawyers motioned to limit the crime scene photos, particularly those that are gory and bloody, as they did before last year’s trial.

Steve Owen, Floyd’s chief deputy prosecutor, told Orth the Kirk photos are far less graphic and bloody than those presented during the Whitis trial, but the state needs an opportunity to introduce evidence and explain to the jury what happened to Kirk. Her father and another relative attended the hearing and left without comment.

Another issue Wednesday centered on a new tattoo on the back of Gibson’s shaved head that reads “death row X 3” in thick, dark ink. Worried that jurors might see the reference to other murders, which is inadmissible during the trial, Orth ordered earlier this year that Gibson not be given haircuts.

She also said that she has considered having the hair now covering the tattoo dyed a dark brown in order to ensure that there’s no way jurors or prospective jurors see it. Through his lawyers, Gibson requested to have his head shaved and cover the tattoo with makeup, which Orth was not inclined to allow.

“If it didn’t refer to the two other murders, I wouldn’t be concerned,” Orth said, adding that she will respond to pending motions, including a request to dismiss the death penalty, in the next week or so to keep the proceedings on track.

WHAS11, Louisville, has a story with video.

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Indiana Courts

Ind. Courts - More on "Buried in documents, Indiana courts will turn to e-filing"

Updating this ILB post from earlier this morning, here now is the 4-page Supreme Court order, filed yesterday, "concerning electronic filing and electronic service in all Indiana courts."

Here are the proposed rule amendments on e-filing, public comment is due July 23, 2014.

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Indiana Courts

Ind. Decisions - Should we anticipate a petition for rehearing in Brewington v. State?

Referencing the trial transcript, Dan Brewington, of Brewington v. State (May 1, 2014), is asserting in his blog that the Indiana Supreme Court's opinion is in error when it states “And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to both of his victims during his years-long vendetta against them.” Brewington says there is no evidence of violence in the record.

Does this mean that Brewington will be filing a petition for rehearing with the Supreme Court? Such petitions are due within 30 days of the opinion.

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Does Court backlog violate right to speedy trial?"

Madeline Buckley has this story today in the South Bend Tribune, about Scott Logan v. State of Indiana, a Feb. 28th NFP opinion granted transfer last week by the Supreme Court. Some quotes from the long story:

Scott Logan waited for trial for three and a half years before a judge sentenced the Elkhart County man to six years in prison for a child molesting conviction.

He spent more than two of those years in jail, until the Indiana Supreme Court ordered his release due to court rules that say defendants can’t be held indefinitely while awaiting trial.

Logan, 42, asked several times early in the case that his trial be rescheduled following his August 2009 arrest for Class C felony child molesting.

Then for years after that, Elkhart Superior Court Judge George Biddlecome rescheduled the case multiple times due to a congested court calendar amid requests from Logan’s defense team for a speedy trial.

A jury heard the case in February 2013 and found Logan guilty. Biddlecome handed down the sentence in March of that year.

Now, Logan is appealing his conviction, arguing that his constitutional right to a speedy trial was violated, and that the judge should have dismissed his case.

The Indiana Supreme Court agreed last week to hear the case, which poses questions about the rights of the defendants versus the realities of crowded court dockets. * * *

Logan’s attorney John Kindley is arguing that the court erred in attributing the time passed to the defendant rather than the state.

“If congestion is found over and over, the case can basically go on indefinitely,” Kindley said, though he noted the case at hand alleges specific erroneous applications of congestion exception.

Kindley’s petition to transfer the case to the high court says the judge improperly heard a newer case before hearing Logan’s case.

It also argues the Appeals Court both miscalculated the number of days in delay that were attributable to the defendant and violated precedent by attributing time to the defendant that he did not request.

Kindley said the length of time Logan spent waiting for trial is troublesome in that it could cause the defendant to plead guilty just to get out of jail.

“In this case, my client was held in jail without a trial for longer than the advisory sentence applicable to the charge he was facing,” Kindley said, including good time credit. “I think it becomes very problematic to do that.”

The advisory sentence for a Class C felony is four years in prison, but Indiana law says defendants can earn day-for-day credit for good behavior.

“Supposing that many defendants … are offered by the state plea agreements to the advisory sentence,” Kindley wrote in the petition to transfer, “it is very easy to suppose that many of them succumb to this great ‘pressure’ by pleading guilty, whether they’re guilty or not, when by doing so, they can secure their immediate release from incarceration.”

But prosecutors say both parties are allowed to give input on a trial date in the event of court congestion, and the defense can object and ask for an earlier trial.

“When a case is continued due to congestion, both sides are given the opportunity to agree upon a court date,” said Heather Norman, spokeswoman for the Elkhart County Prosecutor’s Office, though she said the office does not comment specifically on cases being appealed.

Biddlecome said he moves through his docket by trying the oldest cases that involve incarcerated defendants first, according to trial transcripts included in Logan’s appellate brief.

The Tribune published a story last year that described cases in Biddlecome’s court backlogged for years, some lingering for four or five years, affecting both the defendant and the purported victims, as the judge handles many molestation cases.

“I can assure you that each case is tried as quickly as possible given the scheduling considerations outlined above and applicable Indiana law,” Biddlecome wrote to The Tribune in 2013.

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Indiana Courts

Courts "Gay Marriage Turns Tide as Governors Drop Defense of Bans"

Sophia Pearson, Erik Larson and Romy Varghese report in Bloomberg in a story that begins (ILB emphasis):

Pennsylvania, the last northeastern state to prohibit gay marriage, will let a judge’s ruling end the ban without a fight as Governor Tom Corbett follows others in conceding court losses.

The ruling made Pennsylvania the 25th state to have gay marriage declared legal by voters, lawmakers or courts, evenly dividing the nation almost a year after a U.S. Supreme Court ruling triggered a flood of lawsuits.

Corbett, a Republican who is running for re-election this year, is the latest governor to abandon defense of same-sex marriage bans after court rulings, following New Jersey Governor Chris Christie and Nevada Governor Brian Sandoval, both Republicans.

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Courts in general

Ind. Courts - "Buried in documents, Indiana courts will turn to e-filing"

This May 9th ILB post by Prof. Joel Schumm foretold that e-filing is coming soon. Today it is official. Tim Evans reports today in the Indianapolis Star:

A formal announcement is expected today.

Starting in 2015, Indiana will join a growing number of states that allow or require e-filing for state courts. The process — intended to benefit attorneys, clients, court staff and taxpayers through convenience and cost savings — is expected to take several years to fully implement.

“Nearly every aspect of our lives includes electronic documents — stores send receipts via email, banks allow check deposits through a smart phone,” Indiana Supreme Court Chief Justice Brent Dickson said.

“Now lawyers and litigants will be able to file court documents electronically. Using this technology, our courts will be more efficient and better able to administer justice without delay.” * * *

Court officials did not release cost estimates for the project. Indiana Court of Appeals Judge Paul D. Mathias, who chairs a committee established in 2006 to look at the transition to e-filing, said a number of options for covering the cost are being investigated. Among them: user fees and cost savings.

In Indiana over the past decade, 1.5 to 2 million new cases have been filed annually in state courts. That doesn’t count the millions of additional pages of documents filed in older, pending cases. The paper-intensive process is cumbersome, with documents delivered to trial court clerks in Indiana’s 92 counties. Those documents must then be entered into court computer systems and stored.

“Clerks across the state are struggling with horrendous problems with the storage and retrieval of records,” Mathias said.

The next step for state officials is to seek bids for an e-filing manager to provide the centralized system for accepting filings and getting documents to the appropriate court system. That manager will be required to work with multiple e-filing service providers that operate the front-end systems attorneys will use to get documents to the e-filing manager. The division of state court administration will coordinate the process, including certification of those front-end providers.

The e-filing manager selected for the project also will be required to maintain a basic filing system for indigent Hoosiers.

“We will not,” Mathias said, “allow e-filing to be a barrier to access to the court system.”

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Indiana Courts

Ind. Courts - "Decatur Co. Courts to do security review;" required by Supreme Court

Rob Cox reports in the Greensburg Daily News:

GREENSBURG — On Tuesday morning, Circuit Court Judge Timothy Day and Decatur County Superior Judge Matthew Bailey reported to the Decatur County Council about the recent creation of the Decatur County Security Committee (DCSC).

According to Day, the Indiana Supreme Court has decreed that county courthouses around the state must establish local security committees and create a plan to detail each court’s security needs, the equipment and/or staff required and the most cost-effective way to implement those solutions.

The DCSC, Day told the Council, is required to submit finalized plans to the state at year’s end. “We’re going to hire a college student to help implement some of these things we need to do,” Day said. That student assistant, Day added, will be charged with looking for grant money to help implement required security measures and compiling dollar figures regarding the cost. * * *

According to recommendations made by the state, Day said, security at the local courthouse is “inadequate.” State recommendations include: Public access to the building through only one door; passage through a metal detector required at the public entrance; and one officer stationed at the public access way checking bags.

Of current Decatur County Courthouse security, Day noted, “We have a security officer in uniform patrolling the building. We have a panic button in judges’ offices, in the courts, and in the prosecutor’s office and in some other offices, I think; but short of that, we don’t have much other security.”

Posted by Marcia Oddi on Thursday, May 22, 2014
Posted to Indiana Courts

Wednesday, May 21, 2014

Ind. Decisions - More on "Supreme Court bars police claims of racist juries to win confessions"

The ILB has had a number of posts re the May 13th Supreme Court opinion in McLynnerd Bond, Jr. v. State of Indiana.

This afternoon the Indianapolis Star has posted a story by Tim Evans with this Editor's Note:

The Indiana Supreme Court ruled a murder confession obtained by a Gary police detective cannot be used in the suspect's trial because the police officer told the man he would not get a fair trial because he was black. This video (audio with photos) includes the detective's comment as well as clips from the three-hour interrogation conducted in February 2011.
Evans' story begins:
Police officers have been given wide latitude in interrogation tactics, but the Indiana Supreme Court on May 13 ruled a Gary detective went too far when he implied to a black suspect that his race precluded him from receiving a fair trial and an impartial jury.

The warning, coming near the end of a three-hour interrogation, likely contributed to the suspect confessing to a murder.

Listen to the tape.

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Lawsuit against Lucas Oil Stadium beer vendor can move forward, court rules"

Tim Evans of the Indianapolis Star has posted this story about this morning's COA ruling in Pierson v. Service America (ILB summary here). The story begins:

A lawsuit that claims the beer vendor at Lucas Oil Stadium overserved an intoxicated Colts fan who hit and killed a child on his way home from a game can move forward, the Indiana Court of Appeals ruled today.

The lawsuit alleges South Carolina-based Centerplate, the food and beverage provider for Lucas Oil Stadium, “negligently failed to train, instruct, monitor, and restrict the sale of alcoholic beverages to visibly intoxicated persons” including Trenton Gaff.

Gaff, after leaving the 2010 Colts game, struck and killed 12-year-old Tierra Rae Pierson and injured her cousin, January Canada, also 12, after he ran off the road in the 6700 block of Bluff Road.

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Tierra Rae Pierson, a Minor, Deceased, by her next friend and parent, Betina Pierson, and Betina Pierson, Individually, and Ryan Pierson, Individually v. Service America Corporation, et al., a 14-page opinion, Judge Bailey writes:

Tierra Rae Pierson, Deceased, by her next friend, Betina Pierson; Ryan Pierson; Betina Pierson, individually; and January Canada, by her next friend, Jennifer Moore, (collectively, “Pierson”) appeal a grant of summary judgment in favor of Service America Corporation d/b/a Centerplate (“Centerplate”) on Pierson’s negligence claim. We reverse.

A single, consolidated issue is presented: whether the trial court improvidently granted summary judgment to Centerplate. More specifically, Pierson claims that genuine issues of material fact preclude summary judgment and the trial court did not view the evidence in the light most favorable to the non-movant as required by the Indiana summary judgment standard.

Trenton Gaff (“Gaff”) was intoxicated2 when his vehicle struck and killed twelve-year-old Tierra Rae Pierson and injured her cousin, twelve-year-old January Canada. Earlier in the day, Gaff had attended a Colts game at Lucas Oil Stadium and had consumed alcoholic beverages at a pre-game tailgate party, during the game, and at a post-game tailgate party. * * *

The discovery process did not yield the identity of the person or persons who had sold alcoholic beverages to Gaff inside Lucas Oil Stadium. Centerplate moved for summary judgment on the negligence claims against it. The trial court granted the motion * * *

Were we to accept Centerplate’s argument that only a single inference arises, that is, no liability can ensue because no particular server to Gaff has been identified, such would circumvent the public policy associated with the Dram Shop Act. In comparison to a neighborhood bar owner employing a few servers, a provider of alcoholic beverages using hundreds of volunteers to sell alcohol to thousands of patrons in a stadium may well seem ideally situated to lessen liability although the potential consequences are greatly increased. We do not believe this to be the intent of our Legislature. It is for the fact-finder, and not the court on summary judgment, to determine whether Centerplate knowingly provided one more alcoholic beverage to a visibly intoxicated patron.

Conclusion. Reasonable inferences to be drawn from the designated materials could permit a fact-finder to conclude that a Centerplate designee served Gaff beer while knowing him to be visibly intoxicated. As Centerplate did not, based upon undisputed facts, negate an element of Pierson’s negligence claim, summary judgment was improvidently granted. Reversed.

In Wayne Hurd v. State of Indiana , an 11-page opinion, Chief Judge Vaidik writes:
Wayne Hurd was convicted of Class B misdemeanor battery following a nighttime incident at an Indianapolis bus stop. At his bench trial, the trial court prohibited him from calling his mother as a witness because she was not disclosed until the day of trial. The trial court sentenced Hurd to probation, which included a condition that prohibited him from going between 48th Street to the north, 28th Street to the south, Fall Creek Parkway to the east, and Martin Luther King Jr. Street to the west.

We find that even if the trial court abused its discretion in excluding Hurd’s mother as a witness, the error was harmless because the offer of proof was not specific as to the substance of Hurd’s mother’s testimony, she was not present at the bus stop, and the trial court found the victim’s testimony credible and Hurd’s testimony to have gaps. However, we find that the trial court abused its discretion in imposing the probation condition because it was not reasonably related to Hurd’s treatment and the protection of the public safety. We therefore affirm in part and reverse and remand in part. * * *

We agree with Hurd that the probation condition was not reasonably related to his treatment and the protection of the public safety. It was reasonable for the trial court to express concern for Hurd’s mental health, and the court did so by ordering Hurd to comply with his treatment regimen at Gallahue. Further, given that Hurd’s conviction was for a crime against a person, it was also reasonable for the court to prohibit contact with Susan. However, prohibiting Hurd from entering a significant area of the central part of Indianapolis is not tailored to his rehabilitation or public safety.

In Jacob Herron v. State of Indiana, a 15-page, 2-1 opinion, Chief Judge Vaidik writes:
Trials should primarily proceed on the basis of in-court testimony, not statements or affidavits obtained before trial. Yet at Jacob Herron’s trial for burglary and receiving stolen property, the State called a witness solely to impeach her with a pretrial statement, and did so by reciting segments of that statement. Because this statement was admitted solely for impeachment, the jury could not use it as substantive evidence. But given the lack of evidence against Herron, we conclude that the jury did rely on this evidence to convict him. For this reason, we reverse Herron’s convictions. * * *

MAY, J., concurs.
RILEY, J., dissents with separate opinion. [which begins, on p. 13] I respectfully concur in part and dissent in part. While I agree with the majority that the State’s procedure for impeaching the witness might have been improper, the error was harmless. Though no direct evidence was presented at trial, I find that there was enough circumstantial evidence to prove Herron committed the offenses.

NFP civil opinions today (1):

In the Matter of: J.J., F.J., J.O., & C.O., Minor Children, and M.O., Mother v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (4):

Jeremy Lyn Davis v. State of Indiana (NFP)

Brice L. Webb v. State of Indiana (NFP)

Brandan L. Martin v. State of Indiana (NFP)

Tina Cox v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Ind. App.Ct. Decisions

Courts - Judges in recent same-sex marriage opinions conscious they are writing for history

See this post by Adam Serwer at MSNBC.com (h/t Rick Hasen, who is quoted at the end of the story). Some quotes:

Many of the judges’ rulings in same-sex marriage cases have departed from dry legalisms to embracing emotional proclamations extolling the inevitability and justice of recognizing same-sex unions, and how doing so fits within an American tradition of extending rights to once-despised minorities. Like teenagers playfully jostling each other in a yearbook photo, these judges are reveling in their moment.

“With court after court striking down marriage bans, merely voiding another state’s discriminatory law isn’t enough,” said Adam Winkler, a law professor at UCLA. “The real reason for these flourishes, I believe, is that judges in the marriage cases know they are writing for history. There’s a long tradition of judges taking a different tone when they expect their opinions to be historically significant.”

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Courts in general

Ind. Decisions - More on: Reactions to recent Indiana Supreme Court disciplinary opinion

Updating this May 7th ILB post on criticism of the Supreme Court's April 11th per curiam opinion in In the Matter of: Anonymous (opinion summarized here by the ILB), the ILB has now obtained, via the Clerk's Office, a copy of the Oct. 28, 2013 hearing officer's report.* (The report reveals the name of the attorney disciplined, however his name earlier has been reported in several press stories.)

The 26-page hearing officer's report is interesting reading. See particularly p. 16, beginning at #5, and concluding at the bottom of p. 18, where in response to the disciplinary officer's statement that with respect to the disciplinary case, "The discipline is not the important part. It's a determination of what the Rules require and what they say . .. ", hearing officer Magistrate Michael N. Pagano writes:

I must disagree with Mr. Rice's assessment. The law is important, without question. However, the idea that Respondent should be used as a mere instrument to re-write an exceptionally unsettled area of the law troubles me deeply, especially in light of the great lengths Respondent went to in ascertaining whether his participation in AAMIL would cause him disciplinary grief in the future.

7. As I have not previously served as a Hearing Officer, it is possible that the Commission's pursuit of charges in circumstances such as this, when the Rules are unsettled and a respondent has engaged in thorough due diligence, may well be common practice. If this is indeed the case, I would point to Justice David's opinion in Fry v. State, 990 N.E.2d 429 (Ind. 2013), wherein he wrote: '" ... that's the way we've always done it' is a poor excuse ... for continuing to do something wrong." Id. at 442. (emphasis in original).

Pagano's report concludes:
One final note, I stated at the close of evidence: "at first blush ... I'm left with the impression that ... the Commission may have overreached here." (Tr. p. 233). I then made clear that this was only a first impression and was subject to change. However, I am of the firm belief that my initial evaluation was, and remains, correct.
______________
* Although hearing officer reports in disciplinary hearings are public documents, they are generally not posted online, or accessible via the Court's press office. The ILB went through the Clerk's Office Record Division. Their fee schedule for public documents is set out at the end of this page.

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on "Wife who was raped says husband's sentence was unjust" [Updated]

Updating this ILB post from May 20th, the story has now been picked up nationally.

Alison Vingiano's long story, posted last evening in BuzzFeed, includes a copy of the 6-page police report.

Matt Pearce of the LA Times report includes (from the initial online report):

Judge Eisgruber, a former prosecutor who was elected to Marion Superior Court in 2008 and is running for reelection in November, told The Times that he couldn't comment on the sentence because [David] Wise had filed an appeal of his conviction.

But when asked to clarify his remarks to [victim Mandy] Boardman about forgiving her husband, Eisgruber said he made them in the spirit of "I hope that you can forgive him one day, because he's obviously struggled with this and struggled to this day, and I hope that she could forgive him.

“Ultimately, I think that helps a lot of people heal -- it helps them to reach that point," Eisgruber added. "Some can, some cannot. I’m not in her shoes, I’m not able to say one way or another … It's not something that’s limited to her or this case. But when people are really struggling, I just offer that out. ... I just hope that they find peace." * * *

At trial, Wise did not confess to sexually assaulting his wife, but did admit having the videos on his phone, said Curtis, the prosecutor.

Wise also told the jury why he had been drugging his wife: "She was snippy and it made her nicer when he drugged her," according to the prosecutor. Officials think Wise may have been using Xanax, but weren't sure.

[Updated at 10:35 AM] A longer version of the LA Times story also appears today in the Chicago Tribune and includes quotes from Prof. Schumm:
Joel Schumm, a law professor at Indiana University, said that the judge’s sentence was unusual, given the crime, but was still well within the state’s sentencing guidelines.

“People are generally surprised [if] a crime like rape … does not include prison time, even a first-time offense,” Schumm said, noting that the “normal starting point” for B-felony rape was a 10-year prison sentence. (Indiana has four categories of felonies -- A, B, C and D felonies, with A felonies being the worst -- that carry different levels of punishment.)

However, Schumm added, under sentencing requirements for the B felonies for which Wise was convicted, “There’s not a requirement that any of that time is in prison -- there’s not even a requirement to be on home detention.”

Judges can be reported to a state judicial commission for ethics violations in handling cases, but Schumm said that if Boardman filed a complaint about Eisgruber for the sentence, “I’m sure it would be dismissed out of hand.”

“It’s a sentence that people disagree with, but as long as judges are following the statute, there’s no grounds for an ethics complaint,” Schumm said.

The Tribune story also reported:
After The Times published its interview with Boardman online on Monday evening, readers began reposting it and other stories related to the case to Eisgruber's election campaign Facebook page, with many condemning the judge for telling Boardman to forgive her rapist.

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - " Carol Stephan named new chairperson of Indiana Utility Regulatory Commission"

John Russell reports in the Indianapolis Star:

Gov. Mike Pence has named Carol Stephan the new chairperson of the Indiana Utility Regulatory Commission, the powerful state agency that approves utility fees for millions of households, businesses and schools.

Stephan succeeds Jim Atterholt, who resigned last month after serving nearly four years as chairman, to become Pence’s chief of staff. * * *

Stephan becomes the first female chair of the commission. The move is a big, sudden promotion for Stephan, who has been a voting member of the five-person commission for only two months. She previously was assistant general counsel of the IURC for several years.

Before joining the IURC, Stephan held administrative positions at the Indiana Office of Utility Consumer Counselor, the Indiana Department of Workforce Development and the Attorney General’s office.

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Indiana Government

Ind. Gov't. - More on "Pence: Indiana won’t comply with prison rape law"

Updating this ILB post from yesterday, which quoted from Maureen Hayden's CNHI story, including:

The law would require the state to increase staffing at four juvenile prison facilities to prevent sexual assaults, costing about $5.4 million for up to 120 additional guards.

One of the costliest measures prohibits “cross-gender viewing,” and requires that inmates be allowed to do things like shower and change out of view of guards of the opposite sex.

The ILB has now obtained a copy of Governor Pence's letter to Attorney General Holder, which says, inter alia:
Indiana has taken action on its own to change policies and practices in response to PREA. But sweeping mandatory standards like those recently established, work only to bind the states, and hinder the evolution of even better and safer practices. I encourage the administration to reexamine current expectations, and provide states greater discretion to implement policies and practices that eliminate sexual assault against incarcerated persons in ways that comport with fundamental correctional practices and make best use of correctional resources.
However, readers may recall that a year ago WFYI ran this controversial story, headed "Marion County Jail Named Worst In US For Sexual Misconduct" that began:
A new report from the U.S. Justice Department cites the Marion County Jail as the worst in the country when it comes to staff sexual misconduct.

The report published this week lists the Marion County Jail as one of seven in the country with staff sexual misconduct rates above 6 percent. The Indianapolis facility had the highest percentage with 7.7 percent of inmates surveyed reporting being sexually abused by a jail staff member.

But the numbers are being criticized.

“The report is absolutely false, totally false, and the Department of Justice should be ashamed to publish it,” says Kevin Murray, council for the Marion County Sheriff.

Hayden's story yesterday also reported:

Indiana isn’t alone in its decision to opt out of compliance with the federal law. Last month, Texas Gov. Rick Perry informed the Justice Department that his state wouldn’t comply with what he called a “counterproductive and unnecessarily cumbersome and costly regulatory mess.”
A quick ILB search turned up Texas Governor Perry's March 28th letter to AG Holder (via this story in The Nation) includes:
PREA's ill-conceived standards on cross-gender viewing would likely cause the Texas Department of Criminal Justice (TDCJ) to violate state and federal labor laws that prohibit discrimination based on gender, Approximately 40 percent of TDCJ correctional officers at male units are female. Because PREA standards prohibit most cross-gender viewing, TDCJ would be compelled to deny female officers job assignments and promotion opportunities, simply based on their gender.
But a story May 16th in The Oklahoman re Texas' neighboring state begins:
Gov. Mary Fallin signed an agreement on Thursday to continue to uphold a set of national standards aimed at curbing sexual assault in prisons, avoiding a potential loss of hundreds of thousands of dollars in federal funds.
For background and persepctive, see this long May 20th story in Vox, by Dara Lind, which includes:
It took 11 long years, but it looks like a majority of states are finally committing to addressing the problem of prison rape.

Back in 2003, Congress unanimously passed the Prison Rape Elimination Act — a bill to address a problem that, at the time, was little understood. But after that… nothing much seemed to happen for a while. * * *

The pivotal deadline, at last, came on May 15 of this year — the day that states had to either adopt the new regulations or promise to enact them. And for a while it looked like few states would actually do anything. Texas, for one, had already flatly refused to adopt the new rules. Other states griped that they were being asked to move too quickly. Things didn't look good.

In the end, though, the results were surprising: As of May 20, a majority of states have told the federal government they'll either comply with the prison-rape regulations or work toward compliance in the future, Vox has learned. That's according to Just Detention International, an advocacy group working with the government on the issue. (The Department of Justice has not released final numbers and has not yet responded for comment.)

The country is still a long way from curtailing the problem of prison rape. But as of this week a majority of states have agreed to three important things: prison rape is a serious problem; it's the responsibility of states and the federal government to fix it; and they can be held accountable for not doing what is in their power to do.

Posted by Marcia Oddi on Wednesday, May 21, 2014
Posted to Indiana Government

Tuesday, May 20, 2014

Ind. Gov't. - "Indiana awarding $345,000 for Terre Haute project set to earn lawmaker Turner $1.8 million"

Some quotes from Tom LoBianco's long, must-read AP story this afternoon:

INDIANAPOLIS — The Indiana Economic Development Corp. is giving Mainstreet Property Group $345,000 for the construction of a nursing home in Terre Haute that is expected to net House Speaker Pro Tem Eric Turner $1.8 million.

The money was originally offered by the state so that Mainstreet, which is owned in part by Turner and his son, could move its headquarters from Cicero to Carmel. But now it will go toward the construction of a $15.3 million project in Terre Haute, one of many Mainstreet projects Turner helped save when he defeated legislation that would have banned the construction of new nursing homes.

Gov. Mike Pence had placed a hold on the state aid last year after The Associated Press reported Turner's connection to the company. But an IEDC review found "no conflict of interest" and cleared the money for the Turners. * * *

The $345,000 from the state will now go toward the construction of a nursing home at the western edge of Terre Haute. According to Mainstreet Property documents obtained by the AP, the company expects to spend $15.3 million completing the project and then sell it to a Canadian company started by Zeke Turner, Eric Turner's son, for $20.1 million.

The sale will be enough to net Eric Turner $1.8 million, according to a Mainstreet investment document obtained by the AP, as he owns 50 percent of a company which owns 76 percent Mainstreet, for a 38 percent of Mainstreet itself. * * *

Josh Perry, an assistant professor of business law and ethics at Indiana University, said actions like the state's approval of money for Turner and lobbying in secret meetings of the House Republican caucus "erode the public trust" in government.

ILB: Really. It looks like the IEDC is simply giving money away here to the Turner family without rhyme or reason, rather than targeting economic development projects where IEDC funds are needed to insure success ...

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Indiana Government

Ind. Gov't. - "Pence: Indiana won’t comply with prison rape law"

Maureen Hayden, writing here for the Goshen News, reports in a long story:

INDIANAPOLIS — Corrections officials say they’ve spent a decade working to reduce sexual assaults in state prisons and local jails, but their efforts aren’t enough to satisfy the federal government.

Late last week, Gov. Mike Pence told the U.S. Justice Department the state won’t meet a deadline to certify that all prisons and county jails comply with the federal Prison Rape Elimination Act.

The major sticking point is money. The state needs an estimated $20 million – another $4.5 million for counties – to add the staff and equipment required by the law. * * *

His decision may cost the state and local governments about $350,000 a year in federal corrections funds as a penalty for failing to comply with the law.

But that loss pales in comparison to the price of meeting the Justice Department’s standards. According to the Federal Register, a county would spend about $50,000 to upgrade its jail to comply.

“The goal is worthy but the costs are impossible to meet,” said Steve Luce, head of the Indiana Sheriff’s Association, whose members oversee the state’s 92 county jails.

The law would require the state to increase staffing at four juvenile prison facilities to prevent sexual assaults, costing about $5.4 million for up to 120 additional guards.

One of the costliest measures prohibits “cross-gender viewing,” and requires that inmates be allowed to do things like shower and change out of view of guards of the opposite sex.

More from the story:
Congress passed the Prison Rape Elimination Act in 2003 with strong bipartisan support. It requires institutions that receive federal money to adopt a zero-tolerance policy toward sexual violence behind bars and use rigorous tactics to prevent it. Among other measures, it requires the screening of inmates to separate predators from potential victims, and requires prisons and jails to provide multiple channels for inmates to report sexual abuse, including allowing them to report abuse anonymously.

But these rules for implementation of the 2003 weren’t finished until June 2012, and standards for checking compliance in state facilities weren't done until August 2013.

The delay has caused problems. States, including Indiana, increased efforts to reduce sexual assault of inmates after the law passed but now fall short of the new federal requirements. The rules cover 128 pages and include 52 detailed standards that every facility must meet.

Of Indiana’s two-dozen state prisons, only eight are certified as complying with the law. That includes just one of the state’s four juvenile detention facilities. * * *

Indiana isn’t alone in its decision to opt out of compliance with the federal law. Last month, Texas Gov. Rick Perry informed the Justice Department that his state wouldn’t comply with what he called a “counterproductive and unnecessarily cumbersome and costly regulatory mess.”

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Indiana Government

Courts - Same sex marriage developments: Pennsylvania

Politico has a brief story here. BuzzFeed's Chris Geidner has a longer story here re a Pennsylvania federal district court overturning the state's defense of marriage ban, and specifying no stay. The story includes a link the opinion.

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Courts in general

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

For publication opinions today (1):

In In the Matter of the Adoption of J.M.: J.P. and J.M. v. R.H. and R.H. , a 12-page opinion, Judge Baker writes:

In this case, appellants-natural parents Mother and Father (collectively, “the Natural Parents”) had a relationship that was plagued by substance abuse and domestic violence when JM was born in December 2009. The Indiana Department of Child Services (DCS) removed JM from the Natural Parents when she was only a few months old.

JM was placed in foster care. Eventually, the DCS filed a petition to terminate parental rights. While that petition was pending, JM’s foster parents (Foster Parents) filed a petition to adopt her. Several months later, JM’s paternal grandparents (Grandparents), filed a competing petition to adopt JM, and the Natural Parents consented to Grandparents adopting JM.

The trial court determined that in light of the competing adoption petitions, a consent hearing was necessary. Following a hearing, the trial court determined that the Natural Parents were unfit and that their consent was unnecessary. After a change of judge, an adoption proceeding was held, and the trial court granted the Foster Parents’ petition to adopt JM, emphasizing that because of a post-adoption agreement, the Grandparents would remain a part of JM’s life.

The Natural Parents appeal the trial court’s determination that their consent was unnecessary and that it was in JM’s best interest to dispense with their consent. Concluding that the trial court did not err by dispensing with the Natural Parents’ consent and refusing to hear additional evidence on the issue during the adoption proceeding, we affirm the judgment of the trial court. * * *

[W]e observe that in many adoption cases, the result is not only the termination of parental rights, but also the severance from a family tree; however, that did not happen in the instant case. Indeed, because of the post-adoption agreements, the Grandparents will continue to be JM’s grandparents. Appellants’ App. p. 96. JM will not be severed from her family tree of birth, but rather, will enjoy the love and nurturing that grandparents give so freely. We encourage these agreements, where appropriate, for the benefit of children.

NFP civil opinions today (4):

Tamara Critser v. Chad L. Critser, Jr. (NFP)

In Re: Nancy J. McMillen Testamentary Trust, Donna M. McMillen v. Thomas Kane (NFP)

In re the Paternity of J.W.: A.P. (Mother) v. A.W. (Father) (NFP)

Pritika Patel, Kala Patel v. Bhupen Ray, Amy Ray, Indiana Hospitality Real Estate & Management, LLC (NFP)

NFP criminal opinions today (5):

Mark Blackburn v. State of Indiana (NFP)

Robert Beeler v. State of Indiana (NFP)

Clifton Brooks v. State of Indiana (NFP)

Courtney Smith v. State of Indiana (NFP)

Zackery Reahard v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - The Indiana Appellate Jurists Facing Their First Retention Vote in November

In this upcoming general election, no current Supreme justice or Appellate Court judge will be up for a 10-year retention vote. But four jurists will be on the ballot for their first confirmation by the voters. The Indiana Constitution provides in part at Art. 7, Sec. 11:

Section 11. Tenure of Justices of Supreme Court and Judges of the Court of Appeals.

A justice of the Supreme Court or Judge of the Court of Appeals shall serve until the next general election following the expiration of two years from the date of appointment, and subject to approval or rejection by the electorate, shall continue to serve for terms of ten years, so long as he retains his office.

The word "appointment" is also used in the preceding section of Article 7:
Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.

A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.

Those jurists eligible to seek retention on November 8, 2014, the date of the biennial statewide general election, are Judge Martha Wentworth, Tax Court; Judge Rudolph Pyle, Court of Appeals; and Justices Mark Massa and Loretta Rush, Supreme Court.

Here is a table showing their dates of appointment by the Governor, the date each took the oath of office, and the period each will have served on election day.*

Indiana Appellate Jurists Facing First Retention Vote
Judge or Justice Appointed by Governor Date of oath Days served before retention vote
Wentworth 12/22/10 1/17/11 1,417
Massa 3/23/12 4/2/12 960
Pyle 8/7/12 8/27/12 823
Rush 9/14/12 11/7/12 785

Under IC 33-25-2-2, relating to appeals court judges:

A judge who wishes to be retained in office shall file a statement with the secretary of state, not later than noon July 15 of the year in which the question of retention of the judge is to be placed on the general election ballot, indicating that the judge wishes to have the question of the judge's retention placed on the ballot.
_______________
* Note that this "days served" column was calculated based on the date the jurist was appointed, not the date the jurist took the oath of office.

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Indiana Courts

Courts - "How should the Court assess the workings of the other institutions of government?"

Richard H. Pildes, New York University School of Law, gives a preview of his paper (available here via SSRN), "Institutional Formalism and Realism in Constitutional and Public Law," in this "Legal Scholarship Highlight" guest post at SCOTUSblog.

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Courts in general

Courts - "Same-sex marriage developments: Utah and Oregon "

A few days ago the ILB tweeted that it had given up trying to keep on track of all the same sex marriage rulings in the western and southern (Arkansas) states. This morning Lyle Denniston of SCOTUSblog precedes his latest post with:

UPDATED 7:28 p.m. The very rapid pace of developments on same-sex marriage continued Monday. In Utah, a federal judge ruled that the state must recognize the marriages of some 1,300 same-sex couples who were wed in a seventeen-day period of opportunity between a federal judge’s decision against the state ban and the Supreme Court’s temporary order blocking that ruling. The decision by Senior U.S. District Judge Dale A. Kimball is here. That decision will be on hold for twenty-one days to allow the state to appeal. In Oregon, a federal judge nullified that state’s ban. The Oregon decision is discussed in full in the post below.

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Courts in general

Ind. Courts - "Woman claims phlebotomist posted confidential info on Facebook"

This May 16th story in the NWI Times caught my eye. It begins:

CROWN POINT | A Lake County woman is suing St. Catherine Hospital in East Chicago and one of its phlebotomists, claiming her health information and test results were photographed and posted on Facebook.

In a lawsuit filed Thursday, Ashley Guevara alleges hospital employee Amanda Martinez in February used her employee access to electronic confidential files to take pictures of Guevara's personal medical information, which Guevara claims Martinez then put on the Internet without consent.

"Martinez published Ashley's sensitive, personally identifiable health information on Facebook for the express purpose of holding Ashley up to public ridicule," the lawsuit states.

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Indiana Courts

Ind. Courts - "Goshen mayor Allan Kauffman suggests cutting city court"

Angelle Barbazon has a long story today in the Elkhart Truth subheaded "Goshen City Court has been operating at a deficit for at least 10 years. Mayor Allan Kauffman says it’s time to close the doors." The story gives a thorough look at the issue. Here are some quotes:

GOSHEN — Local leaders are expected to decide this week whether to keep the doors of Goshen City Court open.

Mayor Allan Kauffman will request Tuesday evening, May 20, to close the court that handles criminal misdemeanor cases, city ordinance violations and traffic infractions at the end of this year in the name of the city’s budget.

The city court has operated at a deficit for at least 10 years, according to income and expense data provided by Kauffman. The court ended 2013 with a $164,210 loss, and in 2012, the court ended up $120,949 in the red.

Indiana code has allowed city councils to abolish city courts every fourth year since 2006. If the city does not vote whether to keep the court open this year, the council will have to wait until 2018 to revisit the issue.

“State of Indiana has preferred to eliminate city courts for some time,” Kauffman said in a letter to city council members. “First push was because many were not efficiently managed. Judges still don’t need to be attorneys, and there were some squirrelly decisions coming from city courts. The most inefficient and ineffective city courts went away years ago. The better ones survived.”

Kauffman noted, however, the Goshen City Court “has not had a history of judges other than attorneys, nor a reputation for weird decisions.” The court is led by Judge Gretchen Lund, who has expressed concerns about the mayor’s request.

“In fact, Judge Lund has been a most effective, efficient judge,” Kauffman said. “I’ve been impressed both with her demeanor on the bench with the public and with her administrative skills. She doesn’t abide inefficiency from court or probation employees.”

Lund is seeking election for judge of Elkhart Superior Court 4, which is headed by Judge Olga Stickel. Lund is unopposed, and if elected in the fall, her term would begin Jan. 1, 2015.

Kauffman noted that Stickel’s court handles many of the same type of cases that the city court takes on.

“The probability is that most of the current cases that do not run through a future Ordinance Violations Bureau in the Clerk-Treasurer's Office would end up in Judge Lund’s court,” Kauffman said. “Prosecutor (Curtis) Hill has made comment to (Goshen Police) Chief (Wade) Branson that he would keep most caseload in Goshen, so our residents and police officers would not be unnecessarily inconvenienced by having to travel to Elkhart.”

The city court’s largest expense – roughly $182,000 – in 2013 was for full-time and part-time personnel.

Other office expenses include the service of a public defender and interpreter. Anyone who appears in the city court for a criminal charge is entitled to a public defender and interpreter if he is unable to pay for an attorney on his own.

More from the story:
[The current city court judge] Lund argued that the court “should not be in a position where it must generate revenue to survive.”

“Such a premise destroys the integrity of the judicial process and greatly undermines the mission of this court,” she added.

There were 801 ordinance violations filed in Goshen City Court in 2012 and 455 violations in 2013, according to Lund. As of Thursday, May 15, she said 70 ordinance violations were filed, and of those, three were filed in May. She expects roughly 200 ordinance violations to come through to the city court this year.

“Again, this court will not participate in efforts to drum up business,” Lund said. “The mission of this court is to administer the cases that are filed in this court, which include approximately 1,000 misdemeanor cases filed in 2013, 1,500 traffic infraction cases filed in 2013 and the small amount of ordinance cases filed by the city.”

ILB: The ILB looked back at its long, long list of earlier posts including the term "city court" and found many interesting entries, including several proposing abolition of an existing city court, several proposing creation of such a court (noting the revenue that could be generated), a number concerning discipline of city court judges.

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Indiana Courts

Ind. Decisions - "Wife who was raped says husband's sentence was unjust"

Updating this ILB post from May 18th, Kristine Guerra of the Indianapolis Star continues her reporting with this story, including video. Some quotes:

In 2011, Mandy Boardman told police her husband had been drugging and raping her while she was asleep.

Her story launched a three-year criminal case that ended Friday at Marion Superior Court. Boardman's now-former husband, David Wise, 52, was sentenced to eight years of home detention.

A jury had convicted him of rape and five felony counts of criminal deviate conduct. * * *

"During the reading of the sentence, the judge looked at me before he gave the final decision," Boardman said. "I was told that I needed to forgive my attacker and move on. I received zero justice on Friday."

Marion Superior Judge Kurt Eisgruber imposed a 20-year sentence, with 12 years suspended and eight years executed through home detention. He declined to comment on the case Monday because Wise plans to appeal.

Marion County Deputy Prosecutor Courtney Curtis said Monday that the state had asked Eisgruber for incarceration, saying the "only proper place to serve this crime is the prison."

"Anyone who has the gall or the selfishness to invade someone else's body does not deserve to sit at home on the couch or to be with any member of his family," Curtis said. "He deserves to be kept away from society, to repent and rehabilitate in the Department of Correction." * * *

As part of the sentence, Wise will be on a GPS monitoring device and will be allowed to go only to work and back home. He also will serve two years of probation.

That is not enough for Boardman, who was married to Wise for 12 years. She said she still fears for her safety and believes Wise will contact her and will continue to fight for visitation of their son and daughter. Boardman currently has custody of the children.

"He will continue to harass me and cause me as much pain in my life as he can," said Boardman, who has since remarried.

ILB: There are many more details in the story. There is no discussion, however, of whether Wise will now have to register as a sex offender, although the ILB has been told by an attorney who practices in this area that "by operation of law he is 'sexual violent predatory' and that designation has a residency restriction. He can petition after 10 years to have the svp designation removed."

Posted by Marcia Oddi on Tuesday, May 20, 2014
Posted to Ind. Trial Ct. Decisions

Monday, May 19, 2014

Courts - "As Court Fees Rise, The Poor Are Paying The Price"

Joseph Shapiro has a long (over 12 minutes) NPR All Things Considered story tonight, accompanied by a chart of which states are charging defendants and offenders fees.

A yearlong NPR investigation also included a nationwide survey — with help from NYU's Brennan Center for Justice and the National Center for State Courts... Findings of this investigation include:
  • Defendants are charged for a long list of government services that were once free — including ones that are constitutionally required.
  • Impoverished people sometimes go to jail when they fall behind paying these fees.
  • Since 2010, 48 states have increased criminal and civil court fees.
  • Many courts are struggling to interpret a 1983 Supreme Court ruling protecting defendants from going to jail because they are too poor to pay their fines.
  • Technology, such as electronic monitors, aimed at helping defendants avoid jail time is available only to those who can afford to pay for it.

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Courts in general

Courts - "Federal Judge Strikes Down Oregon Same-Sex Marriage Ban, Weddings Can Start Immediately"

State officials have said they will not appeal the ruling. Judge’s order is effective immediately, reports Chris Geidner in a new story at BuzzFeed.

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Courts in general

Ind. Law - Maennerchor Era Luncheon planned for June 18th

I've received an invitation from Indiana University's Robert H. McKinney School of Law's Dean Klein to a Maennerchor Era Luncheon:

Reconnect with fellow classmates who attended law school in the historic Maennerchor building.
My class, the class of 1969, was the last to graduate from the old building. So I'd guess the attendees will all be 70 or older (except for some 1st and 2nd years, who began at the Maennechor, but graduated from the "new" law school building, which itself - it has become Herron - has since been replaced by the newest law building, Inlow Hall).

As for professors who taught at the Maennerchor who might attend, Professor Jegan, Professor White and Professor Harvey come to mind.

[More] Of course, there were few women in the 1960s law school classrooms. There was one woman professor, the librarian.

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Indiana Law

Ind. Courts - "Court of Appeals names seven Carr L. Darden 2014 CLEO Interns"

From the news release:

INDIANAPOLIS – The Court of Appeals of Indiana has selected seven students from three Indiana law schools for its 2014 Carr L. Darden Conference for Legal Education Opportunity internship program, or CLEO.

The 10-week internships will immerse the students in the court’s daily work, guided by some of Indiana’s most accomplished and respected jurists. The interns will also make site visits to other courts and government agencies, including U.S. District Court for the Southern District of Indiana, the Office of the Indiana Attorney General, the Indiana Department of Correction and Marion Superior Court.

“CLEO is win-win-win,” Chief Judge Nancy H. Vaidik said. “Our interns win through their immersion in the court’s day to day work. The court benefits from their energy and passion. And the legal profession gains a more diverse pool of people entering the law.”

See the release for more, including the names of the seven internas and their assignments; these are paid positions.

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In M.S.D. of Martinsville v. Rebecca Jackson, individually and as parent and legal guardian of C.J., a Minor, and Kelli Dearth, Individually and as parent and legal guardian of B.K., a Minor , a 34-page opinion, Judge Mathias writes:

After Martinsville West Middle School students C.J. and B.K. were injured during a school shooting by former student Michael Phelps (“Phelps”), C.J. and B.K. each filed lawsuits against the Metropolitan School District of Martinsville (“the School District”) alleging that the School District breached its duty to keep C.J. and B.K. safe. The School District filed a motion for summary judgment, which the trial court denied. The School District now appeals the denial of its motion for summary judgment and argues (1) that it is immune from liability pursuant to the Indiana Tort Claims Act, (2) that the School District did not breach its duty to C.J. and B.K., and (3) that C.J. was contributorily negligent. We affirm. * * *

For all of these reasons, we conclude that the trial court’s denial of the School District’s motion for summary judgment was proper. The School District has not met its 34 burden of showing that it is entitled to discretionary function immunity under the ITCA, since C.J. and B.K. challenge the implementation rather than formulation of the safety plan, and since the safety plan was not the result of the type of policy decision-making protected by the statute. Furthermore, there exist genuine issues of material fact as to whether the School District breached its duty to protect C.J. and B.K. and whether C.J. was contributorily negligent in a manner which proximately caused his injuries.

NFP civil opinions today (2):

In re the Marriage of: William Adamson v. Pamela Adamson (NFP)

Russell Lawless v. Leslie Lawless (NFP)Russell Lawless v. Leslie Lawless (NFP)

NFP criminal opinions today (54):

William Hodapp, Jr. v. State of Indiana (NFP)

Michael Mason v. State of Indiana (NFP)

Gary Sistrunk v. State of Indiana(1) (NFP)

Gary Sistrunk v. State of Indiana(2) (NFP)

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending May 16, 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, May 16, 2014. It is two pages (and 24 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Indiana Transfer Lists

Courts - "Dan Coats had front-row seat to two U.S. Supreme Court nominations"

Dan Carden had this long story in the Sunday NWI Times - some quotes:

INDIANAPOLIS | Hoosiers today know Dan Coats as their U.S. senator, but nine years ago his informal title was far more exotic — Sherpa.

Speaking recently to the Federalist Society of Indianapolis, Coats described his experiences guiding two of President George W. Bush's Supreme Court nominees through the Everest-like Senate confirmation process.

In 2005, Coats had been out of the Senate six years and just finished serving as U.S. ambassador to Germany when Bush's top adviser, Karl Rove, asked Coats to help Harriet Miers win confirmation to replace Sandra Day O'Connor on the nation's top court. * * *

[Although Miers ultimately withdraw from the nomination, Coats] was asked to stick around to help Bush's next nominee, New Jersey federal Judge Samuel Alito, win confirmation. It was an easier case to make, he said.

"I have not had the privilege of meeting a more brilliant jurist than Samuel Alito," Coats said. "His depth of character as well as his adherence to the Constitution and his demeanor, and the way in which he analyzed and came to his judicial decisions, was stunning."

Eighty-three of the 100 senators asked Coats for one-on-one meetings with the nominee. Coats sat beside Alito at each hour-long session and watched as the judge explained his legal philosophy, approach to the law and interpretation of past Supreme Court rulings.

"It was literally like taking a post-graduate course in constitutional law," Coats said. "Alito met every possible test in terms of experience and judicial acumen, his qualifications were beyond the ability of anyone to question them, and yet it was evident that storms were brewing in terms of trying to defeat his nomination."

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Indiana Courts

Ind. Gov't. - "Indiana turning to new lethal injection drug for executions "

Carole Carlson reports today in the Gary Post-Tribune:

The next time Indiana conducts an execution at the Indiana State Prison in Michigan City, a new drug will be part of its lethal injection protocol.

The nationwide shortage of thiopental sodium, known by its trademark name Pentathol, forced states that conducted executions by lethal injection to search for other alternatives.

Indiana Department of Correction spokesman Douglas S. Garrison said the state will use Brevital, a barbiturate anesthetic in the same class as thiopental sodium. Garrison said Indiana has a sufficient supply of drugs to carry out an execution.

The three-drug protocol Indiana uses starts with Brevital, followed by pancuronium bromide and potassium chloride.

There are 13 inmates on the state’s death row in Michigan City, but none has a set execution date.

Michael Overstreet, convicted in the 1997 strangulation of Kelly Eckart, 18, a Franklin College student, is next in line, Garrison said.

“It could be this year,” he said.

Overstreet’s appeals are nearly exhausted, and a ruling is expected soon on his latest challenge that he’s mentally incompetent.

There is much history in the long story.

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Indiana Government

Courts - "Keep politics out of the courthouse" - Randall Shepard

The Washington Post today has an opinion piece co-authored by Ruth McGregor, a retired chief justice of the Arizona Supreme Court, and Randall Shepard, the retired chief justice of the Indiana Supreme Court. It begins:

The chaos surrounding the execution of convicted murderer Clayton Lockett was not just a wake-up call on capital punishment and how it is administered. The final hours also saw political efforts to bully and weaken Oklahoma’s courts. Similar battles are playing out around the country, threatening the ability of our courts to be fair and impartial.

When Lockett’s attorneys filed a lawsuit seeking information about the drug mixture that ultimately failed, the Oklahoma Supreme Court issued a stay to grant more time for review. But the governor announced that she would disregard the court’s ruling. A legislator introduced a resolution to impeach the five justices who had voted for the stay, alleging “a willful neglect of duty and incompetence.” The Supreme Court ultimately dissolved its stay and allowed Lockett’s execution to proceed.

The constitutional crisis may have been brief, but it was profoundly disturbing. As lifetime jurists and former chief justices of the supreme courts of Arizona and Indiana, we believe our treasured American system of checks and balances is harmed when our courts are threatened with intimidation. Our courts were designed to be the branch of government most insulated from politics.

This is especially critical when it comes to our criminal courts, which must be allowed to work properly and deliberately in order to protect the innocent, convict the guilty and provide just punishment. If judges cannot make life-or-death decisions based on the law without looking over their shoulders for threats of retaliation, they cannot uphold the Constitution and protect Americans’ rights.

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Courts in general

Ind. Gov't. - So what is the status now of the state toxicology lab?

There were a number of stories in March of 2012 on "the continuing brouhaha over the state Department of Toxicology and the veracity of its results," including this March 30, 2012 ILB post, which appears to be the most recent post on the topic. (Here is the entire list of ILB posts including the word "toxicology," including several recent, related Court of Appeals opinions.)

Saturday the Indianapolis Star published a long, front-page story by Mark Alesia reports that problems still exist. It begins:

It’s been two months since Colts owner Jim Irsay was pulled over on suspicion of driving while impaired, and still no formal charges have been filed.

And there may be a simple reason.

While law enforcement officials decline to discuss Irsay’s specific case, the blood draws conducted by the Carmel Police Department are tested by the Indiana Department of Toxicology, which has struggled for years to implement reforms, and has a current backlog of eight months for drug testing.

The delays are because the department has not had a stable staff for years, and its caseload grew from 5,960 in 2012 to 6,690 last year.

That doesn’t necessarily mean Irsay’s blood draw results won’t be ready for another six months, however. The department does expedite certain cases when requested. But the backlog shows that problems have lingered at the department since a 2011, when an Indianapolis Star investigation revealed testing errors and dysfunction.

In fact, evidence of its past troubles are visible throughout the agency’s offices on 16th Street today. Stacked in various places are boxes containing EC/IR II alcohol breath testing machines, and their accompanying printers.

The toxicology department purchased 250 of the devices more than four and a half years ago at a taxpayer cost of $1.5 million. Yet they have been sitting unused so long the warranty, which was extended once by the manufacturer, has run out. Only 40 have been deployed and 44 have been used for training.

Still, officials at the department, which was moved out of the Indiana University School of Medicine in 2012, say they are making progress at reform.

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Indiana Government

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

From Sunday, May 18, 2014:

From Saturday, May 17, 2014:

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/19/14):

Thursday, May 8

Next week's oral arguments before the Supreme Court (week of 5/26/14):

Thursday, May 29

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/19/14):

Next week's oral arguments before the Court of Appeals (week of 5/26/14):

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

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


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

Posted by Marcia Oddi on Monday, May 19, 2014
Posted to Upcoming Oral Arguments

Sunday, May 18, 2014

Ind. Gov't. - Still more on "State Examiner calls for state police investigation of recording and release of audit exit conference"

Updating this ILB post from May 18th, here is a Saturday story by David DeLong of WFIE14 that begins:

EVANSVILLE, IN (WFIE) - City Council Vice President Stephanie Brinkerhoff-Riley addresses the allegations that she secretly recorded a closed door meeting.

In a statement posted to Facebook, Brinkerhoff-Riley says, "The idea that I've done something wrong or am going anywhere is inaccurate. I've never seen such a rabid drive to hide the truth about the current state of the financial records of Evansville. The recording I made was to preserve the truth. The fact that it will be embarrassing is a testament to its value. Evansville still can't balance its checkbook after 2.5 years of Lloyd Winnecke in office. The way to solve a problem is to admit it exists. There's a reason our State Legislature made the potential penalty for the release of critical information to the public by an elected official an A infraction (speeding ticket). It was so that doing the right thing doesn't come at an unbearable cost. and I will fight any ticket issued. As to morality, I'll take my interpretation of morality over that of my critics any day."

ILB: Also of interest is the South Bend story from Courthouse News that begins:
Four South Bend, Ind., police officers claim a City Council member defamed them after listening to illegal wiretaps of their conversations.

Posted by Marcia Oddi on Sunday, May 18, 2014
Posted to Indiana Government

Ind. Decisions - Tax Court issued second opinion last Friday

In Van Buren Township, Madison County, Boone Township, Madison County, The Summitville Fire Protection Territory v. Department of Local Government Finance, a 7-page opinion, Judge Wentworth writes:

Van Buren Township, Madison County, Boone Township, Madison County, and the Summitville Fire Protection Territory have asked this Court to review the Department of Local Government Finance’s (DLGF) final determination denying their levy request. Upon review, the Court affirms the DLGF’s final determination. * * *

Even so, the Townships argue on appeal that the DLGF’s final determination denying their levy request was improper because a reasonable person would not have been misled by the Van Buren Township notice’s defects. The Townships assert that because “[t]he pair of notices were published on the same days in the same newspaper” and thus “when read together[, they] contain[ed] all the information that [was] necessary” under Indiana Code § 36-8-19-6(b). * * *

Unfortunately for the Townships, the Court cannot determine whether there is any merit to their argument because the administrative record in this case is completely devoid of any evidence demonstrating that the two notices were in fact published on the same days in the same newspaper. Accordingly, the Court cannot find the DLGF’s final determination was improper. The Townships’ request for relief is therefore denied.

Posted by Marcia Oddi on Sunday, May 18, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - "Ruling for 'PepperBall' Maker Falls Apart in 7th"

On May 9th the ILB posted Chief Judge Diane Wood's introduction to her opinion in Advanced Tactical Ordnance Sys v. Real Action Paintball, Incorpo., ending:

We conclude that the district court lacked personal jurisdiction over defendant Real Action, which preserved its objection on this point. We therefore reverse and remand with directions to dismiss on that basis.
But this summary by Kevin Lessmiller of Courthouse News Service gets to the essence of the ruling:
Advanced Tactical argued that its home state of Indiana constituted proper jurisdiction because Real Action was doing business there via its website "capable of accepting orders from citizens of Indiana," the 7th Circuit explained. * * *

But the Chicago-based appeals court reversed and remanded for dismissal on May 9, ruling that Real Action did not have "the necessary minimum contacts with Indiana to support specific jurisdiction."

"Having an 'interactive website' (which hardly rules out anything in 2014) should not open a defendant up to personal jurisdiction in every spot on the planet where that interactive website is accessible," Judge Diane Wood wrote for a three-member panel.

Posted by Marcia Oddi on Sunday, May 18, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Indianapolis man convicted of raping his sleeping wife sentenced to 8 years home detention"

Kristine Guerra reported the story May 16th in the IndyStar. Some quotes:

The sentence on 52-year-old David Wise, which came about two weeks after a jury trial late last month, is far more lenient than the minimum punishment on the crimes of which he was convicted. After a two-day trial and several hours of deliberation, the jury found Wise guilty of one count of rape and five counts of criminal deviate conduct — all of which are Class B felonies, each punishable by six to 20 years in prison. * * *

Wise was charged in 2011, after the woman told police that she had found sex videos of her on her now ex-husband’s cellphone. The woman, 36, said she has no memory of the sex, of consenting to it or of the videos being taken. * * *

Marion Superior Court Judge Kurt Eisgruber imposed a 20-year sentence, with 12 years suspended and eight years executed through home detention. Wise also will be on two years of probation, after the home detention is completed. In Indiana, a person on home detention is placed on a monitoring device and should be on constant supervision. * * *

Wise, who has no prior convictions, was married to the woman for 12 years. They were divorced in 2009.

In her testimony during a two-day trial last month, the woman said she had awoken several times when she was married to Wise feeling like her body had been “messed with.” She told detectives she believed Wise had been drugging her since 2005. At one point, according to court documents, she said she woke up in the middle of the night with a pill dissolving in her mouth.

The assaults, based on the dates on the smartphone videos, happened in 2008. The woman went to police in 2011 with a copy of the videos. In her testimony in court, the woman said she didn’t come forward sooner because she didn’t want her two children, a son and a daughter, to grow up without a father.

Unlike most cases that are reported long after the alleged acts occurred, the woman’s story is backed by video evidence, which, experts say, is a rarity among sexual assault cases that often rely solely on the victim’s word against the word of the defendant.

Posted by Marcia Oddi on Sunday, May 18, 2014
Posted to Indiana Courts

Environment - "Why do American farmers need some of the strongest anti-whistleblower laws in the land?"

That is the heading to this long story by Josh Voorhees in Slate. A few quotes:

Earlier this year, Idaho became at least the seventh state to pass a law aimed specifically at thwarting such undercover investigations, and roughly a dozen similar bills are currently winding their way through statehouses around the country. While the specifics vary, so-called ag-gag laws generally make it illegal to covertly record animal abuse on farms, or to lie about any ties to animal rights groups or news organizations when applying for a farm job. Idaho’s law is the strictest of those currently on the books. It threatens muckrakers with up to a year in jail and fines up to $5,000—a sentence, it should be noted, that’s the same as what someone convicted of animal abuse faces.

The laws specifically target animal rights groups like the Humane Society of the United States, People for the Ethical Treatment of Animals, and similar organizations that have increasingly turned to clandestine video in their battle with Big Ag. But the way many of the laws are tailored, they also could ensnare journalists, whistleblowers, and even unions in their legal net, in the process raising serious concerns about the legal impact on everything from free speech to food safety. A wide-ranging coalition of organizations, including the American Civil Liberties Union and the Center for Food Safety, has joined animal rights groups in challenging the Idaho law, along with a similar one in Utah, in federal court. The lawsuits also have the backing of the Government Accountability Project, the AFL-CIO, and a host of media organizations, including NPR. * * *

Both sides are set to get their day in court later this summer when a federal judge hears the suit against the Idaho law. But even if the law is ultimately struck down, the fight will continue. “If it fails, we’ll revise it,” [State Sen. Jim Patrick, a lead sponsor of the Idaho legislation] said. “I know we did the right thing.”

Posted by Marcia Oddi on Sunday, May 18, 2014
Posted to Environment

Law - "A Beginner’s Guide to Repaying Student Loans"

The NY Times' Ron Lieber's "Your Money" column Saturday began:

Too many people, including plenty of brand-new college graduates, fall far behind on their student loan payments for no good reason.

How many? The Department of Education does not supply much data on late payments. But the student loan expert Mark Kantrowitz, using data from lenders, estimates that between one-quarter and one-third of borrowers are late paying their first student loan bill.

It can get worse as the days and years go by. Last year, the Federal Reserve Bank of New York, using 2012 data from the credit bureau Equifax, determined that 35 percent of people under 30 who were supposed to be making student loan payments each month were actually 90 or more days delinquent.

Whatever the numbers, they add up to a normalization of tardiness that can damage the credit scores of young adults. And one big reason it’s happening is the fact that many among the indebted simply aren’t sure how many loans they have, how and when to pay them back correctly and how to find and use programs for people who can’t afford the full payments.

Let us pause for a moment to state the plain fact that the entire college financing system is a national disgrace. College costs are high, universities don’t counsel undergraduates well enough, families get in over their heads, there are too many types of loans, the repayment options are dizzying, and lenders and the companies that collect the payments are sometimes bad actors.

But this column exists for the far-from-ideal world we have to live in today, one where if the trend lines that the New York Fed has outlined continue, half of all 25-year-olds who have credit reports will have student loan debt in a couple of years. This week, we’re introducing a new student loan calculator. It can tell you what the average student loan debt is at schools you’re considering, what sort of salary might make the debt affordable and how different repayment options could significantly affect what you ultimately spend.

What follows is a basic guide for rookie student-loan debtors that can keep people out of some of the most common types of trouble.

The story includes a Student Loan Calculator with a number of features.

Posted by Marcia Oddi on Sunday, May 18, 2014
Posted to General Law Related

Friday, May 16, 2014

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In re: the Paternity of B.J., C.J. v. H.H. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: C.M., J.J., L.S., and A.S., Minor Children, M.H., Mother v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Sheila Suess Kennedy takes on Attorney General Greg Zoeller, at length

AG Zoeller's op-eds appear frequently in newspapers throughout Indiana. Here now is attorney and IU SPEA professor Sheila Suess Kennedy's op-ed in the Indianapolis Star today:

Lawyers are ethically obligated to put the interests of their clients first — to put aside personal prejudices and obsessions, and focus upon the client’s needs and objectives.

Which brings me to Indiana Attorney General Greg Zoeller.

The attorney general is elected to protect the legal interests of Hoosiers. Zoeller, however, has consistently used the position to advance his personal religious beliefs. He has intervened in national high-profile culture war cases having the most tenuous connection (if any) to Indiana. He has been especially eager to volunteer in cases involving gay rights; he spent enormous time and energy — and taxpayer resources — opposing same-sex marriage in the Supreme Court’s Windsor case, a case to which Indiana was not a party.

Last week, a federal court required Indiana to recognize the out-of-state marriage of Amy Sandler and Niki Quasney. Niki is battling a particularly aggressive cancer, and has been told that she is terminal. The couple has two children, ages 1 and 3. Niki wants to be recognized as married in her home state while she is still alive; she wants the comfort of knowing that her family will receive the legal protections that all other married families in Indiana receive.

Zoeller immediately announced his intention to appeal. As Lambda Legal noted, no other attorney general in the country has chosen to appeal after a court has protected the marriage of a same-sex couple on a temporary basis as a lawsuit moves forward because one of the partners is terminally ill. For example, the Ohio AG declined to appeal a court’s temporary order protecting the marriage of a man fighting Lou Gehrig’s disease as his lawsuit challenging the State’s marriage ban moved forward, even as the Ohio AG fought to uphold the ban.

When a Lambda attorney characterized the decision to appeal as “a display of cruelty,” Zoeller’s spokesperson accused the organization of an “unprofessional approach in their utterances toward opposing counsel.”

As a recovering lawyer, I have a very different view of what constitutes “unprofessional” conduct.

Using your elected position to further a theocratic agenda at the expense of voters who elected you to a secular office is unprofessional.

Volunteering your efforts — and spending our tax dollars — on high-visibility cases that don’t involve Hoosiers is unprofessional.

Taking voluntary positions on behalf of all Indiana residents with which a significant percentage of those residents vehemently disagree is unprofessional.

Denying a dying woman the comfort of knowing that her children will be protected, by appealing a temporary order that applies only to her family and has no effect on the outcome of the litigation over same-sex marriage is unprofessional.

And yes, cruel.

Sheila Suess Kennedy
Professor, Law and Public Policy
School of Public and Environmental Affairs
Indiana University Purdue University Indianapolis

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court disbars Indianapolis attorney, Steven B. Geller

In In the Matter of: Steven B. Geller, a 15-page, 4-1 disciplinary opinion, the Court writes:

We find that Respondent, Steven B. Geller, engaged in multiple acts of attorney misconduct, including dishonesty to a court and to the Commission, improper communications with a judge and with a represented party, neglect of vulnerable clients, disorderly conduct in a judicial facility, and conduct prejudicial to the administration of justice. For this misconduct, we conclude that Respondent should be disbarred. * * *

[The ruling contains 4 counts and many details. Geller is currently listed as active in good standing in the Roll of Attorneys]

The hearing officer recommended either suspension without automatic reinstatement or disbarment. The Court notes Respondent's history of misconduct, his unsuccessful prior attempt at rehabilitation, his inability to appreciate the wrongfulness of his current misconduct (except admitting "losing it" in Count 1), and his confrontational attitude toward those involved in the disciplinary process. Of particular concern is Respondent's continued inability to manage his anger, his attempts to blame others, including his own clients, for his misconduct, and his dishonesty toward a court and the Commission. Under these circumstances, the Court concludes that disbarment is warranted in this case.

The Court concludes that Respondent violated the Indiana Rules of Professional Conduct by multiple acts of misconduct, including dishonesty to a court and to the Commission, improper ex parte communication with a judge, improper communication with a represented party, pervasive neglect of vulnerable clients, disorderly conduct in a judicial facility, and conduct prejudicial to the administration of justice. * * *

Dickson, C.J., and Rucker, David, and Rush JJ., concur. Massa, J., concurs in part, dissents in part regarding the discipline, and would impose a three-year suspension without automatic reinstatement.

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on "State Examiner calls for state police investigation of recording and release of audit exit conference"

Updating this post from this morning, with unfortunately sparse information, thanks to the reader who sent me this link to another news source for Evansville, WFIE 14. Their story, with video, is headed "Evansville City Council Vice President accused recording a confidential meeting." Some quotes from the story:

EVANSVILLE, IN (WFIE) -

An Evansville City Council member is under fire, accused of recording a confidential meeting.

According to Evansville City Council President John Friend, city council vice president Stephanie Brinkerhoff-Riley is suspected of recording and then leaking the city's audit exit review.

According to Friend, the law prohibits the release of that recording until the report is officially released.

Friend tells 14News that a 3rd party e-mailed him and City Council Attorney Scott Danks with an excerpt of that recording.

Friend tells 14News, he hasn't spoken to Stephanie Brinkerhoff-Riley, but says if it's confirmed that she leaked the recording he says, "Adjustments would have to be made." Friend went on to say that, "trust has been tarnished." * * *

State Board of Accounts officials say they will be pursing prosecution for the recording.

We're told the State Police have been asked to investigate.

ILB: No word yet as to what specific law would have been violated by the alleged recording of the meeting, or by the alleged leaking.

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Indiana Government

Ind. Decisions - More dialogue on the Supreme Court's decision this week in Bond v. State

Updating this ILB post from yesterday afternoon, re the Supreme Court decision issued May 13th in McLynnerd Bond, Jr. v. State, the ILB received two more notes from attorneys last night. Notably, both prosecutors and defense attorneys are reacting to the opinion:

Additional contributions to this dialogue from those who work in the criminal justice system are still welcome.

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Judge orders citizen to pay city's attorneys' fees: Plaintiff's attorney plans to appeal decision in power plant objection"

Updating a long list of earlier ILB entries on Julie Kitchell v. City of Logansport (see this July 17, 2013 post for an overview, and this Nov. 14, 2013 post for the result), Michael Kirk of the Pharos Tribune reports today:

A Cass County judge ruled Thursday a Logansport citizen must pay more than $24,000 in attorneys’ fees the mayor and city council received during a lawsuit regarding the city’s power plant project.

Julie Kitchell, Logansport, represented by attorney Jim Brugh, filed the lawsuit in March 2013 alleging the city did not follow a sequence spelled out in state public-private agreement law with a company proposing to develop a power plant in the city.

The city’s attorneys argued since the suit was first filed that the state’s public-private agreement statutes do not require sequential timing.

After being dismissed where it was first filed in Cass County Superior Court II, the suit was eventually argued before the Indiana Supreme Court, which ruled in favor of the city.

Logansport Mayor Ted Franklin and the city’s attorneys have called the charges frivolous since the suit was first filed and expressed a desire to seek the city’s attorneys’ fees from Kitchell.

An order issued by Cass County Superior Court II Judge Rick Maughmer Thursday granted the city’s petition for all $24,235 of its attorneys’ fees for work done at the county level of the lawsuit. * * *

The state supreme court did not grant the city’s request for attorneys’ fees for work done at the appellate level of the lawsuit. Franklin said the lawsuit has cost the city a total of about $70,000. * * *

Brugh also said it would be inappropriate for Kitchell to pay the city’s attorneys’ fees because the suit was a case of first impression. He maintained this position upon learning of the decision on the fees.

“There is no rationale that can reasonably lead to the conclusion that Julie Kitchell’s case was not a matter of first impression,” Brugh said Thursday.

In his findings of fact in the case, [Mark Crandley, an attorney with Barnes & Thornburg’s Indianapolis office representing Franklin in the case] writes because the case never raised a legitimate issue under public-private agreement statutes, “there was no case at all, much less one of first impression.”

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - More on "Defense seeks gag order of Marion Co. daycare shooting victim"

Updating this ILB post from yesterday, WTHR reported in the 11 PM news last night that "a judge denied a gag order that could have silenced" Shirley Justice, and then broadcast their interview, conducted by Andrea Morehead. The long story concludes:

Shirley Justice continues to slowly heal and doctors expect 100 percent recovery. As for the alleged suspect, a judge reduced Christopher Justice's bond from $100,000 to $25,000.

He's still in jail. We've learned his defense attorney plans to use an insanity defense and is currently seeking a change of venue when the trial begins.

This is but one aspect of the story, see more via the links in this Feb. 28th post.

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Indiana Courts

Ind. Gov't. - "State Examiner calls for state police investigation of recording and release of audit exit conference"

The story in the Evansville Courier & Press begins:

The State Examiner with the Indiana State Board of Accounts said Thursday evening he has asked the Indiana State Police to investigate the recording and release of a tape recording of the March 12 “exit conference” between state auditors and city officials regarding Evansville’s 2012 city audit.
Sounds interesting, maybe important. But the rest is behind the C&P paywall.

[Updated at 9:40 AM] By this tweet:

Mark Wilson ‏@ECPmarkwilson
UPDATE: Brinkerhoff-Riley says she violated 'no ethical rules or Indiana statutes' in recording audit meeting

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Indiana Government

Ind. Courts - "Busch announces showdown with Meade for Tippecanoe Circuit Court"

A reader sends this note:

More Tippecanoe Judicial Candidate Drama...

One incumbent (Superior IV race) already lost in primary (Zeman 58%, Donat 42%). Superior II vacated by sitting Judge Busch; Superior V, vacated by Judge Meade. Circuit Judge Daniel retiring. And now this! Busch changes mind on retirement and enters different race.

The reader points to this WLFI 18 story by Dan Klein, that begins:
TIPPECANOE CO., Ind. (WLFI) – The judging carousel continues to turn in Tippecanoe County. Another current judge announced he will run for a spot on a different bench in the fall.

Current Superior II Judge Thomas Busch (D) plans to run for Circuit Court in November. He told News 18 that his opponent in that race is a primary reason, current Superior V Judge Les Meade (R).

If someone else would have won the Republican primary, Busch may not have decided to run.

“I probably wouldn’t,” he said.

Busch declined to say anything more related to Meade, who beat Earl McCoy in the Republican primary last week.

Busch says he was urged to run and not retire by a number of people. When no other Democrat decided to run for Circuit Court Judge, he decided he would rather keep working than retire.

See the ILB's May 7th report here.

Posted by Marcia Oddi on Friday, May 16, 2014
Posted to Indiana Courts

Thursday, May 15, 2014

Ind. Decisions - A potential dialogue on the Supreme Court's decision this week in Bond v. State? [Updated]

Earlier today the ILB noted at the end of this post on a Lake County case that an ILB attorney-reader sent a note this morning to express his belief that the Supreme Court decision issued May 13th in McLynnerd Bond, Jr. v. State was a landmark opinion, that the Court had really nailed it.

A short time later the ILB received an email from another reader, voicing a different perspective, which is posted below, that set me to thinking. The ILB would like to foster a constructive dialogue about the Bond opinion. For those who work in the criminal justice system (especially in Lake County), what do you think of the following passage that begins a paragraph on p. 6 of the Supreme Court's opinion?

But with respect to the detective’s statement that Bond might not receive a fair trial because of his race and the likely composition of a prospective jury, our sentiment goes beyond the trial court’s "great concern" and the Court of Appeals majority’s disapproval of it as being "inappropriate." This is not a police tactic that we simply "do not condone" because it is deceptive.
Is the detective's statement deceptive or, sadly, does it ring true? Are African-Americans well represented on juries in Lake County? If the detective's statement was essentially true, is reversal of this conviction the right remedy - or should something far more fundamental and sweeping be done by the Supreme Court to increase the diversity of venires?

And what about other counties where there are few African-Americans on juries? Here is the thoughtful email I received from a deputy prosecutor in another northern Indiana county:

Hi Marcia

I note where a reader felt that this was a landmark decision, and that the court had nailed it. I am seriously conflicted about this case, what it means or doesn’t mean.

Nuts and bolts - sure I get that police, lawyers, even judges should refrain from saying things that undermine faith in the judicial system. I get that the pressure created in this particular case was pretty harsh, maybe even undue.

Here is my big problem - the court doesn’t even address the elephant in the room, which in my mind is: What if the detective was accurate about the jury situation? Does the court merely bypass the whole issue by stating that the detective can’t talk about the elephant or use the presence of the elephant as leverage? Does that change the fact that there might actually be an elephant in the room?

I know that this is a potentially huge issue. Gigantic. Difficult. But here is the rub - I have caught myself thinking about the possibility of the same thing being true in my county. For years one local defense attorney used to object to the entire venire because he had a black client and there were only one or two black people in the entire venire. The venire was composed of white people that worked for the school system or the hospital, and a few farmers. How, exactly, does the young black man with dreads and accused of a drug crime, or murder, feel about his chances for a fair trial from those “peers?” Is he justified? Those objections never got anywhere because the case law did not support the position.

I am a deputy prosecutor, and I care deeply about the system getting the right result for the right reasons, which is why this is so troubling to me. The possibility that the detective’s characterization might be true is almost impossible to really test, or to solve. Does that mean we shouldn’t even discuss it?

These are pretty random, unrefined thoughts, but I feel compelled to at least share them with someone who has the capacity to foster consideration of the issue.

[Updated at 3:25 PM] Comments are starting to come in. Please identify yourself and tell me that you are an attorney (defense, prosecutor, etc.) but I won't use your name unless you say is is okay in your note.

Here is a note from an attorney/friend here in Indianapolis:

Marcia,

Please pass on to the writer of the comment [the one identified as "a deputy prosecutor in another northern Indiana county"] that this reader is genuinely uplifted by her concern for the quality of the criminal justice system. She really has a public servant’s heart in the best sense. Would that every public servant were as concerned with our system being the best it can be.

Richard

A comment from a mid-Indiana county:
I love your blog – read it every morning (and afternoon). I have a quick comment, if you are taking them, about the State v. Bond case. Please do not use my name.

I practice private criminal defense in a county with very little racial or ethnic diversity. Such a statement by police in my county would be absolutely true. In fact, I am sure I am not alone when I advise clients who belong to minorities that a plea offer may be in their best interests at least in part due to the lack of a diverse venire. I have had cases that would have been great cases but for the race or ethnicity of my client versus that of the (white) complaining witness. Am I undermining my client’s faith in the criminal justice system and infringing on his right to a fair trial? Or am I advocating effectively for him by telling him the truth? Of course this is different factually from Bond, but the similarities bear consideration.

[More] From an Indianapolis attorney:
I believe that the message of the Supreme Court in Bond addresses and continues the application of the principles stated, and challenges each of us who practices law, whether civil, criminal, plaintiff, prosecution or defense, to understand that we lawyers are the first line, and the last line, that makes the system work. Kudos to the defense lawyer who fought in the trenches for years. Kudos to the prosecuting attorney who wonders if there still remain systemic issues with the process of selecting a jury of one's peers. Indeed, this could be the subject of an Indiana CLE seminar for the benefit of us all, and those we serve.

Posted by Marcia Oddi on Thursday, May 15, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Tax Court decides one, filed May 14th

In Hoosier Roll Shop Services, LLC v. IDOR, a 12-page opinion, Sr. Judge Fisher writes:

Hoosier Roll Shop Services, LLC has challenged the Indiana Department of State Revenue’s (Department) final determination denying it an exemption from Indiana’s sales and use taxes for equipment it used and materials it consumed in grinding and calibrating its customers’ work rolls during the 2007 and 2008 tax years (the years at issue). The matter, currently before the Court on the parties’ cross-motions for summary judgment, presents one issue: whether in grinding and calibrating its customers’ work rolls, Hoosier Roll produces other tangible personal property. The Court finds that it does. * * *

In Rotation Products, this Court developed four questions that would assist it in determining whether a “remanufacturing” or “repairing” process produces a new product. The Court has determined that, in this case, the answer to each of those four questions favors Hoosier Roll; that is, Hoosier Roll produces other tangible personal property when it grinds and calibrates its customers’ work rolls. Consequently, the Court GRANTS summary judgment in favor of Hoosier Roll and AGAINST the Department.

Posted by Marcia Oddi on Thursday, May 15, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Riviera Plaza Investments, LLC and Haresh Shah v. Wells Fargo Bank, N.A., a 19-page opinion, Judge Bradford writes:

On July 7, 2006, Appellant-Defendant Riviera Plaza Investments, LLC executed a fixed rate promissory note (“Note”) by which it promised to pay Citibank N.A., a national banking association, successor, by merger, to Citibank, FSB, a federal savings bank (“Citibank”) the sum of $2,925,000.00 plus interest. On that same date and in connection to the Note, Riviera also executed a mortgage on certain real estate owned by Riviera, and any improvements located thereon (“Mortgage”), and Appellant-Defendant Haresh Shah executed a loan guaranty (“Guaranty”). Riviera subsequently defaulted on the loan.

The Note, Mortgage, and Guaranty (collectively the “Loan Documents”) were eventually assigned to Appellee-Plaintiff Wells Fargo Bank, N.A. (“Wells Fargo”), which then became involved in ongoing collection and foreclosure proceedings against Riviera and Shah (collectively, “Appellants”). On May 13, 2013, the trial court issued its order of judgment. With regard to Riviera, the trial court granted Wells Fargo’s motion for summary judgment. With regard to Shah, the trial court entered judgment in favor of Wells Fargo and against Shah.

On appeal, Appellants contend that the trial court erred in finding in favor of Wells Fargo. Specifically, Appellants claim that the record does not support the trial court’s determination that (1) the Loan Documents were properly assigned to Wells Fargo, (2) Wells Fargo was entitled to recover from Appellants, (3) the assignment of the right, title, and interest of the Loan Documents did not amount to a material alteration of the Loan Documents which would release Shah from his obligation under the Guaranty, and (4) Wells Fargo was entitled to an award of interest. Finding no error by the trial court, we affirm.

NFP civil opinions today (4):

J.H. v. J.K. (NFP)

In re the Paternity of D.M.Y.: M.S.R. v. B.Y. (NFP)

Jason Keel v. April Najdowski (NFP)

Thomas M. Slaats v. Sally E. Slaats n/k/a Sally E. Jaggers-Weber (NFP)

NFP criminal opinions today (2):

Rayterrion Wheeler v. State of Indiana (NFP)

Rick Delks v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 15, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Defense seeks gag order of Indiana shooting victim"

The most recent story the ILB has posted on this case is from Feb. 28th, headed "Family of woman shot outside day care fear suspect's bond is too low." The AP had this story yesterday afternoon - some quotes:

INDIANAPOLIS (AP) — A lawyer for an Indianapolis man accused of shooting his ex-wife outside a day care center was given until Thursday to request a gag order that would keep the woman from doing a television interview, a judge in the case said after the attorney missed a motion hearing.

Defense attorney Jackie Butler filed an emergency motion Tuesday asking the court to bar Shirley Justice from the interview. The motion says a station plans to air the interview Thursday night, and that it could prejudice potential jurors. Christopher Justice has been charged in the Feb. 18 shooting.

The interview with WTHR-TV was already recorded. It wasn't clear what that would mean if a gag order is issued.

A hearing on Butler's motion was scheduled for Wednesday morning in Marion County court, but the lawyer didn't show up. Courtroom staff who tried to locate her told the judge that Butler was taking part in a mediation.

With Butler missing from the hearing, Judge Grant Hawkins declined to rule and instead gave her another day to file a second emergency motion.

The ILB has not yet seen that a WTHR story has aired.

Posted by Marcia Oddi on Thursday, May 15, 2014
Posted to Indiana Courts

Ind. Courts - Judge tosses criminal case against Gary cop: “I will not put a victim in jail,” Boswell said. “This case is dismissed.”

Ruth Ann Krause's report in the Gary Post Tribune today begins:

In an unusual move, a Lake Superior Court judge has dismissed a criminal case against a Gary police officer who was charged with attacking his girlfriend in their apartment in October.

Judge Diane Ross Boswell’s decision Wednesday in the case against Demonte Yanders was not requested by prosecutors nor Yanders’ attorney and came after the judge rejected the state’s request that Tiffany Swagerty be jailed until she appeared for pretrial questioning by the defense.

Boswell had granted defense attorney Mark Gruenhagen’s request for a protective order that would bar Swagerty from testifying in Yanders’ trial because she had twice failed to show up under subpoena for a deposition with Gruenhagen. The state then sought to have her detained until she agreed to appear to give the sworn statement.

“I will not put a victim in jail,” Boswell said. “This case is dismissed.”

Prosecutors said they will appeal her ruling. Yanders was charged with criminal confinement, strangulation and battery in the October 2013 incident in the couple’s apartment in the 500 block of South Vermilion Street in Gary.

ILB: Lake Superior Judge Diane Ross Boswell was the trial court judge in the Indiana Supreme Court case decided May 13th, McLynnerd Bond, Jr. v. State of Indiana, where, to quote the NWI Times, "the state's high court threw out the murder confession of a Gary man, concluding his admission of guilt was improperly influenced by a Gary detective who told him a black man can't get a fair trial in Crown Point," thereby "set[ting] a precedent for judges to follow in similar future cases."

[More] An ILB reader sent a note this morning to express his belief that the Bond decision was a landmark opinion, that the Court had really nailed it.

Posted by Marcia Oddi on Thursday, May 15, 2014
Posted to Ind. Trial Ct. Decisions | Indiana Courts

Ind. Gov't. - "Indiana lawmakers to study effects of casino competition"

Adding to this post from yesterday, Dan Carden reports today in the NWI Times:

INDIANAPOLIS | State lawmakers this summer will study the ongoing and potential impacts of increased competition for Indiana's gaming industry, including the effects of a potential Chicago casino on riverboats in Hammond, East Chicago, Gary and Michigan City.

The review by the Interim Study Committee on Public Policy will be the first since 2009, when a similar panel urged the Legislature to authorize land-based gaming and proposed other changes to keep Indiana's casinos popular. They face competition with slot machines going into Illinois bars and restaurants and new gambling options in Michigan, Ohio and Kentucky.

However, aside from some minor tax changes, the Republican-controlled General Assembly has done little since then to preserve Indiana gaming and its more than 10,000 Hoosier jobs.

That indifference is starting to hit the state's bottom line. Over the past year, state revenue from riverboat wagering taxes declined more than 20 percent versus 2013 and is down nearly $300 million a year compared to a decade ago.

The recent drop mostly is due to a new land-based Cincinnati casino that's crushed attendance and betting at the three nearby Indiana casinos on the Ohio River.

If Illinois lawmakers finally get on board with plans for a massive downtown Chicago casino and authorize an additional casino in the south suburbs, Northwest Indiana residents and communities, which get a slice of riverboat revenue, would be hit hard — along with the state of Indiana.

Posted by Marcia Oddi on Thursday, May 15, 2014
Posted to Indiana Government

Ind. Gov't. - More on: The Legislative Council sets Technical Correction Day to amend HEA 1006, the Criminal Sentencing Law

Updating this ILB post from yesterday, there are more details now on the upcoming Technical Correction Day. Here is what Jim Shella added to his WISHTV blog post:

Over a two year period state lawmakers completely rewrote the Indiana sentencing guidelines to make sure that violent criminals serve more time in prison and non-violent criminals serve less. The governor signed the bill into law before mistakes were found. Lawmakers won’t specify what those mistakes are but they are serious.

“Everyone walked away with the impression that one of the crimes was in the enhanced penalty column,” said House Speaker Brian Bosma, “and it, in fact, was not during the drafting and redrafting of the bill.”

“The intent of the bill was to make sure that people who commit crimes against kids get the fullest punishment available,” said House Minority Leader Scott Pelath, “and there may have been a couple technical drafting errors with respect to sections like that.” Also, some minor crimes got more serious penalties.

The other necessary correction involves a tax on alternative fuels. The way a new law was written it places a tax on some alternative fuels that were included by mistaken. Again, lawmakers wouldn’t specify the fuels involved.

Chelsea Schneider has a long $$ story in the Evansville Courier & Press. She writes:
Technical changes to both bills [HEA 1006 and HEA 1180] will first be considered by the Legislative Council, whose membership includes Republican and Democratic leaders from both chambers, the morning of June 17. The full House and Senate will then review and vote on the changes in the afternoon.

The proposed changes will be circulated to the public at least a week before the June meeting.

House Democratic leader Scott Pelath said there was bipartisan support for the June session day. * * *"My general point is we don't want to make a habit of technical correction day. The fact we have one is a good thing."

Gov. Mike Pence will also need to approve the changes. * * *

"It should be an extraordinary event," Bosma said. "The issues we are talking about are of enough important - dealing with criminals and dealing with taxes - we thought it was appropriate to return."

From Eric Berman's WIBC report (with audio):
Senate Judiciary Chairman Brent Steele (R-Bedford) says he's concerned one of the changes goes beyond a mere correction to a dispute over how much leeway judges will have to suspend sentences. Bosma is adamant there won't be any changes to the substance of the bills, and says he and Senate President Pro Tem David Long (R-Fort Wayne) are satisfied the changes are just fixing drafting errors.

The General Assembly sets aside one day after its regular session as a potential "technical corrections day" to address errors that can't wait until the next session gets rolling in January. It used that authority for the first time last year, not to fix typos but to override a gubernatorial veto.[See 2013 ILB report here]

Here is the text of the 1995 statute authorizing a technical correction day, IC 2-2.1-1-2.5:
IC 2-2.1-1-2.5. First regular technical session

Sec. 2.5. (a) Before the first regular session adjourns sine die, the general assembly may adopt a concurrent resolution to fix a day to convene the first regular technical session of the general assembly. The day fixed under this subsection may not be earlier than thirty (30) days after the first regular session adjourns sine die.
(b) Only the following may be considered and acted upon during a first regular technical session:
(1) Bills enacted during the first regular session vetoed by the governor.
(2) Bills to correct conflicts among bills enacted during the first regular session.
(3) Bills to correct technical errors in bills enacted during the first regular session.
(c) The first regular technical session must adjourn sine die before midnight after it convenes.
(d) The concurrent resolution adopted under subsection (a) may provide that the first regular technical session is not required to convene if the speaker of the house of representatives and the president pro tempore of the senate jointly issue an order finding that the purposes for which a regular technical session may meet under subsection (b) do not justify the cost and inconvenience of meeting in a regular technical session.
(e) If the general assembly does not meet in a regular technical session under this section, the general assembly shall consider and act upon vetoes of bills enacted during the first regular session at the next second regular session.
(f) For purposes of Article 5, Section 14 of the Constitution of the State of Indiana, the first regular technical session is not considered a regular session if the general assembly does not consider or act upon vetoes of bills enacted during the first regular session under this section.
As added by P.L.4-1995, SEC.5.

Posted by Marcia Oddi on Thursday, May 15, 2014
Posted to Indiana Government

Wednesday, May 14, 2014

Ind. Gov't. - More on: The Legislative Council sets Technical Correction Day to amend HEA 1006, the Criminal Sentencing Law [Updated]

Here are the lists of study topics assigned to study committees for this summer:

[Updated at 6:00 PM] Jim Shella of WISHTV has posted this story about the bill errors that led to the calling of a technical corrections day.

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Indiana Government

Courts - "Immigration court tech crash drags on" - amazing story

This is an astonishing story from Josh Gerstein at Politico. Some quotes:

A massive computer crash at the nation’s immigration courts recently entered its second month, leaving many of the courts' systems frozen in time and making it difficult for those in deportation proceedings to get information on their cases.

The technology failure is causing filings by lawyers to pile up at courts around the country and appears to be delaying the process of deciding which immigrants have legal grounds to stay in the U.S. and which should be kicked out.

“We are now limping along, keeping the system running with paper clips and scotch tape. It’s appalling,” said Dana Marks, president of the National Association of Immigration Judges. “You can’t access recordings made in the past without the computerized docketing system. Unless the case was calendared before the system crashed, we cannot use the digital recording system to make a record now.” * * *

The computer breakdown has received only a smattering of attention from the press and hast yet to trigger the high-level crisis response that the Obama Administration launched when its new healthcare.gov website ran aground last fall. Some involved say a nationwide computer failure in federal civil or criminal courts would never have been allowed to carry on for more than a few days.

However, those affected directly by the immigration court woes are not U.S. citizens or voters, though their families may be.

“Look at all the publicity over the Obamacare” website, Marks said. “Shouldn’t this have the same level of outcry and shock? This is the docketing system for cases involving 360,000 people allegedly in US illegally. Not all are removable, but it’s a law enforcement function. I think most of the American people would think that is something that should have multiple redundancies.”

ILB: In 2012 the ILB had this post about the federal Economic Development Administration, whose site had been down for several months, allegedly because of a virus. This was followed a year later by an Inspector General’s report on the Economic Development Administration’s reaction to the infections, which was reported on the The Volokh Conspiracy in a post headed "Malware Infection Leads Government Agency to Destroy $170,000 Worth of Computing Hardware (And Plan to Destroy $3 Million Worth)."

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Courts in general

Ind. Gov't. - The Legislative Council sets Technical Correction Day to amend HEA 1006, the Criminal Sentencing Law

The General Assembly held a Technical Correction Session Day in 2013, but as it turns out, no technical corrections bill was considered. The plan was to use the day to override the veto of HEA 1546, but that fell through. Here is a list of earlier ILB posts on the 2013 non-event.

Today the Indiana Legislative Council met (here is the agenda) and set June 17 as the 2014 Technical Correction Session Day. Two bills are slated for corrections. HEA 1006, the Sentencing bill, and HEA 1180, a tax bill.

I haven't yet seen a list of the study topics assigned to study committees for this summer.

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one, re sentence modification

In State of Indiana v. Tammy Sue Harper, a 5-page, 5-0 opinion, Chief Justice Dickson writes:

The State of Indiana appeals an order of the Tippecanoe Circuit Court modifying the sentence of defendant Tammy Sue Harper, claiming that the trial court lacked authority to modify the defendant's sentence because more than 365 days had passed since the defendant was sentenced and the prosecutor did not approve of the modification. The Court of Appeals agreed and reversed the modification. State v. Harper, No. 79A02-1303-CR-272, 1 N.E.3d 219 (Ind. Ct. App. Dec. 30, 2013) (table). We now grant transfer and hold that the prosecutor's conduct, under the unique factors of this case, established the prerequisite assent. * * *

The State compares this case to Fulkrod, where the trial court reserved the right to modify in the original sentencing order and nearly five years later modified the sentence without the prosecutor's approval. 753 N.E.2d at 631. We reversed the sentence modification order, ex-plaining that the trial court had sought "to reserve a power that it did not possess beyond the 365-day limit." Id. at 633. Here, in contrast, the trial court did not seek to reserve a power that it did not possess. Rather, the court acknowledged the need for consent of the prosecutor, expressed its desire to go forward with the sentence modification, and asked the prosecutor's office to inform it of any objection "in the next week or so"—and the deputy prosecutor agreed.

For these reasons, we conclude that in the context of the facts of this case, the prosecu-tor's conduct and communications adequately conveyed the "approval of the prosecuting attor-ney" required in Indiana Code section 35-38-1-17(b), and that the trial court did not err in pro-ceeding to grant the defendant's motion for sentence modification. Affirmed.

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Wachovia Bank N.A., as Trustee for the Registered Holders of GSRPM 2004-1 Mortgage Pass-Through Certificates v. Yevonne Corpening a/k/a Yevonne R. Corpening; Sovereign Bank, et. al. (NFP)

In re the Matter of the Guardianship and Estate of Jay Carver, an adult v. Margaret Ditteon (NFP)

NFP criminal opinions today (2):

Kenneth B. Hutslar v. State of Indiana (NFP)

Richard A. Perkey v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Paul J. Page suspended for 2 years without automatic reinstatement

In In the Matter of: Paul J. PAGE, a 2-page, 3-1 opinion filed May 12, 2014, , the Court writes:

Respondent was convicted on a guilty plea to the following felony under federal law: Aiding and Abetting Fraud by Wire, Radio, or Television. The basis of the crime was that Respondent failed to disclose on a bank loan application the names of other persons who were the source of the down payment for the loan. Respondent was sentenced to two years of probation and a $10,000 fine. The Court entered an order of interim suspension on January 27, 2014, effective that date. See Matter of Page, 2 N.E.3d 679 (Ind. 2014) (Massa, J., not participating). * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years without automatic reinstatement, beginning the date of this order. * * *

All Justices concur, except Dickson, C. J., who dissents, believing that Respondent's felony conviction disqualifies him from the practice of law in this state and that he should be disbarred, and Massa, J., who did not participate.

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "7th Circuit upholds warrantless entry, seizure of gun rights activist"

That is the headline to this long story today by Bruce Vielmetti of the Milwaukee Journal Sentinel about yesterday's 7th Circuit opinion in Krysta Sutterfield v. City of Milwaukee (h/t Michelle Olsen ‏@AppellateDaily). The story begins:

Milwaukee police who forced their way into a gun rights advocate's home without a warrant, took her for an emergency mental evaluation and seized her gun were justified under the circumstances and protected from her civil rights claims, a federal appeals court has ruled.

Krysta Sutterfield, who twice made news because of her practice of openly carrying a handgun — at a Brookfield church and outside a Sherman Park coffee shop — drew police attention in 2011 after her psychiatrist reported a suicidal remark Sutterfield made during a difficult appointment.

Sutterfield, 45, claimed police violated her rights against unreasonable search and seizure and Second Amendment rights to keep a gun, but a district judge dismissed the case.

The 7th U.S. Circuit Court of Appeals, in a 75-page opinion analyzing existing law about when police may act without search warrants, upheld the decision but suggested there might be better ways to balance personal privacy rights in the context of emergency mental health evaluations.

"The intrusions upon Sutterfield's privacy were profound," Judge Ilana Rovner wrote for three-judge panel. "At the core of the privacy protected by the Fourth Amendment is the right to be let alone in one's home."

But the court also found, that on the other hand, "There is no suggestion that (police) acted for any reason other than to protect Sutterfield from harm."

In a short concurrence, Judge Daniel Manion said he hoped state legislatures will "provide for a judicially issued civil warrant process that would authorize law enforcement to enter someone's home when there is probable cause to believe that she poses a risk to herself or others because of mental illness."

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Supreme Court bars police claims of racist juries to win confessions"

Dan Carden of the NWI Times reports on the Supreme Court's decision yesterday in McLynnerd Bond, Jr. v. State of Indiana (ILB summary here). Some quotes:

INDIANAPOLIS | Police officers attempting to obtain a confession absolutely cannot mislead a suspected criminal into believing that he or she will not receive a fair trial due to race, the Indiana Supreme Court ruled Tuesday.

In a 5-0 decision, the state's high court threw out the murder confession of a Gary man, concluding his admission of guilt was improperly influenced by a Gary detective who told him a black man can't get a fair trial in Crown Point.

Justice Steven David, writing for the court, acknowledged police have many tactics at their disposal to induce a confession, but suggesting to a suspect the judicial system is inherently racist crosses the line.

"This was an intentional misrepresentation of rights ensconced in the very fabric of our nation's justice system — the rights to a fair trial and an impartial jury, and the right not to be judged by or for the color of your skin — carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess," David said. "We condemn it."

The Supreme Court said it's not enough merely to disapprove of the detective's remarks while allowing the practice to continue, as the Court of Appeals did May 31, 2013, in its 2-1 ruling permitting the confession to stand.

"A firm line" must be drawn so as to not "tacitly countenance the erosion of everything so many have worked so hard to achieve in the realm of racial equality in the justice system," David said.

"All courts must remain vigilant to eradicate any last vestiges of the days in which a person's skin color defined their access to justice." * * *

Lake Superior Judge Diane Ross Boswell said she had "great concern" about a detective telling a suspect he couldn't receive a fair trial due to the location of the courthouse.

But she denied Bond's motion to suppress his confession, because she could find no similar case invalidating a confession based on police suggestions of possible jury bias.

The Supreme Court said in its ruling it understood Boswell's predicament and issued its decision, in part, to set a precedent for judges to follow in similar future cases.

[More] Here is Tim Evans' story from the Indianapolis Star.

Posted by Marcia Oddi on Wednesday, May 14, 2014
Posted to Ind. Sup.Ct. Decisions

Tuesday, May 13, 2014

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

For publication opinions today (0):

In Daylene M. (Atchison) Coleman v. Scott A. Atchison, a 10-page opinion, Judge Najam writes:

Daylene Coleman (“Wife”) appeals the trial court’s order dissolving her marriage to Scott Atchison (“Husband”) following a final hearing. Wife presents two issues for our review: 1. Whether the trial court abused its discretion when it denied her request for incapacity maintenance. 2. Whether the trial court abused its discretion when it divided the marital estate. We reverse and remand with instructions. * * *

Because we cannot reconcile the inherent inconsistency in the dissolution court’s conclusions both to grant and deny incapacity maintenance, pursuant to Cannon we remand and instruct the dissolution court either to award Wife incapacity maintenance or to identify specific extenuating circumstances directly related to the statutory criteria for awarding such maintenance that would justify denying the award. * * *

Here, as Wife points out, the dissolution court expressly found that Wife had rebutted the presumption of an equal division of the marital estate and that “a division of property weighted in [Wife]’s favor is warranted[.]” But despite that finding, the dissolution court divided the marital estate in half. The trial court’s judgment on this issue is not supported by its finding. This is clear error. On remand, we instruct the dissolution court to award Wife more than fifty percent of the marital estate consistent with its finding that Wife has rebutted the presumption of an equal division.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Antonio Beaven v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, May 13, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In In re Mental Health Actions for A.S., Sara Townsend, a 7-page, 5-0 opinion, Justice David writes:

The Indiana Code provides a mechanism for individuals to seek immediate emergency treatment for individuals they believe to be a threat to themselves or others. Here, a woman’s co-worker completed an application to initiate just such a process, which led a trial court judge to issue a warrant for the woman’s detention and treatment. The judge later grew skeptical as to the truth of the allegations set forth in the application and ordered the co-worker to appear in court, found her in contempt, and imposed sanctions. Because we conclude that the trial court lacked the statutory authority to find the co-worker in contempt, and because the co-worker’s actions did not place her under the trial court’s authority to impose sanctions as an inherent power of the judiciary, we reverse. * * *

Townsend appealed. The Court of Appeals concluded that the trial court lacked statutory authority to find Townsend in indirect civil contempt. In re Mental Health Actions for A.S., 997 N.E.2d 30, 35–36 (Ind. Ct. App. 2013). But it nevertheless upheld the trial court’s order directing Townsend to pay A.S.’s hospital bill and attorney fees, and the fine paid to the hospital, as a legitimate exercise of the trial court’s inherent powers to issue reasonable sanctions to protect the integrity of the court and prevent abuse of the judicial process. Id. at 36–37. We granted transfer, thereby vacating the Court of Appeals opinion. In re Mental Health Actions for A.S., Sara Townsend, 3 N.E.3d 975 (Ind. 2014) (table); Ind. Appellate Rule 58(A). * * *

Townsend’s role in this matter began and ended with her completion of the application for emergency detention. And that action did not even take place in the courthouse. Rather, Townsend went to the hospital, completed the application with a social worker, and had no further part to play once she signed the paperwork. It was the hospital that then faxed the physician-endorsed application to the court. And it was the trial court that approved the application and issued the warrant to detain A.S. * * *

A trial court cannot simply otherwise hale a citizen into court and sanction him or her. The inherent power of the judiciary to impose sanctions, while flexible and significant, begins and ends with the courtroom and the judicial process. Thus, because we conclude that the trial court here lacked authority for its contempt finding, and because Townsend otherwise committed no misconduct once the legal proceedings were initiated, she is outside the trial court’s inherent power to impose sanctions.

Conclusion. We reverse the trial court’s judgment finding Townsend in contempt and imposing sanctions upon her.

In McLynnerd Bond, Jr. v. State of Indiana, an 11-page, 5-0 opinion, Justice David writes:
In this case, a police detective interrogated an African-American murder suspect. We have long held that law enforcement officers conducting interrogations may use a range of tactics and techniques to persuade suspects to provide incriminating statements. And we understand that simple question-and-answer methods will not always be successful. But the flexibility afforded to law enforcement is still bound by state and federal constitutional protections.

Over the course of several hours the detective here employed a number of interrogation techniques to convince the suspect to admit his guilt. Most of these techniques were acceptable. But when he implied that the suspect’s race precluded him from receiving a fair trial and an impartial jury, he went too far. * * *

On February 25, 2011, the State charged Bond with murder. He filed a motion to suppress his statement, claiming that it was involuntarily given in violation of the Fifth Amendment to the U.S. Constitution and Article 1, § 14 of the Indiana Constitution. After a two-day hearing in which the detective and Bond both testified, the trial court denied Bond’s motion. It noted, however, that “[t]he suggestion by the detective that the defendant could not receive a fair and impartial jury due to the location of the Courthouse causes great concern to the Court, and is strongly discouraged.” Bond sought an interlocutory appeal and the Court of Appeals accepted jurisdiction.

The Court of Appeals affirmed in an unpublished memorandum decision. Bond v. State, (Ind. Ct. App. May 31, 2013). The majority of the panel—like the trial court judge—“d[id] not approve of the comment” made by the detective and considered it “inappropriate,” but found that in viewing the interrogation in its entirety, it did not appear that the comment brought about Bond’s confession. Judge Kirsch dissented and would have reversed the denial of Bond’s motion to suppress because of the detective’s comment. Id. at *6 (Kirsch, J., dissenting). We granted transfer, thereby vacating the Court of Appeals decision. * * *

A police officer may engage in a number of tactics and techniques to induce a confession without rendering that confession involuntary. “Such questioning is undoubtedly an essential tool in effective law enforcement,” and “[t]he line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw.” Haynes v. Washington, 373 U.S. 503, 515 (1963). But today we hold that intentionally misleading a suspect as to his constitutionally guaranteed rights to a fair trial and an impartial jury, because of his race, sits squarely on the wrong side of that line.

Conclusion. The trial court below concluded that, despite its great concern, “there is no caselaw that the Court is aware of that holds that this type of persuasion renders the confession involuntary.” We clearly understand the trial court’s predicament. But now there is. We reverse the trial court’s denial of Bond’s motion to suppress and remand this case for further proceedings.

The Bond case was the subject of by Dan Carden in the the NWI Times on Feb. 7th, following the oral argument. Today Tim Evans of Indianapolis Star has posted a story on the opinion, headed "Officer’s comments to black suspect went too far, Supreme Court rules."

Posted by Marcia Oddi on Tuesday, May 13, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Ending the Taboo on Citing Memorandum Decisions: the deadline for comments is today - Tuesday, May 13th.

Updating this post from May 9th, today is the deadline for comments on whether Appellate Rule 65(D) should be amended to allow citation of memorandum (non-for-publication) decisions as persuasive precedent. From the post:

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 ILB has written much on this topic over the years. In looking back over the posts, I have selected and recommend to readers this long post from Oct. 27, 2008, as being particularly useful on this issue. Here are two samples:

Posted by Marcia Oddi on Tuesday, May 13, 2014
Posted to Indiana Courts

Environment - Rogers Group withdraws Americus quarry request for now

Updating this list of earlier ILB posts on the proposed stone quarry near Americus, Chris Morisse Vizza reports today in the Lafayette Journal Courier in a long story that begins:

Rogers Group Inc. announced Monday that it was hitting the pause button on its request to operate a stone quarry near Americus in order to concentrate on addressing citizen concerns.

But the company has its work cut out to persuade members of the Americus Area Community Coalition that the quarry will benefit the community.

Andy Williams, vice president, said the company was withdrawing its application for a special exception that has been pending before the Tippecanoe County Board of Zoning Appeals.

"We have been working on this project for four years," Williams said. "There is no reason to rush this. We will spend more time soliciting input from the community."

About a year ago Rogers Group applied for the special exception, which is required before the company can begin mining stone from a 524-acre site at 8032 Old Indiana 25 North between the road and the Wabash River. The land would be leased from owners Henry and Larry Bosma.

Nearby residents responded swiftly with 400 signatures on a petition against the development, and formation of the Americus Area Community Coalition to organize the opposition effort.

Neighbors cited concerns about noise, the prospect of up to 300 dump trucks a day on the winding, two-lane road and the potential impact on water levels for private wells and the river.

Several property owners also appealed the construction and floodway permit issued for the quarry in January by the Indiana Department of Natural Resources. A hearing date has not yet been set for an administrative law judge to hear evidence from the property owners and the company.

Posted by Marcia Oddi on Tuesday, May 13, 2014
Posted to Environment

Ind. Gov't. - County must pay legal fees for lawyers of judges seeking a court mandate, regardless of the outcome

Last December the ILB quoted a story in the News&Tribune that began:

In September, the Clark County Council denied a request from Circuit Court Presiding Judge Vicki Carmichael to fund the creation of two new positions in the county’s probation department. The council voted 6-0 Monday to contest a lawsuit filed by Carmichael against the council in Indiana Supreme Court requesting a mandate of funds to pay for the new positions.

“I believe that, unlike some other mandates, I believe we have a chance of contesting this one,” said County Council Attorney Scott Lewis.

Before it appoints a special judge to the case, the Indiana Supreme Court has ordered mandatory mediation between the involved parties, to be completed no later than Feb. 15, 2014.

Today Charlie White reports in the Louisville Courier Journal:
Clark County taxpayers will shoulder more of a burden this year after the recent mediation of a lawsuit the county courts filed last year to fund two new probation officer positions.

Money from the county general fund is being used to pay the roughly $31,000 salary of one of the two newest probation officers, and on Monday night the County Council voted 6-1 to use money from its riverboat gambling fund to pay $14,000 in attorney fees.

The council in August tabled a request for the two positions from Clark Circuit Judge Vicki Carmichael, head of the county court system.

It turned down the request three months later, prompting Carmichael to file the suit.

County Council attorney Scott Lewis told members they are required by Indiana law to pay legal fees for lawyers of judges seeking a court mandate, regardless of the outcome. The other probation officer position, which has an identical salary, is being funded through probation user fees.

Posted by Marcia Oddi on Tuesday, May 13, 2014
Posted to Indiana Courts | Indiana Government

Monday, May 12, 2014

Ind. Courts - Indianapolis attorney resigns from the bar

In In the Matter of: Todd A. WOODMANSEE, filed May 8th, the Supreme Court accepts the resignation of Mr. Woodmansee, writing in part:

A "Verified Complaint for Disciplinary Action" against Respondent was filed on May 14, 2013. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline 23(17), which requires an acknowledgement that the material facts alleged are true. In addition, Respondent acknowledges that there is presently pending an investigation into other allegations of misconduct and that Respondent could not successfully defend himself if prosecuted.

IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately.

This May 14, 2013 post at the Indy Democrat Blog reported "Woodmansee Running for Superior Court Slot":
There is one hat in the ring. Local attorney Todd Woodmansee is running for Superior Court Judge. He filed on May 7. Woodmansee is a former Deputy Attorney General and Deputy Prosecutor. He has been in private practice for the last 10 years. Woodmansee just recently moved to Pike Township from Warren Township, where he still owns his old home in Irvington. Woodmansee is just the first candidate in a race that is expected to draw several.
A later post, from Jan. 22, 2014, reports:
Attorney Todd Woodmansee has abandoned his bid for Superior Court Judge and has endorsed his prospective slating opponent, Marcel Pratt, according to a post on his Facebook site earlier today.

The move by Woodmansee leaves Pratt, the husband of U.S. District Court Judge Tanya Walton Pratt, unopposed at the February 8 Marion County Democratic Party Slating Convention. Woodmansee had been campaigning for the position for since even before he filed officially in May.

Pratt will be on the fall ballot.

Posted by Marcia Oddi on Monday, May 12, 2014
Posted to Indiana Courts

Ind. Decisions - Tax Court issues two today

In West Ohio II, LLC v. Marion County Assessor, Marion County Treasurer, and Marion County Auditor, a 7-page opinion, Judge Wentworth concludes:

West Ohio has filed an injunction petition but it has not filed an original tax appeal. For the reasons stated in this order, this Court therefore does not have subject matter jurisdiction to rule on West Ohio’s Petition. Marion County’s Motion is GRANTED and this cause is hereby DISMISSED.
In Washington Park Cemetery Association, Inc. v. Marion County Assessor, Marion County Treasurer, and Marion County Auditor, an 8-page opinion, Judge Wentworth writes:
Come now the parties, Washington Park Cemetery Association, Inc. having filed a Petition to Enjoin Collection of Tax (Petition) and the Marion County Assessor, Treasurer, and Auditor (collectively “Marion County”) having filed a Motion to Dismiss for lack of subject matter jurisdiction (Motion). The Court, being duly advised in all matters, grants Marion County’s Motion. * * *

For many years, Washington Park’s entire complex received an exemption from property taxation pursuant to Indiana Code § 6-1.1-10-27. In 2013, however, Washington Park received notice that the exemption previously applied to the Community Life Center had been removed effective with the March 1, 2012 assessment. The stated reason for the exemption’s removal was that special events such as weddings sometimes were held there and there were no burials at that location.

On November 4, 2013, Washington Park filed both a Petition to the Indiana Board of Tax Review for Review of Exemption (Form 132) for the March 1, 2012 assessment date and a Petition for Correction of Error (Form 133) with the Marion County Property Tax Board of Appeals (PTABOA). The PTABOA denied the Form 133 and Washington Park then appealed that denial to the Indiana Board on December 13, 2013.

As of April 14, 2014, the Indiana Board had not yet scheduled a hearing on Washington Park’s appeals. Consequently, Washington Park filed its Petition with this Court asking this Court to enjoin the collection of property taxes resulting from the exemption’s removal. Marion County subsequently filed its Motion, asserting that the Court lacked subject matter jurisdiction. The Court conducted a hearing on May 8, 2014. * * *

In its Petition, Washington Park acknowledges that it has not yet received a final determination from the Indiana Board. Accordingly, Washington Park admits that its case is not yet ripe to file a petition for an original tax appeal. Nonetheless, Washington Park maintains that this Court has subject matter jurisdiction to rule on its Petition for three reasons. * * *

[I] [T]he Court finds that the language “will raise” in Indiana Code §33-26-6-2(b)(1) does not mean that injunctive relief can be granted before an original tax appeal has been initiated. * * *

[II] [T]he Tax Court may grant injunctive relief only if an original tax appeal is pending.

III. Finally, Washington Park argues that the principle of stare decisis requires the Court to follow its rationale and holding in American Trucking Associations, Inc. v. Indiana, 512 N.E.2d 920 (Ind. Tax Ct. 1987). While the rationale and holding in American Trucking does indeed support Washington Park’s position, this Court declines to follow it.1

Posted by Marcia Oddi on Monday, May 12, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Transfer list for week ending May 9, 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, May 9, 2014. It is two pages (and 17 cases) long.

One transfer was granted last week:

Transfer previously granted was vacated by a 3-2 vote in Curtis F. Sample, Jr. v. State of Indiana. Oral argument was heard on April 24th, you may watch it here. Here, from the order:
AFTER FURTHER REVIEW, INCLUDING CONSIDERING THE POINTS PRESENTED BY COUNSEL AT ORAL ARGUMENT ON APRIL 17, 2014 AND DISCUSSION AMONG THE JUSTICES IN CONFERENCE AFTER THE ARGUMENT, THE COURT HAS DETERMINED THAT IT SHOULD NOT ASSUME JURISDICTION OVER THIS APPEAL.

ACCORDINGLY, THE COURT OF APPEALS NOT-FOR-PUBLICATION MEMORANDUM DECISION, SAMPLE V. STATE, NO. 45A03-1302-CR-52 (IND. CT. APP. SEPT. 19, 2013), IS REINSTATED AS A MEMORANDUM DECISION AS DESCRIBED IN APPELLATE RULE 65(D), THE ORDER GRANTING TRANSFER OF JURISDICTION ON JANUARY 9, 2014 IS VACATED, AND TRANSFER IS HEREBY DENIED.

DAVID, MASSA, AND RUSH, JJ., CONCUR. DICKSON, C.J., AND RUCKER, J., DISSENT TO THE ORDER VACATING TRANSFER.

Posted by Marcia Oddi on Monday, May 12, 2014
Posted to Indiana Transfer Lists

Ind. Courts - More on "Murder case could sit year in legal limbo"

Updating this ILB post from May 5th, about the case relating to the murder of Erin Justin, whose body was found in Noble County, but whose body may have been moved from Allen County, Rebecca S. Green of the Fort Wayne Journal Gazette had another story Saturday, headed "Noble prosecutor appeals venue ruling in murder case." It begins:

Noble County Prosecutor Steve Clouse wants a higher court to review a judge’s recent decision in a pending murder case.

Filed Friday, the motion for an interlocutory appeal asks the state’s appellate court to decide whether the case against Andres Gonzalez Jr. remains in Noble County or gets transferred to Allen County, as Gonzalez’s defense attorney requested.

An interlocutory appeal is filed while the case is pending – in this case, still in its beginning stages.

Posted by Marcia Oddi on Monday, May 12, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Urban chicken debate sparked in Elkhart"

The full headline to this story Saturday in the Elkhart Truth, reported by Dan Spalding, reads: "Urban chicken debate sparked in Elkhart: Goshen and South Bend have adopted policies, and Warsaw's city council could vote later this month." The long story begins:

ELKHART — Could Elkhart be one of the next Indiana communities to consider allowing chickens in residential areas?

City councilman Brian Dickerson said he’d like to see the council at least consider the idea.

Dickerson said he’s received numerous calls from people who said they are interested in raising chickens in their backyard if the city would lift its existing ban.

Right now, the city treats chickens as any other type of farm animal that is prohibited in the city.

But raising chickens has become popular and many towns and cities have adjusted their ordinances to permit the practice on a small scale.

South Bend began permitting chickens a year ago. Goshen has begun a pilot program, and Warsaw's city council could soon vote on a revised plan after an original proposal failed to hatch enough support.

Other communities such as Hamlet, Cumberland, Indianapolis, Bloomington and Gary already allow urban chickens.

The popularity — aside from the appeal of having fresh eggs from your backyard — coincides with a national movement that favors locally produced food. One story at worldwatch.org suggests chickens have become the “buy local” mascot.

The ILB has been covering the urban chicken movement since 2009 - here is a list of some earlier entries.

The Elkhart Truth story points to an interesting May 2nd Inquisitr story headed "Michigan Loses ‘Right To Farm’ This Week: A Farewell To Backyard Chickens and Beekeepers." A quote:

Meanwhile, neighboring Indiana Governor Mike Pence signed Senate Bill 179 a few weeks before which freed up poultry and egg sales from local and state regulation.

Posted by Marcia Oddi on Monday, May 12, 2014
Posted to Indiana Government

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

From Sunday, May 11, 2014:

From Saturday, May 10, 2014:

From Friday afternoon, May 9, 2014 (for those of you who started celebrating Mothers Day early):

Posted by Marcia Oddi on Monday, May 12, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 5/12/14):

Thursday, May 15

Next week's oral arguments before the Supreme Court (week of 5/19/14):

Thursday, May 8

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 5/12/14):

Monday, May 12

Tuesday, May 13

Wednesday, May 14

Next week's oral arguments before the Court of Appeals (week of 5/19/14):

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

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


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

Posted by Marcia Oddi on Monday, May 12, 2014
Posted to Upcoming Oral Arguments

Sunday, May 11, 2014

Ind. Courts - "Fort Wayne attorney accused of issuing threat"

Rebecca S. Green reported Friday in the Fort Wayne Journal Gazette:

A Fort Wayne attorney faces a charge of intimidation, accused of sending a threatening message to the ex-husband of his client.

Allen County prosecutors charged James A. “Jim” Hanson, 41, of the 6500 block of Underwood Cove, on Thursday with the Class D felony punishable by up to three years in prison.

According to court documents, Chad Vice called Fort Wayne Police late last month to report a threat. Vice told officers he was divorced and his ex-wife’s attorney was calling his home and sent him a threatening message on Facebook.

In the message, Hanson threatened to “anal rape (Vice) so hard (his) teeth come loose,” according to court documents.

“You pissed off the wrong attorney,” Hanson wrote, according to court documents. “I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little bitch. I’ve got you in my sights now.”

Continue reading the story here.

Posted by Marcia Oddi on Sunday, May 11, 2014
Posted to Indiana Courts

Ind. Courts - "Grand jury does not charge LaPorte County prosecutor" [Updated]

Updating this ILB post from Dec. 26, 2013, Stan Maddux wrote May 9th in the NWI Times:

A grand jury has decided not to pursue charges against LaPorte County Prosecutor Bob Szilagyi, who had signed the names of his ex-wife and a notary public on legal documents involving his divorce.

The grand jury ruled there was insufficient evidence that Szilagyi knowingly or intentionally committed Class C felony forgery and Class D felony counterfeiting in a decision released publicly on Friday.

Szilagyi on Tuesday lost his bid for a second term in the Democratic primary election to John Espar, But Szilagyi said he doubts if the outcome of the election would have changed much had the grand jury's decision come out before the election.

He did say the case had been decided before he was elected prosecutor in 2010 or shortly afterward, the outcome of the election could have been more favorable.

Szilagyi said he's now going to discuss with his attorney, Michael Drayton, the possibility of filing a lawsuit seeking monetary damages for malicious prosecution, and discuss whether to begin the process of seeking criminal charges.

Under Indiana law, Szilagyi said malicious acts with intent to do things like influence an election is a Class D felony.

"There's a possibility I could ask for the special prosecutor to look at the case," said Szilagyi. * * *

In 2012, Szilagyi's law license was suspended for 60 days by the Indiana Supreme Court citing misconduct.

Criminal charges were later examined after his ex-wife filed a motion to have the case reviewed for prosecution.

Szilagyi said the case going this far was politically motivated.

He alleged his former wife was represented by attorneys whose services were provided at no cost to try and return to their former positions as deputy prosecutors if his opponent, John Espar, was elected.

Espar received 70 percent of the vote to defeat Szilagyi.

[Update] Here is another story, this one by Matt Fritz for the LaPorte Herald Argus. Some quotes:
On Friday, La Porte County Circuit Court received word that a grand jury convening to determine whether the state should charge Szilagyi for counterfeiting or forgery for his actions in faking his wife's signature on a document, issued a no bill of indictment order on April 25. * * *

The bill was sealed until March 6 and not made available to the La Porte County Circuit Court until Friday.

"It was a bunch of B.S. that they did it," Szilagyi said during a phone interview on Friday. "And it was all for political reasons."

Szilagyi has maintained that the issue came up as a means to guarantee his loss at the primary elections, which he did lose Tuesday to John Espar. He said he couldn't say why the document was sealed so long. In a previous interview he said he was held to an oath not to disclose the verdict until the document was unsealed. The verdict was turned in by the grand jury more than a week before the elections.

"I can't tell you (why it was sealed)," he said. "You'll have to ask the special prosecutor (Richard Fleming). It would have been nice if he had (unsealed the verdict) before the election, but that's how it goes." * * *

As far as the future goes, Szilagyi said he is looking into the possibility of filing charges against some of the prosecutors in the case, especially in regards to Indiana code 3-14-3-18, which makes it a Class D felony to level charges against a candidate to influence an election.

Posted by Marcia Oddi on Sunday, May 11, 2014
Posted to Indiana Courts

Law - "Minnesota Now Requires A Criminal Conviction Before People Can Lose Their Property To Forfeiture"

From Forbes, an op/ed by contributor Nick Sililla that begins:

In a big win for property rights and due process, Minnesota Gov. Mark Dayton signed a bill yesterday to curb an abusive—and little known—police practice called civil forfeiture. Unlike criminal forfeiture, under civil forfeiture someone does not have to be convicted of a crime, or even charged with one, to permanently lose his or her cash, car or home.

The newly signed legislation, SF 874, corrects that injustice. Now the government can only take property if it obtains a criminal conviction or its equivalent, like if a property owner pleads guilty to a crime or becomes an informant. The bill also shifts the burden of proof onto the government, where it rightfully belongs. Previously, if owners wanted to get their property back, they had to prove their property was not the instrument or proceeds of the charged drug crime. In other words, owners had to prove a negative in civil court. Being acquitted of the drug charge in criminal court did not matter to the forfeiture case in civil court.

H/T to The Volokh Conspiracy, which has this post by Ilya Somin headed "Minnesota adopts law curbing asset forfeiture abuse."

Posted by Marcia Oddi on Sunday, May 11, 2014
Posted to General Law Related

Courts - "Indiana federal prisoners hope Obama program will mean freedom"

Maureen Hayden, CNHI Statehouse Bureau, reports today in the Anderson Herald Bulletin:

INDIANAPOLIS — Within days of Attorney General Eric Holder’s announcement of a new clemency program for drug offenders, Monica Foster started getting letters and calls for help.

Foster, the chief federal public defender in the Southern District of Indiana, assembled a team to vet a wave of requests from inmates in the prison in Terre Haute and elsewhere.

“We expect to be deluged,” Foster said of the initiative, which has given hope to inmates sent to prison under tough federal drug laws.

One attorney already has assembled a list of 300 inmates who may qualify for clemency under criteria issued by the U.S. Justice Department. And the team has started to dig into the case of a 46-year-old prisoner who’s been behind bars since he was 19 and caught selling crack cocaine.

Foster and her staff welcome the work.

“This is a huge milestone in justice,” she said. “I’ve been practicing law for 33 years, and before this attorney general, all we heard was ‘tough on crime, tough on crime, tough on crime.’ ”

In late April, Holder announced the Justice Department is significantly expanding the criteria it uses to consider when to recommend clemency for President Obama’s review.

The push is part of the Obama administration’s policy to relieve overcrowding in federal prisons through what it calls a “Smart on Crime” initiative.

It also seeks to remedy what Holder has called antiquated and unfair penalties that were locked into federal law in the 1980s, at the height of the nation’s war on drugs.

The new clemency rules are designed for non-violent drug offenders who have served at least a decade in prison and who, if sentenced under today’s laws, would qualify for a lower sentence. * * *

Earlier this week, the federal Bureau of Prisons started notifying inmates, including in Terre Haute, of the new clemency criteria.

Inmates have the option of starting clemency requests by completing a five-page questionnaire to be vetted by a coalition of legal organizations that are part of the Clemency Project 2014. Those organizations are working with the Justice Department to provide free legal advice to prisoners. Private practice attorneys may be called to offer services pro bono, depending upon need.

The clemency process can be time-consuming and cumbersome. It requires attorneys to dig back into court records that may be decades old to put together an argument for Obama to make what is a discretionary decision.

Foster said there’s some urgency, as well.

“We’ve got to get this done before the president leaves office,” she said.

Posted by Marcia Oddi on Sunday, May 11, 2014
Posted to Courts in general

Ind. Courts - "Indiana auto-body shops accuse insurers of collusion"

From a very long story today in the Indianapolis Star, reported by Jeff Swiatek, a few quotes:

Body shops in at least six states, including Indiana, have banded together to sue the nation's top auto insurers, including State Farm, Geico and Progressive. They accuse insurers of antitrust violations, collusion by making deals with preferred auto-body shops to tamp down prices, and interfering with body shops' business by dictating how they do repairs. There are also allegations that shops are being forced to use substandard repair parts.

Body shops are seeking damages from the suits that could amount to billions of dollars.

Mississippi trial lawyer John Eaves Jr., known for launching high-profile lawsuits, such as one against the operator of the grounded Italian cruise ship Costa Concordia, is the driving force behind the body-shop lawsuits. He hopes to work with local counsel to file similar claims in as many as 40 states within a year. * * *

State Farm, the Bloomington, Ill.-based insurance giant, is the main target of the lawsuits, said Eaves, the Mississippi trial lawyer, because of its market dominance and creation of an influential survey of body shop wage rates used to justify how much it pays to cover labor costs on a repair.

The Indiana lawsuit alleges State Farm "manipulates the results" of the wage survey to show rates as lower than they really are, while refusing to detail how the survey is done.

"The shops are simply required to blindly accept State Farm's pronouncements" on what prevailing body shop wages are around the state, the Indiana lawsuit says. * * *

The only Indiana-based plaintiff in the Indiana lawsuit is Indiana Farmers Mutual Insurance, whose legal counsel, Sam Ellingwood, said he thinks the company shouldn't have been listed as a defendant and was confused with its much-larger in-state competitor Indiana Farm Bureau, which is not named as a defendant. Ellingwood said Indiana Farmers will ask to be dropped from the suit.

Eaves said he thinks the numerous lawsuits he and co-counsel are filing could eventually be consolidated in one court. He said he expects to present testimony from "whistle-blowers" who worked for insurance companies and will give evidence of collusion among companies in their business tactics.

Posted by Marcia Oddi on Sunday, May 11, 2014
Posted to Indiana Courts

Ind. Law - "Changes to expungement process poses danger to public"

That is the headline to this $$$ story in today's Martinsville Reporter Times, reported by Keith Rhodes. All we can read without subscribing is:

MARTINSVILLE — Morgan County Prosecutor Steve Sonnega said the expungement law was bad when it first took effect July 1. Now it really puts the public in danger, he said.

Where the law previously kept expungement requests and their hearings open, changes in that law that went into effect in March when Gov. Mike Pence signed HEA1155 appear to close all proceedings to the public. Some interpretations suggest that even the request itself is not public record. The decision of the court to grant or deny expungement is also sealed.

Some readers may recall this list of ILB posts last fall, under the heading Morgan County prosecutor to challenge expungement."

Posted by Marcia Oddi on Sunday, May 11, 2014
Posted to Indiana Law

Saturday, May 10, 2014

Courts - Same-sex couple is married today in Arkansas after trial court ruling. Reminiscent of N.J.?

Here is a chart showing the organization of Arkansas' courts. There are 121 Circuit Court judges, each elected for a 6-year term, and their opinions may be reviewed by their Court of Appeals and/or Supreme Court.

Yesterday, May 9th, an Arkansas Circuit Court judge found that "the Arkansas constitutional and legislative ban on same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional." Here is a link to the 13-page opinion, Wright v. Arkansas, via the Arkansas Times.

Chris Geidner reports at BuzzFeed in a story updated several times that:

The ruling, posted to the court’s docket at 4:51 p.m. Friday, did not include a stay. As such, if no stay is granted by Monday morning, when clerks’ offices re-open, it is expected that — as happened in Utah and Michigan — same-sex couples will seek to marry at that time.

Attorney General Dustin McDaniel, a Democrat who last week said he supports same-sex couples’ marriage rights but would continue defending the state’s ban on such marriages, will appeal the ruling. * * *

[Circuit Judge] Piazza is running unopposed for re-election on May 20 for his judgeship, to which he was first elected in 1990. The circumstances make his ruling different from the federal judges — who have lifetime tenure — to have ruled in favor of marriage equality. * * *

UPDATE at 8:07 PM
The state is seeking an immediate stay of the trial court ruling, as posted by Equality Case Files.

Update: May 10, 11:52 a.m.: The first same-sex marriage license was issued in Eureka Springs, Ark., this morning.

On Twitter, Geidner writes:
The license was issued in Carroll County, Arkansas, which has regular Saturday hours for obtaining marriage licenses.
Politico reported at 1:32 PM today:
EUREKA SPRINGS, Ark. — Two women were married on a sidewalk outside a county courthouse in Arkansas on Saturday, breaking a barrier that state voters put in place with a constitutional amendment 10 years ago.

A day after Pulaski County Circuit Judge Chris Piazza said the ban was "an unconstitutional attempt to narrow the definition of equality," Kristin Seaton, 27, and Jennifer Rambo, 26, exchanged vows at an impromptu ceremony, officiated by a woman in a rainbow-colored dress.

The couple had spent the night in their Ford Focus after traveling to Eureka Springs from their home at Fort Smith, and was the first of about 10 couples to line up outside of the courthouse before it opened.
"Thank God," Rambo said after Carroll County Deputy Clerk Jane Osborn issued them a license, ending a brief period of uncertainty when a different deputy county clerk said she wasn't authorized to grant one and questioned whether Piazza's order in a courtroom 150 miles away had any bearing in Eureka Springs.

ILB: This is reminiscent of the NJ State Superior judge's same-sex marriage ruling last September. On Oct. 18th the "Supreme Court of New Jersey today refused to stay trial Judge Mary Jacobson's ruling," saying, "among other reasons, the State has not shown a reasonable probability of success on the merits." On Oct. 21st, SCOTUSblog reported: "New Jersey Governor Chris Christie, convinced that the state’s challenge to same-sex marriages would fail in the state supreme court, on Monday had his legal staff withdraw an appeal on the issue."

Events are unlikely to move quite as quickly in Arkansas, but New Jersey is an example where a trial judge's ruling turned out to be the only ruling needed to institute state-wide same-sex marriage.

Posted by Marcia Oddi on Saturday, May 10, 2014
Posted to Courts in general

Friday, May 09, 2014

Ind. Courts - Some Highlights of Yesterday’s “Insider’s Guide to Indiana Appellate Practice” & Today’s CLE with Justice Rush: E-Filing is Coming and Much More

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

This morning I attend an Indiana Public Defender Council CLE that included Justice Rush as a speaker, and yesterday I attended the “Insider’s Guide” CLE sponsored by the ISBA Appellate Practice Section, which included an impressive line-up of clerks, staff attorneys, and administrators from the appellate clerk’s office, Court of Appeals, and Supreme Court. Maggie Smith was a terrific host of the fast-paced event that covered a lot of ground with previously submitted questions and several audience questions.

Note: The summary below does not include verbatim replications of answers and at times may include my own additional thoughts or, at the very end, editorial comments.

E-filing of briefs

Both CLEs included some discussion of a new appellate case management system connected to Odyssey, which is expected later this year. The electronic filing of briefs should soon follow. The clerk’s office will have the technical capability in 2015, when a pilot project is likely for the e-filing of briefs in cases from certain trial courts or a specific subcategory of cases. E-filing for all appellate cases (with likely exceptions for pro se cases, etc.) can be expected in 2016 or 2017, at the latest. The system will function in many ways like PACER, so uploading a brief will simultaneously serve all counsel of record.

Justice Rush’s comments

In addition to e-filing on the horizon, Justice Rush said to expect rule changes shortening the timeline for preparing transcripts. The deadline is presently 90 days, which contributes significantly to the time it takes for an appeal.

In response to a question about things not to do at oral argument, Justice Rush’s list included avoiding/dodging the questions, beginning the argument by reciting the facts (the justices have read the briefs), chewing gum, and scrolling through an iPad at the podium.

Justice Rush has read the entire trial record in every case in which she authored the court’s opinion.

Justice Rush likes textual headings in briefs and uses them in her opinions (unlike the justice she replaced, who followed the somewhat cryptic U.S. Supreme Court approach of Roman numerals and letters with no text). She cautioned against excessive footnote use and does not include many in her opinions.

Insider’s Guide

Filing. For those filing documents in person at the Statehouse, the Clerk’s office peak hours are early in the morning, over the lunch hour, end of the day. To avoid a line, try 10:00 to 11:30 and 2:00 to 3:30. And, as I was told when filing something today, Friday morning is less busy than Friday afternoon.

If documents are not taken to the Clerk’s office before 4:30, they may be deposited in the Rotunda box at the second floor east (Market St.) entrance to the Statehouse.

Appellate motions or briefs may be also be filed by depositing them in the U.S. Mail, “postage prepaid, properly addressed to the Clerk.” App. R. 23(A)(2). The appellate rules differ from the Trial Rules, which require “in order for a filing by mail to be deemed to have occurred on the date of mailing, that the mailing is ‘by registered, certified or express mail.” Marlett v. State, 878 N.E.2d 860, 864 (Ind. Ct. App. 2007) (quoting Ind. Trial Rule 5(F)(3)). The Clerk will generally filemark a document as filed on the date of the postmark. Therefore, if counsel deposits a document in the mail too late in the day to receive a postmark for the day that it is due, additional action is required. Counsel should tender a separate attorney’s affidavit, stating the time and location where the brief was placed in the U.S. Mail and served on opposing counsel. Kevin S. Smith, Filing by Mail – Do You Really Need to Drive to the State House?, The Appellate Advocate 5-6 (Winter 2006) (citing Carrasco v. Grubb, No. 53A01-0410-CV-453 (Ind. Aug. 12, 2005) (order)).

Defects. When documents are not filed in person and do not conform with the rules, the Clerk’s office will issue a notice of defect for a variety of problems (lack of page numbers, wrong color cover, faulty certificate of service, etc.). The document will be marked received instead of filed. The sole exception is the Notice of Appeal, which will always be filed-marked, even if it is late, fails to include necessary information, or is otherwise defective. The Court of Appeals’ staff attorneys will review Notices of Appeals, and the court may dismiss an appeal when one is defective. Opposing counsel will often file a motion to dismiss raising the issue. What remains unanswered is whether dismissal will occur for relatively minor problems with a timely Notice of Appeals, such as the failure to include one or more of the items required by Appellate Rule 9.

Extensions of time. Lawyers who request additional time to file their briefs can generally expect an initial extension of 30 days. A second request for thirty days could be shortened, although each case is different. Any third extension will require extraordinary circumstances. These are general rules, which do not apply to some categories of cases where extensions are either prohibited or require a stronger showing. Because the deadline for a reply brief is only fifteen days, lawyers should not expect a thirty day extension.

Discretionary interlocutory appeals are discussed each week by a rotating motions panel at the Court of Appeals. One of the staff attorneys who prepares memos for those cases discussed his approach to the cases. A recommendation to deny is likely when (1) one or more deadlines has been missed; (2) he cannot figure out what is going on with the case (the Court of Appeals will have only a motion—not a transcript or appendix—so it’s especially important that counsel explain the issue(s) clearly; and (3) the issue is especially fact sensitive. The limited record from some issues pursued on interlocutory appeal may present challenges to the reviewing court, which are easily avoided by denying the motion and waiting for an appeal after a trial or other final judgment.

The Supreme Court Administration office includes an administrator, deputy administrator, and four staff attorneys. One of those staff attorneys, Geoff Davis, explained that each spends about half of their time working on memos to the justices in civil appeals. Each has a specific focus beyond that, with Mr. Davis serving as the point person for original actions filed with the court. Other lawyers focus on death penalty cases, requests for records, and attorney discipline cases. The staff attorneys will attend pertinent parts of the Court’s weekly conference when cases are discussed; law clerks do not attend conference.

The Administrator’s office will issue a memo in every case assigned to a justice to author the opinion. That memo will include a short summary of the justices’ views from conference, which will be helpful to the clerk involving in drafting an opinion.

Why Have Rules if Lawyers Don’t Follow Them?

I think it’s a lawyer’s obligation to know and follow the appellate rules. Cases should not be dismissed unless the violation is extreme, and I have mixed views on footnotes slamming counsel, which are sometimes appropriate for recurring problems or persistent offenders. Two instances of seemingly routine rule flouting were discussed at Thursday’s CLE. Although I’m not a fan of either rule, I follow both and think others should — or, better yet, help to amend them.

Citing unpublished/memorandum Indiana opinions. Appellate Rule 65(D) is very clear: except in narrow circumstances (to establish res judicata, collateral estoppel, or law of the case), memorandum decisions “shall not be regarded as precedent and shall not be cited to any court . . . .” (emphasis added). A number of speakers suggested the citation of memorandum decisions happens with some regularity. No one condemned the practice, and one clerk mentioned it won’t get lawyers into trouble but should be done in a footnote. The clerk will read the unpublished opinion that lawyers cite — despite the lawyer’s complete disregard of the rule.

Appellate litigation should be a level field where everyone plays by the same rules. This rule seems outdated to me — but it’s still a rule. Lawyers should email their comments on the proposed changes by next Tuesday instead of ignoring the rule.

Failing to include all the trial court documents in an Appendix in a criminal appeal. Appellate Rule 50(B) unambiguously requires the inclusion of the entire Clerk’s record, i.e., every document filed in the trial court. This differs significantly from Rule 50(A), which requires inclusion of only relevant documents in civil appeals. Yet one law clerk mentioned that appendices in criminal cases routinely omit many documents.

The vast majority of my appeals come from the Marion County Public Defender Agency, which has a wonderful staff that prepares the appendix in conformance with Rule 50(B). In the few appeals where I have had to prepare the appendix, I have asked for relief from Rule 50(B) if the appendix would include hundreds of pages of irrelevant documents, such as an appeal of the revocation of probation in a case that went to jury trial (and had lots of document filings) years earlier. One of those motions, which was granted, is available here.

Will the Court of Appeals scold a lawyer in a footnote for violating the rule by omitting irrelevant documents? That would be hard to imagine when the lawyer has made their job easier--unless, of course, the lawyer’s view of what is relevant means the exclusion of an important/harmful document.

Attempts to change Rule 50(B) have failed, at least in part, because all the trial court documents may be important if federal habeas relief is eventually sought in a case. Fair enough, but habeas relief is pursued only in the death penalty cases (which are a rare event in recent years) and a small number of other criminal cases. Requiring hundreds of lawyers to include reams of irrelevant documents each year so they are available for later proceedings in maybe 1-2% of those cases seems like an enormous waste of a lot of people’s time, energy, paper, and money. Perhaps it’s time for the Court to reconsider the earlier decision not to amend the rule.

Or lawyers can just continue to ignore it — seemingly with impunity.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Law - More on: N.E.2 phased out; or, marking a milestone in time

Updating this ILB post from March 17th, on April 28th I received a note from the Indiana Supreme Court librarians, letting me know:

We just received the print volume of 999 N.E.2d. The last case in the volume is Spangler v. Stark County Dog Warden (Ohio), dated October 28, 2013. In the advance sheet, 1 N.E.3d 1 is People v. Mineau (Illinois), dated Nov. 6, 2012.
This is just as they advised me in the March 17th post.

What I've learned, from the librarians and from a law clerk reader, is that within a Reporter volume, the cases aren't necessarily in chronological order. As I wrote to the librarians last week to make sure I understood:

Oh, I think I understand. As it turns out for Vol. 999 of NE2nd, the last case is from Oct. 28, 2013, while the first case in NE3rd is from Nov. 6, 2012 (which is just what you wrote on March 17th). But within Vol. 999, the cases aren't always in chronological order, as the reader wrote and you agreed:
Tax Court opinion, Kellam v. Fountain County Assessor, dated Dec. 10, 2013, has been assigned the citation 999 N.E.2d 120, according to online Westlaw Next.
In order to get the page numbers to come out right, they must have already had all the pages of the NE2nd 999 volume finalized and locked up when they put Spangler in the advance sheet. If you or anyone were to find a case they overlooked that should have chronologically been in 999, no big deal, it goes in the next set ...
And it turns out that it is not a rarity that a case is overlooked by West. As the librarians added:
Yes, anything overlooked goes into a new volume. With 4 other states in the North Eastern Reporter, there could be wide variations in coverage dates, hence the 2012 case from Illinois. I just wonder how long a case could be sitting in Westlaw with no assigned North Eastern number before West would catch it. Yikes!
To prevent the "Yikes", the librarians only wait about 2 months to report a case that hasn’t been reported in the North Eastern Reporter. This is only for the Supreme Court cases.
Since we process the bindery of the Library's copy of Supreme Court briefs, we notice when a case is on Westlaw but hasn't been assigned a North Eastern number yet. This means it also hasn't appeared in the advance sheets or print volumes. We also get reports from other patrons when they need to cite something, and it still has a Westlaw number.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Indiana Law

Ind. Courts - "C. Allow me to direct you to our pro se research area."

Don't miss this Above the Law caption contest post from 2001, showing a dumpster full of law books. My vote for best caption was C, which reads:

C. Allow me to direct you to our pro se research area.
Sadly, it reminds me of the closing of the Marion County Law Library, one of Indiana's endangered courthouse law libraries, about which the ILB wrote in a Jan. 2, 2010 post headed "Closing this library, dismantling the resources, dismissing the librarian -- this is very unfortunate and falls into the 'whatever can they be thinking?' category."

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today, re paintballs and pepperballs

In Advanced Tactical Ordnance Sys v. Real Action Paintball, Incorpo. (ND Ind. Van Bokkelen), Chief Judge Wood writes:

Some readers of our opinions may be familiar with paintball, a type of war game in which the players shoot charges of paint at one another. Paintballs, it turns out, are not the only kind of nonlethal projectile that can be used in this way. Our case concerns a more serious product, known to Advanced Tactical Ordnance Systems (Advanced Tactical) by the name PepperBall (a ball filled with a pepper-spray-like irritant). Police departments, private security firms, and comparable organizations are the primary consumers of these items. This is a trademark infringement action, brought by Advanced Tactical against a company that calls itself Real Action Paintball, Inc., and its president, K.T. Tran. (We refer to both as Real Action, be-cause there is no material difference between the company and its president for purposes of this appeal.) Although the parties have focused in their briefs on the preliminary in-junction the district court granted, we have a more fundamental problem with the case. We conclude that the district court lacked personal jurisdiction over defendant Real Action, which preserved its objection on this point. We therefore reverse and remand with directions to dismiss on that basis.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "Is Wikipedia A Reliable Legal Authority?"

See this lengthy post by Keith Lee at Above the Law.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Courts in general

Ind. Decision - More on: Supreme Court, 5-0, upholds Marion County redistricting

Updating this May 7th ILB post, re the Supreme Court's 10-page, 5-0, per curiam opinion in Mayor Gregory Ballard v. Maggie Lewis, John Barth, and Vernon Brown, the ILB has received from the amicus in the case an OCRed copy of the opinion and has posted it here to the ILB site. As of this writing the Court's online version remains a locked, scanned version, unlike all its other posted opinions.

In Mayor Gregory Ballard v. Maggie Lewis, John Barth, and Vernon Brown, a 10-page, 5-0, per curiam opinion, the Court writes:

The Redistricting Statute for Marion County assigns the task of redrawing the County's legislative districts to the judiciary if the County's legislative and executive branches become deadlocked over required redistricting. Peterson v. Borst, 786 N.E.2d 668, 672, 676 (Ind.), reh 'g denied, 789 N.E.2d 460 (Ind; 2003). In the case before us the Indianapolis Marion County CityCounty Council and Mayor Gregory Ballard agreed on an ordinance dividing the County into legislative districts, and the legal question is whether that was done too early to satisfy the Redistricting Statute. A divided panel of trial court judges answered that question "yes" and then drew new legislative districts. We hold that because this case does not present a redistricting impasse that requires judicial intervention, Mayor Ballard is entitled to summary judgment. Accordingly, we reverse. * * *

Eleven years ago, this Court issued a redistricting plan in Peterson, but judicial resolution was required by the facts of that case. Democratic Mayor Peterson vetoed a redistricting ordinance known as the "Borst Plan," which was supported by the Council's Republican majority. The veto left the County's legislative and executive branches of government at loggerheads. No redistricting ordinance was enacted in 2002 ahead of the May 2003 primary election, and districtdrawing by the judiciary was required to fill the void. See 786 N.E.2d at 670-71. Even so, we explained that we acted with "great reluctance" in "resolving th[ e] politically-charged redistricting issue." Id. at 678. We noted the need for courts to act "circumspectly" in such cases. ld. at 672 (quoting Connor v. Finch, 431 U.S. 407, 414-15 (1977)). And we stressed that although we were providing a redistricting plan, the Council remained free, subject to a mayoral veto, to adopt a different plan if it could be done in time for the upcoming primary election. Id. at 678. Collectively, these passages reflect a preference for judicial restraint and deference to the political process.

In the present case, Ordinance 61 was approved by the Council and by Mayor Ballard, and it was formally adopted in 2012. See I.C. § 36-3-4-14(a). The trial court judges were divided on the question of whether Ordinance 61 constituted mandatory redistricting during 2012, but all five agreed that Ordinance 61 was lawfully enacted, having been signed into law by the Mayor on January 1, 2012. (App. at 213, 217-18.) While recognizing Ordinance 61 as mandatory redistricting is just one reasonable construction of the Redistricting Statute, we adopt it because it allows legislatively-adopted districts to remain in place and avoids the need for districts drawn by a court. This reasonable construction of the statute is consonant with judicial restraint and leaves redistricting in the hands of the two branches of local government responsible for that task in the first instance.

Finally, we note the disputed legal issue in this case has been one of timing, namely, whether the Council acted too early. The complaint does not allege that Ordinance 61 was substantively defective. That is, the complaint does not allege that Ordinance 61 failed to incorporate data from the 2010 census, nor does it allege that Ordinance 61 's districts are not compact or that they cross precinct boundary lines or fail to contain, as nearly as is possible, equal population. See I.C. § 36-3-4-3(a). Today's decision upholds a redistricting ordinance whose substance is unchallenged in the complaint.

Conclusion. We reverse the trial court's order of final judgment and remand this cause to the trial court with instructions to grant summary judgment in favor of Mayor Ballard. We also reverse any order requiring Mayor Ballard to pay part of the cost of the master.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Dan Weaver v. George Niederkorn , a 7-page opinion, Judge Friedlander concludes:

This is nothing more than a request to reweigh the evidence and judge the credibility of witnesses, which we will not do on appeal. See Washington v. Allison, 593 N.E.2d 1273 (Ind. Ct. App. 1992) (noting that as the exclusive judge of the weight of the evidence and credibility of witnesses, the trial court was not bound to credit the defaulted party’s self-serving testimony denying notice of the lawsuit). The trial court stated on the record that it believed Weaver “knew what was going on.” Transcript at 37. We will not second-guess the trial court’s factual determinations on appeal. Because we conclude that the trial court’s finding that Weaver failed to establish excusable neglect was not an abuse of discretion, we need not consider whether Weaver alleged a meritorious defense.
In Guadalupe Puente v. Beneficial Mortgage Co. of Indiana, PNC Bank, Fidelity National Title Insurance Co., and Meridian Title Corp., a 22-page opinion, Judge Friedlander writes:
This litigation commenced almost twelve years ago with a 2002 quiet-title action filed by James and Rebecca Wolverton concerning the property located at 4728 Hickory Street in Hammond, Indiana (the Property). The Wolvertons are not a party to this appeal. Instead, the appellant is Guadalupe Puente, who subsequently and unsuccessfully attempted to purchase the Property. His attempt ultimately was unsuccessful because, in the process of Puente’s attempt to purchase the Property, certain entities failed to discover that the Wolvertons were the titled owners as a result of having purchased it at a tax sale. The appellees consist of four companies involved in some way in Puente’s failed purchase. Those companies are: Beneficial Mortgage Company of Indiana (Beneficial), PNC Bank N.A. (PNC), Fidelity National Title Insurance Company (Fidelity), and Meridian Title Company (Meridian).

What began in 2002 as a quiet-title action between the Wolvertons and Beneficial, among others, was eventually re-captioned and renumbered to its present iteration on October 1, 2010. In his complaint, Puente sued Beneficial, Fidelity, Meridian, and PNC under multiple theories of liability. He appeals grants of summary judgment in favor of each individual appellee, presenting multiple issues for review. Our resolution of one of those issues, however, obviates our need to address the remainder. We restate that issue as follows: Did the trial court err in granting summary judgment in favor of Fidelity on the issue of whether Fidelity is entitled to subrogation of Puente’s claims? We affirm.

In Carroll Creek Development Company, Inc. v. Town of Huntertown, Indiana , a 16-page opinion, Judge Pyle writes:
[Issue] Whether the trial court erred by granting partial summary judgment to Huntertown on one part of Carroll Creek’s breach of contract claim. * * *

The trial court’s interpretation of the “whether by” clause changes the “to service the real estate situated in the excess area or adjacent to the excess area” language to “that service the real estate situated in the excess area or adjacent to the excess area[.]” In doing so, the trial court disregarded the plain language of the Water Agreement. The trial court’s interpretation of the “whether by” clause changes the “to service the real estate situated in the excess area or adjacent to the excess area” language to “that service the real estate situated in the excess area or adjacent to the excess area[.]” In doing so, the trial court disregarded the plain language of the Water Agreement. * * *

Because the trial court erroneously interpreted the contract as a matter of law, we reverse the trial court’s grant of Huntertown’s partial summary judgment motion and denial of Carroll Creek’s cross-motion for summary judgment and remand for further proceedings.

NFP civil opinions today (3):

Brian S. Moore v. Kristy L. Moore (NFP)

In Re: The Visitation of H.B., A.B. v. T.S. and A.S. (NFP)

In re the Adoption of M.D.: S.D. (Father) v. S.F. (Mother), and D.M. (Adoptive Parent) (NFP)

NFP criminal opinions today (3):

James Cody Ertel v. State of Indiana (NFP)

George H. Glawson v. State of Indiana (NFP)

Robert Campbell v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Indiana AG asks judge to stay gay marriage ruling"

Updating this ILB post from yesterday, which quotes from, and links to, Judge Young's 14-page ruling re Amy Sandler and Niki Quasney, two plaintiffs in the case of Baskin v. Borgan, who had asked Judge Young that the Court, with respect to them, act in an expedited manner because Niki's death is imminent. With respect to this couple, yesterday Judge Young granted a "preliminary injunction [which] will remain in force until the court renders judgment on the merits of the Plaintiffs’ claims."

Today, this AP story from Charles Wilson reports:

Indiana has asked a federal judge to stay his order requiring it to recognize the out-of-state marriage of a lesbian couple in which one woman is terminally ill, saying that the ruling could raise false hopes for other same-sex couples.

State attorneys also filed a formal notice of appeal following U.S. District Judge Richard Young's ruling. Indiana will ask the U.S. 7th Circuit Court of Appeals to review Young's decision, which applies just to one couple — not to others who were legally wed elsewhere and are seeking to have Indiana recognize their marriages.

Really.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Ind Fed D.Ct. Decisions

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

Updating this ILB post from March 25th, Madeline Buckley of the South Bend Tribune had this update May 7th, headed "Law professor acquitted of invasion of privacy."

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Ending the Taboo on Citing Memorandum Decisions

This ILB is repeating this post from April 21 (plus appending a comment of my own); the deadline for comments is Tuesday, May 13th.

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.

=====================================

ILB:
Separate and apart from Prof. Schumm's remarks above, one additional thing I would suggest relates to the reasons for publication set out in Appellate Rule 65. Opinions And Memorandum Decisions:

A. Criteria for Publication. * * * A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.

Currently no explanation is provided by the panel as to why an opinion has been categorized as For Publication, or not. Citing the specific reason an opinion has been categorized For Publication at the top of the opinion, such as "For publication, per Appellate Rule 65(A)(3)" could, I believe, prove very useful to everyone.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Schumm - Commentary

Ind. Gov't. - More on "IURC lawyer asks for relaxed ethics rules"

Updating this ILB post from May 6th, John Russell updates his earlier Indianapolis Star story with this report today headed "Revolving door stops spinning at state agency (for now)." Some quotes:

An attorney with the Indiana Utility Regulatory Commission cannot take a job at a local water company without a one-year cooling-off period, the state Ethics Commission ruled Thursday.

Gregory R. Ellis, an administrative law judge for the IURC, had asked the commission to give him permission to take a job as director of government affairs with the Indiana American Water Co., based in Greenwood.

In doing so, he was challenging an IURC policy established in 2011, in the wake of an ethics uproar at the agency.

The policy says administrative law judges are decision makers and are prohibited under state law from taking a job with a regulated utility for one year after leaving IURC employment.

But Ellis told the panel he had no authority to make regulatory or licensing decisions. He said his job was to rule on evidence and procedure at rate hearings and to draft orders for the five voting commissioners. * * *

But some members of the ethics panel said they found no compelling reason to overturn the IURC’s policy including administrative law judges under the one-year cooling-off period. The panel voted unanimously against Ellis’ request. * * *

The policy was instituted after Scott Storms left the IURC as chief administrative law judge to take a job with Duke Energy Corp. in September 2010.

Storms interviewed with Duke while participating in a case over whether the utility could charge ratepayers for hundreds of millions of dollars in cost overruns at its Edwardsport power plant.

ILB: As the ILB wrote in the earlier post: "Perhaps the policy should prohibit IURC decision-making employees from interviewing with companies the agency regulates while employed at the IURC, rather than simply prohibiting them from taking jobs with such agencies within a year after leaving?" It would seem to me that IURC employees never should be seeking or negotiating employment, while employed by the IURC, with entities their agency regulates.

Posted by Marcia Oddi on Friday, May 09, 2014
Posted to Indiana Government

Thursday, May 08, 2014

Ind. Courts - Still more on "Judge rules against Indiana BMV in ‘0INK’ license plate case"

Updating earlier posts from today (here and here), Tim Evans of the IndyStar now has an updated story with a don't miss slide show of plates approved and disapproved by the BMV. Some quotes:

Marion Superior Judge James Osborn found that the standards the BMV used to assess the appropriateness of personalized license plates violated the First Amendment and Indiana law and ordered that they cease being used. Osborn also found the state agency had not properly adopted the rules it used in making such decisions. * * *

The ruling also noted apparent inconsistencies in what the BMV would allow and what the agency would deny. Some examples: "SXY" was denied, but "BIGGSXY" was approved. "FOX*LIES" was denied, but "FOX NEWS" was approved. "BIBLE*H8R" was denied, but "BIBLE4ME" was approved. * * *

In his order, Judge Osborn ordered the BMV to:

  • Immediately reinstate the personalized license plate program

  • Allow Vawter to obtain the "0INK" pate if he reapplies and not deny another plaintiff, Jay Voigt, a plate that says "UNHOLY."

  • Properly establish rules for the review of a plate request.

  • Inform customers who had a request denied or revoked in the past of the new ruling and how to reapply.
The judge ordered the BMV to pay attorney fees for the plaintiffs.

The ruling is the latest in a series of legal complications for the BMV. In 2013, the BMV had to agree to repay Hoosiers after overcharging for driver's licenses. The agency also agreed to restore the specialty plate for the Indiana Youth Group, which supports gay, bisexual, transgender and sexually questioning youth.

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Supreme Court sets hearing in right-to-work challenge"

Dan Carden of the NWI Times has the story here, along with the Lake County Superior Court ruling finding right-to-work law unconstitutional, and the briefs of both the State of Indiana and the unions. From the story:

INDIANAPOLIS | The Indiana Supreme Court will hear 40 minutes of oral arguments on the constitutionality of the state's right-to-work law Sept. 4.

The controversial 2012 labor statute, which prompted walkouts and boycotts as it moved through the General Assembly, was struck down by Lake Superior Judge John Sedia last year as incompatible with the state Constitution.

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

Republican Attorney General Greg Zoeller asked the Supreme Court to overturn Sedia's ruling, which is on hold while the appeal is pending. The high court's five justices directly review lower court decisions that find state laws unconstitutional.

Zoeller claims the right-to-work law should be restored because it's not the state compelling exclusive-agency unions to provide bargaining services to nonmembers.

"The right-to-work law imposes no demands on unions," Zoeller said. "It merely gives employees in Indiana the choice whether to join a union (or otherwise pay dues) — a choice that is specifically authorized by federal law."

Attorney Dale Pierson, representing the International Union of Operating Engineers, Local 150, which challenged the law, said Zoeller's argument is not believable, because the state is well aware federal law compels unions to treat members and nonmembers the same.

In addition, Pierson said state leaders repeatedly announced their goal of obtaining economic development benefits by enacting a right-to-work law.

"Unions have historically been compensated for (their) services. The Indiana right-to-work law takes that compensation away," Pierson said. "Far from simply ensuring that union membership is entirely voluntary, the state specifically passed its right-to-work law hoping to benefit by this taking."

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Indiana Decisions

Ind. Courts - More on "Judge rules against Indiana BMV in ‘0INK’ license plate case"

Updating this ILB post from earlier today, here is the New Hampshire Supreme Court opinion issued May 7.

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Federal judge enjoins Indiana, requiring it to recognize one same-sex couple's out-of-state marriage

Chief Judge Richard L. Young, USDC, SD Ind, issued this 14-page order late this morning in the case of Baskin v. Bogan. Among the plaintiffs in this case are Amy Sandler and Niki Quasney, who had asked Judge Young that the Court, with respect to them, act in an expedited manner because Niki's death is imminent. The Court had granted them a TRO, which expires today. Today, the Court granted the two plaintiffs a preliminary injunction, concluding:

The court finds that the Plaintiffs, Amy, Niki, A.Q-S., and M.Q.-S., have satisfied their burden for a preliminary injunction. They have shown a reasonable likelihood of success on the merits, irreparable harm with no adequate remedy at law, that the public interest is in favor of the relief, and the balance of harm weighs in their favor. Therefore, the court GRANTS Plaintiffs’ motion for a preliminary injunction (Filing No. 31).

Defendants and all those acting in concert are ENJOINED from enforcing Indiana statute § 31-11-1-1(b) against recognition of Plaintiffs’, Niki Quasney’s and Amy Sandler’s, valid out-of-state marriage; the State of Indiana must recognize their marriage. In addition, should Niki pass away in Indiana, the court orders William C. VanNess II, M.D., in his official capacity as the Commissioner of the Indiana State Department of Health and all those acting in concert, to issue a death certificate that records her marital status as “married” and lists Plaintiff Amy Sandler as the “surviving spouse.” This order shall require that Defendant VanNess issue directives to local health departments, funeral homes, physicians, coroners, medical examiners, and others who may assist with the completion of said death certificate explaining their duties under the order of this court. This preliminary injunction will remain in force until the court renders judgment on the merits of the Plaintiffs’ claims.

In conclusion, the court recognizes that the issues with which it is confronted are highly contentious and provoke strong emotions both in favor and against same-sex marriages. The court’s ruling today is not a final resolution of the merits of the case – it is a preliminary look, or in other words, a best guess by the court as to what the outcome will be. Currently, all federal district court cases decided post-Windsor indicate that Plaintiffs are likely to prevail. Nevertheless, the strength or weakness of Plaintiffs’ case at the time of final dissolution will inevitably be impacted as more courts are presented with this issue.

SO ORDERED this 8th day of May 2014.

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Supreme Court hears arguments in death records case"

Today the Supreme Court heard oral argument in Evansville Courier and Press, et al v. Vanderburgh City Health. You can watch the oral argument here. The ILB has had a number of posts about this important public access case, beginning at the trial level. See particularly this post from Dec. 9, 2012, and this one from Jan. 30, 2013.

Chelsea Schneider covered the argumentfor the Evansville C&P. Here is her story. Some quotes:

INDIANAPOLIS — An attorney for the Evansville Courier & Press argued Thursday before the Indiana Supreme Court that cause of death information listed on death certificates should be made available to the public.

However, an attorney for the Vanderburgh County Health Department argued before the state’s high court the release of cause of death information is limited to individuals with direct interest in the matter, such as spouses and immediate relatives.

The basis of the dispute surrounds competing state laws concerning death records and what information is required to be publicly available.

The justices’ questions surrounded how the county health department produces death certificates, how the information is maintained and what information the Courier & Press wants to access.

County health departments submit information on deaths to the state through an electronic death registry system. A law that went into effect in 2011 requires direct interest, such as being a spouse or immediate relative, in the matter to access information off the registry. County attorney Joseph Harrison Jr. told the court the county maintains death certificates on the statewide system and releases them to individuals meeting the direct interest requirement.

Pat Shoulders, the attorney representing the newspaper and Pike County resident Rita Ward who filed a public access complaint when she was denied cause of death information, argued the statewide registry is separate from the health department’s statutory responsibility to maintain death certificates and release them to the public. Shoulders argued the information the county sends to the statewide registry and the death certificate prepared by the last attending physician are two different documents.

Shoulders said the health department has the duty to download and print out the information from the registry, and that the information is public record. * * *

A representative from Indiana Attorney General Greg Zoeller’s office argued Thursday before the court that cause of death information is public record.

“We are always sensitive to Hoosiers’ privacy concerns but the statute calls for this basic document, setting forth the decedent’s name, age and cause of death, to be a public record accessible at the county level. In keeping with the principles of transparency and accountability, we ask merely for a return to what had been the longstanding practice of making the cause of death in death certificates promptly available to the public who has the right to that information,” Zoeller said in a prepared statement. * * *

The court case stems from a 2012 lawsuit filed by the Courier & Press and Ward against the health department to gain release of the information. The newspaper and Ward argue that death certificates are public records under Indiana’s Access to Public Records Act.

The issue came to a head after the health department, which had provided cause of death information to the Courier & Press for publication on its public records page, abruptly stopped releasing the cause of death in May 2012.

Ward, of Winslow, Indiana, argued the information should be released because of the public health implications the information might reveal.

When Ward requested the information from the health department, a county attorney told her state law limits access to records with cause of death information to individuals with a direct interest in the matter. After the records were denied, Ward petitioned the Indiana Public Access Counselor and received a nonbinding opinion in her favor. The Courier & Press then submitted a new request for cause of death information to the health department but was still denied.

Then-Public Access Counselor Joseph Hoage ruled the requirement for direct interest pertained only to the state’s electronic death registration system, which was created by a state law that went into effect in 2011. Hoage said state law still required health departments to maintain records of death certificates filed by physicians and release them to the public.

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Indiana Courts

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

For publication opinions today (3):

In Belinda Douglas v. Neil Spicer and L.S., a 7-page opinion, Judge Najam writes:

Belinda Douglas (“Mother”) and L.S. appeal the trial court’s judgment on Mother’s petition for adjudication of Neil Spicer’s (“Father”) child support arrearage. Mother and L.S. present a single issue for our review, namely, whether the trial court erred when it ordered Father to pay $6,600 in back child support. We affirm.
In Don Morris v. Biosafe Engineering, LLC , an 11-page opinion, Judge Najam writes:
Don Morris appeals the trial court’s entry of summary judgment for BioSafe Engineering, Inc. (“BioSafe”). Morris raises a single issue for our review, namely, whether the trial court erred when it entered summary judgment for BioSafe. We affirm. * * *

Morris’ exclusive theory on appeal—that the trial court erred when it entered summary judgment because he has a legitimate shareholder derivative claim against BioSafe—is not grounds to deny BioSafe’s motion for summary judgment.

In In re the Paternity of D.M.: J.W. v. C.M. , a 10-page opinion, Judge Robb writes:
The State of Indiana filed a Verified Petition for the Establishment of Paternity alleging J.W. was the father of C.M.’s stillborn child. J.W. filed a motion to dismiss alleging the State’s petition failed to state a claim upon which relief could be granted. Following a hearing, the trial court denied J.W.’s motion and ordered the parties to submit to genetic testing. J.W. appeals the trial court’s order, raising the following issue for our review: whether the trial court abused its discretion in denying his motion to dismiss and ordering him to undergo genetic testing to establish paternity of a stillborn child when there were no custody or support issues to be determined. Concluding the State had no authority to bring this action and the trial court erred in allowing it to proceed, we reverse. * * *

On July 25, 2012, C.M., a minor, gave birth at home to a stillborn child, D.M. C.M. was unaware prior to this date that she was pregnant. C.M. alleged J.W., also a minor, was D.M.’s father. J.W. denies this allegation.
C.M. and her mother asked the Clark County Prosecutor’s Office for assistance in establishing paternity. * * *

Viability of a Paternity Action by the State

A. Title IV-D * * *

Because J.W. would owe no support to D.M. even if his paternity was established, the State has no authority under Indiana’s Child Support Program to bring this paternity action.

B. Indiana’s Paternity Statutes

Although the State has no authority under Indiana’s Child Support Program to bring an action to establish paternity of D.M., we also address its authority under Indiana’s paternity statutes. * * *

Consequently, the State has no interest to represent in an action seeking to establish paternity of that child, and therefore, the State has no authority under our statutes to bring this action to establish paternity of D.M.

This outcome does not render Indiana Code section 31-14-5-8 a nullity. Paternity can still be established for a stillborn child, just not in an action brought by the State. Indiana Code section 31-14-4-1 provides a list of persons or entities that may file a paternity action, including the mother of the child, who may do so within two years of the child’s birth. See Ind. Code § 31-14-5-3(b). Once a man is established as a child’s biological father, the issues of support, custody and parenting time for the child are to be determined. See Ind. Code § 31-14-10-1. In the case of a stillborn child, support, custody, and parenting time are not at issue. However, when paternity is established, the court “shall order the father to pay at least fifty percent (50%) of the reasonable and necessary expenses of the mother’s pregnancy and childbirth,” including the cost of prenatal care, the child’s delivery, the mother’s hospitalization, and postnatal care. Ind. Code § 31-14-17-1. Therefore, in an appropriate case, paternity of a stillborn child may be established for the purpose of recouping those costs.[3]

Conclusion. As a matter of law, the State had no authority to pursue an action to establish paternity of D.M. and the trial court therefore erred in allowing the paternity action to proceed by ordering genetic testing. The judgment of the trial court is therefore reversed.
___________
[3] Although we understand and sympathize with C.M. and her family and their wish to legally establish paternity for purposes of closure, respect, and learning the truth, see tr. at 7-8, these are not issues that the paternity statutes are intended to remedy.

NFP civil opinions today (2):

In the Matter of: A.P. (Minor Child), Child in Need of Services and J.H. (Father) v. The Indiana Department of Child Services (NFP)

Michael Seacat v. Goodrich Corporation (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Judge rules against Indiana BMV in ‘0INK’ license plate case" [Updated]

Tim Evans has the story this morning for the Indianapolis Star. Some quotes:

A Marion County judge issued a summary judgment Wednesday in favor of a Greenfield police officer who sued the Bureau of Motor Vehicles after the agency revoked his personal vanity license plate that said "0ink."

The ruling came in the challenge brought by Rodney Vawter, who filed his lawsuit against the BMV in May 2013. Vawter claimed the decision violated his First Amendment rights.

He was represented by the Indiana chapter of the American Civil Liberties Union.

Because of the suit, the BMV suspended the vanity plate program last July.

For three years, Vawter had a license plate that read "0INK" — with a zero in place of the O — but when he tried to renew it in March 2013, it was rejected.

The lawsuit says Vawter considers the plate's verbal pig snort "an ironic statement of pride in his profession."

[Updated at 10:25 AM] Scott Malone of Reuters had a story yesterday that reported:
(Reuters) - A New Hampshire man has the right to drive around the New England state with a license plate reading "COPSLIE," the state's top court ruled on Wednesday.

The state Supreme Court upheld a challenge to Department of Motor Vehicles' rules, finding they were unconstitutionally broad by allowing officials to deny requests for vanity license plates that "a reasonable person would find offensive to good taste." * * *

The court ruled that rules based on standards of taste were too broad and therefore likely to be used arbitrarily or in a discriminatory fashion.

"We question whether prohibition of accusations of moral turpitude would constitute 'viewpoint-neutral' regulation," three justices wrote in a decision sending the matter back to a lower court in the state, whose motto is "Live Free or Die."

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Arizona case against national fraternity bears similarities to Indiana case

Jim Walsh and Anne Ryman report today in the Arizona Republic in a long story titled "A lawsuit in the drowning death of an Arizona State University students seeks justice, change." Some quotes:

A lawsuit seeks justice for the mother of a 19-year-old fraternity pledge who tragically drowned in the Salt River, but also seeks to hold a national fraternity accountable for the behavior that culminated in his death.

Jack Culolias' death in November 2012 after a fraternity sponsored social event at a Tempe bar helped to galvanize support for crackdowns on dangerous binge drinking that resulted in a series of deaths and injuries near Arizona State University.

The suit filed this week on behalf of Culolias' mother, Grace, attempts to hold the Sigma Alpha Epsilon fraternity legally liable for the actions of the officers in its local chapter. It is part of a national trend also unfolding in Indiana, where another fraternity is under fire after the death of a student from Tucson.

"We're looking for accountability and responsibility from the national fraternity to change the way the local fraternity operates,'' said attorney Pat McGroder. "They are creating an environment of irresponsibility and recklessness." * * *

Legal experts say lawsuits against national fraternities are rarely successful.

National fraternities frequently take the position that they are an educational resource and leave the day-to-day decisions up to the local chapters, said Stephen M. Wagner, an Indiana attorney who has a lawsuit against a national fraternity, Delta Tau Delta, before the Indiana Supreme Court. Wagner represents a Tucson family whose son died after drinking at a fraternity party at an Indiana college.

The Indiana case is being watched closely by the legal community because it is believed to be the first time the Indiana Court of Appeals has ruled that a national fraternity must stand trial in the death of a local fraternity member. Many fraternities have their national headquarters in Indiana. The appeals court decision is awaiting a ruling in Indiana Supreme Court.

Here is a May 15, 2013 ILB post re the Indiana Court of Appeals opinion. Here is the docket for the case, Smith v. Delta Tau Delta. Note that this is a different case than the Feb. 13, 2014 Yost v. Wabash College, mentioned in this March 12, 2014 Smith docket entry:
This appeal concerns whether the fraternity was entitled to
summary judgment with respect to the death of an Indiana pledge.
The court recently addressed a similar question in Yost v.
Wabash College
, 3 N.E.3d 509 (Ind. 2014). The fraternity
requests leave to file a supplemental brief addressing Yost's
application to this case. That request is granted.
Brent E. Dickson, Chief Justice

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Indiana Courts

Ind. Courts - "Judge at center of Clark Co. Drug Court Program loses primary"

Updating yesterday's ILB post, Renee Murphy reports for WHAS11:

CLARK CO., Ind. (WHAS11) -- The judge at the center of Clark County’s Drug Court Program lost the primary in Southern Indiana.

His staff has already been fired from the court program that has been under fire since allegations of illegal arrests and inmates sitting in jail longer than their sentence.

“He is obviously disappointed,” attorney Larry Wilder, who represents Judge Jerry Jacobi, said.

Jacobi lost in the primary on Tuesday night, May 6, to attorney Laura Harbison.

Harbison represented Cody Hendricks who is a drug court participant.

Hendricks said drug court staff arrested him at his job on Rocky's on the River when they didn't have arrest powers.

His allegations launched the criminal investigation into the drug court and lead to the director of that program and that bailiff being fired.

Jacobi’s attorney said he didn’t think that the investigation and allegations of drug court cost him his seat on the bench. * * *

Jacobi's challenger said while campaigning she didn't even talk about drug court.

“It was about campaigning for myself. For making sure the voters knew who I was as a candidate,” Laura Harbison, who won the primary, said.

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Indiana Courts

Ind. Decision - More on: Supreme Court, 5-0, upholds Marion County redistricting

Updating this ILB post from yesterday, here is John Tuohy's story in the Indianapolis Star. It begins:

The Indiana Supreme Court on Wednesday determined that a disputed redistricting map drawn by Indianapolis City-County Council Republicans in 2011 was legal and should stand.

The court unanimously sent the lawsuit, brought by council Democrats, back to the trial court with orders to reverse its earlier finding.

Democrats sued Mayor Greg Ballard after he signed off in late 2011 on the GOP-crafted map, which drew new council boundaries for the 2015 municipal election.

The outgoing GOP majority passed a map that became law on the first day of 2012 — just as Democrats took control of the council.

Democrats took their case to court, arguing that the plan violated a state law that required redistricting during 2012.

There, a five-judge panel, voting along party lines, ruled the ordinance signed by Ballard did not comply with the statutory time requirement for redistricting.

The panel then created its own boundaries.

But the state’s high court ruled Wednesday that the dispute “does not present a redistricting impasse that requires judicial intervention.”

Posted by Marcia Oddi on Thursday, May 08, 2014
Posted to Ind. Sup.Ct. Decisions

Wednesday, May 07, 2014

Ind. Decisions - Supreme Court disbars attorney for practicing law while suspended

In In the Matter of: Christopher E. Haigh, an unusually long (15-page), per curiam disciplinary opinion, the Court writes:

We find that Respondent, Christopher E. Haigh, engaged in conduct in contempt of this Court by egregious violations of this Court's order suspending him from the practice of law. For his contempt, we conclude that Respondent should be fined $1,000.00 and disbarred.

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 Petition for Rule to Show Cause," and on the post-hearing briefing by the parties. Respondent's 2000 admission to this state's bar and his unauthorized practice of law in this state while suspended subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4. * * *

Respondent has not been admitted to practice law in any state jurisdiction other than Indiana. Respondent was admitted as an attorney at the United States Patent and Trademark Office (the "USPTO") on June 26, 2000, and he was also admitted to practice before several federal courts based on his Indiana admission. See, e.g., N.D. Ill. LR 83.10 (a).

The USPTO filed a Complaint For Reciprocal Discipline against Respondent on November 26, 2008, arising from his Indiana suspension. By order of August 3, 2009, Respondent was suspended as a USPTO practitioner for a period of two years, effective September 3, 2009, over his objections. In addition, Respondent was reciprocally suspended from practice before various federal courts, with his suspensions to run concurrent with his Indiana suspension. * * *

By the time Respondent was suspended, he had moved from Indiana to Chicago, Illinois, and some of his activities during his suspension do not appear to have any obvious connection to Indiana. A threshold question is whether any of Respondent's actions violated his Indiana suspension, subjecting him to this Court's jurisdiction to sanction Respondent for such activities.

The Court concludes that it has such jurisdiction. First, it is clear that Respondent's actions with respect to Margco, described above, violated his Indiana suspension. In addition, this Court's precedent holds that it is a violation of an Indiana suspension order to practice law in federal courts within Indiana. * * *

The Hearing Officer found the following to be factors counseling in favor of a substantial sanction for Respondent's contempt: his offenses were ongoing and continuous; he engaged in a pattern of deception that was ongoing and intentional; his motives were selfish; he was an experienced practitioner; he was obstructive in his dealing with the disciplinary proceedings by intentionally failing to comply with rules and orders of the Commission; he repeatedly asserted claims without factual basis; and he refused until the last day of hearings to acknowledge the wrongful nature of his conduct. * * *

Respondent's violation of the Suspension Order was on-going, pervasive, and deliberate, and it exposed the public to the danger of misconduct by an attorney who has yet to prove his remorse, rehabilitation, and fitness to practice law through the reinstatement process. See Admis. Disc. R. 23(4)(b). Under these circumstances, the Court concludes that a fine of $1,000.00 and disbarment is warranted. The Court cautions that any further contempt by Respondent will likely result in imposition of a period of imprisonment. [ILB emphasis]

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Tax Court decides one today

In MedCo Health Solutions, Inc. v. Indiana Department of State Revenue, a 7-page opinion, Judge Wentworth writes:

Medco Health Solutions, Inc. has appealed the Indiana Department of State Revenue’s final determination that assessed it with an additional Indiana adjusted gross income tax liability for the tax years ending August 19, 2003, December 27, 2003, December 25, 2004, and December 31, 2005 (the period at issue). The matter is currently before the Court on the Department’s Partial Motion to Dismiss Or For Summary Judgment (Motion). The Court grants the [Department’s Trial Rule 12(B)(6) motion to dismiss].
ILB: This is the seventh Tax Court opinion in 2014. Here is the list.

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decision - Supreme Court, 5-0, upholds Marion County redistricting

In Mayor Gregory Ballard v. Maggie Lewis, John Barth, and Vernon Brown, a 10-page, 5-0, per curiam opinion, the Court writes:

ILB: Unfortunately, the opinion is scanned so it can't be cut and pasted until I do an OCR! Seems unthoughtful!
[MORE] Well, it turns out the file is LOCKED, so it can't be OCRed! Really!

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Shouldn't Unconstitutional Statutes be Repealed?

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

According to a recent USA Today article, more than a decade after the U.S. Supreme Court held it was unconstitutional to prohibit consensual sex between adults in Lawrence v. Texas, anti-sodomy statutes remain on the books in a dozen states. Last year police arrested men for violating the unconstitutional Louisiana statute, but the district attorney refused to file charges. Earlier this year a state legislator proposed repeal of the statute, which failed by a large margin. A leader of a group opposing the repeal told the newspaper: "It's not a Louisiana value."

Regardless of one’s views on whatever statute has been declared unconstitutional, shouldn’t it be a Hoosier value that our statutes—the most readily available and most easily accessible source of law—reflect the governing law? That would mean the repeal or revision of statutes held unconstitutional by courts—something that occurs, albeit infrequently. For example, after the Seventh Circuit struck down the statute banning certain sex offender access to social media on First Amendment grounds in January of last year, the General Assembly quickly held hearings to amend the statute. That same session the Previously Uninsured Motorist Registry (Indiana Code 9-25-10) was repealed after a successful legal challenge by the ACLU of Indiana. There, the BMV agreed the law was unconstitutional and presumably sought or at least supported its repeal.

In many other instances, no governmental agency or apparently anyone at the General Assembly takes any action to repeal statutes that have been declared unconstitutional and cannot be enforced. Beyond tidying up things for citizens, lawyers, and judges, repealing an unconstitutional statute would seemingly reduce the likelihood of it continued enforcement, which could lead to costly liability. Consider, for example, the recent Seventh Circuit opinion in Mulholland v. Marion County Election Board, which noted that a decade earlier a plaintiff challenging the anti-slating statute, Ind. Code § 3-14-1-2(a)(2)–(3), “won a federal injunction against the statute’s future enforcement and a consent decree in which all parties stipulated and the court declared that the law was facially unconstitutional. Ogden v. Marendt, No. 1:03-cv-415 (S.D. Ind. Aug. 29, 2003), EFC No. 40.” In a footnote, Judge Hamilton made the gravity of continued enforcement clear: “If Board members or their agents were to try to enforce the anti-slating statute against other parties at this point, such as in the May 2014 primary elections, we expect that this opinion and the Ogden judgment would make it difficult to invoke the defense of qualified immunity to a damages action under 42 U.S.C. § 1983.”

Unconstitutional, but not repealed, Statutes

What follows is a partial list of Indiana statutes that remain on the books years after being declared unconstitutional.* Please send me an email with the details of any others, which I will include in a follow-up post.

Nine years. Indiana Code section 35-36-9-4 places the burden on a defendant seeking to avoid the death penalty to “prove by clear and convincing evidence that the defendant is a mentally retarded individual.” In Pruitt v. State (Ind. 2005), the Indiana Supreme Court held, applying U.S. Supreme Court decisional law, that the burden on a defendant must instead be preponderance of the evidence.

Seven years. Indiana Code section 35-42-3-3 (criminal confinement, a class D felony) occurs when a person “removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another.” In Brown v. State (Ind. 2007), the Indiana Supreme Court found the terms “fraud” and “enticement” were unconstitutionally vague, although the remaining language could be enforced.

Five years. Legislation passed in 2008 requires that persons who intend to offer for sale or sell sexually explicit materials must register with Indiana’s secretary of state, pay a fee, and provide a statement detailing the types of materials they intended to sell. The specific affected statutes include:

One year. Indiana Code section 35-33-8-2(b) provides: “A person charged with murder has the burden of proof that he should be admitted to bail.” Last summer, a majority of the Indiana Supreme Court overruled nearly 150 years of precedent and held under Article 1, Section 17 of the Indiana Constitution that the State—not the defendant—bears the burden of proof. Fry v. State, 990 N.E.2d 429 (Ind. 2013).

Indiana Code section 35-33-1-1 provides that: (a) A law enforcement officer may arrest a person when the officer has: *** (11) a removal order issued for the person by an immigration court; (12) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or (13) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).” Attorney General Zoeller refused to defend parts of the statute after the U.S. Supreme Court struck down a similar Arizona statute. Not surprisingly, last year Judge Barker held the quoted statute violated the Fourth Amendment because it “authorizes the warrantless arrest of persons for matters and conduct that are not crimes.”

Timing and Practical Concerns

The part-time General Assembly meets at most a few months each year, so some lapse of time can be expected between an opinion declaring a statute unconstitutional and the legislative response. The General Assembly will understandably want to wait until a case has worked its way through the appellate process before repeal or revision. The right-to-work statute, for example, was declared unconstitutional by a Lake County judge last year but will very likely be upheld when the Indiana Supreme Court decides the matter later this year.

The General Assembly obviously keeps abreast of case law developments, often making changes to statutes when suggested by the Indiana Supreme Court, as with school resources officers in response to K.W. v. State last year. In addition, it sometimes assert its legislative prerogative over issues where it disagreed with a recent non-constitutionally-grounded opinion—as with the changes to the self-defense statute in response to the Barnes v. State opinion or the public intoxication statute in response to Moore v. State. But when a court declares a statute unconstitutional, the legislative response—at least in many instances—seems to be to do nothing. And confusion for citizens, police officers, and lawyers will often be the result.

An alternative approach might be an annual bill, proposed by leadership of both parties, conforming the Indiana Code with any fully-appealed court opinions that found a statute unconstitutional. Voting for the bill should not be seen as agreement with the court decisions but instead a step toward making often complicated legal matters a little clearer for citizens, lawyers, and judges.**

The annual bill would also offer an opportunity for reflection—and perhaps even self-congratulation. Some years no statutes may have been declared unconstitutional. Even in years where two or three are shot down, chances are the flaws were with only some part of a much larger bill. Considering the hundreds of bills that pass each year, the General Assembly could still claim something like a 0.999 batting average.

__________________________

* Because the focus is on unconstitutional statutes, I have not included statutes preempted by federal statute, such as Indiana Code section 5-22-17-5.5(b), which prohibits state agencies from providing state or federal funds to “any entity that performs abortions or maintains or operates a facility where abortions are performed.” The Seventh Circuit held in 2012: “Because Indiana’s defunding law excludes a class of providers from Medicaid for reasons unrelated to provider qualifications, we agree with the district court that Planned Parenthood is likely to succeed on its claim that Indiana’s defunding law violates § 1396a(a)(23).”

I have also excluded statutory language that might be constitutional under even some remote set of circumstances. For example, as last week’s Indiana Supreme Court opinion in Brewington explained regarding Indiana’s intimidation statute: “Only where a purely-private figure is involved, and the alleged ‘threat’ involves no colorable issue of public concern, may subparts (c)(6) and (7) be applied as written; and otherwise, the actual malice standard will preclude most prosecutions.”

** The genesis for this post was an email from a law professor at an out-of-state school asking: I understand that Pruitt v. State (2005) ruled the statutory clear and convincing standard unconstitutional and imposed preponderance. However, I see the statute §35-36-9-4 still has C&C, even after they amended the language in 2007, changing "mentally retarded" to "an individual with mental retardation." So my question is, what's the status? I can only assume Pruitt is the law, but I don't understand the continued existence of the statute containing C&C.

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Indiana Law | Schumm - Commentary

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

For publication opinions today (2):

In Shane Beal and The Bar Plan Mutual Insurance Company v. Edwin Blinn, Jr., a 15-page opinion, Judge Riley writes:

Appellant-Defendant, Shane Beal (Beal), appeals the trial court’s denial of his motion for summary judgment, concluding that a genuine issue of material fact exist as to whether Beal’s representation of Appellee-Plaintiff, Edwin Blinn, Jr. (Blinn), in a federal criminal case constituted legal malpractice. We affirm. * * *

[Issues] (1) Whether the trial court abused its discretion when it denied Beal’s motion to strike Blinn’s expert evidence; and (2) Whether the trial court erred in determining that a genuine issue of material fact exists in a legal malpractice case where the conduct of an attorney resulted in the indictment of his client and subsequent voluntary guilty plea. * * *

This most recent installment in a never-ending legal malpractice saga focuses squarely on the issue at the heart of the dispute: Beal’s actions and conduct during his representation of Blinn in a federal drug and money laundering investigation. * * *

Based on the foregoing, we conclude that the trial court properly denied Beal’s (1) motion to strike and (2) motion for summary judgment.

In John Jacob Venters v. State of Indiana , a 17-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that there is sufficient evidence to uphold Johnson’s conviction of fourteen Class D felonies for possession of animals for fighting contests, and his conviction does not violate the double jeopardy clause of the Indiana Constitution.
NFP civil opinions today (1):

J&W Construction, Inc. v. Duffy Tool & Stamping, LTD, LLC, et al. (NFP)

NFP criminal opinions today (5):

Johnathon R. Aslinger v. State of Indiana (NFP)

Ricky Allen Cox v. State of Indiana (NFP)

Robert F. Petty v. State of Indiana (NFP)

Claude F. Hudson v. State of Indiana (NFP)

Larry Fulbright v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Lake Co. judicial interviews postponed" [Updated]

Per a brief story in the Gary Post-Tribune:

The Lake County Judicial Nominating Commission has postponed interviews that were scheduled for Wednesday and Thursday with candidates for judge in the civil division of Lake County Superior Court.

Indiana Supreme Court Justice Robert Rucker, in a notice dated Tuesday, said it has come to his attention that some of the four non-attorney members of the commission were not appointed according to state law.

No new date has been set for the interviews, but Rucker’s notice indicated that he anticipated that the matter would be resolved soon.

There’s a judicial vacancy because of the death of Gerald Svetanoff.

[Updated at 10:13 AM] Bill Dolan of the NWI Times reports in a story headed Gender issue delays judicial selection":
CROWN POINT | An Indiana Supreme Court justice halted selection of a new Lake County judge this week over criticism that local officials named too many women to the selection committee.

Justice Robert D. Rucker on Tuesday postponed what was to be two days of interviews this week of 21 lawyers who would like to be the next Lake Superior Court Civil Division judge. * * *

State law created a nine-member Lake County Judicial Nominating Commission to select three judicial finalists. Lake County attorneys elected four of their members to the commission. The Lake County Board of Commissioners named three women and one man as the commission's non-attorney members.

Rucker, who the Indiana Supreme Court chose as the commission's chairman, said Tuesday the non-attorney membership is out of line with a confusing state-mandated quota of males, females, minorities and party affiliations. However, he didn't specify what change has to be made to comply with state law.

Joe Hero, a St. John lawyer who has been critical of the judicial nominating process, said he believes state law requires one of the female Democrats to be replaced by a Republican male.

So, the 21 applicants must put their dreams on hold until local officials solve the puzzle of how to configure the panel to choose the three finalists.

Hero said he has told the Lake County Board of Commissioners they made the faulty appointment and need to solve the problem, but they have refused to act. Hero lauded Rucker's postponement.

"He is cleaning up the mess," Hero said.

ILB: The Lake County judicial nominating commission law starts at IC 33-33-45-27. Sec. 28 deals with membership.

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Indiana Courts

Ind. Courts - Not a Good Primary for Incumbent Judges Who Faced Challengers

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

Updating this April 29 post, the table listing races in which (non-Marion County) incumbent judges faced a primary challenge has been updated to show the winning candidate in bold.

Of the nine races, nearly half (four) of the incumbent judges lost. The two judges who switched parties (Coriden and Smith), however, handily won the Republican primaries in their counties. This year, as in the past, the vast majority of incumbent judges faced no opponent.

In Marion County, the eight candidates slated by Democratic party (including the four incumbent judges) prevailed easily over the three non-slated challengers. A $14,000 “voluntary contribution”/slating fee may seem like a bargain if it nearly assures victory for a six-year judgeship that pays more than $130,000 annually.

Incumbent Center Township Small Claims Judge Michelle Smith Scott, who clashed with party officials about moving her court out of the City-County Building, lost to Brenda Roper, the party’s slated candidate.

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Decisions - Reactions to recent Indiana Supreme Court disciplinary opinion

In this ILB post from April 16th, the ILB quoted criticism of a recent Supreme Court disciplinary opinion that was posted by Carolyn Elefant, the DC attorney and well-known writer of myShingle.com. The per curiam opinion, filed April 11th, was In the Matter of: Anonymous, summarized here by the ILB.

Today David Stafford of The Indiana Lawyer has a lengthy, must-read story headed "‘Disconcerting’ discipline case dings veteran lawyer over third-party website." A few quotes:

A closer examination of the record suggests Indiana Supreme Court Disciplinary Commission attorneys went too far and employed tactics in prosecuting the case against [Crown Point attorney Tim] Kelly that may have violated Rules of Professional Conduct. * * *

The Supreme Court disciplinary order makes no mention of problems with the commission’s investigation. But Lake Superior Magistrate Michael Pagano, who presided as hearing officer, concluded his sometimes-blistering report to the court by writing that he initially believed the commission “overreached.”

“I am of the firm belief that my initial evaluation was, and remains, correct,” Pagano wrote.

Disciplinary Commission Executive Director G. Michael Witte referred inquiries about Kelly’s case to staff attorney Fredrick Rice, who prosecuted the matter. The commission alleged five rule violations against Kelly but proved just two – violation of Rule 7.1 for false or misleading communications regarding services, and Rule 7.2(c), failing to include an office address in a public communication.

Rice urged the Supreme Court to clarify murkier aspects of rules, particularly as they relate to attorney responsibility for statements appearing on third-party lead-generating platforms such as Law Tigers.

“The commission firmly believes that a written opinion from this Court is needed to (serve) as guidance to all members of the Indiana Bar,” Rice summed up in response to Pagano’s findings.

So what’s the advice for attorneys who may use any of a growing number of lead-generating platforms or be affiliated with groups whose websites include testimonials? Might they face discipline for content on sites over which they have no control?

“It’s kind of a hard question to address because the court didn’t address it in the opinion,” Rice said. “With regard to giving lawyers some kind of guidance in the future, unfortunately, I think the court did not take that step.”

But Rice said the opinion makes clear that lawyers should consider themselves responsible for any affiliated Internet communication that appears to benefit them, even if they didn’t publish it themselves. * * *

Before signing with Law Tigers, Kelly sought an opinion from the Disciplinary Commission, which it declined to provide, according to the record. He also sought an opinion from the state bar and consulted with nationally recognized attorney Lynda Shely, outside ethics counsel to AAMIL and a longtime director of lawyer ethics for the State Bar of Arizona. * * *

“The commission was well aware of (Kelly’s) due diligence,” Pagano wrote. “In fact, following receipt of his submission, the commission sent (Kelly) a letter informing him it would not be pursuing charges against him. The commission, for reasons unclear, then reversed itself and proceeded with the instant matter.”

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Indiana Courts

Ind. Courts - "Marla Clark wins new Johnson County judge seat"

Vic Ryckaert reports in the Indianapolis Star:

Republican voters tapped Marla Clark to be the first judge of the newly created Johnson Superior Court 4.

Clark won 57 percent of the votes, defeating Joe Villanueva, who claimed 43 percent. * * *

In this Republican-dominated county, Clark is almost assured of becoming the county's first new judge since 1997.

Clark, 42, has served as Johnson County's juvenile court magistrate for nine years. She's mother of four and a graduate of Center Grove High School, Indiana University and the University of Houston.

Villanueva, 38, has been a Johnson County deputy prosecutor for 14 years and currently serves as chief deputy.

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Indiana Courts

Ind. Courts - Changes in Tippecanoe court makeup

Ron Wilkins reports in the Lafayette Journal Courier:

Laura Zeman won her bid to be the Republican candidate for Tippecanoe Superior Court 4 judge by a 15 percentage point margin over incumbent Gregory J. Donat.

“I actually was expecting a closer result,” Zeman said Tuesday night.

“He’s a very popular, very well-liked incumbent, and a very kind and decent man. It was just time for a change. I am grateful to see the voters realize it is time for a change after 30 years of commendable work.

“It was a good run, but it’s time for a change, a new energy on the bench in there.”

In the race for Tippecanoe Circuit judge, Les Meade, currently judge in Superior 5, won with a 7 percent gap over Earl McCoy.

As he left the County Building, McCoy declined to comment. A while later, Meade showed up and was greeted by well-wishers.

“It was a very active campaign,” Meade said. “Earl spent a lot of money and had a lot of signs out. So we had to work hard to overcome that and get the message out.” * * *

The other contested GOP judge race was between Sean Persin and Dan Moore, each running for a wide-open Superior 5 seat being vacated by Meade.

The opponents took time out Tuesday to lunch together.

“The one thing I knew about this race was it was going to be close,” said Persin, who won with 53.4 percent of the vote. * * *

The Democratic Party did not have candidates running for Circuit, Superior 4 or Superior 5, but that doesn’t necessarily mean that the winners of the GOP primary have a clear path to the bench. The only Democratic candidate for judge on Tuesday’s ballot was Steven Meyer. He’ll face Rebecca Trent in November for the Superior 2 seat.

The Democratic Party has until the end of June to slate candidates for the other judicial seats.

Last evening another Ron Wilkins story reported:
No charges will be filed against Tippecanoe Superior 4 Judge Gregory Donat, who used a publicly owned computer and email account to send out a campaign email on Feb. 25.

Indiana State Police investigated the incident and reported to a special prosecutor, Todd J. Meyer, the Boone County prosecutor.

Last week, Meyer filed a report to the court indicating that charges would not be filed.

"The Indiana State Police conducted a thorough and professional investigation into this matter," Meyer wrote in the report to the court. "As a result of this investigation, the State of Indiana will not prosecute this matter."

The Journal & Courier learned of the report on Tuesday. [ILB: See below]

"I appreciate that it's all behind us," Donat said Tuesday afternoon. "I hope it doesn't affect the election one way or another."

ILB: Interestingly, the ILB received a copy of Meyer's brief report on April 30th, the day it was filed. Access it here.

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Indiana Courts

Ind. Courts - "Clark Co. incumbent [judges] swept from office"

Dalton Main reports this morning at WDRB.com:

INDIANAPOLIS (WDRB/AP) -- Democrat voters in Clark County swept two incumbent circuit judges and an incumbent county commissioner out of office in the Tuesday primary election. They also chose not to nominate a retired and senior judge for the county clerk's race. The moves mean that names familiar in county politics for decades will likely not appear on the general election ballot in November.

Newcomer Laura Harbison defeated Circuit Court No. 2 incumbent judge Jerry Jacobi. Jacobi is the judge who had oversight of the troubled Drug Court program suspended by the state supreme court. It also is the subject of a federal lawsuit and continuing review by the state. It was too early Tuesday to say if the scandal involving Drug Court led to Jacobi's defeat.

Challenger Andrew Adams defeated Circuit Court No. 1 judge Daniel Moore. Republicans did not field candidates for the circuit judge positions in the primary. The GOP could nominate candidates no later than June 30.

Challenger Susan Popp defeated retired and senior judge Steven Fleece for the Democrat nomination for county clerk; Popp will face Republican Kelly Harrod in the fall. Harrod ran unopposed in the primary.

Posted by Marcia Oddi on Wednesday, May 07, 2014
Posted to Indiana Courts

Tuesday, May 06, 2014

Courts - More on: SCOTUS upholds opening public meetings with a prayer

Supplementing yesterday's ILB post, here are two posts from SCOTUSblog:

Plus, this Slate column from Dahlia Lthwick, subheaded "Get ready for a lot more Jesus in your life."

Posted by Marcia Oddi on Tuesday, May 06, 2014
Posted to Courts in general

Courts - More on: SCOTUS upholds opening public meetings with a prayer

Supplementing yesterday's ILB post, here are two posts from SCOTUSblog:

Plus, this Slate column from Dahlia Lithwick, subheaded "Get ready for a lot more Jesus in your life."

The WSJ Law Blog, in an interview with Justice Ruth Ginsburg, ended with this:

WSJ: Do you read legal blogs?

GINSBURG: I don’t look at them but my son does and my law clerks do. Occasionally I look at Slate.com because [senior editor] Emily Bazelon is a young woman I care for. There’s another woman at Slate who I think is very good, too. Dahlia Lithwick. She’s kind of–spicy.

Posted by Marcia Oddi on Tuesday, May 06, 2014
Posted to Courts in general

Ind. Gov't. - "David Camm to seek $30M for wrongful conviction"

Updating this ILB post from May 2, Grace Schneider of the Louisville Courier Journal has this story today - some quotes:

Ever since he was released from prison last year, David Camm has said “Indiana owes me.”

Now he’s going to court with a bill in hand — $30 million — for what he alleges was malicious prosecution following his arrest and imprisonment in the fatal shootings of his wife and two children in September 2000.

In a tort claim notice dated April 16 and hand-delivered to Floyd County officials late last week, lawyer Garry Adams of Louisville wrote that Camm will seek the damages for his wrongful convictions, the trauma he suffered while held in prison and his past and continuing loss of income and emotional well-being.

The notice is required by Indiana law before suing public officials and was sent to the Floyd County commissioners, Floyd County Council and the Indiana Political Subdivision Risk Management Commission.

It names former Prosecutor Stan Faith and four former employees who worked in office — Jacque Vaught, Tony Toran, Mark Henderson and Emily Fessel.

Also identified are current Floyd Prosecutor Keith Henderson, deputy Floyd prosecutor Steve Owen, former investigator Wayne Kessinger, and two men who were hired by Faith to work the crime scene and analyze forensic evidence — Robert Stites and Rod Englert.

A second tort claim notice will be sent to the Indiana State Police within the next two months identifying specific employees who may be targeted in a single lawsuit due by late October, a year after Camm’s acquittal in the fall of 2013, Adams said. * * *

The claim is based on federal Section 1983, which allows people to sue for violations of constitutional rights. Adams declined to detail the allegations, saying that the complaint “will really have the whole story.”

Henderson, when asked for comment, said through an employee that he has forwarded the claim to the Indiana Attorney General’s Office, which represents county prosecutors in such cases.

Posted by Marcia Oddi on Tuesday, May 06, 2014
Posted to Indiana Courts | Indiana Government

Ind. Courts - "Race for Hamilton Superior judge heats up"

This May 3rd IndyStar story by Megan Banta and Brian Eason on the race for Hamilton County Superior Court 3 between the incumbent, Judge William Hughes, and Brian Poindexter, judge of the Carmel City Court, contained this quote:

The brochure promotes Poindexter's "proven track record of reducing government spending," saying he cut expenses by around 20 percent each year between 2010 and 2013, which would result in a $421,669 cut over four years from the $708,000 spent by the Carmel City Court in 2009, according to state court administration records.

But court spending stayed relatively stable during Poindexter's time as judge, fluctuating between a high of $719,686 and a low of $699,991.

The 20 percent cuts cited in the flier referred to actual expenses in relation to the court's budget, which was $848,000 or more each of the four years.

"An accurate characterization is that Judge Poindexter had to work to control and reduce expenses in order to achieve the savings reflected in the annual reports and to return monies back to the general fund," spokeswoman Janelle Morrison wrote in an explanation to The Star.

ILB: This is totally confusing and it may be the story that is at fault. The City Court's budget was $848,000 a year. What Poindexter is saying, it appears to me, is that he reverted 20% of that funding each year.

Posted by Marcia Oddi on Tuesday, May 06, 2014
Posted to Indiana Courts

Ind. Gov't. - "IURC lawyer asks for relaxed ethics rules"

John Russell of the Indianapolis Star reports today:

In a case that raises questions about the revolving door between Indiana utilities and state regulators, an attorney with the Indiana Utility Regulatory Commission is seeking permission to take a job with a large water utility without a required one-year cooling-off period.

Gregory R. Ellis, who works as an administrative law judge for the IURC, is asking the state ethics commission whether he can accept a job as director of government affairs with Indiana American Water Company.

The company, based in Greenwood, is currently seeking approval from the IURC to raise rates 9.8 percent on its 290,000 customers, a rate hike that’s opposed by the Indiana Office of Utility Consumer Counselor. Ellis was not involved in that case, an agency spokeswoman said.

Ellis said he has only been involved in two Indiana American cases during his employment with the IURC. He has worked as an administrative law judge since 2010.

In seeking the job, Ellis is challenging a policy set down in the wake of an ethics uproar involving the agency’s top lawyer, Scott Storms, who was reprimanded by the Supreme Court and fined, after he took a job with Duke Energy Corp. in September 2010.

Within weeks of taking the job, Storms was found to have been interviewing with Duke while participating in a case over whether the utility could charge ratepayers for hundreds of millions of dollars in cost overruns at its Edwardsport power plant. * * *

James Atterholt, who succeeded Hardy as IURC chairman, decreed that administrative law judges are “decision makers” under state law, and as such, are prohibited from taking a job with a regulated utility for one year after leaving IURC employment.

Administrative law judges conduct hearings and take evidence from utilities and other parties in rate cases. They play a pivotal role in deciding what evidence to admit in cases decided by the agency’s five voting commissioners. * * *

Ellis wrote he has been talking since March about a job with Indiana American and its parent, American Water Works, based in Vorhees, N.J.

ILB: Perhaps the policy should prohibit IURC decision-making employees from interviewing with companies the agency regulates while employed at the IURC, rather than simply prohibiting them from taking jobs with such agencies within a year after leaving?

Posted by Marcia Oddi on Tuesday, May 06, 2014
Posted to Indiana Government

Environment - "Indiana leads nation in coal ash ponds"

The ILB has a long list of earlier posts on coal ash, most recently re the massive February Duke coal ash spill in North Carolina -- these quotes from a NYT story titled "Coal Ash Spill Shows How a State Watchdog Was Defanged" are worth rereading. Earlier, there was the massive spill in Tennessee...

Today, Ryan Sabalow reports in a long story on the front-page of the Indianapolis Star - some quotes:

Even though Indiana has the most coal-ash ponds of any state in the nation and a troubling number of spills, state environmental regulators have done little to address the ongoing problems of how to dispose of coal waste.

So contends a new report by the Hoosier Environmental Council, which is calling on the federal government to step in and do what Indiana so far has been reluctant to do: Come up with stringent standards on how to dispose of the wastes left over from burning coal.

In its report released today called "Our Waters at Risk," the council says Indiana electric utilities generated 6.6 million tons of coal ash in 2012. Much of that ash — which is known to contain toxins such as arsenic, selenium, lead, mercury and chromium — ends up a Indiana's 84 coal ash ponds, the most of any state in the nation.

"It's a huge, unregulated source of surface-water pollution, as well as the ash in the ponds percolating down through the unlined ground beneath them and contaminating groundwater," said the report's primary author, Tim Maloney, the group's senior policy director. * * *

The worst examples noted in the report include roughly 60 million gallons of coal ash sludge spilling into the West Fork of the White River near Martinsville in 2007 and 2008 when a levee twice failed at Indianapolis Power and Light's Eagle Valley power plant. The report also described how private water wells were so contaminated by coal ash waste from two decades of pollution in Town of Pines near Michigan City that the federal government declared much of the town a Superfund site.

Maloney's report says that the reason for all these problems is simple enough: The dams and embankments that keep Indiana's coal ash ponds from spilling are almost entirely not inspected. Plus, at many sites, Indiana environmental regulators don't set limits on the runoff that discharges from the ponds into waterways, and many of the ponds that contain the sludge aren't lined with material that would prevent seepage into groundwater.

Of 17 coal-fired power plants in Indiana that dispose of ash in ponds, the report highlights Indianapolis Power and Light's Harding Street Generation Station's power plant on the city's Southside as a particularly troublesome example.

Here is the Coal Ash report, and other links, via the HEC site.

Posted by Marcia Oddi on Tuesday, May 06, 2014
Posted to Environment

Monday, May 05, 2014

Ind. Decisions - Supreme Court suspends Greenwood attorney

In In the Matter of: Robert B. BUSH, Filed May 1, the Court orders, 5-0:

The Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(11.1)(a), has filed a "Notice of Guilty Finding and Request for Suspension," asking that Respondent be suspended from the practice of law in this State, pending further order of this Court or final resolution of any resulting disciplinary action, due to Respondent being found guilty of a crime punishable as a felony.

The Court, being duly advised and upon consideration of all materials submitted, as corrected by the Commission, now finds that Respondent has been found guilty of the following felony under Indiana law: Stalking.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective as of the date of the original order, February 13, 2014.

Per the footnote ("The original order erroneously stated that Respondent had been convicted of two felonies."), this appears to be a correction of the earlier order.

Posted by Marcia Oddi on Monday, May 05, 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 (1):

Victor Mercaldo and Nancy Jenkins, individually and as Parents and Natural Guardians of Kelly P. Mercaldo, Minor Child, Deceased, et al. v. Andrew Hagenow and Alyssa R. Brown (NFP)

NFP criminal opinions today (1):

Justin Malone v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Inspector General clears former DNR chief Rob Carter in raunchy emails, hunting party, job offer"

Ryan Sabalow has this long story Sunday in the Indianapolis Star. (Sabalow's Nov. 14th story is quoted in this earlier ILB post.) The Sunday story begins:

The state’s watchdog agency cleared former Department of Natural Resources chief Rob Carter Jr. of wrongdoing concerning his hiring by Ivy Tech Community College, his receipt of raunchy emails on his work computer and his use of public hunting lands.

Carter’s attorney said his client and Ivy Tech were “fully and completely exonerated” by a six-page inspector general’s report completed earlier this year. “No state ethics rules were violated and no wrongdoing occurred,” Indianapolis attorney Jason R. Barclay said in an email.

But others, including a hunter and a good-government advocate, said the investigation raised questions about whether powerful political appointees play by the same rules as others.

“Like most investigations of people with strong political connections, even after the investigation is concluded, questions remain,” said Julia Vaughn, policy director of Common Cause Indiana.

The investigation was launched after an Indianapolis Star story last fall revealed that, prior to being hired as chief security officer at Ivy Tech, Carter received and sometimes responded to several racy, sexist and inappropriate emails — including photos of naked women — sent by the then-chairman of Ivy Tech’s board. He also appeared to have taken the school’s chairman on a hunting trip on public lands without going through normal channels.

The inspector general’s report determined that Carter broke no rules for the following reasons:

• The report found that, while Carter and V. Bruce Walkup, the former Ivy Tech chairman, did communicate about Carter’s future employment, there was no evidence of a quid pro quo.

• The racy emails between Carter and Walkup didn’t violate any state policy, and there weren’t enough of them to run afoul of state rules forbidding excessive personal use of state computers. Walkup resigned this fall after The Star’s report.

• While Carter did skip a lottery required of other hunters on a public land in September 2012, no rules were violated because all of the hunters who had gone through proper channels were allowed to hunt. In effect, Carter’s hunting party didn’t cut in line.

The Star links to the 6-page, Feb. 5th Inspector General report.

Why it took three months for this report to come to light is not explained.

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Indiana Government

Ind. Courts - More on "Hearings [last] Friday to consider state’s same-sex marriage ban"

Updating this ILB post from May 1st, here are some quotes from an AP story Saturday in the Gary Post Tribune:

EVANSVILLE — Indiana will be required to recognize the out-of-state marriage of a lesbian couple from Munster at least a few days more as a federal judge considers whether the state must continue to acknowledge the union, and whether the state’s ban on same-sex marriages should be abolished. * * *

Bonnie Everly, of Chesterton, who drove to Evansville to attend the hearing with her partner Lyn Judkins, said the judge said he would have a decision within a week on the Munster couple’s case. Young didn’t say when he’d rule on the state ban, but Everly was upbeat. * * *

Attorneys also requested that the state recognize the 2013 Massachusetts marriage of Niki Quasney and Amy Sandler, both 37, of Munster. Quasney is terminally ill with advanced ovarian cancer, and the couple fear Sandler’s ability to collect Social Security and other death benefits would be harmed if their marriage isn’t recognized.

Young granted the couple a temporary restraining order last month. It expires Thursday.

Attorneys for the state say there are other legal ways for Sandler to obtain property benefits after Quasney dies.

Indiana law defines marriage as between one man and one woman. The state does not recognize same-sex marriages or civil unions conducted in other states.

Indiana Solicitor General Thomas M. Fisher said Friday that the law does not allow for a hardship exception. He said a death certificate could be amended at a later date.

From Tim Evans' May 2nd story in the Indianapolis Star:
While Young promised Friday to rule soon, the reality is his verdict will not end the contentious legal dispute.

Both sides have made it clear that, if Young does not rule in their favor, they will appeal his decision to the 7th U.S. Circuit Court of Appeals. That challenge would join a raft of federal court rulings nationally — all, so far, in support of same-sex marriage — that are being appealed, and appear to be pushing the issue closer to the steps of the U.S. Supreme Court.

In those other cases now being appealed, the district judges have typically “stayed” their orders overturning state same-sex marriage bans. That means the laws, even though they have been ruled unconstitutional, remain in effect during the appeal.

It’s not clear how Young will rule, though in a decision last month to temporarily grant recognition of a lesbian couple’s marriage, the judge hinted that the couple were likely to succeed in having Indiana’s gay marriage ban declared unconstitutional.

Young also took under advisement Friday a request to extend indefinitely the temporary restraining order he issued April 10 that directs the state to recognize the marriage of Nikole Quasney and Amy Sandler, who wed in Massachusetts. That temporary order, granted in part because one of the women is dealing with a terminal illness, expires May 8.

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Indiana Courts

Ind. Gov't. - Another follow-up on: "State to lose $63M in tobacco payments next year"

Updating this April 14th ILB post, which included:

This entry from Oct. 17, 2013 reported that a three-judge panel had reduced Indiana’s payment from $131 million to $68 million. Quoting ILI: "arbitrators determined that [for the year 2003] Indiana, Kentucky, Maryland, Missouri, New Mexico, and Pennsylvania failed to 'diligently enforce' the relevant 1998 Tobacco Master Settlement Agreement (MSA) provision, resulting in reductions in payments to which they would otherwise have been entitled."
In the April 14th post, the ILB reported that Pennsylvania had, in trial court, recouped part of the disallowed money.

In this May 2nd release, the attorney general of Missouri announces that:

Judge Jimmie Edwards of the City of St. Louis Circuit Court has partially vacated a 2013 arbitration panel ruling that cost Missouri approximately $70 million from its annual tobacco settlement payment. Koster sent a copy of the ruling to PricewaterhouseCoopers, the independent auditor that calculates the states' tobacco payments, along with a letter demanding that Missouri's payment be revised to comply with the court's ruling.

"As a result of today's decision, Missouri should be paid nearly $50 million that the tobacco companies sought to withhold from our State," Koster said. "This money will provide needed support for state priorities like public education. I thank our dedicated team of attorneys, who have litigated this case for years to ensure that Missouri receives its fair share of the settlement money."

Here is the 15-page Missouri trial court order.

Indiana's appeal, State Of Indiana ex rel, et. al. v. Philip Morris, Incorporated, et. al., is pending before the Marion County Superior Court, a hearing is scheduled for mid-July.

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Indiana Government

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

In Cung Hnin v. TOA (USA), LLC (SD Ind., Barker), a 17-page opinion, Judge Amy J. St. Eve, Northern District of Illinois, sitting by designation, writes:

On January 25, 2012, Cung Hnin (“Hnin”) filed a four-count Complaint against his former employer TOA (USA), LLC (“TOA”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq., pursuant to the district court’s original jurisdiction, 28 U.S.C. § 1331, and two state law claims pursuant to the dis-trict court’s supplemental jurisdiction, 28 U.S.C. § 1367(a). On July 22, 2013, TOA filed a motion for summary judgment under Federal Rule of Civil Procedure 56(a), and on October 31, 2013, the district court granted TOA’s summary judg-ment motion in full. On appeal, Hnin challenges the district court’s summary judgment ruling on his Title VII national origin discrimination claim and his Title VII retaliation claim. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - SCOTUS upholds opening public meetings with a prayer [Updated]

The vote was 5-4, the case is Town of Greece, NY v. Galloway. Read it here, there are, according to Michelle Olsen at @AppellateDaily "Not just one, but six Town of Greece opinions to enjoy (one is nestled within the majority opinion)"

Rick Hasen ‏@rickhasen - All non-Christians on #SCOTUS dissented in Town of Greece. All but one (Sotomayor) of the Christians voted to uphold prayer.

Brent Kendall ‏@brkend - Justice Kagan dissent: NY town never sought to "reach out to adherents of non-Christian religions." Prayers were "steeped in only one faith."

[Updated at 11:30 AM] Here are news stories:

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Courts in general

Ind. Courts - "Murder case could sit year in legal limbo"

Rebecca Green of the Fort Wayne Journal Gazette has a third story Sunday (see May 2nd post here) in the case relating to the murder of Erin Justin, whose body was found in Noble County, but whose body may have been moved from Allen County. Some quotes from Sunday's lengthy story:

But two Fort Wayne brothers face charges in her death in the county where her body was found nearly three years ago. One is charged with murder.

Where they will stand trial – if the cases against them even continue – is as unknown as everything else. The murder case alone appears to have spawned an unprecedented fight over which county gets to – or has to – try the case.

It could be on hold for a year if the state Court of Appeals weighs in on an order to try the case in Allen County, one legal expert predicts – and if it’s tried in Allen, there’s no guarantee that the brother charged with murder in Noble County will face the same charge in Allen County. * * *

State law says this: Criminal acts may be tried in the county where the crime was committed, except if it involves a death. Then it can be tried where the cause of death was inflicted, the death actually happened or where the victim’s body was found. If no one can figure out where the crime occurred, then the case can be tried in any county where anything was done to further a crime, say by hiding a body in a lake.

The Indiana Constitution says this: In all criminal prosecutions, the defendant shall have a right to a trial by jury in the county where the offense is alleged to have occurred.

“May” in the law. “Shall” in the constitution.

About a month after the charges were filed, Noble County Chief Public Defender James Abbs filed a motion to dismiss the case against his client, Andres Gonzalez, arguing that state law conflicted with the constitution.

In lieu of a dismissal, Abbs argued for a transfer of the case to Allen County, where both brothers said the crime occurred.

At a hearing Tuesday, Noble County Prosecutor Steve Clouse argued through his deputy, J. Everett Newman, that Noble County had an obligation to investigate the matter since her body was found there. And even if all the information about what happened to her is largely inconclusive, the body was last handled in Noble County, making it all the more evident that the case should stay put, the prosecutors said.

But Noble Superior Court Judge Robert Kirsch ruled in favor of the defense, ordering the case transferred to Allen County.

“Where was the scene of death,” Kirsch asked in his ruling. “In light of this purported conflict as to the place of death … the Court prefers to base its decision on the Defendant’s assertion of his constitutional right on the Defendant’s own admissions.

“Is the disposal of the victim’s body in Noble County by itself constitutionally and statutorily sufficient to establish proper venue in Noble County notwithstanding the Defendant’s pre-trial assertion of his constitutional right to be tried in Allen County where the offenses were committed?” Kirsch asked.

Clouse asked Kirsch to hold off on enforcing his order to give him time to appeal, and Kirsch agreed – putting the case in a kind of legal limbo until an appeal is filed, heard and ruled on.

What’s next?

Clouse has until Friday to file his request for an interlocutory appeal, which would send the case to the Indiana Court of Appeals while it remains pending.

Whatever happens next may not happen for months, or even a year, according to Joel Schumm, a clinical professor of law at the Robert H. McKinney School of Law at Indiana University-Indianapolis.

“There’s quite a bit of this the appeals court is going to need to sort through,” Schumm said.

Those issues include whether a judge can decide what facts he or she wants to rely on – or what to do with conflicting facts in a probable cause affidavit, he said

Schumm read Kirsch’s order as, at least, implying that the state law was unconstitutional. And appellate courts tend not to like to declare laws unconstitutional, he said.

“I don’t know that those questions have been decided in case law,” he said.

In his ruling, Kirsch effectively dismissed the case by saying it couldn’t be filed in Noble County, Schumm said.

Should the case come to Allen County, there’s no guarantee it would be charged as a murder, or even charged at all, Schumm said.

“The elected prosecutor has full authority to do whatever she wants with it when she gets it,” he said.

For now, Andres Gonzalez remains behind bars, held without bail on the murder charge.

If the defense were to request to have a bail amount set for him, the state would have to present evidence that Justin’s death was actually a murder, Schumm said.

“There’s a pretty good question about whether this is murder or something else,” he said.

Last year, the court of appeals heard about 40 percent of the cases sent to it. Schumm believes it is likely the court will take this one up when it gets there.

“They’re not going to want this case tried in the wrong county,” he said. “They’re going to want this to be decided upfront.

“This raises issues that haven’t been decided before,” he said.

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending May 2, 2014 [Updated]

[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, May 2, 2014. It is two pages (and 24 cases) long.

Four transfers were granted last week.

One was a transfer with opinion, Brewington v. State, see ILB summary here from May 1, 2014.

In another, Gerardo Nino-Romero v. State of Indiana, the Court ordered:

Transfer Granted, the 10/1/13 order dismissing this appeal and the 1/16/14 order denying rehearing are vacated, and the case is remanded to the Court of Appeals for further proceedings. We express no opinion on the merits. - All Justices concur.
Transfer was granted in Jason Young v. Hood's Gardens, Inc., a 2-1, Dec. 17, 2013 COA opinion (3rd case) where the dissent begins: "This case illustrates once again the marked difference in summary judgment procedure in Indiana as compared to federal practice."

Finally, transfer was granted to both Appellee - Central IndianaEthanol, Inc. and to Appellee - Indiana Dept. of Env. Mgmt, in the case of Natural Resources Defense Council v. Poet Biorefining-North Manchester, LLC, Poet Biorefining-Cloverdale, LLC, Central Indiana Ethanol, Inc., and Indiana Department of Environmental Management, Green Plains Bluffton, LLC, and Anderson Clymers Ethanol, LLC, which was argued before the Supreme Court on May 1st, 2014. This was an April 30, 2013 COA opinion (7th case) concluding: "The issue before us is whether the State could properly exclude fuel-grade ethanol production plants from the category of “chemical process plants” without Environmental Protection Agency (EPA) approval of a modification to the Indiana State Implementation Plan (SIP). As it could not, the ethanol plants remain “chemical process plants,” and we must reverse the trial court."

Transfer granted on April 3, 2014 in the case of Don H. Dumont, M.D. v. Penny Davis and Nicole Anderson, as Co-Administratrixes of the Estate of Charmitta Jordan, Deceased is, as of May 2nd, "now vacated, and Transfer is Denied - All Justices concur." [Updated 5/7/14 - the Court today posted the order revoking transfer and reinstating the COA precedent.]

Posted by Marcia Oddi on Monday, May 05, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, May 8

Next week's oral arguments before the Supreme Court (week of 5/12/14):

Thursday, May 15

Webcasts of Supreme Court oral arguments are available here.


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

Monday, May 5

Next week's oral arguments before the Court of Appeals (week of 5/12/14):

Monday, May 12

Tuesday, May 13

Wednesday, May 15

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, May 05, 2014
Posted to Upcoming Oral Arguments

Friday, May 02, 2014

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

In Tommy Ford v. Bill Wilson (ND Ind., Moody), an 18-page opinion, Judge Tinder writes:

This is a habeas action brought un-der 28 U.S.C. § 2254, in which Petitioner Tommy Ford chal-lenges his conviction for murder in an Indiana state court. On appeal, Ford maintains only one ground for relief: that his trial counsel was ineffective in failing to object when the state prosecutor commented on his failure to testify. Ford contends that an objection would have been sustained be-cause the prosecutor’s comments violated his Fifth Amendment privilege against compulsory self-incrimination. How-ever, even assuming that to be true, Ford has failed to show prejudice resulting from his attorney’s failure to object. Therefore, we affirm. * * *

Although the Indiana Court of Appeals applied the wrong legal standard to Ford’s claim, when we apply the correct standard, we get the same result. Even assuming the performance of Ford’s trial counsel was deficient, there is no reasonable probability that adequate performance would have changed the outcome of Ford’s trial. Therefore, the dis-trict court’s dismissal of Ford’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 is AFFIRMED.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "George Will: Here’s why we distrust the government" and a 7th Circuit opinion

The Indianapolis Star today published an opinion piece by George Will, that you will need to read for yourselves. It contends that small business people, mostly immigrants, who run corner groceries and other stores that deal mostly in case, are being targeted by the IRS. Some quotes:

Terry, who came to Michigan from Iraq in 1970, soon did what immigrants often do: He went into business, buying Schott’s Supermarket in Fraser, Mich., where he still works six days a week. The IRS, a tentacle of a government that spent $3.5 trillion in 2013, tried to steal more than $35,000 from Terry and Sandy that year.

Sandy, a mother of four, has a master’s degree in urban planning but has worked in the store off and on since she was 12. She remembers, “They just walked into the store” and announced that they had emptied the store’s bank account. The IRS agents believed, or pretended to believe, that Terry and Sandy were or conceivably could be — which is sufficient for the IRS — conducting a criminal enterprise when not selling groceries.

What pattern of behavior supposedly aroused the suspicions of a federal government that is ignorant of how small businesses function? Terry and Sandy regularly make deposits of less than $10,000 in the bank across the street. Federal law, aimed primarily at money laundering by drug dealers, requires banks to report cash deposits of more than $10,000. It also makes it illegal to “structure” deposits to evade such reporting. * * *

The IRS used “civil forfeiture,” the power to seize property suspected of being produced by, or involved with, crime. The IRS could have dispelled its suspicions of Terry and Sandy, if it actually had any, by simply asking them about the reasons — prudence, and the insurance limits — for their banking practices. It had, however, a reason not to ask obvious questions before proceeding.

The civil forfeiture law — if something so devoid of due process can be dignified as law — is an incentive for perverse behavior: Predatory government agencies get to pocket the proceeds from property they seize from Americans without even charging them with, let alone convicting them of, crimes. Criminals are treated better than this because they lose the fruits of their criminality only after being convicted. * * *

Civil forfeiture proceeds on the guilty-until-proven-innocent principle, forcing property owners of limited means to hire lawyers and engage in protracted proceedings against a government with limitless resources, just to prove their innocence. Says IJ:

“To make matters worse, forfeiture law treats property owners like random bystanders and requires them to intervene in the lawsuit filed by the government against their property just to get it back. That is why civil forfeiture cases have such unusual names, such as United States v. $35,651.11 in U.S. Currency — the case involving Terry and Sandy.”

ILB: Parts of this column sounded familiar, so I looked back and found a March 19, 2014 2-1 civil forfeiture opinion decided by Judge Hamilton, United States v. Yulia Yurevna Abair, involving a Russian immigrant. The Court reversed the lower court and sent the case back for a new trial. Judge Sykes, in dissent, describes what Abair did:
Yulia Abair, a Russian immigrant and registered nurse, made an unusual series of large cash deposits into her account at a bank near South Bend, Indiana. This attracted the attention of IRS agents and eventually the Department of Justice, but their investigation turned up no evidence of nefarious activity. Abair wasn’t evading taxes or laundering ill-gotten gains; she was buying a home and was having difficulty accessing funds in her Citibank Moscow account. To get around the problem, Abair resorted to the scheme my colleagues have described: She made repeated ATM withdrawals from her Russian bank account and deposited the cash with her local bank in a series of transactions just under the $10,000 threshold that triggers the bank’s reporting requirements for currency transactions. The withdrawals were legitimate, but the deposits landed Abair in big trouble.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Courts in general

Ind. Courts - Clarksville murder suspect seeks judge's recusal

Charlie White reports today in the Louisville Courier Journal:

The attorney representing one of two young men charged with murdering a Clarksville man during a March 2013 home invasion in an upscale north-end neighborhood has requested a Clark County judge recuse herself and transfer the case to a special judge.

Bart Betteau filed a petition Thursday in Clark Circuit Court 4 on behalf of his client, Garreth Stephens, 20, citing Judge Vicki Carmichael’s previous representation of the murder victim’s wife, Melanie Coghill, when Carmichael was a local attorney.

Court records filed with the petition show Carmichael was Coghill’s attorney during part of her divorce case against Charlestown resident Brian Glaab, a case that involved him paying her child support for their son, who later became murder victim Steven Baldwin’s stepson.

Baldwin, a 47-year-old insurance salesman, was found fatally shot in the chest at the Plum Woods Drive home where he, Coghill and her son lived, authorities said.

Betteau said in an interview Friday that neither him nor his client are accusing Carmichael of being unfair or biased in the case. But they believe her history with Coghill has the appearance of a conflict.

In the petition, Betteau cited the 1993 rape conviction appeal of former boxing star Mike Tyson v. State of Indiana, where then-Indiana Supreme Court Chief Justice Randall Shepard wrote: “Indiana practice has always leaned toward recusal where reasonable questions about impartiality exist.”

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Indiana Courts

Ind. Decisions - More on "It is a ruling that appears to be unprecedented in Indiana"

Updating yesterday's ILB post, Rebecca S. Green of the Fort Wayne Journal Gazette follows up with a story today headed "Murder case now on hold with order." Some quotes:

The murder case against Andres Gonzalez Jr., accused of killing a woman whose body was found in an area lake, is now in limbo.

On Thursday, Noble Superior Court Judge Robert Kirsch granted Prosecutor Steve Clouse’s request to delay transferring the case to Allen County.

Clouse has until May 9 to file a motion for an interlocutory appeal in the case – meaning he will ask the state’s appellate court to rule on this issue while the case is still ongoing

In his ruling, Kirsch expressed “great concern” about the seriousness of the charge and how any delay in the case might affect the prosecution of Gonzalez, who remains in jail, held without bail, according to court documents.

On Wednesday, Kirsch granted a request by Noble County Chief Public Defender James Abbs to move the case from Noble County to Allen County because that was where court documents filed in the case allege the crime occurred. * * *

Clouse charged the pair in March in Noble Superior Court. Under Indiana law, a murder case can be filed in the county where a body is discovered.

But Abbs argued in a motion to dismiss and a motion to transfer that the state constitution provides defendants with the right to have their cases heard in the county where the crime occurred. Because all the documents and statements by witnesses alleged Justin was killed in Allen County, the case should be transferred there, Abbs argued.

After hearing arguments this week, Kirsch granted his request.

On Thursday morning, Clouse filed a motion for a stay on Kirsch’s ruling to give him time to allow the Indiana Court of Appeals to consider the matter.

Clouse, through his deputy prosecutor J. Everett Newman, argued Tuesday that Noble County had a duty and obligation to investigate the case after Justin’s body was discovered in the lake. Even though information about where or how she died remains inconclusive, the body was last handled in Noble County and the case should be tried there, Newman said.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "David Camm to sue Floyd Co. and Indiana for $30M"

That is the headline to this story today, with video, by Stephan Johnson at WDRB.com, Louisville. Some quotes:

FLOYD CO., Ind. (WDRB) -- A jury handed David Camm his freedom, but now he wants more -- millions more.

Floyd County officials were recently served notice that Camm will sue the county and the state of Indiana for millions of dollars, but the action has been in the works for several months. * * *

"The monetary amount that we included in our tort claim is $30 million," said Louisville attorney Garry Adams, who is representing Camm in his civil suit against Floyd County and the state of Indiana.

The notice of tort claim gets the ball rolling on the $30-million lawsuit.

"And I can tell you there's no amount of money that can repay him for what has been done to him," Adams said.

The tort claim is a prelude to a civil lawsuit, which states Camm was "the victim of an unlawful investigation, arrest, imprisonment and malicious prosecution at the hands of Floyd County."

"Anybody's name that is included in this tort claim notice is a potential defendant," said Adams.

The first name on the list of potential defendants is the first man to win a conviction against Camm: former Floyd County Prosecutor Stan Faith.

"And we got service on both the Floyd County Commissioners, the Floyd County Council and I had somebody also hand deliver and serve the Floyd County attorney," Adams said. * * *

Camm's attorneys say the lawsuit will be filed in federal court in the near future.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana case May 1st

In Sarah Frey v. EPA SD Ind., Young), a 22-page opinion, Judge Hamilton writes:

This environmental dispute stems from the contamination and clean-up of several sites near Bloomington, Indiana, that have been the subject of two prior decisions by this court. See Frey v. Environmental Protection Agency, 270 F.3d 1129 (7th Cir. 2001) (“Frey I”); Frey v. Environmental Protection Agency, 403 F.3d 828 (7th Cir. 2005) (“Frey II”). After our last remand of this citizen suit under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), see 42 U.S.C. § 9659 (citizen suits authorized), the parties filed cross-motions for summary judgment. Plaintiffs Sarah E. Frey, Kevin Enright, and Protect Our Woods, Inc. also filed a motion to disqualify the district judge because of his ruling in a related case.

The remediation work has been divided into three stages. The district court held that § 113(h)(4) of CERCLA, 42 U.S.C. § 9613(h)(4), deprived it of jurisdiction over the plaintiffs’ claims based on the second and third stages because that remedial work was ongoing. The court then granted summary judgment for the defendants (the Environmental Protection Agency and its Administrator) on two of the remaining claims concerning the completed first stage of the remedial work and held that the third claim was moot. The district judge also denied the motion to disqualify him.

We affirm. The second and third stages of the site clean-ups are currently in progress, so § 113(h)(4) prevents the courts from reviewing plaintiffs’ claims about those stages. We also conclude that § 113(h)(4) does not bar judicial review of plaintiffs’ claims about the first remedial stage insofar as they are not affected by continuing clean-up efforts at the sites. The district court correctly granted summary judgment to the EPA on plaintiffs’ claims regarding the first remedial stage. Plaintiffs also are not prevailing parties on their claim that the EPA and its administrator were required to have the court enter agreements between parties as consent decrees. Finally, Chief Judge Young was not required to recuse himself, and his denial of the motion to disqualify did not violate plaintiffs’ right to due process of law.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issued another opinion on April 30th

Occasionally a Court of Appeals opinion is filed after the main batch is posted online, and these are easy for attorneys and others who check the list earlier in the day to miss, because they do not appear at the top of that date's list and are not otherwise distinguished. Here is one such opinion the ILB has discovered from April 30th.

In First Response Services, Inc. v. Vincent A. Cullers (Vincent A. Cullers Counterclaim Plaintiff v. First Response Services, Inc. Counterclaim Defendant), a 13-page opinion, Judge Robb writes:

First Response Services, Inc. (“First Response”) provided water remediation services for Vincent Cullers at his home and filed a complaint for breach of contract and unjust enrichment when Cullers did not pay its $7,722.43 invoice. The trial court found that First Response’s contract with Cullers violated the provisions of the Indiana Home Improvement Contract Act (“HICA”), but First Response was entitled to payment for its services in the amount of $3,780.38. Because it found a violation of the statute, however, the trial court denied First Response’s request for attorney fees pursuant to its contract. First Response appeals the trial court’s judgment, raising two issues for our review that we consolidate and restate as one: whether the trial court erred in denying attorney fees based upon its determination that First Response had violated HICA. Concluding the trial court did not err, we affirm.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Ind. App.Ct. Decisions

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

For publication opinions today (1):

In Christine Anderson v. Indiana Insurance Company, a member of Liberty Mutual Group, an 18-page opinion, Judge Brown writes:

Christine Anderson appeals the trial court’s grant of the motion for summary judgment filed by Indiana Insurance Company (“Indiana Insurance”), a member of Liberty Mutual Group. Anderson raises one issue which we revise and restate as whether the trial court erred in granting summary judgment in favor of Indiana Insurance. We reverse and remand. * * *

Whether the Setoff Provision Contravenes Ind. Code §§ 27-7-5. We next turn to whether the Policy is consistent with our state statutes. We find Justice v. Am. Family Mut. Ins. Co. (filed March 13, 2014), Ind. No. 49S02-1303-PL-221, instructive. * * *

Here, the trial court ordered that Anderson could not recover anything from Indiana Insurance because she had received $25,000 from Cox and $81,166.15 in worker’s compensation benefits and the sum of these amounts exceeded the policy limit of $100,000. Based upon Justice, we conclude that the trial court erred in finding that Anderson could not recover anything from Indiana Insurance. In other words, if Cox had carried the required amount of liability insurance, depending on her total damages Anderson may have received $50,000 in addition to the $81,166.15, and the purpose of the uninsured/underinsured motorist statute is to put her in that position. In light of that statutory purpose, we conclude that Anderson may be entitled to recover the remaining $25,000 from Indiana Insurance depending on her total damages. See Justice, slip op. at 12-13; cf. Hardiman v. Governmental Interinsurance Exch., 588 N.E.2d 1331, 1335 (Ind. Ct. App. 1992) (“Since Hardiman received the statutory minimum, we find G.I.E.’s application of the worker’s compensation set-off provision does not violate public policy.”), trans. denied.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Marc M. Lindsey v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Police can’t knock on your door and wait at front steps forever, court holds"

The April 29th Court of Appeals opinion in J.K. v. State (6th case) was the subject of a post yesterday by Orin Kerr of The Volokh Conspiracy. A quote:

The police are allowed to walk up to a house and knock on the door in an attempt to speak to residents inside. But if no one answers, how long can they stay at the door? Not for as long as 45 minutes, holds the Court of Appeals of Indiana in J.K. v. State. The court bases this conclusion on the U.S. Supreme Court’s recent decision in Florida v. Jardines, which held that a knock-and-talk is permitted by implied social custom but that other steps such as bringing a drug-sniffing dog to the front steps go too far.
Some of the comments are also of interest.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "The Kansas Supreme Court announced today that it has hired Heather Smith to be clerk of the appellate courts at the Judicial Center in Topeka effective June 9"

Updating this ILB post from April 29th, the Kansas State Bar Ass'n. has the story here:

Smith will replace Carol Green, who has been clerk since 1991 and will retire June 6.

"Carol Green set an exceptionally high bar for her successor, but we believe Heather Smith is suited to the challenge,” said Chief Justice Lawton Nuss. "She has broad appellate court experience and we look forward to her leadership in the clerk’s office.”

Smith currently is deputy clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court, where she is responsible for the day-to-day operations of the office. She also played a key role in planning several technology projects, including emailing orders and opinions, accepting online attorney registration fees, and a public online case search.

"I’m thrilled for this opportunity to serve the appellate courts in Kansas and I am eager start my new duties,” Smith said.

In her new role, Smith will be responsible for planning and supervising administrative work related to the operation of the Supreme Court and the Court of Appeals, including work related to appellate rules, managing court records, keeping statistical information, processing bar admission applications and certifying court reporters. She also will be responsible for conducting elections for lawyer members of the Supreme Court Nominating Commission and district judicial nominating commissions in nonpartisan judicial districts.

The late David Schanker, former Deputy Clerk of the Indiana Courts, also moved from that position in Indiana to Clerk of the Courts in another state, Wisconsin. From this July 20, 2010 ILB post, quoting a story from the Wis. bar ass'n:
Lauding Schanker’s performance as chief clerk and his valuable contributions to the court particularly his rulemaking process, Prosser said, “David was very bright and competent in running the clerk’s office. He was on top of technology, and he took charge to bring the court to forward.”

“David Schanker was instrumental in implementing the court’s e-filing system and tirelessly traveled the state teaching people about it,” said Wisconsin Supreme Court Commissioner Nancy Kopp. “His enthusiasm for providing enhanced public access to court filings through technology and his patience in explaining the nuts and bolts of e-filing will be greatly missed.”

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Indiana Courts

Ind. Courts - More on "200 students sit in on court appeal " in Crown Point; plus argument cancelled at South Bend venue

Updating this ILB post from yesterday quoting a Gary Post-Tribune story on the COA oral argument held there Wednesday, Susan Brown had a story yesterday on the same event in the NWI Times, headed "Stellar turnout for Appeals on Wheels." Some quotes:

CROWN POINT | High school students from throughout Lake and Porter counties joined veteran attorneys and court officials Wednesday in welcoming members of the Indiana Court of Appeals for what educators called a rare opportunity for teens.

As part of the state court's Appeals on Wheels program to educate citizens on the judiciary's role in government, three appellate court judges and attorneys representing the litigants brought arguments in an active case to be heard in the Lake County Government Center.

Among the several hundred attorneys and court officials in the gallery were two well-prepared aspiring attorneys -- currently upperclassmen at Hammond's Morton High School.

"I'll be seeing what I want to do eventually," said senior Antoinette Prieto in high anticipation of actual oral arguments before Judges James S.Kirsch, John G. Baker and Margret G. Robb.

The judges would hear appellant attorney Jill Acklin and Indiana Deputy Attorney Jesse Drum argue the case of a Miami County woman appealing her conviction on charges of disorderly conduct and resisting law enforcement. The woman was alleged to have resisted officers investigating reports of the woman's dog biting a neighbor. * * *

Speaking for the Women Lawyers Association, which hosted the event, attorney Melissa Cohen said the group saw the program as a way to expose students to the way the state's highest courts operate and also to educate lawyers and the community on the process. * * *

Appeals on Wheels typically visits high schools, colleges, law schools and courtrooms but also goes to conference centers, tourist sites and even retirement centers, according to information provided by the association, which had provided study guides to prepare students at the 13 high schools invited to Wednesday's arguments.

The event also drew court officials from both counties, some of whom attended for the first time, and saying they intended to attend again.

The court has conducted more than 370 Appeals on Wheels between its 2001 centennial and December 2013. However, the program predates the centennial.

Meanwhile, Madeline Buckley of the South Bend Tribune reports today that another Court of Appeals oral argument, also scheduled for Wednesday, was cancelled. From the story:

SOUTH BEND -- St. Joseph High School told the Indiana Court of Appeals that students would not be allowed to watch oral arguments in a child molesting case that judges planned to hear at the school on Wednesday, prompting the court to cancel the proceedings altogether, a spokesman for the court said.

The appellate judges travel the state throughout the year to hear oral arguments in a number of pending cases as part of its "Appeals on Wheels" public education platform.

Martin DeAgostino, spokesman for the appeals court, confirmed the cancellation but deferred further questions to the school.

"The school, for reasons of its own, thought it best that the students not participate," DeAgostino said.

Principal Susan Richter did not answer questions about the school's role in the cancellation. But she wrote in an email: "It is my understanding that the Court of Appeals called and talked to my secretary on Monday, April 28, and canceled the scheduled oral argument at Saint Joseph High School, which was set for April 30, 2014." * * *

In front of a panel of judges, attorneys would have debated several criminal law issues the case raised, like whether the defense counsel was ineffective and whether prosecutors posed appropriate questions to witnesses.

After the arguments in the Appeals on Wheels cases, judges often answer audience questions about the justice system. * * *

So far this year, judges have heard oral arguments at five Indiana high schools. The subject matter of the cases heard at the high schools ranged from a civil case involving a property issue, public intoxication, resisting law enforcement and a civil case centered around a drunken driver who struck and killed a 12-year-old.

"The judges are thoughtful people who choose cases they think are of interest and appropriate for the audience," DeAgostino said. The court generally chooses cases with interesting legal arguments rather than cases in areas that tend to be dry and technical, he said. In such cases that involve sex crimes and violence, DeAgostino said the appeals arguments center on legal issues.

"I've observed a lot of these oral arguments. I've never seen one that got into the anatomical details or the gory details of any particular crime," he said.

Judges have conducted almost 400 traveling oral arguments since 2000, hoping to educate the public about the process. "They get to see and hear legal arguments," DeAgostino said of the students. "They might think 'I could do that' or 'I could have a career in law.'" * * *

The appeals court will make a decision in the Rashawn Speed case without hearing oral arguments, as is the case with most pending appeals.

ILB: Both upcoming COA oral arguments were summarized in this ILB "Upcoming Oral Arguments" post last Monday.

Posted by Marcia Oddi on Friday, May 02, 2014
Posted to Indiana Courts

Thursday, May 01, 2014

Ind. Decisions - "Supreme Court Rules In Blogger’s Judge Intimidation Case"

Mike Perleberg of Eagle County 99.3 FM, the media outlet that has covered the Daniel Brewington story from the beginning, has this story this afternoon on today's Supreme Court decision in Brewington v. State.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Sup.Ct. Decisions

Indiana Decisions - More on: Supreme Court decides second case today, re public bidding

Updating this ILB entry from this morning, Chelsea Schneider reports in the Evansville Courier & Press in a story that begins:

INDIANAPOLIS — The Indiana Supreme Court ruled Thursday the Evansville Vanderburgh School Corp. violated the state’s competitive bidding law in an arrangement made to renovate the district’s administrative office without soliciting public bids.

However, the state’s high court ruled the group of contractors that sued EVSC and the EVSC Foundation over the renovation project would not receive damages because the school district did not violate Indiana’s antitrust laws.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court decides Brewington case, distinguishes between protected speech and unprotected true threats [Updated]

Updating this ILB post from this morning, Eugene Volokh has posted a summary of the opinion as it relates to the intimidation charge, which he briefed and argued on behalf of amici. Volokh concludes:

I am glad that the Indiana Supreme Court recognized and reversed the legal error in the Indiana Court of Appeals opinion — the thing that my clients (who were the amici, not the defendant) were concerned about. Threatening to harshly criticize people’s actions, and thus to expose them to ridicule and disgrace (at least outside the special case of blackmail) is legal again in Indiana.
[Updated at 1:30 PM] Here is Tim Evans' initial IndyStar story about today's ruling. Some quotes:
Daniel Brewington, 39, Cincinnati, was convicted in 2011 of intimidation of a judge, attempted obstruction of justice and perjury for comments he wrote on a blog about the Dearborn County judge who presided over his contentious divorce case.

Brewington thought — and argued in court — that he was exercising his First Amendment right to criticize a public official, but authorities decided his statements crossed the line from free speech into criminal behavior.

“It is every American’s constitutional right to criticize, even ridicule, judges and other participants in the judicial system — and those targets must bear that burden as the price of free public discourse,” the court’s ruling says. “But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criticism.”

The Indiana Court of Appeals in January 2013 upheld the most serious of his convictions.

Brewington appealed that decision to the Supreme Court. He found support for his attempt to have the convictions overturned in an unlikely coalition: a mix of conservatives, liberals, academics and media advocates, including The Indianapolis Star.

The groups that signed on to a friend of the court brief weren't interested in the minutiae of Brewington's divorce and custody fight. Their concern extended to a broader issue: a belief that Indiana's intimidation law — particularly as interpreted by the Court of Appeals in Brewington's case — violates the First Amendment of the U.S. Constitution.

"The Star's decision to support the request for a Supreme Court review is not an endorsement of Brewington or his actions," Star Editor Jeff Taylor said last year when the newspaper joined the group seeking a Supreme Court review.

"Our focus is on the significant First Amendment issue raised here," Taylor said. "We're concerned that the intimidation law, as used in this case, infringes upon protected speech and could be used as a weapon to go after anyone — whether that's a journalist, a private citizen, an activist, whatever the case — who doggedly criticizes the actions of public officials or public figures."

In the appellate case, the attorney general's office successfully argued that Brewington's free speech rights were not violated, contending his comments were "unprotected" and "fighting words" that constituted criminal conduct.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Sup.Ct. Decisions

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

Updating this post from yesterday, Marion Circuit Court Judge Louis Rosenberg has denied the Motion for Emergency Preliminary Injunction. Here is a copy of the 8-page order, dated April 30, 2014. It concludes:

In sum, there are two independent sources of legal authority for Defendant's denial of the March 19,2014 request and its reluctance to approve the April 25, 2014 request. Both requests as elaborated on at today's hearing call for disclosures forbidden by law.

Hennessy urges the Court to keep in mind that the solicitude for the privacy of the Marion County electorate does not extend to information provided to the major parties. See generally I.e. § 3-7-26.4-6 and 3-7-28-J et seq. Assuming arguendo that information denied to unendorsed candidates is provided to endorsed candidates, this practice is embedded in statutes. Until such time as the provisions of Indiana law which facilitate this disparity are repealed or declared unconstitutional, this Court and the MCVRB have no choice but to follow the law as set out by those statutes. For all orthe above reasons the Motion for Emergency Preliminary Injunction is DENIED.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

In re the Marriage of: John Lane v. Leisa Lane (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: R.J.L.E. (Minor Child), and B.E. (Father) v. The Indiana Department of Child Services (NFP)


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

NFP criminal opinions today (1):


Robert W. Evans v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. App.Ct. Decisions

Indiana Decisions - Supreme Court decides second case today, re public bidding

In Alva Electric, Inc., Arc Construction Co., Inc., Danco Construction, Inc., Deig Bros. Lumber & Construction Co., Inc., et al. v. Evansville-Vanderburgh School Corporation and EVSC Foundation, Inc., a 10-page, 5-0 opinion, Justice Rucker writes:

In this case we are asked to decide whether the specific procedure employed by a school corporation to renovate one of its buildings violated Indiana’s Public Work Statute and if so, whether certain participants in the renovation violated Indiana’s Antitrust Act. We determine that under the facts presented, the Public Work Statute was violated but the Antitrust Act was not.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides Brewington case, distinguishes between protected speech and unprotected true threats

In Brewington v. State, a 35-page, 5-0 opinion, Justice Rush writes:

The United States and Indiana constitutions afford sweeping protections to speech about public officials or issues of public or general concern, even if the speech is intemperate or caustic. But there is no such protection for “true threats”—including veiled or implied threats, when the totality of the circumstances shows that they were intended to put the victims in fear for their safety. Fear for one’s reputation is often the price of being a public figure, or of involvement in public issues. But fear for one’s safety is not.

Here, the Court of Appeals failed to distinguish between those two types of fear. Many of Defendant’s statements, at least when viewed in isolation, threatened only to harm the victims’ reputations—hyperbolically accusing them of “child abuse” and the like. To the extent those state-ments were aimed at a public official or involved an issue of public concern, they are subject to the steep constitutional “actual malice” standard for defamatory speech, and the Court of Appeals erred in relying on them to support Defendant’s convictions for intimidating a judge and attempted obstruction of justice.

But Defendant’s other statements and conduct, understood in their full context, clearly were meant to imply credible threats to the victims’ safety. The “true threat” inquiry requires reference to all the contextual factors—one of which is the anger and obsessiveness demonstrated even by the protected portions of Defendant’s speech. And Defendant had also demonstrated mental disturbance, volatility, violence, and genuine dangerousness directly to both of his victims during his years-long vendetta against them. In that context, Defendant’s conduct, including showing his victims against a backdrop of obsessive and volatile behavior that he knew where they lived, was clearly intended to place them in fear—not fear of merely being ridiculed, but fear for their homes and safety, the essence of an unprotected “true threat.” Causing that fear is unlawful in itself, and all the more damaging when, as here, it aims to interfere with these victims’ lawful obligations of being a neutral judicial officer or a truthful witness—both of which are at the core of our justice system.

And the failure of the jury instructions and general verdict to distinguish between protected speech and unprotected true threats did not prejudice Defendant’s substantial rights here. To the contrary, we conclude that he deliberately invited that error, because requesting only broad-brush free-speech instructions enabled a broad-brush defense—emphasizing the protected, “political protest” aspects of his speech that threatened only the victims’ reputations, while glossing over his statements and conduct that gave rise to more sinister implications for their safety. That approach was constitutionally imprecise, but pragmatically solid—and nothing suggests that counsel blundered into it by ignorance, rather than consciously choosing it as well-informed strategy. It was an invited error, not fundamental error or ineffective assistance of trial counsel.

We therefore grant transfer and affirm Defendant’s convictions for intimidation of a judge and attempted obstruction of justice. On all other counts, we summarily affirm the Court of Appeals. * * *

It is every American’s constitutional right to criticize, even ridicule, judges and other parti-cipants in the judicial system—and those targets must bear that burden as the price of free public discourse. But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criticism. Defendant’s true threats against the Judge and the Doctor therefore find no refuge in free speech protections. To the contrary, they undermine the core values of judicial neutrality and truthful witness testimony on which every aggrieved citizen depends.

There would be no doubt about that conclusion if Defendant, all in a single episode, had violently shouted and slammed piles of books in the courtroom, shaken his fist at the Judge and the Doctor, and told them, “You crooked child abusers! I’m a pyromaniac, I have guns and know how to use them, I’d like to beat you senseless, I know where you live, and I’m going to hold you account-able!” Under those circumstances, it would be obvious that Defendant was making an unprotected “true threat” against the victims, even if the phrase “crooked child abusers” was protected speech. Defendant’s threats neither lose force, nor gain protection, merely because he built them up over the course of a years-long campaign of harassment. In fact, they may be even more insidious because they show a persistent, single-minded obsession, not just an isolated outburst or mere venting. To the extent Defendant attempted to veil his threats behind self-serving disclaimers and supposed “hypotheticals,” the victims saw through that pretext—as did the jury, and as do we. Accordingly, even though many of Defendant’s statements in isolation are protected speech and would make application of Indiana Code section 35-45-2-1(c)(6) and (7) unconstitutional, they form part of the context in which his other statements and conduct become an unprotected “true threat” that may properly be prosecuted under Indiana Code section 35-45-2-1(c)(1)–(3).

And under the circumstances of this case, we find neither fundamental error nor ineffective assistance of counsel in allowing Defendant to be convicted under general verdicts that failed to distinguish between protected “criminal defamation” and unprotected “true threats.” Even though that distinction is a matter of constitutional significance, its absence did not deprive Defendant of due process or make a fair trial impossible. To the contrary, it was precisely what enabled his reasonable defense strategy of emphasizing the substantial portion of his statements that the jury would likely recognize as harsh but protected “protest speech,” while glossing over his other statements and conduct that had legitimately threatening implications. Our principal concern is not whether that strategy promoted careful constitutional doctrine (which it did not), but rather whether it afforded Defendant a reasonably effective defense to his particular case (which it did).

We therefore grant transfer and affirm Defendant’s convictions for intimidating the Judge and obstruction of justice as to the Doctor, finding the evidence sufficient to support those convictions under Indiana Code section 35-45-2-1(c)(1)–(3) without implicating constitutional free-speech protections. As to reversing Defendant’s intimidation convictions involving the Doctor and the Judge’s wife, and affirming his perjury conviction, we summarily affirm the Court of Appeals.

Here is the COA opinion.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "It is a ruling that appears to be unprecedented in Indiana"

Rebecca S. Green's story today in the Fort Wayne Journal Gazette, headed "Murder case likely headed to Allen court," reports:

The pending murder case against 35-year-old Andres Gonzalez Jr. appears to be headed to Allen County, according to a ruling Wednesday by a Noble Superior Court judge.

Judge Robert Kirsch ordered the entire case transferred to Allen County, where, according to court documents, Gonzalez killed 36-year-old Erin Justin in a Fort Wayne garage. It is a ruling that appears to be unprecedented in Indiana.

In July 2011, Justin’s body was pulled from a rural Noble County lake, about a month and 30 miles away from where she was last seen. She had been tied to a concrete block before she was dumped in the water, and there were drugs in her system.

But an autopsy was inconclusive as to the cause and manner of death, and investigators were unable to determine where she died.

Nothing happened for more than two years after the discovery of Justin’s body until a tip came into law enforcement in March. Using that information, police focused on a pair of Fort Wayne brothers – Andres Gonzalez Jr. and Victor Gonzalez, 32.

With their statements and information from other witnesses, Noble County Prosecutor Steve Clouse filed a murder charge against Andres Gonzalez, as well as a charge of moving the body from the scene of a violent or suspicious death. * * *

Andres Gonzalez’s attorney, Noble County Chief Public Defender James Abbs, argued in a written motion and at a hearing that while Indiana law allows the crime of murder to be tried in the county where the body is discovered, the state’s constitution provides those charged with a crime the right to be tried in the county where the crime is alleged to have occurred.

Abbs argued the case should be dismissed outright, but in lieu of that sent back to Allen County for trial.

Clouse, through his deputy prosecutor J. Everett Newman, argued Tuesday that Noble County had a duty and obligation to investigate the case after Justin’s body was discovered in the lake. Even though information about where or how she died remains inconclusive, the body was last handled in Noble County and the case should be tried there, Newman said.

During the hearing, both sides agreed they could not find similar cases, at least at the state’s appellate or Supreme Court levels, in which such a request had been made, ruled upon and appealed.

In his ruling issued Wednesday, Kirsch wrote that Andres Gonzalez has a “constitutional and statutory right to be tried in the county in which the offense was committed.”

The court must look at the facts as they exist now, Kirsch continued, rather than the possibility they may change during the course of a trial.

“At best, the state can only argue that is does not know where (Justin) was killed,” Kirsch wrote, saying the state’s documents support the theory that Justin was killed in the Fort Wayne garage.

“It can be reasonably determined from the state’s affidavit of probable cause that the offense was committed in Allen County and not in Noble County,” Kirsch wrote.

On Wednesday, Kirsch granted Abbs’ motion for transfer after taking the issue under advisement Tuesday.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "200 students sit in on court appeal " in Crown Point

Yesterday a Court of Appeals panel heard oral argument before an audience of students in Crown Point in the case of Maddox Macy v. State. In the past few years, various Court of Appeals panels have heard many oral arguments at sites around the state. From a story today by Ruth Ann Kraause of the Gary Post Tribune:

More than 200 Northwest Indiana high school students got a first-hand look at the Indiana Court of Appeals at work Wednesday when they heard an oral argument in Crown Point.

The auditorium at the Lake County Government Center fell silent as appellate attorney Jill Acklin argued that the conviction of a Miami County woman for resisting law enforcement should be overturned, and deputy attorney general Jesse Drum argued that the conviction should stand.

The three-member panel — Judges John Baker from Monroe County, James Kirsch from Marion County and Margret Robb from Tippecanoe County — took time to answer questions after the argument concluded and joked with students in some of their answers.

It was all business, however, during the timed argument at the event hosted by the Women Lawyers Association and attended by several Lake County judges and other elected officials. Melissa Cohen, president of the association, said the event was intended to educate young people and give back to the community. She encouraged the teens to “think critically about issues that affect your life.”

The case began with a dog-bite incident in 2012 in which the owner of the dogs became uncooperative with police who came to her home. After being told to calm down and refusing to do so, she was arrested, handcuffed and put in the front seat of a police car. The woman opened the door, stepped outside and continued to yell. After police told her to get back into the car, the woman refused, and the officer forced her inside, but she kept her feet on the ground outside the door. The officer picked up the woman’s feet and put them in the car.

Acklin had spoken for just a few minutes when Robb asked, “Can you resist law enforcement when you’re already arrested?”

Afterward, Robb told the students that the judges look to have a conversation during oral argument. Baker said the usual practice is to retire to deliberate, then decide which judge will write the opinion. Baker joked that the car ride back to Indianapolis would afford them time to discuss their positions on the case.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Indiana Courts

Ind. Decisions - Expect a decision today in Brewington v. State

The Indiana Supreme Court heard oral argument in the case of Brewington v. State on Sept. 12, 2013. Brewington was/is a blogger and one of the issues involved the First Amendment. See this post from Sept. 11, 2013 for some background.

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Hearings Friday to consider state’s same-sex marriage ban"

Karen Caffarini reports in the Gary Post-Tribune:

A federal judge will preside Friday over two hearings in Evansville, one seeking to overturn Indiana’s ban on same sex marriages and one asking the state to continue to recognize a Munster lesbian couple’s marriage in another state.

U.S. District Court Judge Richard L. Young will hear oral arguments in the latest chapter in Baskin vs Bogan, a federal lawsuit filed by Lambda Legal in March in U.S. District Court for the Southern District of Indiana on behalf of five Indiana couples, three of whom live in Northwest Indiana.

According to a Lambda Legal spokesman, Young is considering a motion for summary judgment seeking to have Indiana’s ban on gay marriages overturned.

“This will be for all same-sex couples in Indiana, not just our plaintiffs,” the spokesman said. * * *

The other hearing will be for a preliminary injunction to extend the recognition of the marriage of Quasney and Sandler through the duration of the court proceedings.

In April, Young granted the couple’s request for a temporary restraining order to keep the state from enforcing its ban on gay marriages against them.

Quasney, who has ovarian cancer, and Sandler, who have two children, ages 3 and 1, want Indiana to recognize their 2013 marriage in Massachusetts, one of 17 states where gay marriage is legal, in the event one of them should die.

[ILB emphasis]

The ILB had thought that at least one of the other four same sex-marriage cases pending before Judge Young, Love v. Pence, also would be considered tomorrow...

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Indiana Courts

Ind. Gov't. - "Ethics panel finds no violation in Turner lobbying, says actions show need for tougher rules"

Updating this ILB post from April 25, the House Statutory Ethics Committee meet yesterday, one week after its first meeting, to announce its decision on the Rep. Eric Turner matter. The AP had this story - some quotes:

INDIANAPOLIS — An ethics panel cleared House Speaker Pro Tem Eric Turner of wrongdoing Wednesday for fighting a measure that would have cost him millions of dollars in profits, but it urged lawmakers to strengthen the disclosure rules for public officials.

Turner lobbied behind closed doors against a proposed five-year construction ban that would have stalled development of multiple projects he is invested in through Mainstreet Property Group. Mainstreet Property documents obtained by The Associated Press show Turner had more than $4 million in profits on the line through his ownership stake in the company.

In a letter to Speaker Brian Bosma, R-Indianapolis, the House Ethics Committee said Turner's actions exposed a weakness in the system.

"While the committee does not find that a technical violation has occurred, we are concerned that Representative Turner's actions have not achieved the highest spirit of transparency. Remaining questions about his conduct, while he is in compliance with our rules, give us concern that our rules do not require enough disclosure," the committee wrote. * * *

The ethics investigation is the first internal review of a House member in nearly two decades. Bosma called for the investigation last month following reports that Turner lobbied against the construction ban in private meetings of the House Republican caucus during the final two days of the 2014 legislative session.

Indiana's ethics laws bar lawmakers from taking formal actions to benefit themselves, such as casting specific votes, but also encourage lawmakers to offer their "expertise" in debates.

Turner thanked the ethics panel in a statement for "clearing" him and said he was clearly offering his perspective on the nursing home industry, not pressuring lawmakers.

"I offered my expertise on the nursing home moratorium in caucus because I have been involved in the industry as a passive investor in senior care real estate for many years," he said in the statement.

The panel's top Democrat, Rep. Clyde Kersey, of Terre Haute, said Turner has exposed holes in an ethics code that has not been changed in roughly 20 years.

"I think this whole thing brought out the fact that we need to make some changes, make things more transparent and call for full disclosure," he said.

For instance Turner listed on his latest economic disclosure form that he is invested in Mainstreet Capital Partners but did not note that company's connection to Mainstreet Property Group. A Mainstreet Property Group document obtained by the AP shows that Turner owns half of Mainstreet Capital Partners, which owns 76 percent of Mainstreet Property Group.

The Indianapolis Star reported that Turner stopped listing the names of nursing home companies he was invested in through another company, T3 Investments, in 2006. Turner's wrote in testimony submitted to the ethics panel that he did not believe he needed to disclose those connections.

House Ethics Chairman Greg Steuerwald, R-Avon, said the committee would meet in the coming months and look to have recommendations ready before lawmakers return for their 2015 session in January.

"I expect a full review of all the rules, the code of ethics, as well as the statute," he said.

In the Indianapolis Star, Tony Cook and Barb Berggoetz have this story. Some quotes:
After the meeting, Turner’s attorney, Toby McClamroch, called the committee’s report “an exoneration.”

“All of the evidence that was submitted to the committee supports the idea he complied in every way with the code of ethics of the House and the rules of the House,” he said.

If the legislature would like to look at changes in the House code of ethics that Turner would be “more than happy to help” with that process, McClamroch said.

Julia Vaughn, policy director for Common Cause Indiana, a government accountability group, said the case exposed serious flaws in Indiana’s ethics rules.

“We should be disgusted that this kind of self-serving behavior isn’t against the rules,” she said. “While it’s disappointing that Rep. Turner will emerge from all this without even a slap on the wrist, it’s good to know that there are some people inside the building who think that the rules are too lax and are willing to work on reform.”

Posted by Marcia Oddi on Thursday, May 01, 2014
Posted to Indiana Government