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Monday, June 30, 2014

Ind. Gov't. - "Judge may consider additional refunds in BMV overcharging case"

Troy Kehoe reports this evening for WISHTV8:

INDIANAPOLIS (WISH) – A Marion County Judge could decide as early as next month whether millions of Hoosier drivers are entitled to additional refunds from Indiana’s Bureau of Motor Vehicles. Attorneys argued several new requests concerning allegations of fee overcharging in court on Monday.

Last August, millions of Hoosier drivers were issued small refunds as part of a $30 million settlement where the BMV admitted it had overcharged drivers under the age of 75 who obtained or renewed a driver’s license between 2007 and 2013. The overcharges averaged around $3.50, according to court documents.

The following month, the BMV announced that a commissioned review by an outside law firm had also identified other fees being charged at rates higher than allowed by state law. A separate lawsuit filed by Indianapolis-based law firm Cohen and Malad alleges the fees include everything from vehicle registrations to motorcycle endorsements, personalized license plate fees and chauffeurs licenses.

A ruling, issued in February in Marion Superior Court by Judge James Osborn, denied a request from the BMV to dismiss the new lawsuit, which claims the agency systematically overcharged drivers for a wide variety of fees. The case has since been transferred to a new judge. * * *

[T]he lawsuit claims the issue hasn’t been fully resolved. It seeks unspecified damages, plus interest, for all fees overcharged by the BMV, estimated to be between $30 million and $40 million.

The lawsuit also asks the court to allow refunds on overcharges that occurred beyond the state’s six year statute of limitations window.

Court documents obtained by I-Team 8 also contain allegations that the BMV was aware as early as 2010 that some of its fees exceeded the amounts allowed under state law, but that it continued overcharging Hoosier drivers for at least two years in order to avoid budget troubles.

The allegations, made by former BMV Deputy Director Matthew Foley as part of a deposition, contradict statements made by former BMV Commissioner Scott Waddell. Waddell testified in his deposition that the BMV had “no inkling of the overcharges, in any manner, way, shape or form, prior to the filing” of the first lawsuit, according to court documents.

The new lawsuit claims a “limited privilege log” produced as evidence by the BMV in the first lawsuit “identifies documents dating back to 2007 relating to [overcharging], as well as Waddell’s backtracking testimony on the afternoon of his deposition that at least one potential overcharge was brought to his attention in 2009 or 2010,” according to court filings.

The BMV, represented by the Indiana Attorney General’s office, filed a motion in April asking a judge to immediately rule in its favor, claiming the lead plaintiff in the class-action case did not actually pay any of the alleged overcharges, and that she failed to file a proper tort claim notice. Attorneys for the plaintiff asked the judge last week for additional time to respond to the state’s request.

Judge John Hanley took that request under advisement Monday. If that request is denied, his ruling could be issued at any time.

ILB: For background, see ILB entries including these from July 13, 2013, September 30, 2013, and November 22, 2013.

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Indiana Government

Ind. Courts - State ordered by 7th Circuit to respond by noon (CDT) tomorrow to emergency stay motion

Updating this post from late this morning, re the "Emergency Motion to Lift the Court's Stay in Part" with respect to the Sandler-Quasney plaintiffs, the 7th Circuit has just ordered:

Upon consideration of the PLAINTIFFS-APPELLEES QUASNEY AND SANDLER’S EMERGENCY MOTION TO LIFT THE COURT’S STAY IN PART, filed on June 30, 2014, by counsel for appellees Nikole Quasney and Amy Sandler, IT IS ORDERED that the State of Indiana shall file a response to the motion to lift the court’s stay in part by July 1, 2014 at 12:00 p.m. Central Standard Time.
The Court has also set an expedited briefing schedule for the appeal.

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

Courts - Some press reports of Hobby Lobby

How Appealing has collected together a list of stories from national reporters here.

SCOTUSblog's Lyle Denniston has an opinion analysis here.

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Courts in general

Ind. Courts - Judith Dwyer dies, fourth woman to serve as a judge in Indiana

Mike Grant of the Washington Times Herald reports today. A few quotes from the story:

Daviess County's first female judge has died. Judith Dwyer, who was both judge of the Daviess County Court and Daviess Superior Court died at her home Saturday at the age of 75. Dwyer was remembered by friends and colleagues as both a community leader and a groundbreaking professional.

Dwyer graduated from Washington Catholic High School in 1956, Marquette University in 1960, Indiana School of Law at Bloomington in 1963. She served as Daviess County Deputy Prosecuting Attorney from 1966 to 1974. She was the presiding judge in the old Daviess County Court from 1976 to 1987. When the County Court was elevated to Daviess Superior Court in 1987, she was appointed as the first judge and served as Superior Court Judge until 2002.

"She was courageous," said Daviess Circuit Court Judge Greg Smith, who practiced law as both a prosecuting and defense attorney before Judge Dwyer. "She was one of the first female lawyers and judges in southwestern Indiana."

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Indiana Courts

Ind. Courts - "Woman Harassed for Bumper Sticker Fights Back "

From a news release:

Indianapolis - The American Civil Liberties Union of Indiana filed a lawsuit Friday on behalf of a woman who was pulled over and interrogated after her bumper sticker caught the attention of Indianapolis police officers, violating her First Amendment and Fourth Amendment rights.

On June 17, Pamela Konchinsky of Indianapolis was turning into the Merchants Garage on South Meridian Street in her silver Toyota minivan when two Indianapolis Metropolitan Police officers entered the garage immediately behind her. One of the officers told Konchinsky that she was being detained because of a bumper sticker taped to the rear window of her minivan, which read: "Unmarked Police Car." The officer told Konchinsky that people would think she was impersonating a police officer and that someone might shoot her. After reviewing her license and registration, Konchinsky was ordered to get out of her car and remove the bumper sticker.

IMPD officers' subjecting Konchinsky to detention, questioning, intimidation and harassment over the message on her bumper sticker violates two constitutional amendments: the First Amendment protecting free expression and the Fourth Amendment prohibiting unreasonable and suspicionless seizures.

"We contend that the police officers who detained and interrogated our client without legal grounds to do so violated her constitutional rights, said ACLU of Indiana Staff Attorney Kelly Eskew. "The promise of our Constitution is that these lines cannot be crossed."

The lawsuit, Pamela Konchinsky v. Indianapolis Metropolitan Police Department Officers John Doe I and John Doe II, Cause No. 1:14-cv-1078,was filed in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on June 27, 2014.

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 17 NFP)

For publication opinions today (1):

In Dennis Samples v. Steve Wilson and Donald & Ingrid Bannon, husband and wife, and Ronald & Edna Bannon, husband and wife , a 9-page opinion, Judge Bailey writes:

Samples presents two issues for review, which we restate as:
I. Whether the judgment denying the claim for trespass is contrary to law; and
II. Whether the judgment denying the claim for nuisance is contrary to law. * * *

Samples owns ten acres of property in Poland, Indiana. From 1990 to 2006, property adjoining Samples’ property was owned by Steven Wilson (“Wilson”). Wilson’s property sloped downward toward Samples’ property, with an elevation drop of approximately twelve feet near the property line. Because Samples’ property was at a lower elevation, water flowed downhill from the Wilson property onto the Samples property.

In 1998, Wilson hired excavator Benny Sowers (“Sowers”) to enlarge his pond and expand an existing dam. On May 2, 2003, Samples filed his “Verified Complaint [for] Trespass, Nuisance and Storm Water Run-off For Improperly Constructed Dam” against Wilson. [since conveyed to the Bannons] * * *

On September 16, 2013, the trial court entered judgment in favor of the Bannons. On October 17, 2013, Samples filed a motion to correct error. On November 4, 2013, the trial court denied the motion to correct error, stating in relevant part: “The Court found the defendants’ version of the facts more credible and reliable.” (App. 29.) This appeal ensued, * * *

Samples bore the burden of proving his claims by a preponderance of the evidence and now appeals from a motion to correct error challenging a negative judgment. Accordingly, he must show that the evidence points unerringly to a conclusion different from that reached by the trier of fact, or that the judgment is contrary to law. * * *

The trial court’s judgment in favor of the Bannons is not contrary to law. Samples did not establish his entitlement to injunctive relief or damages.

NFP civil opinions today (5):

Doaa I. Ebrahim v. Essam Otefi (NFP)

Cheryl Rodriguez v. Sourthern Dunes Golf, LLC (NFP)

Katherine Fraze v. Floyd County Health Department, and City of New Albany and Animal Control (NFP)

In re: The Visitation of W.G.R. (Minor Child) M.W.R., Father v. K.G. and D.G., Maternal Grandparents (NFP)

Chad Thomas Gates v. Shannon Leigh Gates (NFP)

NFP criminal opinions today (12):

Anissa L. Tyler v. State of Indiana (NFP)

Darcel Edwards v. State of Indiana (NFP)

Bernard A. Burrell v. State of Indiana (NFP)

Anthony Ray Willoughby v. State of Indiana (NFP)

Ralph Dennis Gabriel, Jr. v. State of Indiana (NFP)

Robert Birk v. State of Indiana (NFP)

James Pello v. State of Indiana (NFP)

Walter L. Logan v. State of Indiana (NFP)

Tyrone R. McGee v. State of Indiana (NFP)

Stephan Gallagher v. State of Indiana (NFP)

Brandon Scroggin v. State of Indiana (NFP)

Diamond Staples v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Attorneys in Baskin today filed an "Emergency Motion to Lift the Court's Stay in Part"

The blanket stay granted late Friday by the 7th Circuit included Plaintiffs-Appellees Amy Sandler and Nikole (“Niki”) Quasney, who had been granted a special stay early on by Judge Young because of the terminal illness of Ms. Quasney. See this May 8th post.

Today the attorneys in Baskin filed an "Emergency Motion to Like the Court's Stay in Part" with the 7th Circuit on behalf of the two plaintiffs. Here is a link to the document, thanks to Equality Case Files.

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Courts - SCOTUS expected to issue last two opinions of the term this morning

As always, follow SCOTUSblog for the blow-by-blow.

Here are the cases remaining (thanks to SCOTUSblog):

The ILB has had many entries on the "Hobby Lobby" cases. See particularly this post, re two 7th Circuit cases, one from Indiana (Grote Industries v. Sebelius).

"The first reactions from other news sources overread Hobby Lobby significantly. The Court makes clear that the government can provide coverage to the female employees. And it strongly suggests it would reject broad religious claims to, for example, discriminate against gay employees."
by tgoldstein

Here are the decisions ...

Harris v. Quinn, 5-4, "the Court refuses to extend Abood. These employees can't be required to contribute to unions. The Court recognizes a category of "partial public employees" that cannot be required to contribute union bargaining fees. by tgoldstein" Alito writes this, as well as the upcoming Hobby Lobby.

POLITICO
The Supreme Court sides with home health care workers in Illinois who want out of a union.

Hobby Lobby - "Closely held corporations cannot be required to provide contraception coverage. RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, HL and Mardel." by tgoldstein

Here is more qualification: It does not provide a shield for employers who might cloak illegal discrimination as a religious practice.
by Amy Howe 10:19 AM

Here is a further attempt at qualification: This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer's religious beliefs.
by Amy Howe 10:18 AM

Justice Kennedy's concurring opinion says that the government could pay for the coverage itself, so that women receive it.
by tgoldstein 10:18 AM

Here is the opinion in Hobby Lobby.

"The Court has now adjourned until the first Monday in October."

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 27, 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 and UPDATED through the June 20th list.]

Here is the Clerk's transfer list for the week ending Friday, June 27, 2014. It is two pages (and 14 cases) long.

Two transfers were granted last week, both with opinions, on June 27th. See the ILB summaries of Dexter Berry v. State of Indiana and Donald Murdock v. State of Indiana.

The January 24th grant of transfer in Griffin v. State, in which oral argument was heard April 3rd, was vacated 5-0 on June 27th. Here is the order. Here is the now reinstated Court of Appeals opinion from Oct. 23, 2013. This 2-1, 3-opinion COA ruling (by Sr. Judge Shepard) addresses the question: "When there is no indication of possible criminal activity, does a citizen who walks away commit the crime of resisting arrest by departing?"

Posted by Marcia Oddi on Monday, June 30, 2014
Posted to Indiana Transfer Lists

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

From Sunday, June 29, 2014:

From Saturday, June 28, 2014:

Posted by Marcia Oddi on Monday, June 30, 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 6/30/14):

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

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/30/14):

Tuesday, July 1

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

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, June 30, 2014
Posted to Upcoming Oral Arguments

Sunday, June 29, 2014

Ind Courts- "Judge Young knows of the furor created by his decision striking down same-sex ban"

Earlier today the ILB wrote: "Federal judge knows of the furor created by his same-sex marriage ruling" is the headline to a $$$ story today in the Evansville Courier & Press, reported by Thomas B. Langhorne. The lede (and all we can read): "U.S. District Judge Richard L. Young is well aware of the furor created by his decision Wednesday to strike down Indiana’s ban on same-sex marriage."

It turns out the entire story is now freely available via the Indiana Economic Digest. It is very long, and not really about the opinion, but about Judge Young. Don't miss.

Posted by Marcia Oddi on Sunday, June 29, 2014
Posted to Indiana Courts

Ind. Decisions - So where are we now on same-sex marriage in Indiana?

Last Friday afternoon was the time of the ILB's last post of that busy week. The post dealt with the details of Judge Young's Wednesday, June 25th order, and who was complying and who was not. Although Attorney General Zoeller had filed a motion for a stay of the opinion with the district court on the day it was issued, Young had not responded, and many did not expect him to, given that he had written his decision so that it went into effect immediately, with clear and precise directions on its implementation.

Late Friday afternoon the 7th Circuit stepped in and stayed Judge Young's order, responding to a motion that had been filed by AG Zoeller two hours earlier. That put an end to same-sex marriage ceremonies in Indiana for the foreseeable future.

Indiana's Attorney General earlier had filed a notice of appeal, and the 7th Circuit also on Friday issued a 2-page order consolidating the three cases (just as they were in Young's order) and setting a briefing schedule:

  1. The appellants shall file a single, consolidated brief and required short appendix on or before August 6, 2014.

  2. The appellees shall file a single, consolidated brief on or before September 5, 2014.

  3. The appellants shall file a single, consolidated reply brief, if any, on or before September 19, 2014.
No decision by the 7th Circuit can be expected until briefing is completed, along with, in all likelihood, oral argument. So we are looking at the fall.

Timing.

The only circuit that has issued a same-sex marriage ruling since last year's SCOTUS decisions is the 10th Circuit, which ruled last Wednesday, the same day as Judge Young's district court ruling in our circuit. The 10th Circuit ruled 2-1 in favor of same-sex marriage, but put an immediate hold on its opinion, pending SCOTUS review.

It is likely that the 7th Circuit, should it uphold Judge Young's decision, will do the same.

Meanwhile, several other circuits are nearing issuing decisions on the issue. The 4th Circuit, in May, heard oral argument on Virginia's ban. The 6th Circuit, which includes our neighboring states of Michigan, Ohio, and Kentucky, will hear oral argument from those states late this summer.

The SCOTUS thus likely will have requests for review of several circuit court opinions pending before it when it returns in the fall. If it decides to hear one or more of them, an opinion may not issue until the end of its next term, a year from now.

Wisconsin on Parallel Track

Indiana, Illinois, and Wisconsin comprise the 7th federal circuit. Although same-sex marriage became legal across Illinois on June 1st by legislative action, Wisconsin is in much the same boat as Indiana. On June 6th a Wisconsin federal district judge struck down that state's prohibitions against same-sex marriage.

However, confusion ensued. This quote from a June 13th NY Times story may explain why Judge Young's decision was so precise:

Judge Crabb took a different approach. Instead of issuing an implementing order as she voided the state ban, she asked the suing couples and the state to offer opinions this week on what exactly state officials should do and how widely the federal decision applied.

To the frustration of the Wisconsin’s Republican attorney general, J. B. Van Hollen, that meant that the District Court ruling was not final. The state did not automatically have standing to file for a stay with the Seventh Circuit Court of Appeals, which would probably bring same-sex marriages to a temporary halt. * * *

Adding to the confusion, Judge Crabb has made it clear in hearings that once her final order is issued, which could occur over the coming week, she is likely to issue a stay to allow the issue to proceed through the courts. If she does not, the appeals court almost certainly will.

Would the incomplete nature of her ruling last week mean the marriages performed since Friday would prove invalid?

“We don’t know; we’ve never had a situation like this,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota.

“This adds an additional layer of legal questions on top of the existing questions,” he said.

Lisa Neff and Louis Weisberg reported June 26th in the Wisconsin Gazette:
[Wisconsin federal Judge] Crabb didn’t issue a stay — requested before her ruling by Republican Attorney General J.B. Van Hollen — until June 13. So for six days in early June, same-sex couples applied for and obtained marriage licenses in 60 of the state’s 72 counties. At least 550 gay couples were married in Wisconsin.

While the case is pending appeal with the 7th Circuit in Chicago, there’s uncertainty: For those with licenses who didn’t marry, should they wed? For those caught in the five-day waiting period, can they marry in another state? For those who married, what benefits, responsibilities or protections do they have?

“I think the harder questions are like adoptions, the really hard issues,” said Carl Tobias, a professor at the University of Richmond School of Law. That’s why these stays are so gut-wrenching for people.”

On June 16, Wisconsin’s congressional Democrats asked U.S. Attorney General Eric Holder to confirm, as he has done in similar situations in Utah and Michigan, that the federal government will recognize the marriages of Wisconsin gay couples and guarantee them:

• The ability to sponsor a foreign spouse for legal residency.

• Health, workers’ compensation, retirement and other benefits for the spouse of a federal employee.

• Health benefits, spousal ID cards, housing allowances and on-base support services for the spouse of a military servicemember.

• Joint income tax filings, as well as spousal exemptions of gifts, inheritances and the value of employer-provided spousal health coverage.

• Unpaid family and medical leave to care for an ill spouse.

• Spousal Social Security benefits.

“Earlier this year, you made clear that couples who married in Utah and Michigan after federal judges struck down those states’ bans are entitled to full federal recognition,” the lawmakers wrote. “We are grateful for this tremendous leadership on behalf of fairness and equality. We ask that you similarly declare that those same-sex couples who married in Wisconsin since the June 6 decision are equally entitled to the federal benefits they deserve.”

Indiana's Newly Married

As many as 800-1,000 marriage licenses may have issued in Indiana between the time Judge Young's opinion was filed on Wednesday, and the time the 7th Circuit brought license issuance to a halt on Friday. Many of the couples have married. It may be anticipated that their marriages will be recognized by the federal government.

Here is a statement regarding Michigan issued on March 28th of this year by U.S. AG Holder:

Attorney General Eric Holder issued the following statement today on the status of same-sex marriages performed in the state of Michigan:

“I have determined that the same-sex marriages performed last Saturday in Michigan will be recognized by the federal government. These families will be eligible for all relevant federal benefits on the same terms as other same-sex marriages. The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings. For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

“Last June’s decision by the Supreme Court in United States v. Windsor was a victory for equal protection under the law and a historic step toward equality for all American families. The Department of Justice continues to work with its federal partners to implement this decision across the government. And we will remain steadfast in our commitment to realizing our country’s founding ideals of equality, opportunity, and justice for all.”

Other Coverage.

Today, in the Sunday Indianapolis Star, Tony Cook and Tim Evans have a lengthy story on this issue titled "Stay on same-sex marriages clouds issue." From June 28th, Tim Evans: "Federal appeals panel stops same-sex marriages."

"Federal judge knows of the furor created by his same-sex marriage ruling" is the headline to a $$$ story today in the $$$ Evansville Courier & Press by Thomas B. Langhorne. The lede (and all we can read): "U.S. District Judge Richard L. Young is well aware of the furor created by his decision Wednesday to strike down Indiana’s ban on same-sex marriage."

"Federal Appeals Court Stops Indiana Same-Sex Marriages During Appeal," from Chris Geidner of BuzzFeed on June 27th.

"A lot at stake in same-sex marriage decision," by Rachel Bunn and Lindsey Erdody, Bloomington Herald-Times, freely available via InsuranceNetNews.

"Gay marriage legal challenges: Where things stand," through Wednesday, June 25th, from the AP.

"Utah's same-sex marriage ruling: What’s next? Experts divided on whether case will be first to reach Supreme Court," by Kirsten Stewart and Robert Gehrke, The Salt Lake Tribune.

"Analysis: Marriages left in limbo tough for all involved," by Lesley Weidenbener, TheStatehouseFile.com.

Posted by Marcia Oddi on Sunday, June 29, 2014
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Government

Friday, June 27, 2014

Ind. Gov't. - Some observations about carrying out Judge Young's orders [Updated at 5:11 PM]

In this June 25th post, the ILB quoted the end of federal Judge Young's order in Baskin. Let's take another look at it, now that a few days have gone by:

Specifically, this permanent injunction requires the following, and the court ORDERS the following:

1. The Defendant Clerks, their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from denying a marriage license to a couple because both applicants for the license are the same sex. Thus they must act pursuant to their authority under Indiana Code Chapter 31-11-4 and issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Indiana law;

2. The Attorney General, Greg Zoeller, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from prosecuting or assisting in the prosecution, using his authority from Indiana Code § 4-6-1-6, of the following:

a. same-sex couples who fill out the current marriage license application where the spaces provided only allow for a male and female (Ind. Code §§ 31-11-11-1 and 31-11-11-3),

b. clerks who grant the marriage licenses to qualified same-sex couples (Ind. Code § 31-11-11-4), or

c. those who choose to solemnize same-sex marriages (Ind. Code §§ 31- 11-11-5 and 31-11-11-7).

3. William C. Vanness II, M.D., the Commissioner of the Indiana State Department of Health, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to:
a. Act pursuant to their authority under Indiana Code § 16-37-1 to change the death certificate form to allow for same-sex spouses,

b. Act pursuant to their authority under Indiana Code § 16-37-3 to issue death certificates listing same-sex spouses, and

c. Act pursuant to their authority under Indiana Code § 31-11-4-4 to revise the marriage license application to allow for same-sex applicants.

4. The Commissioner of the Indiana State Department of Revenue, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to exercise their authority under Indiana Code § 6-8.1-3 to revise the filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite-sex married couples.

5. The Board of Trustees of the Indiana Public Retirement System and Steve Russo, the Executive Director of the Indiana Public Retirement System, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to administer the Pension Fund pursuant to Indiana Code Chapters 5-10.5-3, 5-10.5-4, and 5- 10.5-6, so as to provide the same benefits for all married couples, regardless of whether the couples are of the opposite sex or the same sex.

This Order does not apply to Governor Pence, who the court found was not a proper party. This Order takes effect on the 25th day of June 2014.

[Bold emphasis by ILB]

Who are the defendants captioned in the three cases which were the subject of Wednesday's ruling?

Taking the items in Judge Young's order one by one:
#1 applies specifically to the clerks of the fivecounties named in the lawsuits, Boone, Porter, Lake, Hamilton and Allen. They are specifically ordered to issue marriage licenses to same-sex applications.

#2 applies to Zoeller, he is not to prosecute clerks, same-sex couples, or those who officiate at same-sex weddings. This order does not apply just to the five named counties.

#3 applies to the state health commissioner, who is appointed by the governor. The commissioner is to adapt the death certificates to take into account same-sex marriage. The commissioner is also to revise the marriage license application to allow for same-sex applicants.

#4 applies to the revenue commissioner, who is appointed by the governor. The revenue commissioner is to revise the tax filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite-sex married couples.

#5 applies to the heads of the retirement boards, who are appointed by the governor, and requires them to provide the same benefits for all married couples, regardless of whether the couples are of the opposite sex or the same sex.

So it is odd to the ILB that the governor was dismissed as a party to the law suits, since it is the governor who heads the executive branch and it is the governor who is responsible for seeing that Indiana's laws are properly executed. The governor did take ownership of these obligations yesterday in his memorandum to the state agencies detailing their responsibilities in implementing Judge Young's order.

Also notable is that the order specifically directs the health commissioner, whose responsibility under IC 31-11-4-4(c) is to:

develop uniform forms for applications for marriage licenses. The state department of health shall furnish these forms to the circuit court clerks. The state department of health may periodically revise these forms.
"... to revise the marriage license application to allow for same-sex applicants."

Many news stories have reported that the clerks have had difficulties getting revised forms. But according to the order, these forms are the responsibility of the state department of health, which is in turn responsible to the governor.

Further confusing the matter, however, is that despite the statute, somehow the court's JTAC project and the state library have become involved in the marriage license process. From a webpage on the court's JTAC site:

Marriage License E-File System Overview

The Judicial Technology and Automation Committee (JTAC), Indiana State Department of Health (ISDH) and Indiana State Library have automated the process for issuing Marriage Licenses at local Circuit Court Clerks' offices. The goal is to collect all the information required just one time and store records electronically so information is easy to retrieve and transmit for state agencies as required by Indiana Code. The database is also searchable.

Every year, about 45,000 couples marry in Indiana and each must go to the clerk’s office for a license. When the project began, the bride’s and groom’s names were each handwritten three times in a cumbersome, paper record book. That means names were written 270,000 times a year, equal to one name being written every other minute, every day of the year. That doesn’t include the time it took to enter the records into ISDH or ISL databases.

The Marriage License E-file System is a web-based application available free of charge through JTAC’s secure extranet, INcite (Indiana Court Information Technology Extranet). Clerks use the system to automate and expedite functions previously done by hand. As of Spring 2013, 88 counties were using the system and had issued nearly 120,000 marriage licenses, which accounts for more than 93% of all marriage licenses issued in Indiana.

The electronic Marriage License Application captures the information entered by the Clerk, who then prints an application for the couple to sign, attesting to the accuracy of the personal information. A Marriage License form for the Officiant to sign upon solemnization is also created. The officiant simply returns the license after the ceremony, and the clerk electronically enters the officiant’s information, date and location of the marriage. Benefits of the System

The new system gives clerks the ability to print a marriage license directly from the web-based system, eliminating the need to purchase costly paper record books.

Wrapping up, we have been faced this week with a question of who is running the show with respect to marriage licenses. It looks like in practice it is the court's JTAC technology, not the county clerks, and not the state health department. But the federal court's order "to revise the marriage license application to allow for same-sex applicants" is directed at who is statutorily responsible, and that is the state health department.

[Updated at 5:11 PM] Charles Wilson of the AP has just posted a story headed "Some Indiana counties not issuing gay marriage licenses because of gender wording on form." A few quotes:

INDIANAPOLIS — A handful of county clerks across Indiana weren't issuing marriage licenses to gay couples Friday, two days after a federal judge struck down the state's prohibition on same-sex unions.

Some were holding off, mostly because of the wording of the state's online application form, which is printed out and used by most clerks. The form posted at the state courts website uses the words "male" and "female" and "bride" and "groom," and some clerks were wary of altering that wording.

Janet Chadwell, clerk of Decatur County in southeastern Indiana, said her county attorney advised her that changing the form would be perjury.

"If I change it, then I'm altering the state form," Chadwell said.

In Marion County, the home of Indianapolis, officials at the clerk's office chose to cross out "bride" and "groom" on the printed form and substitute "spouse" and "spouse."

"I believe my job is to comply with the law and I also believe strongly that this is the right thing to do," Marion County Clerk Beth White said. * * *

But some clerks seemed confused about where to turn for advice. On the day of the ruling, the state attorney general's office urged clerks to respect the court order. But when the online form wasn't changed, some clerks asked the Indiana Supreme Court Division of State Court Administration what to do, since the form appears on the state courts website.

Supreme Court spokeswoman Kathryn Dolan said the forms were posted in collaboration with the Indiana State Department of Health, which was faced with the dilemma. State courts officials told clerks to consult their county attorneys.

Officials at the health department were working to change the online form to comply with Young's order, spokesman Ken Severson said Friday.

"I don't have a time line on when that will be done," he said.

Posted by Marcia Oddi on Friday, June 27, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court decides several more today

In Keion Gaddie v. State of Indiana, an 8-page, 5-0 opinion, Chief Justice Dickson writes:

Following a bench trial, Keion Gaddie was convicted of Resisting Law Enforcement as a Class A misdemeanor. His appeal argues that the evidence is insufficient to sustain his conviction. The Court of Appeals reversed. Gaddie v. State, 991 N.E.2d 137 (Ind. Ct. App. 2013). We reach the same result but granted transfer to put to rest a conflict among various decisions in the Court of Appeals. * * *

The defendant relies upon cases applying the Fourth Amendment to hold that an individual has a duty to stop only if the encounter with police is an arrest or detention based upon probable cause or an investigatory stop based upon a reasonable and articulable suspicion that criminal activity may be afoot. See Briggs v. State, 873 N.E.2d 129, 132 (Ind. Ct. App. 2007), trans. denied; Bovie v. State, 760 N.E.2d 1195, 1197 (Ind. Ct. App. 2002), trans. not sought. The State, in turn, cites to a line of cases[2] which largely trace back to Corbin v. State, 568 N.E.2d 1064, 1065 (Ind. Ct. App. 1991), trans. not sought, for the proposition that the lawfulness of the order is irrelevant because the statute defining the offense does not expressly condition the offense upon a lawful order. * * *

For these reasons, in order to interpret the statute as constitutional, we hold that the statu-tory element "after the officer has . . . ordered the person to stop" must be understood to require that such order to stop rest on probable cause or reasonable suspicion, that is, specific, articulable facts that would lead the officer to reasonably suspect that criminal activity is afoot. Absent proof that an officer's order to stop meets such requirements, the evidence will be insufficient to establish the offense of Resisting Law Enforcement by fleeing. * * *

To avoid conflict with the Fourth Amendment, Indiana Code section 35-44.1-3-1(a)(3), the statute defining the offense of Resisting Law Enforcement by fleeing after being ordered to stop must be construed to require that a law enforcement officer's order to stop be based on rea-sonable suspicion or probable cause. Under the facts and circumstances of this case, a reasona-ble trier of fact could not have found that the officer's order to stop was based on such probable cause or reasonable suspicion. The evidence was thus insufficient to convict the defendant of the crime of Resisting Law Enforcement by fleeing a police order to stop. We reverse the judgment of the trial court.
_________
[2] Yowler v. State, 894 N.E.2d 1000, 1004 (Ind. Ct. App. 2008), trans. not sought; Cole v. State, 878 N.E.2d 882, 886 (Ind. Ct. App. 2007), trans. not sought; Dandridge v. State, 810 N.E.2d 746, 749 (Ind. Ct. App. 2004), trans. denied; State v. Howell, 782 N.E.2d 1066, 1067 (Ind. Ct. App. 2003), trans. not sought; Lashley v. State, 745 N.E.2d 254, 261 (Ind. Ct. App. 2001), trans. denied; see also Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001) (addressing the right to resist with reasonable force an unlawful arrest by police), trans. denied. To the extent reasonable suspicion may be required for an investigatory stop, the State also relies on Williams v. State, 959 N.E.2d 357, 359 (Ind. Ct. App. 2011), trans. denied.

In Donald Murdock v. State of Indiana, a 4-page, 5-0 opinion, Chief Justice Dickson writes:
Donald Murdock was found to have violated the terms of his probation when he committed a new offense: Resisting Law Enforcement, a Class A misdemeanor. His appeal argues that the evidence was insufficient to support the revocation of his probation. The Court of Appeals affirmed the revocation. Murdock v. State, 5 N.E.3d 792 (Ind. Ct. App. 2014). We grant transfer and likewise find the evidence sufficient to prove the elements of Resisting Law Enforcement—but we do so based on the reasoning used in our decision today in Gaddie v. State, No. 49S02-1312-CR-789, ___ N.E.3d ___ (Ind. 2014), where we found the evidence insufficient.
In Dexter Berry v. State of Indiana, an 8-page, 5-0 opinion in a pro se case, Justice Rush writes:
In the absence of a plea agreement, trial courts have broad discretion to set conditions of probation, including “substantial punitive obligations” such as restrictive placements in work release. But when a trial court accepts a plea agreement with an executed time cap, its discretion to impose further punitive conditions of probation does not extend beyond what the plea agreement specifies. As we interpret Defendant’s plea agreement, it conferred discretion to determine the placement of his executed sentence, but not for any further restrictive placement as a condition of probation. Defendant’s one-year term in work release as a condition of probation, following the maximum executed term allowed under the agreement, thus exceeded the court’s authority. We therefore grant transfer and remand with instructions to accept or reject the plea agreement as written, and if accepted, to resentence Defendant consistent with its terms. In all other respects, we summarily affirm the Court of Appeals. Ind. Appellate Rule 58(A)(2).
In Tin Thang v. State of Indiana, a 13-page, 3-2 opinion, Chief Justice Dickson writes:
Following a bench trial, defendant Tin Thang was convicted for Public Intoxication, a class B misdemeanor. He appeals his conviction, arguing that the State failed to present sufficient evidence to prove one of the statutory elements for Public Intoxication—that he had endangered himself or others. The Court of Appeals agreed and reversed Thang's conviction. Thang v. State, 2 N.E.3d 702 (Ind. Ct. App. 2013). We granted transfer and now affirm the trial court. * * *

In the present case, the undisputed evidence established the sudden presence of the de-fendant and his vehicle at a gas station, his intoxication, his possession of the car keys, and the absence of any other person, thus necessitating removal of the car by towing. From these facts, it is a reasonable inference that the defendant had arrived at the gas station by driving his automobile on the public streets while intoxicated, thereby endangering his or another person's life.

The trial court could reasonably conclude beyond a reasonable doubt that the defendant had been intoxicated in a public place while endangering the life of himself or others. We reject the defendant's claim of insufficient evidence and affirm the judgment of the trial court.

Rush and Massa, JJ., concur.
David, J., dissents with separate opinion [which begins on p. 7] in which Rucker, J., joins.

It is undisputed that the evidence presented at Thang’s trial was sufficient to show that he was intoxicated. And I can agree with my colleagues that reasonable inferences drawn from the evidence could lead a reasonable fact-finder to conclude that Thang drove his vehicle to the gas station—and, presumably, drove on a public street in doing so. For that matter, I concur in the majority’s interpretation of Moore. But because I believe the relevant criminal statute requires the State to prove more than just this, and because I feel it failed to do so, I cannot join the majority. * * *

The better way forward, I think, would be to use the same approach for both statutes: evidence of intoxication, standing alone, cannot also serve as the evidence that the defendant charged with public intoxication endangered himself or herself, or another person.[4]

This is not how we have chosen to interpret our OWI statutes and I see no reason to in-terpret identical terms in the public intoxication statute—particularly in this factual context—any differently. The majority opinion does not give us clear guidance going forward. And because I believe the State failed to show that Thang endangered himself or another person—beyond its at-best circumstantial showing of intoxicated driving—I therefore vote to reverse the trial court.
___________
[4] This, in fact, is what the Court of Appeals seems to already be doing. See Sesay v. State, 5 N.E.3d 478, 484–85 (Ind. Ct. App. 2014) (applying rationale from Vanderlinden and Outlaw to Ind. Code § 7.1-5-1-3(a)(1)). “Here, too, something more than mere intoxication is now required to prove a person has committed the crime of public intoxication. The State conceded as much at oral argument.” Id. at 485; see also id. at 487 (Bradford, J., concurring in result). (“Intoxication alone is insufficient to sustain a finding of endangerment.”). The majority’s decision today thus overrules Sesay without mentioning it.

Posted by Marcia Oddi on Friday, June 27, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case Wed., re Evansville crosses

In Cabral v. City of Evansville (SD Ind.,Barker), an 11-page opinion, Judge Williams writes:

Seeking a permit, the West Side Christian Church (“West Side”) applied to the City of Evansville, Indiana, to set up its “Cross the River” display, which consisted of thirty-one, six-feet tall decorated crosses on four blocks of the City’s public Riverfront. After Evans-ville approved the application, residents Chris Cabral and Nancy Tarsitano filed suit against Evansville seeking an in-junction to stop the display from being erected, claiming that it violated their First Amendment rights. The district court agreed and ordered the City permanently enjoined from permitting the erection of West Side’s display on the Riverfront. Here, the City does not appeal, but West Side, which was an intervenor in the district court action, does. We need not reach the merits of West Side’s arguments, however, be-cause West Side does not have standing to bring the appeal. We cannot redress any injury West Side might have suffered because Evansville is not party to this appeal and could prohibit the display’s erection regardless of any order we issue. And, any First Amendment injury West Side might have suffered from the injunction was not fairly traceable to, or caused by, Evansville. Since West Side does not have standing, we dismiss the appeal.
See also this AP story from June 26th that begins:
EVANSVILLE, Indiana — A federal appeals court has dismissed an Evansville church's appeal of a judge's decision barring its plan to display 31 crosses along four blocks of the city's riverfront, saying the church lacked standing because it was not a party to the original lawsuit. The ruling by the U.S. 7th Circuit Court of Appeals in Chicago on Wednesday said the West Side Christian Church could have standing if it applied to Evansville for a permit to display the crosses and were denied. However, the court decision also said "West Side's road ahead might not necessarily get any easier if it ever attains standing to challenge the injunction."

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

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Robert Imbody v. Fifth Third Bank, a 5page opinion, Judge Najam writes:

Robert Imbody appeals the trial court’s judgment in favor of Fifth Third Bank (“the Bank”) on the Bank’s complaint alleging breach of a promissory note secured by a motor vehicle. The Bank repossessed the vehicle, charged off the balance of the note, and ultimately sold the vehicle at auction. The Bank sued Imbody for the deficiency balance. The question presented on appeal is whether the Bank’s complaint is barred by the applicable statute of limitations. We hold that the Bank’s repossession of the collateral accelerated payment on the note, which triggered the six-year statute of limitations, and that the Bank’s complaint is time-barred. We reverse.
In Alan R. Brill, Business Management Consultants, LP f/k/a Brill Media Company, LP, and the Non-Debtor Companies v. Regent Communications, Inc., n/k/a Townsquare Media, Inc. , a 27-page opinion, Judge Barnes writes:
The dispositive issue we address is whether the trial court properly denied Regent’s motion to dismiss Brill’s complaint. We also address whether the trial court properly granted summary judgment in favor of Regent. * * *

Based on the language used by the parties in the Agreements, we conclude that Virginia law governed both the substantive issues and the procedural issues. As such, the parties were subject to Virginia’s five-year statute of limitations. Because Brill failed to timely file its complaint, the trial court should have granted Regent’s motion to dismiss. * * *

Even if we were to conclude that the the trial court properly denied the motion to dismiss, we would affirm the grant of summary judgment in favor of Regent. * * *

In sum, the Agreements contained choice of law provisions, which encompassed both substantive and procedural law. As such, Virginia’s statute of limitations barred Brill’s claims as untimely. Therefore, we reverse the denial of Regent’s motion to dismiss. We also conclude that, as a matter of law, the Agreements did not prohibit Regent from attending and bidding at the Auction, and Brill failed to identify any confidential information that Regent actually used in formulating its bid that resulted in a competitive disadvantage to Brill. Thus, the trial court properly granted Regent’s motion for summary judgment. Reversed.

NFP civil opinions today (3):

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

Jeffrey Allen Gosney, Jr. v. Teri Gosney (NFP)

Richard R. Hogshire v. Ursula Hoover (NFP)

NFP criminal opinions today (4):

Edward D. Bagshaw v. State of Indiana (NFP)

Joseph D. Reed v. State of Indiana (NFP)

Charles Swift v. State of Indiana (NFP)

Clifford Mosley v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 27, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues one today

In South Shore Baseball, LLC d/b/a Gary South Shore RailCats and Northwest Sports Venture, LLC v. Juanita DeJesus, a 12-page, 5-0 opinion, Justice Massa writes:

“It’s hard not to be romantic about baseball.” But are stadiums and franchises, by virtue of baseball’s status as our national pastime, governed not by our standard principles of premises liability but rather entitled to a special limited-duty rule? We think not. Nevertheless, we find the defendant in this case is entitled to summary judgment, so we reverse the trial court. * * *

Just after the start of play, the second batter hit a pop-up foul ball. DeJesus saw the batter make contact with the ball, and as she looked up to see where it had gone, it hit her in the face. As a result, she suffered serious injuries, including several fractured facial bones and permanent blindness in her left eye. * * *

A. We Decline to Adopt a Special Limited-Duty Rule for Baseball Stadiums and Franchises. * * *

B. There Is No Genuine Issue of Fact Regarding the Second Element of DeJesus’s Premises Liability Claim. * * *

C. There Is No Genuine Issue of Fact Regarding DeJesus’s Negligence Claim. * * *

We therefore reverse the trial court and remand this case for further proceedings consistent with our opinion today.

Posted by Marcia Oddi on Friday, June 27, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Joy, confusion showered on NWI same-sex marriages"

Here is a good story by Bill Dolan in today's NWI Times. It is long, I'll quote part of it; highlights are from ILB:

The same-sex marriage mill has been busy in Lake, LaPorte and Porter counties. * * *

Porter Circuit Judge Mary Harper said she married five couples early Thursday. "I met some really nice people today," the judge said of the couples, most of whom were professionals including three women with doctorate degrees.

"These couples have been together for a really long time — a 25-year couple, a 21-year couple, a 14-year couple," Harper said. "They own homes together. They have adopted children. They have been waiting and waiting and stayed loyal to each other, hoping that at some point they would get the opportunity to get married."

The judge said she took mental stock the night before as she prepared the weddings: "My personal philosophy is that a woman marries a man. I was raised one way, but not everything in the world happens the way Mary Harper got raised.

"The analysis I did was that in the courtroom I go to great lengths to afford people their constitutional rights in some very difficult situations, in criminal cases.

"If I can do that on a daily basis in that context, why would I not want to assist people in using a constitutional right in a far more civil, decent, loving situation? They have a right to do it, and I'm going to help them with their right," Harper said.

She said the couples were happy but concerned about an appeal that could reverse Wednesday's historic ruling. "The common question I got after the ceremonies is, what if a stay is entered? Are we still married? I told them the answer is yes. It is a lawful marriage," she said.

"They are very relieved to hear that, but I told them to go the clerk and get their certified (license) copies now."

LaPorte County Clerk Lynne Spevak said her office gave out licenses to eight couples, but she said that was the easy part.

"The state form still requires a record of gender identity. We just tell the partners somebody has to file on one side and some on another. People have been really great and understand the ruling came down quickly, and we were really caught off guard. I'm waiting for that to get corrected," Spevak said.

"We also have questions about whether these couples can change their last names. People are calling us from other states saying they got married in California, will we have to reapply here now? We don't have answers from our state. They left us hanging yesterday."

In LaPorte County, Derrick Deck, 35, and John Foster, 34, exchanged vows Thursday in the first same-sex marriage in LaPorte Circuit Court.

“On Facebook, I posted I finally feel free. Finally feel American," said Deck, a law clerk who has shared a home with Foster for the past 10 years.

Deck said he got out of bed throughout the night to check whether a stay in legalizing gay marriage in the state had been ordered in response to an appeal filed by Indiana's attorney general.

When no action had been taken on the appeal by 8 a.m., Deck and Foster rushed to acquire a marriage license and exchanged vows in a ceremony performed by Senior Judge T. Edward Page, who was assisted by Tom Alevizos, who sits on the bench full time in LaPorte Circuit Court.

Posted by Marcia Oddi on Friday, June 27, 2014
Posted to Indiana Government

Ind. Decision - "A dogfight, marijuana and a warrantless search were at the heart of a Fort Wayne oral argument heard Thursday"

That is the lede to this story today by Niki Kelly of the Fort Wayne Journal Gazette about the oral argument heard by the Supreme Court yesterday in the case of Jonathan D. Carpenter v. State of Indiana. You can watch the oral argument here. (You may want to after you read Kelly's account of the argument.)

Posted by Marcia Oddi on Friday, June 27, 2014
Posted to Indiana Decisions

Ind. Courts - More on: Courts' Marriage License E-Filing Application continues to require male and female applicant

Updating last evening's entry, here are some news stories this morning confirming again the confusion the court website has caused.

From the Muncie Star-Press this morning, this from the end of Robin Gibson's report:

Aside from the question of whether clerks’ offices actually could issue licenses to same-sex couples, which prompted the delay until today for some counties, the offices also faced the issue of how to do so with forms that had designated lines for bride and bridegroom.

Rather than using the electronic forms, the Delaware County clerk’s office opted to fill out paper forms by hand on Thursday, slightly altering them to list “1st applicant” and “2nd applicant” instead. A deputy clerk behind the counter midday Thursday helped Alexander Davis and Jerry McCord of Gaston to fill out their paperwork, then offered to use their phone to take pictures of them signing their names.

From the Lafayette Journal Courier, from a story by Ron Wilkins:
Daniel Peo and Douglas Taylor arrived at the Tippecanoe County Courthouse at 8 a.m. Thursday to get their marriage license and were told no. No one likes to be told no, especially if it's something important. * * *

"We were refused because the state forms had not been updated. They still say bride and groom," Peo said shortly after 8 a.m. Thursday as Taylor, friends and family contemplated what might unfold in the coming hours. "We're a little disappointed, though, because there are many counties that have already begun to issue licenses. We're disappointed that the clerk is delaying this for us." * * *

While some Indiana counties immediately began issuing same-sex marriage licenses Wednesday after U.S. District Judge Richard Young released his decision that overturned Indiana's ban on same-sex marriage, calling it unconstitutional, Tippecanoe County took a more cautious approach. County Attorney Doug Masson said Wednesday that he counseled against issuing the licenses to give him time to thoroughly read the decision, and Tippecanoe County Clerk Christa Coffey said she did not have the authority to alter a state document, the marriage license application. * * *

One couple was Jim Smith and Jim Mailloux, who were there with friends and family to witness their big day, which by 9 a.m. was still mired in bureaucratic red tape that Coffey feverishly worked to unravel.

"They said stick around," Mailloux said. "We heard they emailed Indianapolis this morning at 6:30 to get the right forms, and they haven't heard back. * * *

Possibility turned to reality about 9:30 a.m. when Coffey called the couples and their supporters together outside her office and announced that Tippecanoe Circuit Judge Don Daniel gave the clerk's office authority to modify the marriage license forms, prompting cheers and applause from the crowd.

ILB: If the Indiana Courts did not/does not have staff able to alter their electronic form, perhaps they could have/could still post a properly revised paper form (in pdf) online at the same location, and send an email to all the county clerks advising them of its availability.

Posted by Marcia Oddi on Friday, June 27, 2014
Posted to Courts in general

Thursday, June 26, 2014

Ind. Courts - Courts' Marriage License E-Filing Application continues to require male and female applicant

What follow are screen shots of:

Notice that as of this evening at 9:00 PM the pages continue to require a "male" and "female" applicant, despite Wednesday's federal court ruling. Some county clerks have cited this state court electronic marriage license system as a reason they cannot issue marriage licenses to same-sex couples.

This limitation has not, however, kept many county clerks from issuing marriage licenses to same-sex couples. Take, for instance, Marion County, where Jake Miller and Craig Bowen were featured today by the Indianapolis Star as the "first same-sex couple to wed in Indy." How does the Miller-Bowen union show up in the State Court's marriage license database? Here it is, notice one party is listed as "groom" and the other is "bride":

Notice also, that in performing a search you have to guess which party was bride and which was groom, if you guess wrong, you get no result!

Given Wednesday's federal court's order, and the commendable efforts at compliance by our state executive branch, and by at least 86% of our county clerks, shouldn't our State Court also comply and update its electronic marriage license system?

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Indiana Courts

Ind. Gov't. - Executive branch gets commendably clear direction from Gov. Pence on complying with the same-sex marriage order

Mark G. Ahearn, General Counsel to Governor Mike Pence, today sent a memo to all executive branch agencies. The subject: "Recognition of Same Sex Marriage Pursuant to Court Order." Some quotes:

I offer the text below as both explanation and instruction to all executive branch agencies as the State of Indiana implements yesterday's court order as explained below. Please share with your general counsels. * * *

[After quoting the marriage statutes and parts of the opinion, and noting that the AG is appealing and asking for a stay, the memo continues]

We cannot know whether the ruling and orders will be stayed or subsequently reversed in whole or part. The State of Indiana will have to address those circumstances if or when they arise.

So, for purposes of complying with yesterday's ruling:

1. No executive branch agency may deny any state benefit or recognition otherwise available or provided to a married individual because that individual is married to a person of the same sex whether that individual was married in Indiana or another jurisdiction.

2. Starting immediately all executive branch agencies must take whatever actions are necessary and implement any processes required to comply with the court's order; that is, all executive branch agencies must recognize the marriages of individuals who, but for their sex, satisfy all the requirements to marry under Indiana law and otherwise meet all the requirements for the benefits or recognition in question. If at all possible, please try to make your agency changes effective as of the date of the court order, yesterday, June 25.

3. I recognize that every agency operates under different sets of laws, forms, approvals and requirements. You, your general counsels and staff know those better than 1- or frankly anyone outside your agency. So, the direction here is for each agency to look at its own processes and make changes implementing the court order.

4. Please report back to your policy director or if you have no policy director, back to me when you have implemented the changes. If your agency requires no changes to comply with the court's order, or if the court's order does not apply to your agency, let me know that also.

5. Finally, and I know you all know this, please coordinate media communications through your communications director - who will work with this office. This is an important matter (still in litigation) and it is critical that the Administration speak consistently on it.

Thanks all!!

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Indiana Government

Ind. Gov't. - Daviess County Clerk denies licenses to same-sex couples, citing grey areas and biblical beliefs

Nate Smith of the Washington Indiana Times Herald reported this afternoon:

As same-sex couples throughout the state hurry to local courthouses to get marriage licenses, Daviess County will not issue them.

Clerk Sherri Healy said Thursday morning her office would not issue the licenses and at least two couples of those who attempted to get one were denied a license. Although she did receive word from the state Attorney General's office, Healy said there is a "gray area" between the federal court ruling and not an order from the state to issue them. She also cited her biblical belief in denying the license.

"It's such a gray area," Healy said. "I'm not sure what the implications of what that will be. I just want something more concrete and precise." * * *

Tensions reached a high point Thursday as Shawn Colvin and partner Richie Poehlin tried several times to be the first same-sex couple issued a license in Daviess County. Colvin said he tried several times to enter the courthouse and the last time, he said Daviess County Sheriff's deputies were in the building for security.

Colvin, who said he was wearing a microphone for a Terre Haute TV station, said he was denied a license based on a biblical reason.

"It's ridiculous because in all these counties, it is fine," Colvin said. "Just because Sherri Healy doesn't believe in it, it's not going to happen."

Healy said later she told Colvin "our country was founded on the biblical principle of one man and one woman in marriage, and until I hear otherwise, that is what I will follow."

County attorney Grant Swartzentruber was not available, Healy said, but she did confer with Daviess Circuit Judge Gregory Smith. According to Healy, Smith agreed with her opinion of waiting.

Another same-sex couple also tried to receive a license in Daviess County Thursday morning. James Pirkle II and his partner were denied the license in Daviess County. Pirkle II, 41, said he was disappointed they were not able to receive a license.

"I think it is the clerk's responsibility to carry out the law which is now lawful," Pirkle II said.

They went to Knox County where they were issued the license.

"They were kind, courteous and professional and it was done," Pirkle II said. * * *

Because both Colvin and Poehlin live in Daviess County and all ties are also here, they can't go to Knox or Martin County for a marriage license. They have to wait. Colvin said he is upset with Healy's decision to block his attempt for a license.

"It's not her place to judge me and being gay is not a choice," Colvin said.

He plans to go back to the courthouse again today. Healy said although she personally was against same-sex marriage, she will issue licenses when she receives the order from the state.

"That is my opinion and personal belief," Healy said. "And, when I get the order, it won't stand in the way."

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Indiana Government

Ind. Courts - Indiana has a new deputy clerk of the appellate courts

This April 29th ILB entry is headed "Challenging job opportunity, running appellate clerk's office."

The ILB has learned that Gregory Pachmayr began work earlier this month as the Deputy Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court. No press release or other public notice was issued.

Mr. Pachmayr was formerly the Director of the Indiana Professional Licensing Agency (where he is still listed, as of this writing). According to the Indiana Transparency Portal, Mr. Gregory Pachmayr's salary as head of the Professional Licensing Agency was $60,000.

According to the Roll of Attorneys, Pachmayr was admitted in October 2009. His address on the Roll entry is listed as "State House Room 217."

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Indiana Courts

Ind. Gov't. - Fourteen percent of Indiana county clerks are refusing to issue marriage licenses to same-sex couples in their counties

As of 4:15 this afternoon, only 13 out of 92 county clerks (that would be 14%) were refusing to issue marriage licenses to same-sex couples after the Indiana federal district court ruling yesterday.

On a related note, the ILB keeps reading of concern that Judge Young will be issuing a stay of his order shortly. The ILB believes that a stay from the federal district court is not likely.

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Indiana Courts

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

For publication opinions today (4):

James R. Sapp v. Flagstar Bank, FSB

Terry Weisheit Rental Properties, LLC v. David Grace, LLC and Dance Central Academy, LLC

Lindsay Washmuth and Kristopher Washmuth v. Johnny Wiles and Amy Wiles

Traci Nelson v. Tony Nelson

NFP civil opinions today (1):

L.P. Richardson v. Eric Armstrong, Jonathon Postell, Tyrone Postell, Lambert Barnes (NFP)

NFP criminal opinions today (7):

Rebecca Roberts v. State of Indiana (NFP)

Thomas Schultheis v. State of Indiana (NFP)

E. Rodney Lewis Blair v. State of Indiana (NFP)

Desmond McGee v. State of Indiana (NFP)

Garry D. Jackson v. State of Indiana (NFP)

Shawn P. English v. State of Indiana (NFP)

Rick Whipple v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Ind. couples marrying in various counties this morning

The Bloomington Herald-Times has dropped its paywall for this story, "At least 19 same-sex couples marry in Bloomington," and this video, complete with a cute baby.

After a glitch yesterday and issues this morning, same-sex marriages have begun today in Tippecanoe County, per this Journal Courier story by Ron Wilkins headed "Couple completes Tippecanoe County's first local same-sex wedding." Couples were initially refused licenses this morning because the state forms have not been revised. Apparently Tippecanoe is now using revised paper forms.

The ILB has checked the Indiana Court's state-wide online electronic marriage application page just now (11:09 AM) and the Start Your Application form continues to require submissions from the "male applicant" and the "female applicant."

[More]
Evansville C&P and Terre Haute Trib-Star stories.

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Judicial Quaificiations Commission issues advice to judges running for office

Here it is, Advisory Opinion #1 of 2014, answering three questions from judges and judicial candidates regarding conduct around judicial campaigns – both their own conduct and that of their opponent(s):

1) Which words or phrases should be avoided in campaign slogans?
2) Are judges permitted to use photos of the courtroom in campaign materials?
3) Are judges permitted to wear their black robes for campaign photos or events?

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Indiana Courts

Ind. Law - "Indiana same-sex marriage fight not over yet"

Tony Cook and Barb Berggoetz of the Indianapolis Star report today on how:

... the fight at the Statehouse could shift to legislation intended to protect business owners and churches who deny services to same-sex couples on religious grounds.

That doesn't mean social conservatives will drop the push for a constitutional amendment. But it does suggest some of their energy will likely be diverted to issues such as religious discrimination and free speech. * * *

State lawmakers briefly entertained a proposal earlier this year would have allowed religious schools and colleges that receive state contracts to make employment decisions based on religion. That measure was slipped into an unrelated bill, but later nixed amid public outcry.

A year earlier, an Indianapolis bakery drew a firestorm of social media controversy after the owner refused to bake a cake for a gay couple on religious grounds.

And in 2010, a cookie shop at City Market faced the possibility of sanctions after its owner refused to fulfill a gay student group's request for rainbow-iced cookies. The incident prompted hundreds to protest at the city-owned market and Just Cookies later reached an agreement with the city's equal opportunity office requiring the bakery to post a "no special orders" policy.

The debate over the role religion should be allowed to play in business decisions has flared up across the nation, too.

In Arizona, the governor vetoed a measure that would allow businesses with strongly held religious beliefs to deny service to gays and lesbians, and two cases are pending before the U.S. Supreme Court in which religious business owners want their companies to be exempt from providing employee insurance coverage for contraception.

ILB: The two cases are Hobby Lobby and Conestoga Wagon, which are expected be decided Monday by the SCOTUS.

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Indiana Law

Courts - SCOTUS to issue opinions at 10AM

There are only four cases yet to be decided. Opinions in all four could be handed down this morning, or more likely, some will be held over for Monday. Here are the cases remaining (thanks to SCOTUSblog):

Watch SCOTUSblog starting at 10 AM for the blow-by-blow, are continue to watch this post for updated highlights (refresh your browser periodically).

[Update] Recess appointments (Noel Canning opinion) is first opinion today. Upholds DC Court. The Recess appointments clause empowers the president to fill any existing vacancy during any recess (intra-session or inter-session) of sufficient length. The court says that a recess of more than three days but less than ten days is presumptively too short to fall within the clause. (per amy howe)

Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked. (by tgoldstein)
ILB: And that would be the exact time the Prez might need to try a recess appt ....

[UPDATE] Long delay, caused by justices reading portions of opinion out loud.

McCullen v. Coakley
opinion is the second and final decision today, abortion clinic buffer zones. The Court holds that the Massachusetts law violates the First Amendment. This is a law that imposes a thirty-five-foot buffer zone around abortion clinics.
The opinion appears to be mainly focused on the fact that the buffer zone includes public ways and sidewalks. (by Amy Howe).

The two remaining opinions will be Monday.

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Courts in general

Ind. Court - Much news about yesterday's Indiana same-sex marriage ruling

The Indianapolis Star has a number of stories this morning, including "Judge throws out Indiana's same-sex marriage ban" by Jill Disis and Tim Evans. Some quotes:

A federal judge struck down Indiana's ban on same-sex marriages Wednesday, leaving state officials, lawmakers, social conservatives, gay rights supporters and legal experts scrambling to sort out exactly what the decision means — and what will happen next.

But for the hundreds of gay and lesbian couples who rushed to courthouses across the state for impromptu weddings, the judge's words meant something simple, yet significant: They could finally be married in Indiana.

The monumental ruling by U.S. District Judge Richard Young said Indiana's law that limits marriage to one man and one woman, and that denies recognition of same-sex marriages legally performed in other states, is unconstitutional. It mirrored more than a dozen recent federal court opinions that have struck down same-sex marriage bans in other states. * * *

Indiana Attorney General Greg Zoeller's staff quickly filed a notice of appeal and an emergency request for a stay of Young's order, which could halt same-sex marriages pending outcome of an appeal. The motion for a stay, according to spokesman Bryan Corbin, which has been granted in other jurisdictions, "is intended to prevent confusion and inconsistency between county clerk's offices regarding license issuance, while the appeal is pending."

"Until the United States Supreme Court determines that traditional marriage laws such as Indiana's are unconstitutional, it is premature to require Indiana to change its definition of marriage and abide by this court's conception of marriage," the attorney general wrote in the request for stay. "Nonetheless, marriages in violation of Indiana's existing law have taken place, are taking place, and will continue to take place pursuant to this court's order." * * *

Just minutes after Young's ruling was released, Marion County Clerk Beth White began issuing marriage licenses to same-sex couples and conducted what was likely the state's first such wedding — the spur-of-the-moment union of Craig Bowen and Jake Miller of Indianapolis.

The news came out around noon. There was a party atmosphere inside the clerk's office on Wednesday afternoon, where hundreds of people waited in line for a marriage license as White kept the doors open until 8 p.m. to accommodate the crush. After the office closed at 11 p.m., it had processed 250 marriage licenses and conducted more than 186 same-sex wedding ceremonies. It said marriage license services would resume at 8 a.m. Thursday, and it would continue to offer civil ceremonies. * * *

Later in the day, clerks in Boone, Hamilton, Hendricks and Johnson counties also began issuing marriage licenses to same-sex couples.

The Boone and Hamilton county clerks were parties to the lawsuit and were instructed by the attorney general that they must comply with Young's order, said spokesman Corbin. He said clerks in other counties are not under the direct jurisdiction of the federal court order, but the attorney general "must encourage everyone to show respect for the judge and the orders that are issued."

It is not clear how long the current window for same-sex marriages will remain open. Legal experts said a decision on the request for a stay could come in a matter of days.

From the South Bend Tribune, this story by Amanda Gray, Madeline Buckley and Lincoln Wright,reporting:
A crowd flocked to the St. Joseph County clerk’s office in the courthouse, totaling at least 19 couples seeking marriage licenses.

One woman brought cupcakes for those getting married, while another woman officiated weddings in the hallway of the office before a queue of excited couples.

While the St. Joseph County clerk’s office issued marriage licenses to same-sex couples Wednesday afternoon, some clerk’s offices in surrounding counties declined to immediately do so as officials waited for word from the Indiana Attorney General’s office, which later filed a request for an emergency stay of Young’s order. * * *

County Clerk Terri Rethlake said she delayed issuing licenses in hopes she would hear something from the Attorney General’s office, but made the decision to go forward just before 2 p.m. * * *

In LaPorte, a clerk said the county was issuing marriage licenses, but had not received any requests by the end of the day Wednesday.

Clerks in Elkhart and Kosciuscko counties said they did not issue marriage licenses, awaiting guidance from the office of Attorney General Greg Zoeller.

WSBT, however, reported Elkhart County issued two marriage licenses by the end of the day on Wednesday.

"Gay marriage ban overturned: State asks federal judge to delay ruling; Allen County begins issuing licenses," is the headline to Niki Kelly's Fort Wayne Journal Gazette story, last updated this morning. In addition, FWJG reporter Rebecca S. Green has a story headed "City couples young and old rush to wed." It begins:
FORT WAYNE – Harriet Miller was the first to show up Wednesday afternoon to park herself in front of the bank of public computers on the second floor of the Allen County Courthouse and fill out a digital marriage license application.

But the 77-year old Miller and her partner of 37 years, Monica Wehrle, weren't the first same-sex couple to obtain a marriage license and tie the knot hours after the state's ban on same-sex unions was overturned by a federal judge.

The distinction of first same-sex couple to obtain a marriage license in Allen County belonged to Kenny Edholm, 28, and his partner of 10 years, Josh Reid, 29.

Chalk it up to youth or Wehrle forgetting her driver's license, but the soon-to-be Edholms flew through their application and with obvious excitement marched up to the clerk's window and picked up their license.

They owed their spot, though, to Miller and Wehrle, who were close behind.

The lesbian couple were among the plaintiffs in the federal case that was consolidated and ruled on Wednesday by U.S. District Court Judge Richard Young in Indianapolis.

“I'm very happy, for us and all of Indiana,” Miller said. “We've worked long and hard for equal rights on many fields.”

Posted by Marcia Oddi on Thursday, June 26, 2014
Posted to Ind Fed D.Ct. Decisions

Wednesday, June 25, 2014

Ind. Gov't. - More on: Attorney General on the county clerks' duty to follow today's ruling

Updating this post from earlier this evening, the ILB now has received from the Office of the Attorney General a copy of the following statement sent this afternoon to all county court clerks (ILB emphasis):

Re: Motion for Summary Judgment (MSJ) granted today by U.S. District Court for the Southern District of Indiana in Baskin et al. v. Bogan et al., Fujii et al. v. Pence et al., and Lee et al. v. Pence et al.

Please accept this communication as additional guidance to your office relating to the above captioned cases and MSJ that was granted today. In U.S. District Court for the Southern District of Indiana, Chief Judge Richard L. Young had previously granted a TRO to two of the plaintiffs in Baskin et al. v. Bogan et al., a legal challenge to Indiana’s marriage law. Today Judge Young issued a permanent injunction preventing Indiana from enforcing its traditional marriage statute.

For those county clerks that were named (Hamilton, Allen, Boone, Porter, Lake) in the cases ruled upon today please be aware that you must comply with the court’s ruling or be subject to contempt of court. Other county clerks are not under the direct jurisdiction of the court order but as an officer of the court we must encourage everyone to show respect for the judge and the orders that are issued.

Our office is seeking a stay of today’s ruling pending appeal and will notify you timely if that stay is granted and the scope of it.

Our goal has been to avoid the chaos that has ensued in other states when rulings such as today’s have been issued. We encourage respect for our legal system and the rule of law. We will continue to communicate with as much certainty as possible under the circumstances from what we have learned from other states and with any additional information that comes from the federal courts.

Please contact this office if you have any questions concerning today’s ruling or this communication. Thank you.

ILB: This should end any confusion.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Indiana Government

Ind. Gov't. - Attorney General on the county clerks' duty to follow today's ruling

The Indiana Lawyer has just reported:

According to [press secretary Bryan] Corbin, the AG’s office advised the five county clerks named in lawsuits (Hamilton, Allen, Boone, Porter and Lake) that they must comply with the U.S. District Court’s ruling or they would be subject to contempt of court.

“Other county clerks in the remaining counties are not under direct jurisdiction of the order,” Corbin said, “but as an officer of the court, the Attorney General’s Office must encourage everyone to show respect for the judge and the orders that are issued.”

The ILB is currently unable to find this information anywhere else. The AG's press page brings up an error message.

But it appears pretty clear that Zoeller is now echoing what Gov. Pence said much earlier today: "Because the Governor believes in the rule of law, the State of Indiana will comply with the federal court’s order as this case moves through the appeals process."

If anyone has a copy of Zoeller's statement to the county clerks, the ILB would like to post it.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Indiana Government

Ind. Decisions - Tax Court posts a second opinion today

In Clark County, Indiana v. Indiana Department of Local Government Finance, Judge Wentworth writes:

Clark County, Indiana has challenged the Indiana Department of Local Government Finance’s (DLGF) final determination denying its petition for an excess property tax levy for the 2011 budget year. The Court affirms the DLGF’s final determination.
This was a significant loss for Clark County, involving problems which began in 2007:
In 2007, the Council determined it would not levy the maximum amount of property taxes permitted by statute for the 2008 budget year because it had nearly $4 million in a rainy day fund and wanted to “take some of the burden off of the homeowners.” (See Cert. Admin. R. at 374-75, 382.) The DLGF advised the Council at that time, however, that such action would negatively impact what Clark County would be able to levy in the future. (See Cert. Admin. R. at 380.) More specifically, the DLGF explained to the Council that if it reduced its levy for 2008, the county’s maximum levy in 2009 would be, pursuant to statute, reduced by one-half of the difference between 2008’s maximum levy and actual levy. (See Cert. Admin. R. at 380.) Despite the DLGF’s warning, the Council approved a property tax levy for $2.7 million less than what was statutorily allowed in 2008. (See Cert. Admin. R. at 374.)

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - More on: The same-sex marriage ruling and the county clerks

This portion of a NWI Times story this evening caught my eye [(note the part I've highlighted)

Lake County Deputy Clerk Rose Svetcoff apologized to the couple because many forms still had only a choice for a bride and groom.

Lake County Judge John Pera married the couple just after 2 p.m. From outside the courtroom, Pera could be seen hugging the couple following the private ceremony. A woman sitting on the bench clapped for them as they walked back to the clerk's office. * * *

Valparaiso resident Mary Williams said she and her partner, Angela Williams, rushed to the county courthouse Wednesday after learning of the judge's decision.

"I got the message from a friend today and we wanted to hurry before there was an appeal," she said, with the couple's 2-year-old son, Michael, asleep in her arms.

They were the first same-sex couple to pick up a marriage license in Porter County after initially being stalled when told Clerk Karen Martin was researching the issue.

Martin later explained she wanted to make sure the computer system would accept filings from same-sex couples, which it did.

"Very exciting," Angela Williams said. "Shocking, never thought it would happen in Indiana."

The ILB had recently looked at the Indiana Court's online electronic marriage application page and it required, along with the requirement that both applicants be 18 or over, that the applicants be a male and a female. Tonight I no longer see that language on the first page.

But when I clicked Start Your Application, the form still requires submissions from the "male applicant" and the "female applicant."

For more see other ILB posts from today, including this one.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Indiana Government

Ind. Courts - AG Zoeller files a motion for stay in same-sex marriage case

This afternoon Attorney General Zoeller has filed a 12-page emergency motion for stay pending appeal of today's same-sex marriage ruling by federal Judge Young. Here is a copy. Some quotes:

Until the United States Supreme Court determines that traditional marriage laws such as Indiana’s are unconstitutional, it is premature to require Indiana to change its definition of marriage and abide by this Court’s conception of marriage. Nonetheless, marriages in violation of Indiana’s existing law have taken place, are taking place, and will continue to take place pursuant to this Court’s order. Time is of the essence to stop these marriages by staying this Court’s final judgment and all related injunctions pending appeal in order to maintain the historic status quo of man-woman marriage that Indiana and its citizens have adopted.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Some clerks in the dark as to how to proceed, others have issued dozens of licenses to same-sex couples today

From the Marion County Clerk's office:

At approximately 12:30PM the Marion County Clerk’s Office began issuing same-sex marriage licenses. As of this writing, the office has processed approximately 50 applications and has conducted 31 civil ceremonies. At least a hundred couples are still in line waiting to apply for a license. The Clerk’s Office will remain open until 8PM and will process marriage license applications for anyone in line by that time. Prospective applicants arriving after 8PM will be asked to return the following morning when the office opens at 8AM.
But from southwest Indiana, Nate Smith of the Washington Times-Herald reports (h/t Maureen Hayden):
Daviess County denied a same-sex couple a marriage license following a federal judge's order striking down the Indiana same-sex marriage ban and confusion at the state level.

Daviess County Clerk Sherri Healy said Wednesday a same-sex couple called the office inquiring about obtaining a license. She had to deny the request because nothing had come from the state allowing her issue one.

"I said 'Until I was authorized to issue them, I would not be doing it,'" Healy said.

U.S. District Judge Richard Young ordered Wednesday Indiana's same-sex marriage ban was unconstitutional, allowing many same-sex couples to obtain licenses from across the state. Clerks in Marion, Monroe, Allen, Lake and other counties started issuing licenses immediately because there was no stay in the Young's order, allowing licenses to be issued.

Daviess County was not the only county denying licenses to same-sex couples, as counties across southwestern Indiana would not issue the licenses due to a lack of an order from the state attorney general's office to do so. There is also a question if the licenses would be valid before the stay was issued.

According to tweets from Evansville Courier and Press Reporter Zach Evans, a Knox County couple tried to obtain a marriage license but was denied. The clerk's office reversed its decision later Wednesday and said they would issue licenses.

Dubois County also had denied couples the licenses and then reversed course. Clerks in Martin and Pike counties said Wednesday afternoon they had not received any calls for marriage licenses.

Other larger counties in Indiana, including Tippecanoe and Elkhart counties, also did not issue licenses while waiting on guidance from the state. Healy expressed frustration with the state in its lack of communication with county clerks following Judge Young's ruling. Other than emails with fellow clerks, there has been nothing from the state, she said.

"We are supposed to have something official before the end of business (Wednesday)," Healy said.

ILB: See earlier posts here and here.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Indiana Government

Ind. Decisions - The same-sex marriage ruling and the county clerks

Here is the Office of the Governor Statement on Federal Court Ruling on Indiana’s Marriage Statute:

Indianapolis – The following statement can be attributed to Kara Brooks, Press Secretary for Governor Mike Pence.

“Governor Pence supports the Attorney General’s efforts to appeal the federal court’s ruling and defend Indiana’s right to define the institution of marriage for the residents of our state. Because the Governor believes in the rule of law, the State of Indiana will comply with the federal court’s order as this case moves through the appeals process.”

Same-sex marriages are currently taking place in many counties around the state, including Vanderburgh County, Marion County, St. Joesph County, Boone County, Hamilton County, Allen County, Lake County.

From Monroe County, this freely-available story from Laura Lane, Bloomington Herald-Times, headed "Indiana clerks seek guidance on how to handle same-sex marriage licenses":

Lawrence County Clerk Myron Rainey was out to lunch eating a pastrami sandwich when he was interrupted with news of the judicial ruling eliminating the state's ban on same-sex marriage. Before he could get back to his office, one couple already had come to the courthouse in Bedford to inquire about getting a marriage license.

Rainey called county attorney David Smith, asking him to review the ruling and advise him how to proceed with the official records.

Rainey said current marriage license forms specifically list male and female slots for those seeking to get married. Rainey said it's not clear how to proceed as far as filling out the forms. * * *

"It's a milestone day in Indiana," said Brown County Clerk Beth Mulry, who at 1:30 Wednesday afternoon had not yet received any inquiries from same-sex couples wanting to marry. She has contacted a lawyer to review the federal judge's opinion and advise her.

She said if the state does not provide new forms right away, she will get out old paper forms and use those.

"The immediate hurdle is all of our computer software is set up for male and female and we have to figure out a way around that," Mulry said. "We are more than willing to embrace the removal of the same-sex marriage ban; we just have this technology hurdle. We are working on it as fast as we can. The changes to the license form need to happen now."

But in Monroe County, where same-sex marriage licenses were being issued and weddings performed Wednesday afternoon, clerks amended the forms themselves, advised by the county attorney to white-out the words "male" and "female" and replace them with "Applicant 1" and "Applicant 2."

Meanwhile, the Lafayette Journal Courier reports that marriage licenses are not being issued in Tippecanoe County. Mikel Livingston and Ron Wilkins write:
What’s going on was a federal judge had thrown out Indiana’s gay marriage ban, ruling it unconstitutional and determining that Indiana gay couples can begin marrying immediately.

But it doesn’t mean that anything changed Wednesday for same-sex couples in Tippecanoe County.

On advise from legal counsel, Tippecanoe County Clerk Christa Coffey was not going to issue marriage licenses Wednesday.

By 1:30 p.m., clerk employees had already fielded about a dozen calls from people asking about same-sex marriage here.

Several other counties as of 2 p.m. — Benton, Clinton, Montgomery, Newton and Warren — said they too would not issue licenses to same-sex couples until they had received direction from the state attorney general. Officials in Carroll, Jasper and White counties could not be immediately reached.

Fountain County clerk Patty Gritten said her office is willing to issue marriage licenses, but said no one had asked for one as of about 3:30 p.m.

Gritten said she spoke with Judge Susan Henderson who informed her the office could begin issuing licenses. Gritten said she plans to continue to do so “until somebody tells me I can’t.”

“If somebody were to come in here today ... we’d just tell them you just need to know one side (of the form) says bride and one side says groom,” Gritten said. “It still has that old verbage. If you’re OK with that, we are.”

Indiana residents must obtain a marriage license from the county in which they reside, Coffey explained. Once the license is in hand, they may be married in any county they wish, but without the license from their home county, a couple cannot get married, Coffey said.

The story continues:
Tippecanoe County Attorney Doug Masson counseled Coffey to hold off on issuing licenses so he can review the court order, which included language that specifically indicated that the clerks in the counties named as defendants must begin to issue marriage licenses to same-sex couples.

“I think it does impact the whole state,” Masson said. He said he needs to read the order in detail. “The broader question that’s going to apply to Tippecanoe County is whether the law (banning same-sex marriage) is unconstitutional, and it probably is.”

But better to wait a day or so to allow county attorneys to read the order, check with the attorney general’s office and find out more about a possible stay of the order and the state’s planned appeal.

Ironically I quoted a July 9, 2013 post from the same Doug Masson in an ILB earlier today; my ILB post is headed "Is the electronic marriage license system keeping same-sex couples in some counties from marrying?"

Perhaps county clerks should best follow the governor's statement quoted at the beginning of this post that the State will "comply with the federal court’s order as this case moves through the appeals process." That federal order, quoted here, gives this specific direction to the county clerks:

The Defendant Clerks, their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from denying a marriage license to a couple because both applicants for the license are the same sex. Thus they must act pursuant to their authority under Indiana Code Chapter 31-11-4 and issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Indiana law

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Tax Court decides one today

In The Speedway Public Library v. Indiana Department of Local Government Finance, an 8-page opinion, Sr. Judge Fisher writes:

The Speedway Public Library has asked this Court to overturn the Indiana Department of Local Government Finance ’s (DLGF) final determination rejecting the appropriations a nd levies associated with its 2011 budget. Upon review, however, the Court affirms the DLGF’s final determination.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - Is the electronic marriage license system keeping same-sex couples in some counties from marrying? [Updated]

Here are some quotes from a July 19, 2013 ILB entry, which explored the problem: "Indiana’s current electronic marriage license application specifically designates 'male applicant' and 'female applicant' sections for gathering required background information.":

Some ILB thoughts: So do applicants have the option of a paper application, or is using the electronic form mandatory? Is there a statute denying use of a paper application where e-filing is available, or not? With a paper form, the applicants may, as Doug Masson writes:

almost certainly take themselves out of risk of this particular crime [perjury] by simply crossing out the incorrect gender designation and replacing it with the correct ones.
Do applicants have the option of going to a county that doesn't have e-filing? The answer to this question is "no." IC 31-11-4-3 provides: "Individuals who intend to marry must obtain a marriage license from the clerk of the circuit court of the county of residence of either of the individuals."

Interestingly, the marriage license e-filing system, which has been installed across the State within the past several years, is a product of the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC). According to a map on their website, all but 18 counties currently are using the e-filing system.

JTAC has prepared a factsheet on the "Marriage License E-file System." One of its stated selling points is that "Code requirements [will be] enforced by the application." In other words, couples using the electronic form only have the options provided.

One question that may be asked is, is this enforcement of the code requirements, including the state's DOMA, the responsibility of the judicial branch? Or, under our constitutional doctrine of separation of powers, that is the role of the executive branch: "Art. 5, Section 16. The Governor shall take care that the laws are faithfully executed."

Judge Young's ruling today speaks specifically to these marriage license issuance issues, enjoining county clerks and the attorney general from prohibiting the issue of marriage licenses to same-sex couples.

[Updated at 4:07] Just saw this tweet:

Andy Markle ‏@AndyMarkle 7m BREAKING: Fountain Co. now recanting, saying it can't issue same-sex licenses until the online forms are updated.
Interestingly, as pointed out above, the online forms are a product of the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC).

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Indiana Government

Courts - Also today, first U.S. appeals court rules on same-sex marriage

Adam Liptak ‏@adamliptak
Tenth Circuit voids Utah's same-sex marriage ban; 1st appeals court to act since DOMA ruling.

Here is the opinion.

More here from SCOTUSblog
.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Courts in general

Ind. Gov't. - "Clerk White to Uphold U.S. District Court Ruling: Marion County Clerk’s Office will issue same-sex marriage licenses and conduct ceremonies"

How to obtain marriage license and marry in Marion County, starting now:

INDIANAPOLIS – Marion County Clerk Beth White announced today her office is prepared to comply with the recent decision by the U.S. District Court regarding marriage licenses in Indiana.

“Chief Judge Richard Young’s decision on marriage equality sets forth a clear course of action for this office to follow regarding same-sex marriage licenses. It is my responsibility to uphold court rulings that impact this office and that is what I will do,” says Clerk White.

“The Clerk’s Office will be open until at least 4:30 p.m. this evening to issue licenses. I will also conduct short, civil ceremonies on a first-come, first-serve basis for a voluntary $50 contribution to the Indiana Youth Group.” Clerk White goes on to say, “All couples seeking a marriage license will be treated with dignity and respect. Prospective applicants can do some homework first on what the process entails by visiting www.indy.gov/clerk.”

Hoosier couples must apply for their marriage license in the county where one of the two partners live, not where they plan to marry. For example, if the couple lives in Marion County but plans a wedding in Brown County, they should obtain their marriage license in Marion County. Out of state couples should apply for a marriage license in the county where their vows will be solemnized.

The marriage license application should be started online at www.in.gov/judiciary; however, couples must appear in the Clerk’s Office to complete the process before being issued a license. Couple’s should note the current application asks for “bride” and “groom” names. Marion County Clerk staff have been trained on how to address this issue when the couple arrives to complete the process.

Couples must also provide proof of residency and to show one the following forms of identification: a valid driver’s license or state-issued ID card, an original certified birth certificate, military ID, or passport. There is no waiting period and no blood tests are required. The fee for a marriage license is $18 and the Clerk’s Office accepts cash or credit/debit cards. (There is a nominal processing fee for credit/debit card payments.) Marriage licenses are typically valid for 60 days.

The Clerk’s Office is located in the City-County Building (200 E. Washington Street, Room W122). Regular business hours to process marriage applications are from 8a.m. to 4:30p.m. Monday through Friday. Applicants should use the Market Street entrance and be prepared to go through a security checkpoint.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Indiana Government

Ind. Decisions - SD Ind. Judge Young rules Indiana's same sex marriage ban is unconstitutional

Chief Judge Young rules today that "Indiana’s same sex marriage ban violates the due process clause and equal protection clause and is, therefore, unconstitutional."

From the 36-page opinion:

The court has before it three cases, Baskin v. Bogan, Fujii v. Pence, and Lee v. Pence. All three allege that Indiana Code Section 31-11-1-1 (“Section 31-11-1-1”), which defines marriage as between one man and one woman and voids marriages between same-sex persons, is facially unconstitutional. Plaintiffs in the Baskin and Fujii cases challenge the entirety of Section 31-11-1-1, while Plaintiffs in the Lee case challenge only Section 31-11-1-1(b). Plaintiffs, in all three cases, allege that Section 31- 11-1-1 violates their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. In each case, Plaintiffs seek declaratory and injunctive relief against the respective Defendants. * * *

VII. Conclusion

The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such. Today, the “injustice that [we] had not earlier known or understood” ends. Windsor, 133 S. Ct. at 2689 (citing Marriage Equality Act, 2011 N.Y. Laws 749). Because “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 539 U.S. at 579. * * *

Pursuant to the reasoning contained above, the court DECLARES that Indiana Code § 31-11-1-1(a), both facially and as applied to Plaintiffs, violates the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause. Additionally, the court DECLARES that Indiana Code § 31-11-1-1(b), both facially and as applied to Plaintiffs, violates the Fourteenth Amendment’s Equal Protection Clause. Because this is a facial challenge, same-sex couples, who would otherwise qualify to marry in Indiana, have the right to marry in Indiana.

Having found that Indiana Code § 31-11-1-1 and the laws in place enforcing such violate the Plaintiffs’ rights under the Due Process Clause and the Equal Protection Clause, Defendants and their officers, agents, servants, employees and attorneys, and those acting in concert with them are PERMANENTLY ENJOINED from enforcing Indiana Code Section 31-11-1-1 and other Indiana laws preventing the celebration or recognition of same-sex marriages. Additionally, Defendants and officers, agents, servants, employees and attorneys, and those acting in concert with them, are PERMANENTLY ENJOINED from enforcing or applying any other state or local law, rule, regulation or ordinance as the basis to deny marriage to same-sex couples otherwise qualified to marry in Indiana, or to deny married same-sex couples any of the rights, benefits, privileges, obligations, responsibilities, and immunities that accompany marriage in Indiana.

Specifically, this permanent injunction requires the following, and the court ORDERS the following:

1. The Defendant Clerks, their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from denying a marriage license to a couple because both applicants for the license are the same sex. Thus they must act pursuant to their authority under Indiana Code Chapter 31-11-4 and issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Indiana law;

2. The Attorney General, Greg Zoeller, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from prosecuting or assisting in the prosecution, using his authority from Indiana Code § 4-6-1-6, of the following:

a. same-sex couples who fill out the current marriage license application where the spaces provided only allow for a male and female (Ind. Code §§ 31-11-11-1 and 31-11-11-3),

b. clerks who grant the marriage licenses to qualified same-sex couples (Ind. Code § 31-11-11-4), or

c. those who choose to solemnize same-sex marriages (Ind. Code §§ 31- 11-11-5 and 31-11-11-7).

3. William C. Vanness II, M.D., the Commissioner of the Indiana State Department of Health, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to:
a. Act pursuant to their authority under Indiana Code § 16-37-1 to change the death certificate form to allow for same-sex spouses, b. Act pursuant to their authority under Indiana Code § 16-37-3 to issue death certificates listing same-sex spouses, and c. Act pursuant to their authority under Indiana Code § 31-11-4-4 to revise the marriage license application to allow for same-sex applicants.
4. The Commissioner of the Indiana State Department of Revenue, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to exercise their authority under Indiana Code § 6-8.1-3 to revise the filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite-sex married couples.

5. The Board of Trustees of the Indiana Public Retirement System and Steve Russo, the Executive Director of the Indiana Public Retirement System, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to administer the Pension Fund pursuant to Indiana Code Chapters 5-10.5-3, 5-10.5-4, and 5- 10.5-6, so as to provide the same benefits for all married couples, regardless of whether the couples are of the opposite sex or the same sex.

This Order does not apply to Governor Pence, who the court found was not a proper party. This Order takes effect on the 25th day of June 2014.

[Bold emphasis by ILB]

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In White County Board of Commissioners v. Y.M.C.A. Camp Tecumseh, Inc., a 6-page opinion, Judge Friedlander writes:

Y.M.C.A. Camp Tecumseh, Inc. d/b/a Camp Tecumseh (the Camp) is located in Carroll County but on the county line, adjacent to the seventy-five-acre parcel that contains the seven acres of rezoned property in White County. On July 31, 2013, the Camp filed a petition for judicial review and stay of zoning decision against the White County Board. The Camp filed the action in the Carroll Circuit Court. * * *

A case may be commenced in any Indiana county, but if the complaint is not filed in a preferred venue, the trial court is required to transfer the case to a preferred venue upon a proper request from a party. * * *

Though the Camp is clearly concerned about the anticipated future injury to its land in Carroll County[4] as a result of the rezoning, this does not change the nature of the suit. The Camp’s cause of action is for judicial review of a White County ordinance rezoning White County land and will involve review of documents filed, proceedings held, and findings and decisions made only in White County. The Camp’s judicial review action does not relate to land in Carroll County for purposes of T.R.75(A)(2).

Because Carroll County is not a county of preferred venue, the trial court erred by denying the motion for transfer of venue to White County. On remand, the Carroll Circuit Court is directed to grant the White County Board’s motion to transfer. Judgment reversed and remanded.
_____________
[4] The Camp contends that the anticipated odor from the proposed confined feeding operation “threatens Camp Tecumseh’s existence in Carroll County.” Appellee’s Brief at 4.

In Lloyd J. Diehl v. Larry J. Clemons , a 22-page opinion, Judge Najam writes:
Lloyd J. Diehl appeals the trial court’s order granting Larry J. Clemons’ motion to correct error, following a jury trial, and ordering a new trial on the question of damages owed by Diehl to Clemons. Diehl raises three issues for our review, which we restate as the following two issues: 1. Whether the trial court complied with the requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the basis that the jury verdict was inadequate; and 2. Whether the court abused its discretion when it ordered a new trial on the basis of juror misconduct. * * *

Conclusion. In sum, we agree with Diehl that the trial court’s order vacating the jury verdict as inadequate and ordering a new trial fails to comply with the strict and paramount requirements of Trial Rule 59(J). The trial court’s order fails to relate the opposing evidence on the question of Clemons’ purported damages. See T.R. 59(J). Accordingly, the trial court’s judgment on this issue is reversed and the jury verdict is reinstated. Walker, 943 N.E.2d at 352.

We also hold that the trial court abused its discretion when it ordered a new trial on the basis of juror misconduct. The evidence presented by Clemons demonstrates only the possibility of juror misconduct; it does not demonstrate that Juror Number 289 was in fact biased or prejudiced against Clemons. Accordingly, we reverse the trial court’s judgment on this issue and remand for an evidentiary hearing consistent with this opinion. On remand, “the trial court should consider recusing itself since it has already determined that the juror was . . . biased.” Dickenson v. State, 732 N.E.2d 238, 243 n.2 (Ind. Ct. App. 2000) (Vaidik, J., dissenting), trans. denied. Reversed and remanded with instructions.

In Jereme Lee Wall v. Alfred H. Plummer, III , a 5-page opinion, Judge Crone writes:
Jereme Lee Wall appeals the trial court’s denial of his petition to expunge the records of his conviction for class C felony criminal mischief. On appeal, Wall claims that the trial court erred in concluding that he could not have the records of his conviction expunged because he had violated the terms of his probation. We affirm. * * *

Wall argues that he successfully completed his sentence and term of supervised release and that the trial court was therefore required to expunge the records of his conviction. We recently addressed similar arguments regarding a similar expungement statute for misdemeanor convictions, IC 35-38-9-2, in Alvey v. State, No. 20A04-1310-MI-533, 2014 WL 2202841, slip op. at 10-11 (Ind. Ct. App. May 28, 2014). In Alvey, the court noted that although the defendant had completed his sentence in community corrections he had twice admitted to violating probation. Therefore, he did not “successfully complete[] his sentence, including any term of supervised release” as required by IC 35-38-9-2. The Alvey court opined that the intent of the General Assembly “was to allow those persons who had successfully completed their sentences without incident to petition the court after the passage of a certain amount of time … to expunge the records of their conviction.”

We think that the legislature had the same intent in drafting IC 35-38-9-4, which applies to felony convictions. In this case, Wall admitted to violating the terms of his probation, and by doing so he failed to successfully complete his sentence. Wall contends that his probation violation was a “technical” one. However, IC 35-38-9-4 does not distinguish between major and minor violations. Based on the foregoing, we conclude that the trial court properly denied Wall’s petition to expunge his conviction.

ILB: At p. 4 the court writes:
“The best evidence of legislative intent is surely the language of the statute itself.”[3] Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007).
_____________
[3] As such, we are unpersuaded by Wall’s reliance on correspondence from a legislator that he attached to his petition.
In In re the Estate of Ruth M. Rupley, Charles A. Rupley v. Michael L. Rupley

Hugo Torres v. City of Hammond and City of Hammond Board of Public Works and Safety

NFP civil opinions today (4):

Centier Bank v. 1st Source Bank (NFP)

Frederick Cashner, Sr. and Lucille Cashner v. Western-Southern Life Assurance Company (NFP)

In the Matter of the Civil Commitment of M.S. v. Gallahue Mental Health Services (NFP)

Ronald A. Manley v. State of Indiana and Bruce Lemmon, In his official capacity as Commissioner of the Indiana Department of Correction (NFP)

NFP criminal opinions today (4):

Braunel Mackey v. State of Indiana (NFP)

Brian Earl Smith v. State of Indiana (NFP)

John A. Gall v. State of Indiana (NFP)

Gwayne Slater v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Ind. App.Ct. Decisions

Courts - Schnecter Poultry flies again? Unconstitutional delegation of legislative authority ...

Lyle Denniston of SCOTUSblog had a post Monday headed "Reviving an old constitutional idea?" He begins:

It has been almost eighty years since the Supreme Court struck down a federal law because a private organization was wrongly using the powers of government, but on Monday the Court said it would consider anew that nearly abandoned approach. It will do so in a case involving the quality of rail passenger service on the Amtrak system.

That was one of three new cases the Court agreed on Monday to hear, with decisions expected in the Term that opens next October. In the others, the Court is to decide what proof that federal prosecutors must offer to get a longer sentence when an alleged robber draws someone else into the crime, resulting in injury or death (Whitfield v. United States), and will rule on whether a jury or a judge should decide the right of an owner of an older trademark to update it and still keep its legal status (Hana Financial v. Hana Bank).

The Amtrak case (U.S. Department of Transportation v. Association of American Railroads) led to a decision by the U.S. Court of Appeals for the District of Columbia Circuit that Amtrak was given too much of a role in writing performance standards for the operation of its rail passenger trains. The Department’s appeal is an attempt to get the Court to revive a 2009 law, and the performance rules written under that law in 2010, that fell in the D.C. Circuit’s use of the so-called “non-delegation doctrine.”

That doctrine is a constitutional limit on Congress’s authority to hand off to someone else — a private entity or another branch of government — its power to write the nation’s governing laws. It was used by the Supreme Court repeatedly during New Deal days, in striking down President Franklin Roosevelt’s programs for dealing with the Great Depression. It has not been used since to nullify any federal law.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Courts in general

Ind. Courts - "ACLU of Indiana Challenges Street Performance Ordinance in South Bend"

From the Indiana ACLU press release today:

Indianapolis - Many communities welcome street performers as a symbol of a vibrant downtown. But a person in South Bend performing at the wrong place at the wrong time could be fined as much as $500 for exercising his or her right to free expression.

Today the American Civil Liberties Union of Indiana filed a lawsuit on behalf of a South Bend man, challenging a city ordinance that sets vague and unconstitutional limits on street performances in the Central Business and Entertainment Area of the city. The plaintiff, Rick Peden, is a sidewalk performer who plays the guitar and does an improvisational routine. He can often be found performing in front of the Morris Performing Arts Center and East Race Waterway.

Ordinance No. 10274-13 requires buskers to obtain a permit, pay a fee, submit an application, stay within certain geographical boundaries and pay hefty fines for violations of the ordinance. The statute violates the First Amendment and the Fourteenth Amendment of the U.S. Constitution, according to the ACLU of Indiana.

"Courts have long held that entertainment-whether in the form of books, movies or performers on public sidewalks-is protected by the First Amendment," said Gavin M. Rose, ACLU of Indiana staff attorney. "South Bend is failing to show due regard for that indisputable fact."

The lawsuit, Rick Peden v. City of South Bend, Indiana, Cause No. 3:14-cv-01682, was filed by Gavin M. Rose, ACLU of Indiana Senior Staff Attorney, in the U.S. District Court for the Northern District of Indiana, South Bend Division, on June 25, 2014.

ILB: "Busking" per Wikipedia: Street performance or busking is the practice of performing in public places, for gratuities. In many countries the rewards are generally in the form of money but other gratuities such as food, drink or gifts may be given.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Courts in general

Courts - SCOTUS to issue opinions at 10 AM [Updated]

Watch SCOTUSblog for all the details, or watch here for highlights. Comments are from SCOUSblog:

ABC v. Aereo. The opinion is 6-3. Decision of the Second Circuit is reversed. Aereo is illegal because it performs petitioner's works publicly within the meaning of the transmit clause of the Copyright Act. 6-3, Scalia dissents, joined by Thomas and Alito. [This was the tiny TV antennas case]

"behind-the-scenes technological differences do not distinguish Aereo's system from cable systems, which do perform publicly." by tgoldstein

Cellphone privacy. Cases decided together, by the CJ: Riley v. California and U.S. v. Wurie.

This is a sweeping endorsement of digital privacy. by tgoldstein

Holding: the police generally may not without a warrant search digital information on the cellphone seized from an individual who has been arrested.
by Amy Howe. Judgment is 9-0.

This means that there are four cases left: NLRB v. Noel Canning, McCullen v. Coakley, Harris v. Quinn, and Hobby Lobby. Opinions tomorrow, perhaps Monday.

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Courts in general

Ind. Decisions - Opinion piece criticizes discipline of Muncie attorney

From a Muncie Star-Press opinion piece by Larry Riley, who teaches in the Department of English at Ball State:

One can’t help but conclude the Indiana Supreme Court simply was out to get Michael J. “Mick” Alexander, local attorney who last week got handed down a disciplinary action of 60 days suspension from practice.

The case had dragged on and on, and the complaint itself goes back to actions from 10 years ago to start with.

A judge appointed by the Supreme Court, after a hearing in Richmond, wrote a lengthy recommendation in March that Alexander receive only a public reprimand for several transgressions.

One was allowing a disbarred attorney to perform some legal-related work in his office in 2003, another a failure to tell opposing counsel in a trial what a witness they already had deposed would testify to during a 2003 trial.

A former two-term county prosecutor who since became perhaps the most prominent criminal defense attorney in East Central Indiana, Alexander has no doubt made a lot of enemies over the years.

You’re in real trouble, though, when state Supreme Court jurists, who ignored the hearing officer’s recommendation, are after your hide.

ILB: Here is an ILB post re the Court's order, and here is the June 18th order. The events covered in the two counts occurred in 2003 and 2005.

As stated in the Court's order, Alexander had received several public reprimands in the past:

Aggravating and mitigating facts. We find the following facts in mitigation: (1) Respondent took corrective steps regarding his misconduct in employing McLaren; and (2) Respondent has expressed regret and embarrassment regarding his misconduct. A substantial fact in aggravation is Respondent's disciplinary history: Matter of Alexander, 504 N.E.2d 584 (Ind. 1987) (agreed public reprimand); Matter of Alexander, 18S00-8606-DI-577 (Ind. Jan. 24, 1996) (agreed private reprimand); Matter of Alexander, 768 N.E.2d 892 (Ind. 2002) (agreed public reprimand).
We have the dates of the three reprimands, but not the dates of the past incidents occasioning the reprimands. (although I was able to locate the 1987 reprimand, it was for a 1984 incident.)

Posted by Marcia Oddi on Wednesday, June 25, 2014
Posted to Ind. Sup.Ct. Decisions

Tuesday, June 24, 2014

Ind. Decisions - 7th Circuit corrects June 20th opinion in Indiana case

As the ILB has noted several times before, the 7th Circuit publicly posts its corrections to opinions, unlike the SCOTUS, and unlike, at least until recently, our Indiana appellate courts.

This afternoon the 7th Circuit has posted a correction to its June 20th opinion in Fares Pawn, LLC v. Ind. Dept. Financial Inst.

Posted by Marcia Oddi on Tuesday, June 24, 2014
Posted to Ind. (7th Cir.) Decisions

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

In Tyrone Jones v. Richard Brown (SD Ind., Lawrence), a 31-page opinion, Judge Ripple writes:

After a bench trial, Tyrone L. Jones was convicted of felony murder in an Indiana trial court. His conviction was affirmed on direct appeal. He then filed a petition for postconviction relief in state court, alleging ineffective assistance of trial counsel. Specifically, he contended that his trial counsel had been ineffective for failing to seek the suppression of clothing that Mr. Jones had given to the police after his arrest. Mr. Jones contended that the clothing had been obtained in violation of Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), which, at least under some circumstances, requires that a detainee be advised of his right to counsel prior to consenting to a search of his property. The state trial court denied postconviction relief; the Court of Appeals of Indiana affirmed that judgment, and the Supreme Court of Indiana denied transfer.

Having exhausted his state remedies, Mr. Jones sought federal habeas relief under 28 U.S.C. § 2254. He reiterated the same claim of ineffectiveness of counsel that he had presented to the state courts. The district court denied relief. We now affirm that judgment because trial counsel was not constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984).

Posted by Marcia Oddi on Tuesday, June 24, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: Judicial Technology Oversight Committee to meet Tuesday?

Okay, it is Tuesday. The ILB found out, a few minutes ago, through a well-connected reader, that JTOC is indeed meeting today, although there has been no public notice and is no agenda.

The meeting will begin 1:30 in Conference Room 22 of the Gov. Center South. You'll need to ask at the information desk how to get there, although it is on the main floor. Remember, it is a public meeting.

I'm hoping to have more to report after the meeting is over, but realize it is pretty short notice to expect anyone from the public to attend.

For more details and links, see earlier ILB post from yesterday.

Posted by Marcia Oddi on Tuesday, June 24, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Roy Baker Trust and Penny Harris v. Red Husky, LLC , an 8-page opinion, Judge Robb writes:

Appellant Penny Harris, trustee for the Roy Bayer Trust, appeals the trial court’s entry of summary judgment and corresponding order for damages in favor of appellee / cross-appellant Red Husky, LLC. Each party presents one issue for our review. Harris asks whether it was error for the trial court to grant Red Husky’s motion for summary judgment. Red Husky asks whether the trial court abused its discretion in determining the amount of damages awarded. We conclude the trial court did not err by awarding summary judgment in favor of Red Husky. Further, we conclude the trial court’s award of damages based on deterioration of property value is supported by the evidence; however, we remand for a determination of whether Red Husky is entitled to additional damages for loss of use. We affirm in part and remand.
NFP civil opinions today (1):

Eric Garver, Brian Garver, and Dawn Shepherd v. IDS Property Casualty Insurance Company (NFP)

NFP criminal opinions today (3):

Willie J. Washington v. State of Indiana (NFP)

Antonio McCaster v. State of Indiana (NFP)

Melissa Brandon v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 24, 2014
Posted to Ind. App.Ct. Decisions

Environment - "United Water penalty money earmarked for entire state, not Gary"

This story by Teresa Auch Schultz of the Gary Post-Tribune is from June 16th. Some quotes:

When United Water agreed last week to pay $645,000 in civil penalties to end a lawsuit over its management of the Gary Sanitary District, the company promised to pay half of that money to the state.

But it’s unclear what, if any, portion of that fine would be directed to Gary, the area that the U.S. Environmental Protection Agency argues saw its local rivers polluted because of United Water.

The civil penalty makes up the bulk of a consent decree that the New Jersey company signed with the federal government last week. The consent decree ended a lawsuit that claimed the company discharged water with pollutants such as E. coli that were higher than permitted levels into the Little Calumet River and the Grand Calumet River from 2006 to 2010.

United Water continues to say it did nothing wrong but that it agreed to pay the penalty to avoid a long and costly legal battle.

Barry Sneed, a spokesman for the Indiana Department of Environmental Management, said that the money, like all penalties paid to IDEM, will go to the Environmental Management Special Fund. However, he did not have details on how that money is budgeted.

Kin Ferraro, the water and agriculture policy director and staff attorney for the Hoosier Environmental Council, said that the government could have stipulated in the consent decree that United Water’s fine be used toward a specific purpose but that it does not appear they did in this case.

Although she said she does not know what the state will do with the money, she does think it should be directed toward Gary.

“Given that there was all this money and resources put into getting a civil penalty for this specific harm, certainly it makes sense that the money be used to remedy that,” she said.

Posted by Marcia Oddi on Tuesday, June 24, 2014
Posted to Environment | Indiana Government

Ind. Gov't. - Still more on: Governor's Tax Competitiveness and Simplification Conference on June 24 is by invitation only

It is today. Here is the agenda.

The Fort Wayne Journal Gazette reports:

The conference is open to the media but not to the general public due to space. All sessions will be webcast. For each panel, join the webcast rooms below. (Password is "Guest")

Auditorium: http://webinar.isl.in.gov/dor1/

Room A: http://webinar.isl.in.gov/dor2/

Room B/C: http://webinar.isl.in.gov/dor3/

Recorded segments will also be available for viewing within a few hours of completion at www.in.gov/dor/5123.htm.

See this earlier ILB post for more.

Posted by Marcia Oddi on Tuesday, June 24, 2014
Posted to Indiana Government

Ind. Gov't. - "Legal fees growing in town’s sewer bid: Huntertown officials defend amount spent"

Vivian Sade had this story in the Sunday Fort Wayne Journal Gazette. Here is just the beginning of the very long story:

In its ongoing battle to expand utility services and break ties with Fort Wayne City Utilities, Huntertown paid its attorney more than a quarter of a million dollars in the first five months of this year.

Through May, the town, which has an annual budget of $1.7 million, is spending at a rate many times higher than towns of similar size. It trails slightly behind Allen County government, which has 33 departments and an annual budget of $159 million.

Payments of $304,397 for legal services were approved between Jan. 1 and May 30 by members of the Huntertown Utilities Service Board and the Town Council. Most of it was for utility-related matters including the town’s disputes with Fort Wayne City Utilities and for ongoing litigation with local developers. Just over $238,000 of that was paid to David Hawk, the town’s longtime attorney.

An additional $259,948 in engineering and consulting fees were paid during that same time, also largely related to utilities issues and for a wastewater treatment plant that has yet to be approved by the state.

If Hawk had worked for the town 40 hours a week during those months – which is unlikely since he has a full-time practice and is paid a retainer and for services as needed by Huntertown – he earned $298 an hour. No detailed invoices or a breakdown of the charges were available.

But Hawk said he has spent many hours on Huntertown issues. * * *

There is no such thing as an average fee for attorneys in northeast Indiana, with rates running from $75 an hour on the low end to $500 on the high end.

“It all depends on the complexity of the case and the expertise and experience of the attorney,” Allen Superior Court Judge Nancy Eshcoff Boyer said.

“I’m speculating, but I would think you would be hard-pressed to find an attorney (in this area) charging less than $125 an hour,” she said

Attorneys who work for Allen County are paid $150 an hour, county Auditor Tera Klutz said.

The county employs numerous attorneys from a dozen different law firms. While some may be paid a salary, all are paid hourly for special issues or litigation, she said.

Posted by Marcia Oddi on Tuesday, June 24, 2014
Posted to Indiana Government

Monday, June 23, 2014

Courts - SCOTUS ruling today on EPA regulation of air emissions

The case is United Air v. EPA. NPR's Nina Totenberg has a good report this evening on All Things Considered.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Courts in general

Ind. Decisions - 7th Circuit decides one Indiana case today, vacating and remanding

In USA v. Walbert Farmer (SD Ind., Pratt), a 13-page opinion, Jude Tinder writes:

Defendant-Appellant Walbert Keith Farmer appeals the district court’s imposition of two special conditions for his three-year term of supervised release: one prohibiting him from self-employment, and the other requiring him to submit to the search of his person, vehicle, office, residence, and property at the request of his probation officer, even without a warrant or reasonable suspicion. Because we conclude that the special conditions do not bear a reasonably direct relationship to Farmer’s underlying crimes, we vacate the special conditions in question and remand for further consideration.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Judicial Technology Oversight Committee to meet Tuesday?

Although the report by the ILB on the most recent meeting, March 19th, of the Judicial Technology Oversight Committee was that it is to meet Tuesday, June 24th at 1:30 PM, the ILB has been able to find nothing more about it. The meeting is not listed on the state calendar for tomorrow. There is no agenda or other information on the Court website.

Here is a list of earlier ILB posts on JTOC, including this one from Sept. 13, 2013 that explains the importance of this Committee, created by the 2013 General Assembly. Despite this, the Committee, chaired by Justice Massa, has met infrequently and little information has been forthcoming.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Indiana Courts

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

Updating this ILB post from April 28th, Bob Kasarda of the NWI Times is reporting this afternoon:

The Indiana Court of Appeals has rejected a challenge to a decision by a local judge to allow videotaped statements from a dead witness to be used in an upcoming murder trial.

The court denied, without comment, the request to hear the case.

The interlocutory appeal was filed by defense attorney Peter Boyles on behalf of 22-year-old Dontaye Singletary, who is accused of gunning down Carl Griffith Sr., 72, outside his Portage home Nov. 1, 2012.

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

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

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

Per the earlier post, the "law" appears to be Indiana Evidence Rule 804(b)(5).

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Greg Zoeller: Filing amicus briefs gives Indiana a voice in court"

That is the headline to our Indiana Attorney General's long opinion piece published Sunday in the Gary Post-Tribune. Some quotes:

As state government’s lawyer, I don’t make the laws but I have an obligation to defend the laws passed by the people’s elected representatives in the Legislature. My office defends Indiana statutes from curent legal challenges in court, but we also must anticipate future challenges. By participating in amicus briefs in other states’ lawsuits, we both sharpen Indiana’s legal arguments in preparation for our own later cases and ensure that our views are understood by the judges who create the precedents that may guide — or even control — our future cases. Filing amicus briefs to explain a state’s legal interests is intrinsic to the job description of a state attorney general.

Cooperating with AG’s offices in other states, my office since January 2009 has authored or co-authored 29 amicus briefs that other states joined, or signed on to; and we joined another 113 briefs that other states authored. Of the briefs Indiana participated in at the U.S. Supreme Court, 34 were filed at the “cert petition” stage, where justices consider whether to accept an appeal from a lower court; and another 79 were filed at the “merits” stage after the court accepted a case. The rest were filed with other courts.

Staying in regular contact with our state AG counterparts, my office participates in briefs where states have strong common interests. Since 2009, approximately one-sixth of briefs were filed in cases involving the relationship between the federal government and states, as it’s important for states to raise questions if federal agencies exceed their authority. Approximately one in 10 briefs involved consumer protection and environmental laws impacting state enforcement authority. The largest group, one in four, involved criminal law. The vast majority of all criminal charges are filed by prosecutors at the state level, but many of the most serious state criminal cases eventually make their way to the federal judiciary on issues involving defendants’ constitutional rights to a fair trial. * * *

In my office, drafting and reviewing briefs is handled by Solicitor General Thomas M. Fisher, who has argued three cases before the U.S. Supreme Court and has written briefs in several more. Our salaried attorneys don’t charge billable hours and amicus work is factored into our budget the Legislature approved in advance.

Indiana should not stand silent as the important legal issues of our time are decided. By authoring or joining amicus briefs, our state government’s voice can be heard on fundamental issues even if we are not parties to a case. My office will continue to file and join them when they serve the interests of our state. [emphasis by ILB]

ILB: A few points on the opinion piece:For more of the same, from other attorneys, see this ILB post from Aug. 14, 2013, and this one from May, 16th, 2014, quoting op-eds by Bill Groth and Sheila Suess Kennedy, respectively.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Donald Bunger and Flora Bunger v. Jason A. Brooks, M.D., a 15-page opinion, Judge Najam writes:

Donald and Flora Bunger appeal the trial court’s entry of summary judgment in favor of Jason A. Brooks, M.D., on the Bungers’ complaint alleging medical malpractice that resulted in the rapid loss of vision in Donald’s left eye. The Bungers raise the following issues for our review:

1. Whether the trial court abused its discretion when it struck their expert witness’ affidavit.
2. Whether the trial court erred when it concluded that the Bungers had not established a genuine issue of material fact precluding summary judgment.

We reverse and remand for further proceedings. * * *

A careful reading demonstrates that there is no material discrepancy between Knopf’s deposition testimony and affidavit and that his testimony is not speculative. Dr. Knopf’s affidavit should not have been stricken under Gaboury, and his testimony was not inadmissible under Evidence Rule 702. Construing all factual inferences in the Bungers’ favor and resolving all doubts as to the existence of a material issue against Dr. Brooks, we hold that a genuine issue of material fact exists whether the surgery proximately caused Donald’s injuries. There is also a question whether and, if so, to what extent, Donald’s pre-existing condition contributed to his injuries, but that question is for the fact finder. A pre-existing condition or susceptibility, if aggravated by a defendant’s conduct, may result in a defendant’s full liability for the resulting injury and loss. Dunn, 516 N.E.2d at 56. However, if the pre-existing condition, standing alone, independently causes injury and loss, a defendant will not be liable for such damages. Id.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Godfrey Ikechukwu Egwu, Jr. v. State of Indiana (NFP)

Brandon Daniels v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending June 20, 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, June 20, 2014. It is one page (and 11 cases) long.

One transfer was granted last week, with opinion, in the case of Ralph Andrews v. Mor/Ryde International, Inc. - see ILB summary of the opinion here, from June 19th.

Also notable was the 2-page written dissent from denial of transfer in the case of John Luttrell v. Melinda Luttrell, written by Justice David and joined by Justice Rush. See this ILB post from Saturday.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Indiana Transfer Lists

Courts - Three decisions today from SCOTUS

But none of the bigies. The SCOTUS will issue opinions again on Tuesday and Thursday. Perhaps also on the 30th.

Today's opinions: Loughrin v. U.S. (bank fraud), United Air v. EPA (PSD and major sources under CAA), and Haliburton v. John Fund (damages in private securities fraud).

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Courts in general

Ind. Gov't. - "EPA Letter of Rejection to the City of Evansville" [Updated]

From the Evansville City-County Observer, a link to:

... the rejection letter from the EPA to the City of Evansville’s watered down plan to control combined sewer overflows and the City’s response letter dated today [Friday, June 20], the last day to respond to the EPA notice.

The rejection letter is 7-pages long and contains section after section of technical descriptions about why Evansville’s proposal was rejected. Only at the end is the “ability to pay” addressed. Reading the body of the letter it becomes clear that the EPA rejected the plan over their assessment of the efficacy of the proposed solution and that the “ability to pay” argument was secondary.

[Updated 6/24/14] Here is a June 23 report from Inside Indiana Business.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Environment | Indiana Government

Ind. Gov't. - "In mad dash by Indiana lawmakers, errors can happen"

In his Sunday column Tom LoBianco reports for the AP on the technical corrections day, held June 17th. See this ILB post from June 13th for background. A quote:

Leaders said last week's meeting was their first time using a "technical corrections day" solely to fix errors since the tool was established by lawmakers in 1995. They used it last year to override Gov. Mike Pence's veto of tax legislation, including a measure that retroactively approved the collection of taxes in Jackson and Pulaski Counties.

But it's not the first time the General Assembly has made a serious mistake.

One of the biggest was when lawmakers accidentally repealed the Family and Social Services Administration, the state's social services agency, in 2011. Lawmakers did not return to fix that problem Instead, then-Gov. Mitch Daniels signed an executive order ensuring the state's largest agency continued operating until lawmakers could fix their error during the 2012 session.

"Some thought that might not be a bad thing, so we didn't rush back here for that," joked House Speaker Brian Bosma, R-Indianapolis.

But the errors discovered this year, including drafting mistakes that would have reduced some sentences for child sex offenders and made it harder to arrest suspected shoplifters, were too pressing not to fix before they became law on July 1, Bosma said.

The sprawling nature of the legislation, which capped off a years-long rewrite of the state's entire criminal code, was bound to cause at least some mistakes, he said.

"House Bill 1006 (the criminal sentencing overhaul) was one of the most comprehensive and technical rewrites of the entire criminal code our state has ever seen, so there's no surprise there would be some issues in it that were not resolved in accordance with the intent of all of us," Bosma said.

Before they started using the "technical corrections day" as a one-day backstop to perform the procedural steps needed to approve any fixes, lawmakers had the option of coming back — but only if the governor called for it.

The state's legislative leaders say they're not looking to have lawmakers spend more time at the Statehouse than they need to.

"Obviously, the other way to do it is to have a special session, but that opens the door for a lot of other things and possibilities, and there really wasn't a need for that," Long said. "We did the right thing, but we don't want to make a habit of this."

ILB: Another major error in 2011, as reported by Niki Kelly in the Fort Wayne Journal Gazette, was "A mistake in a bill meant to loosen construction wage requirements in Indiana [that] will force all public works projects – regardless of the cost – to go through a process establishing wage rates." From the 2011 story:
“There was a drafting error. It was not caught, and (the legislative services agency) has apologized to us,” Long said. “It should have been caught.”

Indiana’s Common Construction Wage Act establishes labor rates in construction projects contracted by state and local government.

Supporters say it will ensure that government does not upset the market equilibrium in the private sector, while opponents think it will drive up construction labor costs on public projects.

The intent of the bill was to increase the threshold level at which a project must use a common construction wage to $250,000 starting Jan. 1, then $350,000 starting Jan. 1, 2013.

But an error deleted the threshold for all projects between July 1 and Jan. 1. That means public projects – even those costing less than $150,000 – will need to have a common construction wage. * * *

Lawmakers have day built into their schedule to vote on technical corrections, but they rarely use it. [ILB: I don't recall it ever being used ...]

Last Tuesday was the scheduled date, but the error wasn’t found in time to call all the members back to fix the bill. And Long said it wasn’t worth the expense anyway.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Indiana Government

Ind. Gov't. - "Council prez Whitten to Porter County auditor: ‘Why did you lie?’"

Amy Lavalley reported in the Gary Post-Tribune this weekend in a very long story that begins:

VALPARAISO — Porter County Auditor Bob Wichlinski appears to have misled the county council in April about including Porter Regional Hospital in the county’s overall assessed valuation.

According to internal documents from the county’s property tax system, as well as old and corrected tax bills sent to the hospital in late April, the hospital property, valued at the time at $4.7 million, was included in the county’s certified net assessed valuation for 2012 and 2013, but the hospital itself was not.

Hospital officials are appealing the facility’s assessment for 2012 and 2013, but the amounts of $34 million and $39 million including the land and the structure for those two years, respectively, are not disputed.

Several sources have confirmed to the Post-Tribune that the hospital’s assessed valuation, or AV, was not included in the county’s certified net AV.

“There’s absolutely no risk in putting in $39 million for the value. That’s what they say they’re worth. Why would you withhold any of that?” said Council President Dan Whitten, D-At-large. “From the county council perspective, what did you really put in the assessed valuation, why did you lie to us, and why did you inflate the tax rate? Because then he overcollected from the taxpayers.”VALPARAISO — Porter County Auditor Bob Wichlinski appears to have misled the county council in April about including Porter Regional Hospital in the county’s overall assessed valuation.

According to internal documents from the county’s property tax system, as well as old and corrected tax bills sent to the hospital in late April, the hospital property, valued at the time at $4.7 million, was included in the county’s certified net assessed valuation for 2012 and 2013, but the hospital itself was not.

Hospital officials are appealing the facility’s assessment for 2012 and 2013, but the amounts of $34 million and $39 million including the land and the structure for those two years, respectively, are not disputed.

Several sources have confirmed to the Post-Tribune that the hospital’s assessed valuation, or AV, was not included in the county’s certified net AV.

“There’s absolutely no risk in putting in $39 million for the value. That’s what they say they’re worth. Why would you withhold any of that?” said Council President Dan Whitten, D-At-large. “From the county council perspective, what did you really put in the assessed valuation, why did you lie to us, and why did you inflate the tax rate? Because then he overcollected from the taxpayers.”

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Indiana Government

Courts - "Midge Rendell talks about life as a 3rd Circuit judge"

An interesting Sunday Daily News feature from Philly.com.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Courts in general

Law - "Who owns the law? Technology reignites the war over just how public documents should be"

That is the title to a lengthy, valuable article by Victor Li in the June issue of the ABA Journal.

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to General Law Related

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

From Sunday, June 22, 2014:

From Saturday, June 21, 2014:

Posted by Marcia Oddi on Monday, June 23, 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 6/23/14):

Thursday, June 26

Next week's oral arguments before the Supreme Court (week of 6/30/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/23/14):

Tuesday, June 24

Wednesday, June 25

Next week's oral arguments before the Court of Appeals (week of 6/16/14):

Tuesday, July 1

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

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


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

Posted by Marcia Oddi on Monday, June 23, 2014
Posted to Upcoming Oral Arguments

Sunday, June 22, 2014

Ind. Law - Hoosier Deb Daniels and former Virginia AG Ken Cuccinelli team up for WAPO editorial

The title to the June 19th Washington Post opinion piece is "Less incarceration could lead to less crime." (h/t Sentencing Law blog)

Readers may recall that Deborah Daniels was deeply involved in the preparation of Indiana's criminal code rewrite, which will take effect July 1st. See, for instance, this Jan. 21, 2013 ILB post quoting a still accessible story by Maureen Hayden headed "Another Daniels may get state’s criminal code on track."

A sample from the opinion piece:

The Pew Charitable Trusts recently reported that states that have cut their imprisonment rates (coupled with other reforms) have experienced a greater crime drop than those that increased incarceration. Between 2007 and 2012, the 10 states with the largest decreases in imprisonment rates had a 12 percent average reduction in crime, while the 10 states with the largest imprisonment rate increases saw crime fall 10 percent.

Kentucky has shown that states can cut recidivism and costs while protecting public safety by shaving time off an inmate’s prison term but requiring a period of community monitoring upon release. Offenders completing the state’s new Mandatory Reentry Supervision program were 30 percent less likely to return to prison for a new crime than inmates released before the program took effect.

Kentucky’s prison growth outpaced nearly all others’ between 1999 and 2009, but it has saved more than $29 million since the program began in 20111.

When you see, as we have, what reduces criminal behavior, it’s easier to accept the notion that for many offenders, prison is not the best answer. That conclusion is part of what led us to join Right on Crime, a national movement of conservatives who support a criminal justice system reflecting fiscal discipline, a belief in redemption, the empowerment of victims and reliance on solid evidence to determine the most cost-effective use of taxpayer funds to reduce recidivism and improve public safety.

Posted by Marcia Oddi on Sunday, June 22, 2014
Posted to Indiana Law

Saturday, June 21, 2014

Ind. Decisions - A missed opportunity by our Supreme Court to provide guidance on an important, recurring issue?

On Thursday, May 8th, the Supreme Court heard oral argument in the case of Luttrell v. Luttrell. You may watch the oral argument here. This was a case where the husband had petitioned the Supreme Court to accept jurisdiction over the appeal, i.e. to grant transfer, but the Court had elected to heard oral argument on the request before making a decision. The husband had raised issues relating to spousal maintenance, attorney’s fees, and the division of the marital estate; the Court of Appeals had affirmed in part and reversed in part, in a Sept. 12, 2013 opinion.

On late Friday afternoon, June 20th, an order denying the petition to transfer was posted on the Court's website, the file stamp indicating it had been filed that morning. Page 1 of the order in the case of Luttrell v. Luttrell denies the transfer petition, stating:

The Court has reviewed the decision of the Court of Appeals. Any record on appeal that was submitted has been made available to the Court, along with all briefs filed in the Court of Appeals and all the materials filed in connection with the request to transfer jurisdiction. Also, the Court has heard oral argument on the transfer petition. Each member of the Court has had the opportunity to voice that Justice’s views on the case in conference with the other Justices, and each has voted on the petition to transfer.

Being duly advised, the Court now DENIES the Appellant’s petition to transfer jurisdiction. This appeal is at an end.

The Court DIRECTS the Clerk to certify the Court of Appeals opinion as final and to send copies of this order to all counsel of record.

However, the order, dated June 19th, includes more, a rare, 2-page dissent to the denial of transfer by Justice David, in which Justice Rush joins -- two of the newest members of the Court. Here are some quotes from the dissent:
I respectfully dissent from the denial of transfer. To provide guidance to trial courts, I believe we should address the issue of whether a lump-sum Social Security Disability Insurance payment is a marital asset subject to division upon divorce, or a factor to be considered. * * *

[T]his Court has never formally responded to the issue presented on transfer. Moreover, even if we were to determine that pursuant to 42 U.S.C. § 407(a) a lump-sum SSDI payment cannot be divided in divorce proceedings, the SSA does not control whether trial courts can consider the award as part of the total picture when determining how to equitably divide property upon divorce. Although it did not reach this issue, the Court of Appeals pointed to
Stanley v. Stanley, where the Supreme Court of Delaware answered in the affirmative. 956 A.2d 1, 4 (Del. 2008). Luttrell, 994 N.E.2d at 303, n. 4.

As it stands, the potential windfall for the spouse receiving the lump-sum SSDI payment is apparent, particularly where, under most circumstances, the lump sum represents lost income that was compensated for by a combination of the other spouse stepping up and both parties doing without during the period which gave rise to the SSDI qualification. Here, Melinda Luttrell’s lump-sum SSDI payment of $14,430.75 was not factored into the trial court’s division of the Luttrell marital estate, of which the net distribution of approximately $191,000 was split 60/40 in her favor. And in the next case where this issue arises, the lump-sum SSDI payment could be greater in amount and/or percent at stake. At minimum, one party’s receipt of a lump-sum SSDI payment should be a factor for the trial court to consider when awarding attorney’s fees.

Because this Court is passing up an opportunity to resolve a consequential issue likely to reoccur, I respectively dissent from the denial of transfer.

Rush, J., joins.

Posted by Marcia Oddi on Saturday, June 21, 2014
Posted to Ind. Sup.Ct. Decisions

Friday, June 20, 2014

Ind. Law - "The Sinaloa Cartel’s 90-Year-Old Drug Mule" is a day-lily farmer from Michigan City

That part in quotes is the headline to a long NY Times Sunday Magazine article by Sam Dolnick, from last weekend (June 11, 2014), which I was reading during lunch when I was surprised to come across this part:

Day-lily enthusiasts used to make pilgrimages to Sharp’s flower farm near Michigan City, Ind., a quiet vacation town on the shore of Lake Michigan where he has lived for decades, and to his southern farm in Apopka, Fla., which calls itself “the indoor foliage capital of the world.”

Sharp’s neighbors in Michigan City remember buses filled with customers idling outside his front gate waiting to buy his signature flowers, almost all named after his business, Brookwood Gardens. There was Brookwood Black Kitten, Brookwood Sweetie Face, Brookwood Barely Pink, Brookwood Pink Sometimes, Brookwood Pink Pinup, Brookwood Right Now, Brookwood Ambivalent and Brookwood Wow.

The world of day lilies belonged to him, one gushing profile in a day-lily newsletter declared in 2009. Little did they know that this “accomplished hybridizer and most generous man” was in all likelihood already working as one of the cartel’s primary couriers. “By mid-2010, he had already brought 1,100 kilos here to Detroit,” said Chris Graveline, the assistant U.S. attorney assigned to Sharp’s case.

Sharp traveled across the country for day-lily speaking engagements and conventions, but federal authorities say they believe he made time to visit Mexico for his other line of work. “Bosses in Mexico know of the Grandfather,” Moore said.

It is a fascinating story.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Indiana Law

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

In Fares Pawn, LLC v. Ind. Dept. Financial Inst. (SD Ind., Young), an 18-page opinion, Judge Flaum writes:

Indiana businesses that engage in pawnbroking activity must get a license from the state’s Department of Financial Institutions (DFI). The plaintiff in this case, William Saalwaechter, owns Fares Pawn LLC, a pawn shop in Evansville, Indiana. He applied for a license in March 2009, but DFI denied his application, citing concerns about previous pawnbroking on the property and about his store manager’s criminal history. Saalwaechter brought an administrative action challenging the denial. He eventually received a license after he signed a memorandum of understanding agreeing to comply with certain conditions, in particular not employing the worrisome manager.

Saalwaechter is convinced that the license-application process should have gone much more smoothly than it did. After getting his license, he sued DFI in federal court for violating the Equal Protection Clause of the Fourteenth Amendment. Saalwaechter did not contend that DFI treated him unfavorably on account of some identifiable characteristic, such as age, sex, or race. He simply argued that the state had singled him out for disparate treatment without a rational basis. This is a so-called “class-of-one” theory, which rests on the premise that “[w]hen those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to ensure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.” Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591, 602 (2008) (internal quotation marks omitted).

The district court granted summary judgment in favor of the defendants, finding that no reasonable jury could conclude that DFI treated Saalwaechter differently from similarly situated applicants without a rational reason. We agree, and therefore affirm the judgment of the district court.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Nick McIlquham v. State of Indiana, an 8-page, 5-0 opinion, Justice Rush writes:

Police responded to a report of a very young child, unsupervised and partially clothed, wandering near a pond at an apartment complex. Defendant, the child’s father, arrived shortly thereafter and agreed to let the police check the safety of his apartment before leaving the child with him. “Courts should not be reticent in enforcing the constitutional rule restricting the search of a person’s home without a warrant or consent,” Hawkins v. State, 626 N.E.2d 436, 439 (Ind. 1993)—but here, Defendant consented to police entry into the apartment, and the child’s mother who was the leaseholder consented to a full search. Because of their consents, the contraband found in the apartment was properly admissible, and we affirm the trial court. * * *

The Court of Appeals affirmed, holding that the searches were valid because the “community caretaking” exception to the Fourth Amendment permitted warrantless entry into the apartment to ensure the safety of unattended toddler R., and therefore declining to address whether the consents to search were valid. McIlquham v. State, 992 N.E.2d 904 (Ind. Ct. App. 2013). We granted transfer, thereby vacating the Court of Appeals decision. McIlquham v. State, 2 N.E.3d 686 (Ind. 2014) (table); Ind. Appellate Rule 58(A). We now affirm, holding that Defendant and Mother validly consented to the searches—and accordingly, we decline to address the community-caretaking rationale the Court of Appeals advanced. * * *

During a voluntary encounter with police, Defendant consented by words and actions to police entering the apartment. Then, his own furtive movements justified a pat-down, which in turn opened the door to the contraband found in plain view. And then police were entitled for R.’s sake to wait for Mother and seek her consent, which she validly gave, to search the rest of the apartment. We therefore affirm the trial court.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Deca Financial Services, LLC v. Tina Gray , a 5-page opinion, Judge Bradford writes:

Appellant-Plaintiff DECA Financial Services, LLC (“DECA”) appeals the trial court’s denial of attorney’s fees as part of its small claims judgment against Appellee-Defendant Tina Gray. DECA is the assignee of debt owed by Gray to Emergency Medicine of Indiana, PC (“Emergency Medicine”) for medical services rendered while Gray was a patient at Dupont Hospital (“Dupont”). Gray incurred a separate debt to Dupont during her hospital stay. Gray also entered into an agreement with Dupont that obligated her to pay attorney’s fees incurred by Dupont in collecting its debt. DECA argues that Emergency Medicine is a third party beneficiary of this agreement and, therefore, claims DECA is entitled to attorney’s fees pursuant to the agreement’s terms. We conclude that the attorney’s fees provision of the agreement applies only to Dupont and affirm the judgment of the trial court.
NFP civil opinions today (3):

Jane Shamley v. Gordon Shamley (NFP)

Joseph B. Fowler v. Kathleen L. Fowler (NFP)

OneWest Bank, FSB v. Jason Jarvis, Natalie Jarvis, Mortgage Electronic Systems, Inc., as Nominees for American Mortgage Network, Inc., GE Money Bank, et. al. (NFP)

NFP criminal opinions today (8):

George Odongo v. State of Indiana (NFP)

Patrick McDonald v. State of Indiana (NFP)

German Espichan v. State of Indiana (NFP)

Jenni Hill v. State of Indiana (NFP)

John F. Vandevanter, Jr. v. State of Indiana (NFP)

Denon Taylor v. State of Indiana (NFP)

Charles Coleman v. State of Indiana (NFP)

Harry White, II v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - LaPorte prosecutor listens in to defendant's conversation with attorney; police claim 5th amendment

Kelley Smith has a long, detailed story today in the LaPorte Argus-Herald. Under the subheading "What happened?" the story reports:

On March 14, 20-year-old Taylor showed up at MCPD at about 7:30 a.m. He was covered in blood, but refused to cooperate with police questioning.

Detectives interviewed his family and friends and those of his live-in girlfriend, 24-year-old Simone Nicole Bush. This reportedly led them to Bush's grandparents' residence in the 600 block of County Line Road, where Bush was discovered in her bedroom dead of a gunshot wound through the neck.

Taylor was arrested at the police station at 3:20 p.m. that afternoon, and engaged in a private conversation with defense attorney David Payne inside an interview room there at 4:12 p.m.

Several police officers and Chief Deputy Prosecuting Attorney Robert Neary were in a nearby room to monitor the conversation via video. However, the audio feed also was enabled, causing them to overhear Taylor disclose the location of a .40-caliber Glock model 22, the alleged murder weapon. Detectives then located the weapon and took it into custody.

Neary admitted the incident to the defense team and the court, and reported himself to the Indiana Disciplinary Commission.

Then at the advice of Indiana Fraternal Order of Police attorney John Kautzman, all Michigan City officers who gave depositions to defense attorneys invoked their Fifth Amendment right to silence when asked what information was overheard from Taylor and Payne's conversation, who heard it and how that information may have affected the investigation.

The story continues:
The parties' positions

The state - represented in this case by Bethany Beckman and Patricia Bishop - maintains the improper overhear was accidental. However, they agree that the gun and any other firearm-related evidence cannot be used against Taylor during his jury trial.

The defense - represented in this case by Craig Braje, Elizabeth Flynn and David Payne - contends Neary and the police were intentionally eavesdropping, and that any and all evidence obtained after 4:12 p.m. March 14 should be inadmissible. They also claim the police's assertion of the Fifth Amendment is a direct violation of Taylor's Sixth Amendment right to confront his accusers and allow his counsel to craft a defense against them.

The judge [Kathleen Lang of La Porte County Superior Court No. 1] sides with the state in that much of the evidence obtained after 4:12 p.m. March 14 was done so as a matter of standard procedure and still may be used in the case against Taylor. However, she agrees with the defense that the police's Fifth Amendment rights are in direct conflict with the defendant's Sixth Amendment rights.

So Lang issued an order Tuesday barring all witnesses who already have invoked the Fifth Amendment from testifying during Taylor's jury trial.

The state claims the order severely limits their case against the defendant, and has filed the interlocutory appeal with an appellate court.

Why Taylor was released

Any incarcerated person who requests a fast and speedy trial is entitled to be tried within 70 days of making that request. Taylor's request for a fast and speedy trial was filed April 10, making Thursday the 70th day.

Because he had not been brought to trial by that point, the state had to release him from custody to allow the murder charge to remain pending against him.

Had he remained in custody past Thursday, the murder charge would have had to have been discharged, and the state would not have been able to prosecute Taylor for Bush's death later.

From the start of the story:
Judge Kathleen Lang of La Porte County Superior Court No. 1 certified on Thursday the state's interlocutory appeal, a request that an appellate court consider whether to uphold or overturn Lang's ruling that the witness testimonies of several Michigan City Police detectives involved in the murder investigation are inadmissible in court.

Because no Indiana case law currently exists mirroring the circumstances of Taylor's murder case, the outcome of this matter could be precedent-setting.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Indiana Courts

Ind. Gov't. - "Voters must step in on ethics rules – where lawmakers refuse to act"

From an editorial yesterday in the Fort Wayne Journal Gazette:

When do a citizen lawmaker’s efforts at exerting influence become a conflict of interest? The Indiana General Assembly can’t seem to figure it out, giving a pass to a legislative leader who used his position to benefit his family business. As House Speaker Pro Tem P. Eric Turner walks away from an ethics scandal unbruised and nearly $2 million richer, it’s time that voters demand the higher standards legislators have failed to approve. * * *

If one House Republican showed character in disclosing Turner’s hypocrisy, it’s fair for voters to wonder why the others supported his bid to kill the nursing home moratorium.

How did the Cicero businessman convince them that their Senate colleagues were wrong about the legislation? Were the others uncomfortable with Turner’s lobbying? Did he convince House members that his conflict did not compromise the integrity of the General Assembly?

We’ll never know. But we can remind all legislators that the low bar Turner was able to clear is in sharp contrast to legislative standards elsewhere. His actions would not have been allowed in Kentucky, where tough standards were recently revised to become even tougher.

Lawmakers in the Bluegrass State apparently recognized that a Statehouse scandal harmed the reputations of more than the 18 lobbyists and lawmakers convicted on corruption charges. The scandal led to the creation of an independent nine-member board that oversees lawmakers and lobbyists.

With many veteran lawmakers choosing retirement, the young and inexperienced group of Indiana legislators needs to hear the lessons of Martin K. “Chip” Edwards, Phillip E. Gutman and Michael K. Phillips. Once respected leaders, each was involved in a scandal that ended his political career and harmed the reputation of the entire legislature.

As the General Assembly begins to consider tightening its rules, it needs to hear from voters. A part-time legislature served by citizen-lawmakers shouldn’t serve as a cover for glaring conflicts of interest.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Indiana Government

Ind. Gov't. - "Indiana monitors Toll Road operators' financial troubles"

Keith Benman of the NWI Times had a story yesterday that began:

The Indiana Finance Authority continues to monitor the financial difficulties of the Indiana Toll Road, where operators who hold the 75-year lease are struggling to meet a June debt payment.

Indiana Toll Road Oversight Director James McGoff said the IFA had inquired of the Toll Road's operators following news reports last year they were struggling to meet a December interest payment. The Toll Road Oversight Board has now inquired about the June payment.

"The answer is the same, they are trying to negotiate more favorable terms with their lenders," McGoff said.

Cintra, a Spanish firm, and Macquarie Group, of Australia, paid the state of Indiana $3.8 billion in 2006 in exchange for the right to operate the 157-mile road and collect all tolls for 75 years. But traffic on the road has never lived up to expectations, taking a direct hit almost immediately from the recession that started at the end of 2007.

The most recent report of the Toll Road's financial travails came from Dow Jones News Service, which reported the its private operators had retained Moelis & Co. as an adviser in negotiations with creditors as it faces a late June payment it cannot afford to make.

More from the story:
The concession agreement the state signed with the consortium formed by Cintra and Macquarie Group in 2006 allows the state to take various actions in cases where the Toll Road operator misses payments to creditors, defaults, or goes bankrupt.

In a worst-case scenario for investors, that includes Indiana basically serving the Toll Road operators with an eviction notice.

"If they default, the road comes back to us," McGoff said.

The same point was often made by former Gov. Mitch Daniels as he pitched the privatization to the Indiana General Assembly and the public in 2006. However, an attempt to take the road back could also set off a legal fight.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Indiana Government

Ind. Gov't. - "'Intentional misuse' of federal economic development money found in Indiana"

On July 21, 2013, the ILB posted this "Overview of aspects of the IndyStar IEDC stories," and because there was no one source for all the information, the ILB has assembled the numerous links.

This background will help you understand yesterday's story, broken by Alex Campbell, now at BuzzFeed, who led last year's investigation when he was a reporter at the IndyStar. Here is yesterday's national BuzzFeed story by Campbell, headed "Treasury Department Finds 'Intentional Misuse' Of Money Meant For Local Startups: A contractor for the state of Indiana spent $800,000 in federal cash on companies run by the contractor’s chairman and his son. It’s part of a $1.5 billion national program." The story links to the U.S. Dept. of Treasury audit report.

Yesterday afternoon Indianapolis Star reporter Chris Stitch posted this story, including links to some of last year's stories and charts.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Indiana Government

Ind. Gov't. - "Concerns about Pence’s Obamacare alternative preceded FSSA chief’s ouster" [Updated]

Tony Cook of the Indianapolis Star reports the story ...

The dispute between Minott and Pence looks to have been over the timing of the rollout of the Governor's answer to Medicaid expansion, with the Governor, as well as "the state’s powerful hospital industry," calling for a launch on Jan. 1, 2015, and:

... Debra Minott, secretary of the Family and Social Services Administration, insisted to the Pence administration that the rollout of the health insurance program could not be done properly before April, according to sources close to those involved in the dispute. [ILB emphasis] * * *

Dan Evans, CEO of IU Health, the state’s largest hospital system, said he didn’t know the reasons for Minott’s departure, but he made it clear the hospital industry wants an early start date — preferably Jan. 1.

“The FSSA should be motivated to get this started as soon as it can,” he said. “The industry put as much pressure as it appropriately could on the state to get on with it. We were already a year late.”

The financing agreement with the hospital association says “the state will make every commercially reasonable effort to implement HIP 2.0 as soon as is practicable on or after January 1, 2015.”

A budget statement that is part of the state’s federal waiver request also refers to a “proposed effective date of the Medicaid Expansion (January 1, 2015).”

That differs from the April launch Minott referenced during a public appearance on Monday, the same day her dismissal became public.

ILB: This dispute immediately brings to mind the botched FSSA implementation of welfare changes during the last administration, about which the ILB has a long list of entries.

Posted by Marcia Oddi on Friday, June 20, 2014
Posted to Indiana Government

Thursday, June 19, 2014

Ind. Courts - Our State's brief against recognition of the out-of-state marriage of a lesbian couple in which one woman is terminally ill

Updating this ILB post from May 9th, which quoted an AP story reporting:

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.
Indiana's brief in the case was filed on behalf of the citizens of Indiana by AG Zoeller yesterday, June 18th, in the 7th Circuit. The ILB has obtained a copy of the brief and it is certainly worth your close look.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Indiana Courts

Ind. Courts - More on "Dorer attorneys want judge off criminal case"

Updating this ILB post from June 17th, Douglas Walker of the Muncie Star-Press reported at mid-day:

MUNCIE - Delaware Circuit Court 1 Judge Marianne Vorhees will not preside over a lawsuit aimed at removing County Treasurer John Dorer from office, or a related criminal case with the potential to send Dorer to prison.

Vorhees on Thursday formally disqualified herself from both cases. Her action came three days after Dorer's attorneys in the criminal case filed a motion asking the judge to recuse herself, suggesting she might be called as a defense witness when the county treasurer stands trial. * * *

In her Thursday order, Vorhees noted the Dorer defense team "presented documents to the court indicating that all five Circuit Court judges may be potential witnesses in this litigation."

Vorhees asked that the Indiana Supreme Court appoint a special judge, from another county, to preside over the Dorer criminal case.

She also disqualified herself from presiding over the lawsuit aimed at removing Dorer from office, filed by Delaware County Prosecutor Jeffrey Arnold on the same day his office filed the criminal charges.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides two Indiana cases today

In Devon Groves v. U.S. (ND Ind., Miller), an 11-page opinion, Judge Amy J. St. Eve, ND Illinois, sitting by designation, writes:

A jury convicted Petitioner Devon Groves for possession of a firearm by a felon and possession of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1), and the district court sentenced him to the statu-tory maximum of 240 months in prison—120 months on each count—to run consecutively. This court affirmed the judgment. See United States v. Groves, 559 F.3d 637 (7th Cir. 2009). On March 2, 2011, Groves filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court denied Groves’s § 2255 motion, and we affirm.
In Nichols v. Michigan City Planning Dept. (ND Ind., Simon), a 17-page opinion, Judge Williams writes:
James Nichols sued his employer, the Michigan City Area Schools (“Michigan City”), alleg-ing two Title VII violations. First, Nichols claimed that Mich-igan City required him to work in a hostile work environ-ment at a school where he was a temporary janitor. Howev-er, he does not provide sufficient evidence that demonstrates that the harassment he allegedly suffered was severe or pervasive. Second, he claimed that Michigan City fired him be-cause of his race. Once again, Nichols does not show sufficient evidence that his alleged harasser, Bette Johnston, was a proximate cause of his firing because affidavits from Nichols’s supervisors show that he would have been let go even if there was no feud between him and Johnston. After discovery, Michigan City moved for summary judgment, which the district court granted. The record on appeal supports summary judgment in favor of Michigan City, and we affirm the district court’s judgment.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one, re treble-damages

In Ralph Andrews v. Mor/Ryde International, Inc., a 5-page, 5-0 opinion, Justice Rush writes:

Indiana significantly restricts recovery of common-law punitive damages, including a height-ened burden of proof, a cap on their amount, and diverting 75% of such awards to the State. But we have held those restrictions do not reach statutory treble-damage awards under the Crime Victims Relief Act—and today, we reach the same conclusion as to mandatory “exemplary damage” awards under the Indiana Sales Representative Act. We therefore grant transfer and reverse the trial court. * * *

The Court of Appeals accepted the interlocutory appeal, and a divided panel affirmed the trial court. The majority accepted Mor/Ryde’s reasoning that the terms “exemplary” and “punitive” are often used interchangeably to denote damages awarded not to compensate the claimant, but to punish the defendant—and that because exemplary damages under the Sales Representative Act meet that definition, they must be subject to the Punitive Damages Act. Judge Barnes dissented, agreeing with Andrews that the Act applies only to discretionary common-law punitive damage awards, not statutory damage awards like the Sales Representative Act—relying on our holding in Obremski v. Henderson that similar treble-damage awards as a civil remedy for certain crime victims are “regarded as distinct from recovery of common law punitive damages,” and thus not limited by the Act. 497 N.E.2d 909, 911 (Ind. 1986). We agree with Judge Barnes, and therefore grant transfer and reverse the trial court. * * *

Like Judge Barnes, we “cannot discern why a different rule should apply to an award of treble damages under the [Sales Representative Act]” than the rule Obremski applied to such damages under the Crime Victims Relief Act. We therefore grant transfer, hold that treble damages under the Sales Representative Act are not subject to the Punitive Damages Act, and accordingly reverse the trial court.

ILB: Here is the Jan. 29, 2014 opinion of the Court of Appeals.

Here is an interesting paragraph from Justice Rush's opinion today, on pp. 4-5, refering to the doctrine of legislative acquiescence:

Finally, the Legislature could readily have abolished Obremski’s distinction between common law and statutory punitive damages as part of the major 1995 amendments to the Punitive Damages Act, but it chose not to do so. While a single decision of this court may not be enough to establish “legislative acquiescence,” see Durham ex rel. Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 768 (Ind. 2001) (Rucker, J., dissenting), we find it instructive that an amendment that dramatically increased the reach of the Punitive Damages Act nevertheless did not include a change extending it to encompass statutory treble damages.
A quick search of the ILB reveals several other opinions referencing this doctrine, two of them Supreme Court opinions from 2006.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Ind. chief justice not picked by governor, but process might not be immune from politics"

The AP story today by Charles D. Wilson begins with a new photo of the five Indiana justices, along with the heading:

This updated photo provided by the Indiana Supreme Court on June 18, 2014 shows the members of the Indiana Supreme Court. The are: Justice Robert D. Rucker, top left, Brent E. Dickson, Chief Justice, top center, Justice Steven H. David, top right; Justice Loretta H. Rush, bottom left; Justice Mark S. Massa. It's only been two years since Brent Dickson was named Indiana chief justice to lead an almost entirely new state Supreme Court. Now Dickson is stepping aside, and the question now is: Which of the remaining four justices will take his place?
Some quotes from the story:
INDIANAPOLIS — After two years of transition, the Indiana Supreme Court will soon be entering a new generation of leadership. And even though Gov. Mike Pence won't make the appointment, experts say politics could influence the selection of a new chief justice.

Indiana Chief Justice Brent Dickson's announcement last week that he was stepping aside as chief justice, along with the relative youth of most of the remaining justices, has created the possibility of another long-term leader like former Chief Justice Randall Shepard, who served as the state's top judge for 25 years.

Three of the four remaining justices are in their 50s. Justices must retire at age 75. Dickson is 72. A state commission made up of three lawyers picked by their peers and three gubernatorial appointees, led by the sitting chief justice, will meet Aug. 6 to select a replacement for Dickson, who is staying on as an associate justice until he hits retirement age.

Their pick could affect life in Indiana for years. The Supreme Court interprets both the constitutionality of Indiana statutes and the intent of the legislators who wrote them. Their decisions can not only set legal precedent, but influence legislation. The chief justice leads the court and serves as its public face.

The selection process is designed to be immune from politics, but experts say it may not be as pure as it appears.

ILB: Is is hard to see how Republican/Democratic party politics will enter into the picture, as the three contenders were all named by Governor Daniels. Little "p" politics, of course, will enter in and almost certainly already are at play.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Courts in general

Ind. Gov't. - "Tax Board rules for attorney Jeff Cooke, against county assessor"

Chris Morisse Vizza's story today in the Lafayette Journal Courier begins:

Attorney Jeff Cooke is celebrating a Tuesday decision by the Indiana Board of Tax Review that Tippecanoe County Assessor Linda Phillips improperly issued an interim property assessment on Cooke’s downtown Lafayette law office building.

The assessor last September notified Cooke that his building at 331 Columbia St. was valued at $161,900, then on Dec. 30 mailed another notice stating the assessment had been changed to $272,300.

He appealed to the Tippecanoe County Property Tax Board of Review, which in April upheld Phillips’ decision and the $113,400 increase.

Cooke then appealed to the state, claiming Phillips did not provide any data, such as comparable building sales, rental income or replacement costs, to show how the revised value was determined.

[County assessor] Phillips’ attorney, Brian Cusimano, contended the data and the IncomeWorks software program used to calculate property values is confidential because it contains income and loss information that could harm other property owners
.

The assessor is required by Indiana statute to explain the reasons for an interim assessment, specifically why an action was taken, and the facts or evidence on which the reasons were based, the Indiana Board of Tax Review ruled.

But Phillips “failed to designate any evidence to support” her belief that Cooke’s property was undervalued, the Indiana Board of Tax Review said.

The ruling goes on to state, “The board finds the interim assessment was improperly issued.” The assessed value for 2013 was reduced to $161,000.

Emphasis by ILB.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Indiana Government

Environment - "Opponents hope bat, mussel can stop Illiana construction "

Updating this ILB post from June 13th, Carrie Napoleon of the Gary Post-Tribune reports today in a story that begins:

A bat and a mussel could jeopardize construction of the Illiana Tollway, something that hundreds of local residents opposed to the project have been unable to do.

The U.S. Fish and Wildlife Service has raised concerns about how the proposed 47-mile highway would affect the endangered sheepnose mussel and the threatened long-eared bat, James Earl, project manager for the Indiana Department of Transportation, recently told the transportation committee of the Northwestern Indiana Regional Planning Commission.

There’s also continued concern about how the tollway would impact the Midewin National Tallgrass Prairie in Will County. The tollway, estimated to cost $1.5 billion, would run from Interstate 65 near Lowell to I-55 near Wilmington, Illinois.

Environmental groups have been worried about the highway’s environmental impact since the first environmental study was completed in 2012. Andrew Armstrong, a staff attorney with the Environmental Law & Policy Center in Chicago has filed two lawsuits in trying to stop the highway.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Environment

Ind. Gov't. - "Indiana case inspires laws over captive hunts"

The Lewistown PA Sentinel today has a very long story, attributed only to the AP, datelined Peru, Indiana, June 19th, that begins:

PERU, Ind. (AP) - For seven days in January 2005, a jury in a federal courtroom heard tales from a now-notorious Indiana hunting preserve of deer being drugged and even a sick deer propped up in a 1-acre pen so a hunter could shoot a $15,000 trophy.

Jurors heard testimony from an outdoor television celebrity, a corporate CEO, a country music star and an ex-NFL quarterback, some of whom paid substantial sums to shoot deer in enclosures so small that prosecutors dubbed them "killing pens." One shot his deer only minutes after it was released from a trailer.

When the prosecution rested its case, the defense team called only one witness - an accountant. He testified that the preserve owner, Russ Bellar, had paid taxes on the deer.

The message was clear to those familiar with the legal complexities surrounding the captive-deer industry: Bellar was saying that he owned the deer; they were no longer part of the publicly owned wild herd from which their ancestors had been taken generations ago. To Bellar, these deer were livestock. His livestock. And the clear implication was that he could do whatever he wanted with them.

Bellar ended up spending nine months in a federal prison. But his argument lives on, and the laws that put him in prison might not. In fact, the principle behind Bellar's argument has been used by lobbyists across the country and has taken root in the law in numerous states where farms and preserve owners seek to fend off stronger disease controls and hunting ethics rules.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Indiana Government

Ind. Courts - Rule change re CLE credits

The Supreme Court announced today a rule it filed as final on June 10th which includes provisions allowing the CLE Commission to charge application fees and late processing fees re applications for CLE course approvals and/or attendance accreditation.

For an Indiana attorney, a late course approval is $50 and a late attendance accreditation is $50. Maybe I don't understand, but generally it is the entity sponsoring the CLE that obtains the accreditation and sends in the attendance reports ... Does this make attending attorneys responsible?

Here is what the Court's news release says:

Starting in January 2015, the Indiana Commission for Continuing Legal Education (Commission) will have a new fee schedule. This schedule allows the Commission to charge fees connected to certain course approvals and attendance reporting. Rule Amendments to Admission and Discipline Rules 28 and 29 and the Alternative Dispute Resolution Rules allow the Commission to charge application and late processing fees effective January 1, 2015.

The fee schedule was approved by the Indiana Supreme Court on June 10, 2014. There will be no fee for reporting attendance when an Indiana attorney reports in a timely manner.

Under the new fee schedule, however, some attorneys, mediators and education sponsors seeking course accreditation with the Commission will be charged an application fee. The Commission will also begin charging attorneys or sponsors a late fee when course attendance is not submitted within 30 days of course completion. Certain approved sponsors including the Indiana Judicial Center, Indiana State Bar Association, Indianapolis Bar Association, Indiana Continuing Legal Education Forum and others will not pay an application fee.

However, I don't see many of those details in the rule.

Here are Rules 28 and 29 in full.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Courts in general

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

For publication opinions today (1):

In Thomson Inc. n/k/a Technicolor USA, Inc. v. Insurance Company of North America n/k/a Century Indemnity Company, et al., and XL Insurance America, et al. , an 88-page (!!!), 2-1 opinion, involves complex environmental insurance issues originating from a class action. From Judge Crone's introduction:

In 2004, a group of former factory workers and their heirs filed a class-action lawsuit in Taiwan (“the Taiwan Class Action”) against Thomson Consumer Electronics Television Taiwan Ltd. (“TCETVT”), a Taiwanese company which owned and operated an electronics manufacturing plant in Taiwan from the late 1980s to 1992. The workers sought damages for bodily injury allegedly resulting from exposure to organic solvents while working in the plant and living in dormitories near the plant. Over 99% of TCETVT’s stock is owned by Thomson Consumer Electronics (Bermuda) Ltd. (“TCEB”), and less than .01% is owned by Thomson Inc. n/k/a Technicolor USA, Inc. (“Thomson”), a Delaware corporation with its headquarters in Indiana. Both TCEB and Thomson are wholly owned subsidiaries of French electronics company Thomson SA.
Judge Crone's conclusions, joined by Judge Bradford, are listed on p. 82; Chief Judge Vaidik's partial dissent begins on p. 84 with:
I applaud the well-written and well-reasoned opinion of my colleagues, and I wholeheartedly concur in all but one respect. I respectfully disagree with my colleagues’ conclusion that XL/Century is only liable for the portion of damages that occurred in its policy periods. Rather, I agree with the trial court that the XL/ Century policies’ use of the phrase “those sums” instead of “all sums” does not constitute the clear proration language that our Supreme Court in Dana II Court noted that insurers needed to use to limit their liability to only those damages that occur in their policy period. I would affirm the trial court’s entry of summary judgment in favor of Thomson on this issue.
NFP civil opinions today (0):

NFP criminal opinions today (3):

In State of Indiana v. Randall Scott Stiverson (NFP), a 6-page opinion, Judge Crone writes:

Randall S. Stiverson was involved in a car crash and was taken to the hospital. Randall consented to a blood draw and admitted that he had previously smoked “spice.” The standard drug panel came back with no positive results. The prosecutor requested that the blood be tested for synthetic cannabinoids, and the test showed that AM-2201, a synthetic cannabinoid, was present in Stiverson’s blood. The State charged Stiverson with class D felony operating a vehicle while intoxicated causing serious bodily injury and class A misdemeanor operating a vehicle while intoxicated in a manner that endangered a person. Stiverson filed a motion to dismiss the charges contending that AM-2201 was legal for him to use at the time of the accident. The trial court granted the motion to dismiss on the basis that AM-2201 was not listed in a statute outlawing the inhalation of toxic vapors.

On appeal, the State contends that the trial court erred in granting Stiverson’s motion to dismiss on that basis. We agree. Therefore, we reverse and remand for further proceedings. * * *

The State argues that the trial court erred in granting Stiverson’s motion to dismiss on the basis that AM-2201 is not one of the substances listed in Indiana Code Section 35-46-6-2(2). We agree. Indiana Code Section 35-46-6-2(3) references “any other chemical having the property of releasing toxic vapors,” and Stiverson has never disputed the State’s assertion that AM-2201 is a chemical having the property of releasing toxic vapors. As such, it is undisputed that AM-2201 is “a substance described in IC 35-46-6-2” for purposes of Indiana Code Section 9-13-2-86(4), and therefore the State may prosecute Stiverson for operating a vehicle while intoxicated as a result of being under the influence of AM-2201. This is so even though it was not illegal for Stiverson to use AM-2201 at the time of the accident. Accordingly, we conclude that the trial court abused its discretion in granting Stiverson’s motion to dismiss and reverse and remand for further proceedings consistent with this opinion.

Raven N. Young v. State of Indiana (NFP)

Clifford J. Elswick v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - News reports of yesterday's two disciplinary opinions

Updating this ILB post from yesterday, "Muncie attorney Michael J. "Mick" Alexander's law license suspended 60 days" is the Muncie Star-Press headline this morning to a story reported by Douglas Walker. One of the incidents occurred during a 2003 trial, the other:

... alleged Alexander violated professional standards in 2005 when he hired ex-lawyer Bruce McLaren — who had surrendered his law license in 2003 after being indicted by a federal grand jury — to work on his office staff.

“I thought (McLaren) could legally do (research work),” Alexander said at the February hearing. “He was really good at it... I did not hide this in any way. * * *

In listing mitigating factors, Chief Justice Dickson wrote that Alexander “took corrective steps” regarding McLaren’s employment, and “has expressed regret and embarrassment regarding his misconduct.”

A “substantial fact in aggravation,” the chief justice wrote, was Alexander’s disciplinary history, consisting of public reprimands from the Supreme Court in 1987 and 2002, and a private reprimand in 1996.

"Indianapolis attorney suspended 30 days for judge comments" is the headline to Tim Evans' Indianapolis Star story today on the Paul Ogden disciplinary order. (See ILB posts here and here.) The story begins:
The Indiana Supreme Court has suspended Indianapolis attorney and outspoken political blogger Paul Ogden for 30 days for violating rules of professional conduct when he criticized a Hendricks County judge.

The decision, dated June 16 and posted on the court's website Wednesday, was a victory of sorts for Ogden, whose law license will be automatically reinstated at the end of his suspension.

The Supreme Court Disciplinary Commission had requested a one-year suspension, without automatic reinstatement, which can be a death knell for attorneys.

The Supreme Court also found the disciplinary commission had failed to prove four other allegations of misconduct by Ogden, who has written critically about the commission and its executive secretary on his blog, Ogden on Politics.

"I won on 80 percent of it, so I'm 80 percent happy," Ogden said Wednesday. "I really appreciate the work the Supreme Court did in keeping an open mind."

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Ind. Sup.Ct. Decisions

Courts - There could be many important SCOTUS opinions this morning [Updated]

Issuance starts at 10 AM. There are 14 cases remaining this term... Watch here, or watch SCOTUSblog for the complete blow-by-blow as they are issued.

Lane v. Franks - "SCOTUS holds sworn testimony by public employees outside their job responsibilities is protected by the 1st A. from retaliation (Lane)" "n Lane, the Court holds that the individual defendant has qualified immunity from this suit because prior precedent wasn't clear enough that you could not fire an employee for sworn testimony." by tgoldstein

A total of three opinions issued this morning, 11 remain. I anticipate Monday will be very busy ...

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Indiana Courts

Ind. Decisions - An Important Opinion for Lawyers, Brought to Us By Paul Ogden

The ILB has invited Rochester attorney Ted A. Waggoner, author of the recently retired Lawyers with Troubles blog, for his take on the Supreme Court disciplinary ruling in the Paul Ogden case.


The Disciplinary Commission and its staff threw its best, seeking a fatal blow to the law practice of Indiana lawyer, blogger and irascible fellow, Paul Ogden. The result of the battle was practically inconsequential. An 11 ½ hour hearing, with a reported six staff lawyers involved for the Commission, and the result is a long vacation with a salty price tag, and a self-imposed black mark on the reputation of Ogden, but an important legal decision for the members of the Indiana bar.

Disciplinary opinions are important in many ways, and the Ogden opinion may be the most important DI case this year. The decision continues to restore some balance in the proper regulation of lawyers' speech with the First Amendment, and the public’s need for lawyers, who often are the most knowledgeable possible speakers on many topics, to publicly (or as here privately) address those topics. This topic was admirably handled at the recent Solo and Small Firm Conference in a breakout session led by Steve Terrell and Patrick Olmstead “Crash Course: The Intersection of Legal Ethics and the First Amendment.”

There must be some limits on the free speech of lawyers, just like the proverbial yelling “fire” in the crowded theater, lawyers are properly limited in their public comments. But our comments on the actions or inactions of judges, if factual, need to be protected, and with Ogden, building on the Dixon opinion of last October, they are:

On Count 1, I found the “four categories” used in the analysis distracting, since they are based on four facts that led to findings outlined in the hearing officer’s report of the case, and are not the tests or standards of law we are used to. But the actual test, quoted from Dixon:

Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made? (emphasis in original)
is the place to start. Good for the Court, it is a rule lawyers can live with.

Ogden was found guilty where, in making wide ranging accusations against a judge who was no longer presiding in a probate case, with one of the accusations, he missed an important factual matter. Ogden accused Judge Coleman of committing malfeasance for an action that occurred before Coleman took control over the case, and the discipline that is meted out comes from that. Ogden could have and should have known that it is improper to accuse a judge of doing something in a case when he did not yet have the case. That was the basis of the guilty finding, and that seems appropriate.

Also, good for the Court, in finding that there are “broad First Amendment rights” in making criticisms even of judges. While the court refuses to endorse (or reject) Ogden’s many statements that Judge Coleman committed malfeasance in handling the estate (issue 2); that lawyers are not guarantors of the facts that clients provide them (issue 3); and, that strongly worded opinions do not get transformed into statements of fact just because the accuser claims they are factual statements (issue 4), it did allow those criticisms to go unpunished for good reason.

Lawyers can breathe somewhat easier that when over lunch, or in the court conference room, a comment about the eccentricities of a particular judge become the topic of conversation. It should be less likely that the Commission, led by a former judge, will be hypersensitive about the normal or even excited grumblings about the acts or orders of the judges. These gripes have been a part of lawyering since Moses took Jethro’s advice and appointed the first Judges. They will continue, and frankly are important to the justice system.

Count 2 was based on a letter sent to several pf the Marion County judges and others who are responsible to properly handle civil forfeiture cases, advising them of the Supreme Court’s then recent opinion on the proper handling of these cases. The Indy Star had a series of articles at that time as well. Ogden had no active forfeiture cases, but still riled a few feathers. Charged with ex parte communication with a judge, the Court found that with Ogden having no pending cases, and making no misstatement of the law, there was not a violation of Rule 8.4(d).

I initially found the discussion of mitigating and aggravating facts to be frustrating. It would have been helpful for the Court to expand on the comment “Respondent’s conduct has been obstreperous rather than cooperative.” Some already are taking it that a lawyer must accept whatever findings or punishment that the Commission proposes, and not demand a trial, or face a finding of obstreperous behavior. That cannot be the standard, in a case where 4 of 5 findings by the hearing officer are overturned. The Court cannot ask Ogden, Dixon or others who get charged, especially in areas where fundamental rights like free speech are involved, to let the now twice-slapped prosecuting team make the decision on what the law is.

The citation to Matter of Newman, 958 N.E. 2d 792, 800 (Ind. 2011) gives some insight into the discussion. Newman “waged a war of attrition” against his client, according to that opinion in the discussion of aggravators. The Newman opinion goes on to say:

Respondent also accuses the Commission of pursuing him while ignoring more egregious misconduct by other attorneys. He cites examples of purported misconduct by other attorneys involved in the estate litigation, of which he contends the Commission was aware. He also details grievances his wife has filed against attorneys in unrelated matters, which he contends the Commission failed to investigate. Even if his accusations were true, however, the fact that the Commission has not pressed misconduct charges against other attorneys would not relieve Respondent of being answerable to this Court for his.
The guidance I take from the opinion on this point is for respondents, and the lawyers who represent them, to focus on the issues in the case at hand. If you are a regular reader of Ogden’s blogs (Ogden on Politics and Disbarring the Critics) you know his focus was as much on the current and previous Executive Secretary and Commission members as it was about preserving his law license. Whether that is a proper tactic for a blogger is for the reader to decide, but it is clear that the Court did not want it to be a part of the disciplinary case.

Yet, the Justices may understand the potential problem. The penalty was a 30- day suspension with automatic reinstatement, unless there is an intervening suspension. There appears to be no requirement for interaction between Ogden and the Commission staff except to check to see if the costs have been timely paid. A new charge filed by the Commission will not interfere with Ogden’s return to the practice. Another good choice by the Court. This will likely be a rocky relationship for years to come.

Posted by Marcia Oddi on Thursday, June 19, 2014
Posted to Ind. Sup.Ct. Decisions

Wednesday, June 18, 2014

Ind. Decisions - Muncie attorney suspended for 60 days

In re Michael J. Alexander, a 3-page, 5-0 order.

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Ind. Sup.Ct. Decisions

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

In Mendoza v. U.S. (ND Ind., Miller), an 18-page opinion, Judge Tinder writes:

Gabriel Mendoza was sentenced to multiple terms of life imprisonment after he was convicted of a drug conspiracy and other drug offenses in the United States District Court for the Northern District of Indiana. Mendoza appealed, challenging the sufficiency of the evidence as to the conspiracy conviction and his sentence, and we affirmed. United States v. Mendoza, 401 F. App’x 128 (7th Cir. 2010). Mendoza then petitioned for relief from his convictions under 28 U.S.C. § 2255, claiming that he was denied due process when the district court moved one of his Spanish-speaking interpreters from the defense table to interpret for a Spanish-speaking witness at trial. He also argued that his trial counsel provided ineffective assistance in failing to object to this interpreter arrangement and failing to translate discovery and adequately review it with him. The district court held an evidentiary hearing at which Mendoza, his tri-al counsel, and the three interpreters who participated in the trial all testified. Following the hearing, the court denied Mendoza’s § 2255 petition, concluding that he was not deprived of due process nor provided ineffective assistance of counsel. We affirm.

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court disciplines Paul Ogden

Updating earlier posts on the disciplinary proceedings against Indianapolis attorney-blogger Paul Ogden, today the Supreme Court posted its order, filed June 16th.

In re Paul K. Ogden is a 4-page, 5-0 order finding misconduct and imposing discipline. With respect to Court 1, that "In 2010, Respondent engaged in correspondence with the children's mother and later with Judge Coleman in which he made highly critical statements about Judge Coleman," the Court writes:

Analysis: Count 1. To support a conclusion that Respondent violated Rule 8.2(a), there must be clear and convincing evidence that the statement at issue was false and that Respondent made the statement knowing it was false or with reckless disregard regarding its truth or falsity. In a recent case involving an attorney's freedom of speech challenge to charges under Rule 8.2(a), the Court adopted the following test for evaluating such statements: "Did the attorney lack any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made?" Matter of Dixon, 994 N.E.2d 1129, 1137 (Ind. 2013) (emphasis added).

The Court concludes that the Commission has met its burden of proof regarding Respondent's category (1) statements. Respondent's repeated and virulent accusations that Judge Coleman committed malfeasance in the initial stages of the administration of the Estate were not just false; they were impossible because Judge Coleman was not even presiding over the Estate at this time—a fact Respondent could easily have determined. Because Respondent lacked any objectively reasonable basis for his category (1) statements, we conclude that Respondent made these statements in reckless disregard of their truth or falsity, thus violating Rule 8.2(a).

The Court concludes, however, that the Commission has not met its burden of proof regarding Respondent's statements in categories (2) through (4). While not suggesting that Judge Coleman committed malfeasance while presiding over the Estate, the Court concludes Respondent's category (2) criticisms of Judge Coleman's rulings fall within his broad First Amendment rights. And although Respondent's category (3) allegations of a conflict of interest turned out to be false, Respondent based them on Client's reports to him, which he believed, and thus were not made in reckless disregard of their truth or falsity. Finally, we conclude that Respondent's category (4) statements were more in the nature of opinions as opposed to statements of fact.

With respect to Court 2, the Court writes:
Respondent's letter to Marion County judges requested them to follow forfeiture law as had been recently outlined by this Court. It was not an attempt to communicate with the judges about any particular case without the involvement of opposing parties. There is no allegation that Respondent misstated the law relating to forfeitures. Under these circumstances, we conclude that the Commission has not presented clear and convincing evidence that Respondent's sending the letters to the Marion County judges was prejudicial to the administration of justice.
The Court continues:
Mitigating and aggravating facts. The appropriate discipline in any case depends not just on the misconduct found, but also on mitigating and aggravating facts. See Matter of Newman, 958 N.E.2d 792, 800 (Ind. 2011). In mitigation, we note that Respondent has no prior discipline. In aggravation, we find that during the course of this disciplinary proceeding, Respondent's conduct has been obstreperous rather than cooperative.

Discipline: Although we have found misconduct only with respect to Respondent's category (1) statements in Count 1, the aggravating facts convince us that a mere reprimand is insufficient discipline in this case. Respondent has suggested that any misconduct the Court finds should warrant no more than a 30-day suspension with automatic reinstatement. See Brief on Sanctions at 19. We impose discipline accordingly.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning August 5, 2014. * * * At the conclusion of the period of suspension, provided there are no other suspensions then in effect, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).

ILB: In contrast, the hearing officer had recommended suspension for one year, without automatic reinsstatement.

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In George Patrick v. Keith Butts, Superintendent, State of Indiana and Indiana Parole Board , a 3-page opinion, Judge May writes:

George Patrick argues an order he participate in the Sex Offender Management and Monitoring (“SOMM”) program violated his constitutional right against self-incrimination[1] and Indiana’s prohibition of ex post facto laws. He asserts the denial of his petition for writ of habeas corpus was therefore error. We affirm. * * *

Generally, the ex post facto clause prohibits the State from enacting a law that imposes a punishment for an act that was not punishable when it was committed or imposes additional punishment to that then prescribed. Gomez v. State, 907 N.E.2d 607, 610 (Ind. Ct. App. 2009), trans. denied. But these prohibitions do not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. The clause is not designed to limit legislative control of remedies and modes of procedure that do not affect matters of substance. Id. Although it may work to the disadvantage of a defendant, a procedural change is not ex post facto. A statutory revision is procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date, if it does not change the elements of a crime or enlarge its punishment.

Patrick argues participation in the SOMM program is similar to the requirement to register as a sex offender, which cannot be imposed on persons convicted before the requirement was passed into law. See, e.g., Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2007), reh’g denied. Wallace does not control. * * *

As the Parole Board’s authority to impose conditions on parole is not limited by the date on which the program was created, but rather is limited by the program’s ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM does not violate the ex post facto clause.
_______
[1] Our Supreme Court recently held participation in the SOMM program did not violate a defendant’s right against self-incrimination. Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014). We therefore need not address that specific allegation of error.

In Wells Fargo Bank, N.A. v. Edward P. Dechert, Trustee of the Bankruptcy Estate of John E. Smith and Isley's Plumbing, Inc., a 15-page opinion, Judge Bailey writes:
Wells Fargo Bank, N.A., as successor in interest to Washington Mutual Bank, F.A., appeals the trial court’s denial of its motion to set aside default judgments against it in favor of Edward P. Dechert, as bankruptcy trustee for John E. Smith Builders Inc., and Isley’s Plumbing, Inc. We affirm. * * *

Dechert’s and Isley’s second amended complaint and crossclaim did not vacate the default judgments entered in their favor against Wells Fargo. The trial court did not abuse its discretion when it denied Wells Fargo’s motion to set aside the default judgments on the basis of defective service of process. The trial court did not abuse its discretion on policy grounds when it denied the motion to set aside the default judgments.

In Michael Torres v. State of Indiana , a 7-page, 2-1 opinion, Judge May writes:
Michael Torres was convicted, after a jury trial, of murder, and Class A misdemeanor, carrying a handgun without a license. He argues his right to confront witnesses against him was violated. We affirm. * * *

Torres argues the trial court violated his right to confrontation and committed fundamental error when it permitted Dr. Carter to testify about the results of the victim’s autopsy when she did not perform the autopsy. We do not find fundamental error in the admission of Dr. Carter’s testimony. Dr. Carter was asked whether she had an occasion to “look at and examine the autopsy of a Darnell Lindsay, autopsy #12-0024?” (Tr. at 315.) But there is no reference to exactly what was included in that autopsy. Nor was any specific reference made to Dr. Cavanaugh’s report. When questioned about the number of times the victim had been shot, Dr. Carter referred to “the investigation” and “the doctor’s report,” (id. at 326), but it is not apparent from her testimony to which documents she was referring. We therefore cannot conclude that the “investigation” or “report” to which she was referring was Dr. Cavanaugh’s report, or that her testimony otherwise invoked Torres’ right to confront a witness.

Torres next argues there was fundamental error because he could not cross-examine Dr. Cavanaugh “on evidence critical to his claim of self-defense.” (Br. of Appellant at 7.) Specifically, he points to the State’s argument at trial that the number of gunshot wounds the victim sustained showed there was no struggle and Torres’ use of force was unreasonable.

Any error in admitting Dr. Carter’s testimony on that matter was harmless. Other witnesses testified about the number and location of bullets recovered from the scene, and about the number of gunshots they heard. Those witnesses were subject to Torres’ cross-examination.

In light of the fact her testimony was cumulative of testimony provided by other witnesses, the admission of Dr. Carter’s testimony was not fundamental error. See Hendrickson v. State, 163 Ind. App. 580, 582, 325 N.E.2d 499, 500 (1975) (introduction of otherwise inadmissible evidence that is merely cumulative and not decisive of guilt is not prejudicial error). Affirmed.

BAILEY, J., concurs.
KIRSCH, J., dissents with separate opinion. [which reads in full] In Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 2710 (2011), the United States Supreme Court held that with respect to autopsy reports, the “[t]he accused’s right is to be confronted with the analyst who makes the certification” and that “surrogate testimony” does not satisfy the constitutional requirement. Here, the only testimony to the cause and manner of death was the surrogate testimony of Dr. Joyce Carter who rendered her opinions based solely upon the autopsy report and autopsy photographs done by another pathologist.

The admission of this testimony violated the constitutional confrontation rights of the accused. Moreover, on the conflicting facts and inferences presented by the record before us, I cannot conclude that the error was harmless beyond a reasonable doubt.

I respectfully dissent and would reverse the conviction and remand for a new trial.

NFP civil opinions today (3):

In re the Paternity of E.S.: Makayla LeGault v. Michael J. Scott (NFP)

Signature Estates of Indiana, Inc. d/b/a Gordon Marketing, Stephens-Matthews Marketing, Inc., Shields Brokerage, Inc. et al. v. Conseco Medical Insurance Company, et al. (NFP)

Omert'a LLC, Dino Zurzolo d/b/a Shangri-La East, and Wholesalers, Inc. d/b/a Shangri-La Show Club v. Phillip Gray (NFP)

NFP criminal opinions today (8):

Keith D. Bott v. State of Indiana (NFP)

Joshua Ketchem v. State of Indiana (NFP)

Edwin Hunt v. State of Indiana (NFP)

Bruce L. Truett v. State of Indiana (NFP)

Larry Page v. State of Indiana (NFP)

Demitrus Grant v. State of Indiana (NFP)

Christopher Baxter v. State of Indiana (NFP)

David Gregg v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Still more on "Union County Republican caucus turns down only prosecutor candidate"

Updating this ILB post from Dec. 16, 2013, "Kolger sues Union County GOP leaders over prosecuting attorney job" is the heading to this story today in the Richmond Palladium-Item, reported by Pam Tharp. Some quotes:

LIBERTY, IND. — Acting Union County prosecuting attorney Kathy Kolger has filed a civil suit to prevent the Union County Republican Party Central Committee from naming a new prosecutor to immediately fill the elected position vacated by former prosecutor Ronald Jordan last year.

Defendants in the lawsuit filed Thursday are Republican Party Chairman Alan Alcorn and the Union County Republican Central Committee.

Kolger also sought and received a temporary restraining order to keep the party from making the appointment at a party caucus scheduled for Tuesday evening.

Judge pro tem Eugene Stewart of Franklin County granted the temporary restraining order last week.

Fayette Circuit Judge Beth Butsch is the presiding judge in the case. A hearing on the temporary restraining order will be held at 10:30 a.m. Wednesday in Fayette Circuit Court.

Kolger’s lawsuit argues the deadline for filling the vacant office expired 30 days after Jordan’s resignation. The Republican Party Central Committee at a caucus in November declined to appoint Kolger to the position, and she did not file to run for the office in the May primary. * * *

Kolger’s lawsuit says the “no” vote by the caucus on Nov. 20, 2013, was the final decision on filling the office and the caucus is barred by law from reconvening to fill the position beyond the deadlines and after the final decision made Nov. 20.

Indiana law does allow filling vacancies after the deadline, but only in the case of town councils and township board members, not prosecuting attorneys, the lawsuit said.

Kolger has all of the office’s rights and duties and should serve for the reminder of the unexpired term, the suit said.

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Indiana Government

Ind. Law - " Storeowners complain new shoplifting law in Indiana too lax: $750 set as the line between a felony and a misdemeanor"

That is the headline to CNHI's Maureen Hayden's story today in the New Albany News & Tribune. From the story:

INDIANAPOLIS — Retailers are relieved that lawmakers have fixed an error in a new criminal law that would have made it tough to arrest shoplifters. Now they want a harsher penalty restored for thieves.

They contend the real problem with the new criminal code that goes into effect July 1 is a provision that drops theft from a felony to misdemeanor if the stolen goods are valued at less than $750.

“We’ve got a huge problem with that,” said Grant Monahan, head of the Indiana Retail Council, which represents thousands of store owners statewide.

On Tuesday, the General Assembly met in an unusual session to make “technical corrections” to the 400-plus page bill that overhauled crime and punishment in Indiana. While toughening penalties for violent crimes, the new law reduces punishments for some theft and drug possession crimes by making them into misdemeanors that are rarely punished with prison time.

In passing the law during a hectic session, lawmakers inadvertently left out language that would allow police to arrest suspected shoplifters caught by store personnel while stealing something worth less than $750. Most misdemeanors require a police officer to witness the crime to make the arrest.

Legislators fixed that Tuesday and also restored the penalty for the crime of child seduction. In revising the massive bill earlier this year, lawmakers inadvertently reduced the sentence for someone convicted of intercourse with a child. During Tuesday’s session, lawmakers also clarified the amount of drugs that lead to controlled substance charges.

Fixing the shoplifting language revealed a deep divide among some lawmakers.

For years, Indiana has allowed prosecutors to charge shoplifters with a class D felony, no matter the value of the stolen item. During debate over the new criminal code, supporters of changing that said heavy-handed prosecutors were putting people in prison for stealing a candy bar, and that prisoners were crowded with low-level thieves and drug addicts.

State Sen. Randy Head, R-Logansport, a former deputy prosecutor, said the criminal code needed to be changed, but he vehemently opposed the new limits on felony theft. Head wants to see the monetary limits removed when legislators return in January for the 2015 session, returning discretion to judges and prosecutors to reduce theft charges depending on the circumstances. * * *

But attempts to eliminate the monetary limits are already finding resistance.

Rep. Jud McMillin, R-Brookville, a former deputy prosecutor who co-authored the new criminal code, said almost every other state in the nation uses monetary limits to differentiate felony from misdemeanor theft.

McMillin noted a study of prison inmates that showed thousands of people behind bars on low-level theft charges, many of whom were driven to crime to feed drug habits. He argues that putting those people into community-based treatment programs is a better use of criminal justice dollars.

McMillin predicted there will an “onslaught of efforts” to roll back changes made by the new criminal code. He plans to fight them, as do some in the House leadership. Earlier this year, they directed lawmakers to first vet any proposed changes this summer with the House Courts and Criminal Code Committee. McMillin sits on that committee.

“I can tell you, I will not be interested in hearing bills that are a piecemeal attack on the comprehensive work done in [House Enrolled Act] 1006,” he said. “We’ve put together good stuff and we plan on sticking with it.”

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Indiana Law

Environment - More on "Quarry foes get help from commissioners"

Updating this ILB post from yesterday, Lafayette Journal Courier columnist Dave Bangert writes today under the headline: "Saviors or sneaks on quarry ban?" It begins:

What more than this can you say about the custom-fit, surprise solution the Tippecanoe County commissioners came up with this week to block a quarry in the works near Americus: Isn't that what every neighborhood wants from their elected officials?

The application for a quarry along Old Indiana 25 had been billed as a David vs. Goliath tale up until now. Sure, the Rogers Group, a Nashville, Tenn., crushed rock company, this spring had put its plans on hold, hoping to win the hearts and skeptical minds of those along Old Indiana 25 who didn't think digging a 420-foot-deep hole along the Wabash River made sense for their water supply, their rural setting, their traffic or their peace of mind.

But the Indiana Department of Natural Resources already sided with the Rogers Group, sending a letter to an Americus area group doing the fighting that "the law does not allow us to deny a permit" that meets certain criteria — as the Rogers Group's plan did. The Americus Area Community Coalition was doing all it could to gear up for an eventual hearing with the county's Board of Zoning Appeals, Rogers Group's last stop on the approval checklist. That board, driven less by emotion than by precedent, offered no guarantees for neighbors.

On Monday, the county commissioners tipped the scales for the underdog, in a huge way, when they gave initial approval to an ordinance that would ban quarries that have 100 homes within two miles. It could be a devastating blow for Rogers and a stunning win for every homeowner with a red-on-white "Stop the Stone Quarry" sign planted in their front yard along 55-mph stretches of the old state road.

It's one that has everyone — from protesters to blindsided quarry planners — asking: Where have these guys been?

Followed by: What sort of can of worms did the commissioners open?

Keep reading the long column here.

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Environment

Ind. Decisions - More on: SCOTUS today denies cert in an Indiana case

Updating this post from June 16th, Rebecca S. Green of the Fort Wayne Journal Gazette has a long story today headed "SCOTUS justices send murder appeal back to state." Some quotes:

The U.S. Supreme Court has declined to hear the case of Troy Shaw, a magazine salesman convicted of murder in the 2000 beating death of another man outside a Fort Wayne hotel.

That means a ruling last summer by the 7th U.S. Circuit Court of Appeals stands, and Shaw gets a new appeal before the Indiana Court of Appeals.

The ruling at the 7th Circuit basically forces the U.S. District Court for the Southern District of Indiana to require the Indiana Court of Appeals to give Shaw’s case another look.

After Shaw’s appeal of his conviction stalled out at the state appellate level, he sought a writ of habeas corpus – or a federal review of his case – in the federal court in Indianapolis. When it denied his request, Shaw appealed to the 7th U.S. Circuit Court of Appeals in Chicago, and it sided with him.

Judges at the 7th Circuit found that Shaw’s public defender, Gregory Miller, fell below the minimal constitutional requirement for legal effectiveness because he failed to raise the issue of whether it was proper for prosecutors to charge Shaw with murder when they did, a full six months after he was charged with aggravated battery.

When Miller handled Shaw’s appeal, he did argue that there was not sufficient evidence to support a murder conviction. But such an argument is “dead on arrival,” according to the federal appeals court.

In a ruling handed down last September, the 7th Circuit ordered the case to be reconsidered by the federal court in Indianapolis, which promptly granted his request for a new appeal at the Indiana Court of Appeals.

After the state’s loss at the federal appeals court, the office of Indiana Attorney General Greg Zoeller sought a review of the 7th Circuit’s decision by the U.S. Supreme Court.

Monday the SCOTUS denied the request.

After details of the charges involved, the long story concludes:

In December 2002, [public defender] Miller filed an appeal on behalf of Shaw, arguing that the state did not have enough evidence to support the murder charge. The appellate court rejected that argument and upheld Shaw’s conviction in June 2003.

Shaw unsuccessfully sought to have Allen Superior Court Judge John Surbeck review his case in 2004 and change the outcome; four years later, that request was denied.

Shaw appealed that decision as well.

The state now must comply with the federal appeals court ruling, with any avenue other than a new state-level appeal effectively cut off.

Posted by Marcia Oddi on Wednesday, June 18, 2014
Posted to Indiana Decisions

Tuesday, June 17, 2014

Environment - "Quarry foes get help from commissioners"

Updating earlier ILB entries, Ron Wilkins reports today in the Lafayette Journal Courier in a long story that begins:

Rogers Group's planned quarry operations near Americus might be shut down before the first shovel of dirt is turned.

Tippecanoe County commissioners approved on the first of two readings an ordinance that creates buffer zones between residential homes and any quarry operations in the county. The proposal, which passed Monday 3-0, would ban new quarry operations if 100 residences are within a two-mile radius of the proposed quarry.

Later in the story:
Tippecanoe County attorney Doug Masson said the commissioners could have brought up the ordinance regardless of Rogers Group's application for an exception, but the lack of a pending petition strengthens the county's case if Rogers Group challenges with a civil lawsuit, which Masson admitted might be a possibility. * * *

There was no opposition to the proposed ordinance, most likely because it wasn't on the agenda. Commissioners said the ordinance was finalized too late on Friday to add to the published notice.

Andy Gutwein, local counsel for Rogers Group, released a statement Monday expressing disappointment in the commission's decision to vote after hearing from only one side.

"We would have appreciated the opportunity to attend today's county commission meeting, but neither we nor the public were given notice," the statement said.

Larry Bosma and his brother, Henry, own the land on which the quarry would be dug. Larry Bosma was skeptical of the seemingly secretive process that presented an ordinance out of the blue.

"When you don't know anything about it, it's sneaky business," Bosma said.

"We heard something about it on Friday," he said of rumors that reached him. "It wasn't on the docket."

Byers said representatives from Americus Area Community Coalition talked with commissioners about the proposed ordinance on Thursday and Friday, and Masson was asked to draft the ordinance on Friday.

Masson confirmed he presented the ordinance between 4 and 4:30 p.m. Friday.

"That's why we're hearing it on second reading," Murtaugh said. "We're going to hear it again in two weeks."

"Instead of railroading it completely through," Byer added, acknowledging that the ordinance came as a surprise to many.

"They didn't inform anybody about it," Bosma said. "I guess they're having another meeting. I'll have representation there."

The second reading is scheduled for 10 a.m. July 7.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Environment

Courts - "Same-sex marriage cases are now in progress in five federal appeals courts"

That is from Lyle Denniston's just-posted SCOTUSblog report on the status of same-sex marriage cases in the federal circuits. The Seventh Circuit did not make the list. The Sixth Circuit, however, which includes our neighboring states of Michigan, Ohio, and Kentucky, will hold a "four-way hearing on same-sex marriage" on August 6th, reports Denniston.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Courts in general

Law - "It’s Privacy vs. the People in the Battle for Martin’s Beach"

We've recently had our own beach lakefront access/ownership disputes in Indiana. Here is a lengthy story from Adam Nagourney of the NY Times on June 15th, about a dispute involving a Pacific beachfront property. A few quotes:

California is a state with many beautiful beaches and almost as many millionaires who want their own beachfront homes, and this is hardly the first fight to be fought over an ocean view. But by every measure, this one has taken on added resonance, taking place against the backdrop of tensions in San Francisco caused by the influx of high-paid Silicon Valley executives and embodied by the Google buses that take them to work each day.
Continue reading the main story

The lawsuit being fought at the San Mateo County Courthouse — a decision is expected in the summer — signals the latest stage in a five-year flurry of litigation, protests, civil disobedience, indignation and arrests, aimed at forcing Mr. Khosla, who does not live on the property, to let people back on the beach (which is variously called Martin’s Beach and Martins Beach). His opponents contend he is defying the State Constitution, state law and the mind-set of “the beach belongs to everyone” that is fundamental to many Californians.

Compelled by a judge to testify, Mr. Khosla [Vinod Khosla, a Silicon Valley venture capitalist who is best known as a co-founder of Sun Microsystems] said on the stand: “If you’re asking me why any gate is locked, it’s to restrict public access. That’s a general statement about gates.” * * *

An earlier court challenge to Mr. Khosla failed when a San Mateo judge ruled that the Constitution, which declares that all property below the mean tide line is public, and a 1976 law mandating that property owners provide access to these beaches were superseded by the 1848 Treaty of Guadalupe Hidalgo. The treaty ended the Mexican-American War by requiring that the United States recognize Mexican land grants, including one that awarded rights to this plot well before the Constitution was adopted.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to General Law Related

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

For publication opinions today (1):

In Cruisin', Inc., d/b/a Cruisin' Auto Sales v. Springleaf Financial Services of Indiana, Inc., f/k/a American General Financial Services , a 14-page opinion, Judge Brown writes:

[T]he Check contained an endorsement (the “Endorsement”) placed by Springleaf which stated:
ENDORSEMENT of this check acknowledges receipt of PAYMENT IN FULL for the motor vehicle described below and the title for said vehicle is hereby GUARANTEED to the maker of said check.

Make Chevy Year 1998 Motor Number -2G1WW12MSW9131950

You are authorized to negotiate this check only (1) when account is paid in full (2) when all liens have been satisfied and (3) when title has been mailed to the payor.

* * * The issue is whether the trial court erred in entering judgment for Springleaf based upon the language of the Endorsement placed on the Check. * * *

As noted above, the Endorsement placed on the Check by Springleaf stated in part that negotiation of the check was authorized only “(1) when account is paid in full (2) when all liens have been satisfied and (3) when title has been mailed to the payor.” Plaintiff’s Exhibit D.

Cruisin’ endorsed and negotiated the Check, thereby accepting the terms of this simple contract. * * *

We conclude that the court did not err in entering judgment in favor of Springleaf and ordering Cruisin’ to reimburse Springleaf for the amount of the Check, which was $2,500.02, plus court costs of $159.00. * * * Affirmed and remanded.

NFP civil opinions today (1):

Valle Vista Limited, LLC v. Selective Insurance Company of South Carolina (NFP)

NFP criminal opinions today (5):

Christopher Carlisle v. State of Indiana (NFP)

Dustin Perkins v. State of Indiana (NFP)

Kent A. Easley v. State of Indiana (NFP)

Cornelius Hines v. State of Indiana (NFP)

Trevor Nash Tice v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS to consider online-threats case"

Supplementing yesterday's post, there are several stories today on the cert grant in Elonis v. U.S. Here are some quotes from Robert Barnes' story in the Washington Post:

The Supreme Court agreed Monday to consider whether violent images and threatening language posted on Facebook and other social media constitute a true threat to others or simply the protected rants of someone imbued with what one advocate called “digital courage.”

The court accepted the case of a Pennsylvania man who was sentenced to nearly four years in federal prison for posting the ominous photos and making the violent rants on his Facebook page against former co-workers, law enforcement officials and especially his estranged wife.

Anthony D. Elonis contends that the postings, which included the lyrics of songs by the rapper Eminem, were free speech — attempts to deal with the pain of his personal problems and not specific threats to harm anyone. The justices will consider the case in the term that begins in the fall. * * *

“Did you know that it’s illegal for me to say I want to kill my wife?” Elonis wrote. “Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.”

The justices said they will consider whether federal law “requires proof of the defendant’s subjective intent to threaten.”

The court for years has held that “true threats” to harm another person are not protected speech under the First Amendment.

At Elonis’s trial, the jury was told that he could be found guilty if an objective person could consider his posts to be threatening. Elwood told the court that was the wrong standard and that the jurors should have been told to apply a subjective standard and decide whether Elonis meant the violent messages to be threats.

Sentencing Law Blog has a post here, quoting from an AP story by Sam Hananel.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Courts in general

Ind. Law - "Felony levels move from four to six: Series on Criminal Code changes"

The criminal code overhaul was enacted in the 2013 session, with an effective date of July 1, 2014. Earlier this year, the 2014 General Assembly passed a second bill "tuning-up" the changes before they go into effect. Today the General Assembly is meeting in a rare technical corrections day to make further adjustments to the bill.

The ILB has heard stories of judges and lawyers retiring before the criminal law overhaul takes effect, so that they don't have to deal with it. The same thing may have taken place when our state moved from code pleading to notice pleading in the late 1960s.

Today the Rushville Republican has the first of two stories on the changes from Rush County Prosecutor Phil Caviness. A few quotes:

During the 2013 Legislative Session, the Indiana General Assembly made sweeping changes to the Indiana Criminal Code, the first of its kind in over 40 years. In an effort to reduce the state’s prison population, the legislature changed the number of felony levels from four to six, changed the lengths of sentences for felonies and lessened the amount of credit time a person serving a sentence can receive. * * *

One of the most significant changes made to the criminal code is of the theft statute.

Under current law, theft of any property belonging to another person is a felony, no matter the value. A person convicted of theft as a felony could be sentenced to up to three years in prison. Under the new law taking effect July 1, theft will be considered a misdemeanor offense unless the item stolen has a value of more than $750, is a firearm, or if the person committing the theft has a previous theft conviction. A person convicted of theft as a misdemeanor could only be sentenced to up to one year in the Rush County Jail. Items with a value over $750, firearms, and thefts committed by repeat offenders will remain felonies.

Caviness explains, “The reduced penalty on theft offenses is going to cause major issues in our county. First off, the likelihood of theft occurring could increase because penalties have been reduced. The difference between three years in state prison and one year in our jail is substantial. Also, it is difficult to determine the value of some items. The legislature has given very little guidance on how to place a value on a stolen item. It may be easy to place a value on an IPad, but it will be very difficult to place a value on someone’s grandmother’s ring, which has a small fair market value but is priceless to the owner. Making theft crimes misdemeanors will also likely cause an increase in our local jail population which is already having overcrowding issues. These are problems which will have to be worked out over time, and there will not be a quick fix.” * * *

Caviness is unhappy with the changes made to the burglary statute saying, “The legislature has lessened the penalties for those that break in to people’s property. If a person breaks into a victim’s house to steal something before July 1, they could be looking at a 20 year sentence. A person committing the same crime after July 1 would only be looking at a maximum of 12 years. I find this very unsettling.”

In the next article of the series, Prosecutor Caviness will explain the changes to Indiana’s drug laws and how the changes will likely affect Rush County citizens. Watch the Rushville Republican for more information on these big changes in our county and state.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Indiana Law

Ind. Gov't. - Debra Minott, head of the Indiana FSSA, is leaving

And the rest is not exactly clear.

Here are two stories today, this one from Barb Berggoetz of the Indianapolis Star, and this one from Niki Kelly of the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Indiana Government

Ind. Law - Today,Tuesday, June 17th, is GA technical corrections day

See the details in this ILB post from Friday.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Indiana Law

Ind. Courts - "Dorer attorneys want judge off criminal case"

Douglas Walker reports today in the Muncie Star-Press in a story that begins:

MUNCIE — Attorneys for Delaware County Treasurer John Dorer want the judge presiding over his criminal case to recuse herself.

Dorer, 50, was charged in April with 47 crimes stemming from his alleged mishandling of county funds. In 44 of the counts, he is accused of failing to properly deposit public funds within 24 hours of receipt, as required under state law.

In a motion filed Monday, defense attorneys Pamela Buchanan and James MacAbee ask that Delaware Circuit Court 1 Judge Marianne Vorhees leave the case.

They refer to State Board of Accounts audits, from 2005 to 2010, that reflect Delaware County’s adult and juvenile probation departments, overseen by the county’s five Circuit Court judges, “engaged in the exact same conduct.”

“Evidence recently discovered by (Dorer) shows that the Delaware County Adult and Juvenile Probation Departments have failed for years to deposit public funds they have collected on the next business day,” the attorney wrote.

“The evidence also shows that the State Board of Accounts made this specific judge personally aware of the probation departments’ failure to deposit public funds they had collected on the next business day,” the motion reads.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Indiana Courts

Ind. Courts - " Jacobi requests dismissal of civil complaint over drug court: First hearing approaching in drug court misconduct case"

Following on this June 15th story, Gary Popp of the Clark County News & Tribune reports in a long story:

JEFFERSONVILLE — Clark County Circuit Court No. 2 Judge Jerry Jacobi is asking a federal judge to dismiss the complaint made against him in a civil lawsuit involving claims of misconduct within the Clark County Drug Treatment Court, which he oversaw. * * *

Jacobi is the only defendant, according to court records, to have requested the court dismiss the complaint. He is being represented by the Office of the Indiana Attorney General through the counsel of Deputy Attorney General David Arthur.

Mike Augustus, one of the attorneys representing the 16 plaintiffs in the class action suit, previously explained that Jacobi is protected from the complaint through judicial immunity, but he hopes a judge will make a declaratory judgment.

“There is no money that changes hands, but I think it would be important, not just for our individual clients, but for future citizens of Clark County to have declaration that what has happened is unconstitutional, so it won’t happen in the future,” Augustus has said.

Arthur filed two documents June 6 with the federal court. The first was “ ... Jacobi’s motion to dismiss the amended complaint,” and, the second was a more detailed memorandum in support of the motion. Arthur makes the case that the court should dismiss the complaint because “ ... Jacobi is sued for declaratory relief, only.”

He also argues that the case is “moot” because Jacobi no longer presides over the Drug Treatment Court Program.

Jacobi was forced to relinquish oversight of the program after the Indiana Judicial Center revoked the court’s certification to administer the problem-solving court in February. Clark County Circuit Court No. 4 Judge Vicki Carmichael later took over the drug court and continues to preside over it temporary certification.

Arthur asserts that declaratory judgment against Jacobi cannot be sought as “ ... the Constitution limits a court’s jurisdiction to ‘live cases and controversies,’” according to the memorandum. “Thus, when a case no longer presents an ongoing controversy or the parties no long possess a legal cognizable interest in the outcome of the litigation, the case is moot and ‘must be dismissed as nonjusticiable.’”

The motion also claims the complaint should be dismissed “by notion of comity, requiring that this court abstain from interfering with ongoing criminal matters in a state court.”

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Indiana Courts

Ind. Courts - "Marion County joins Odyssey Case Management System for criminal cases"

Last May 21st the ILB reported that Marion County civil courts' current cases were now available here for public access via the Odyssey Case Management System.

Now, as of yesterday, criminal case information is also available, as Derrik Thomas reported last evening on WRTV6.

Posted by Marcia Oddi on Tuesday, June 17, 2014
Posted to Indiana Courts

Monday, June 16, 2014

Ind. Courts - More on "Convenience Stores Pursue Legal Action to be able to Sell Cold Beer"

Updating this ILB post from May 14, 2013, which includes a copy of the complaint, today Chief Judge Richard L. Young issued a 34-page ruling denying the Indiana Petroleum Markets and Convenience Store Association their request for a preliminary injunction of IC 7.1-5-10-11, which prohibits the sale of cold beer by the holder of a beer dealer permit, and granting the State's motion for summary judgment.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Ind Fed D.Ct. Decisions

Environment - "Judge OKs settlement in wood recycling suit"

Updating this ILB post from March 12th, Madeline Buckley of the South Bend Tribune reports:

HAMMOND -- A federal judge on Monday approved a settlement that stipulates an Indiana business has five years to clean up waste and shutter its current operations at an Elkhart wood recycling facility.
U.S. District Judge Philip P. Simon gave final approval to the agreement that comes after years of environment and health-related complaints about the operations at the site on U.S. 33 in Elkhart County.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Environment

Ind. Decisions - More on: "7th Circuit holds do-over after secret hearing was recorded but public argument wasn’t"

Updating this ILB post from June 10th, here is the 7th Circuit's opinion issued today in USA v. Abel Daoud, the case where the 7th Circuit held the do-over oral argument, and a case the ILB cited as an example of how the 7th Circuit publicly corrects its errors.

Today's opinion, by Judge Posner, includes this note, which starts on the first page:

* The fact that we heard oral argument twice before issuing our decision is unusual and requires explanation. By inadvertence the device that makes a sound recording of the oral arguments of our cases was not turned on for the public argument in this case on June 4. (That argument was followed by a classified argument, which was recorded stenographically by a court reporter who has the necessary security clearance. Our present opinion pertains only to the public argument.) Recording, whether aural or stenographic, of oral arguments is not required by law; and the recordings are not required to be made public. Until our recording equipment was installed some years ago, no record was made by the court of the oral arguments. And initially the recordings were available only to the judges. Eventually the court decided to make them available to the public as well. Although under no legal obligation to conduct a second oral argument in this case, we decided to do so because the accidental failure to record the argument occurred in a high-profile case involving serious criminal charges.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - SCOTUS today denies cert in an Indiana case

A reader writes:

I saw your post about the cert. denial today in the Wisconsin school case.

Number one on the cert. denial list today was Brown v. Shaw, No. 13-897, which was Shaw v. Wilson, 721 F.3d 908 (7th Cir. 2013), cert denied., when it came down last July. Your post about the 7th Circuit decision on July 28th, 2013, is here.

The ILB post from last July quoted from a 7/27/13 Rebecca S. Green story in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Commentary: The founders, a tough act to follow"

John Krull, TheStatehouseFile, has a nice quote from former Indiana Senate President Pro Tem Bob Garton in his Statehouse File column about the

... work of the Mount Vernon Assembly, a collection of state legislators from around the country who want to explore ways to use Article V of the Constitution – the part that sets forth the amendment process — to revise America’s founding document. The Mount Vernon group is the brainchild of [current] Indiana Senate President Pro Tem David Long, R-Fort Wayne, and the members chose to gather in Indianapolis June 12 and 13 to discuss a process for changing the Constitution that starts in the states rather than with Congress.
Here it is:
I ask Garton, a moderate Republican who began his career as a Democrat, if there would have to be some horse-trading to make such a convention work. Would conservatives who want constitutional caps on borrowing have to be willing to accept, say, changes in the language in the Second Amendment to restrict the free flow of guns across the land?

Garton says that’s exactly the way it would have to work, but that it would be difficult because of fears the convention would go rogue and adopt changes the states didn’t want. To prevent that, Indiana passed a law that would allow for a delegate to a constitutional convention who doesn’t vote as instructed to be recalled – and sent to prison for three years.

If such a law had been in place in 1787, many founding fathers – who came to Philadelphia with instructions from their states to make only minor changes to the Articles of Confederation, not draft a new constitution – would have spent time behind bars.

Garton notes that the possibility of jail time for not following instructions would make negotiations difficult, if not impossible.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Indiana Government

Ind. Decisions - SCOTUS denies cert re 7th Circuit decision prohibiting holding high school graduations in church building

Wisconsin Appellate Law has a post by William J. Katt, Jr. about today's SCOTUS denial of cert in Elmbrook School District v. Doe, that begins:

In a somewhat surprising move, the U.S. Supreme Court today denied the Elmbrook (Wisconsin) School District’s petition for a writ of certiorari in Elmbrook School District v. Doe, No. 12-755, over the dissents of Justices Scalia and Thomas. The School District petitioned from the decision of an en banc panel of the United States Court of Appeals for the Seventh Circuit that Elmbrook violated the First Amendment Establishment Clause when it held graduation events for many years in the auditorium of Elmbrook Church. That en banc decision had in turn overturned the decision of the original panel in the case finding no Establishment Clause violation.
The post concludes:
Justice Scalia’s dissenting view, while interesting, is likely to provide little solace to the School District, which potentially now faces an effort by the Doe parties to recover more than $800,000 in fees for legal services incurred even before the Supreme Court appeal was filed.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (5):

J.C. Jennings, II v. State of Indiana (NFP)

William R. Griffin, II v. State of Indiana (NFP)

Jeremiah D. Breedlove v. State of Indiana (NFP)

Lloy J. Ball v. State of Indiana (NFP)

Brent R. Gilbert v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Ind. App.Ct. Decisions

Courts - More on "Key decisions loom as Supreme Court session nears end"

Of the 17 cases remaining, the SCOTUS issued three today. Only one of them, Susan B. Anthony List v. Driehause, was on the "cases to watch" list from this post earlier this morning. The 6th Circuit was reversed today in Susan B. Anthony List - here is the SCOTUSblog case page.

The Court will issue opinions again on Thurday and next Monday.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Courts in general

Courts - SCOTUS today grants cert in "true threat" case

The case is Anthony D. Elonis v. United States. Here is the cert petition, via this April 8th post by Michelle Olsen on Appellate Daily, headed "Facebook Case Tests Scope of ‘True Threat.’". Olsen's post begins:

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

On May 1 our Indiana Supreme Court decided Brewington v. State, which centered on protected speech and unprotected true threats.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 13, 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, June 13, 2014. It is two pages (and 20 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Indiana Transfer Lists

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

Updating this ILB post from May 19th, the Maennerchor Era Luncheon will occur this Wednesday.

The ILB would love to post the observations of attendees, as well as a list of those present. Photos too. Contact me here.

The ILB has obtained from the law school website this photo of the Indiana University School of Law - Indianapolis faculty, circa 1969, the last year students graduated from the Maennerchor location, and the year I graduated.


The photo has very low resolution, but I can identity a few faces: Dean Foust, seated on left; Prof Harvey, behind Foust to the left; Prof. Jegan, second to the right of Harvey; Prof. Florence McMaster, second to the right of Jegan. Seated in front of McMaster, Prof. Townsend.

As I wrote in the earlier post, there was one woman professor at the time, Florence McMaster, the librarian, memorialized on this IU Law webpage.

Yesterday, with commendable timing, Libby Cierzniak, a partner at Faegre, Baker & Daniels, and a graduate of IU McKinney, published a long article in Historic Indianapolis on the history of the Maennerchor building. A quote:

During its 68-year life span, Maennerchor Hall served as a music academy, a ”Gay 90s” cocktail lounge, a USO club, and a law school. But its most lasting influence on Indianapolis culture may have come about in the summer of 1974, when the once-grand building sat vacant and vandalized as advocates for historic preservation and the arts scrambled to save it from the wrecking ball.
The article includes a number of photos, including one group of three photos with this caption:
Dean Cleon Foust (above right) poses with the massive fireplace before it was removed from Maennerchor Hall and installed at the new law school. The fireplace was moved again when the new facilities were built, and now graces the Woodward Room in Inlow Hall. Another longtime fixture to make the move from the Maennerchor to the school’s present day facilities was Professor Lawrence Jegen (above), who joined the law school in 1962 and has simultaneously educated and terrified thousands of Indiana lawyers, myself included.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Indiana Law

Courts - "Key decisions loom as Supreme Court session nears end"

That is the headline to David G. Savage's June 14th LA Times story. The story begins:

The Supreme Court heads into the last two weeks of its annual term Monday seemingly poised to hand down a series of decisions that will come as defeats to President Obama and victories for foes of abortion.

Already this year, the court has bolstered the rights of big campaign donors and upheld Christian prayers at public meetings.

The themes of free speech and religious freedom are likely to be heard, and two other cases involve adapting the law to fast-developing technology. Another case could deal a major blow to public employees unions.

Savage then discusses the upcoming decisions, using the following headings:Jess Bravin of the $$ WSJ has a story with a similar, but slightly shorter list that begins:
The dog days are over at the Supreme Court.

Insiders—including justices—have been known to call the workaday cases before the court the “dogs,” setting the necessary rulings on bankruptcy, attorneys’ fees and procedural matters apart from major holdings that can drive social and economic shifts in U.S. society. With two weeks left before the end of the court’s current term, the dogs have all been released, leaving in the final push 17 cases involving such issues as the privacy of cellphone data, religious exemptions from the Affordable Care Act, and the president’s recess-appointment power.

The court is scheduled to end its 2013-2014 term by Monday June 30 and is likely to have four or more days of decision announcements with rulings on Mondays and Thursdays.

Hobby Lobby is the focus of this long NPR article by Julie Rovner. It begins:
One of the most watched issues before the Supreme Court this term may turn on the question of religious freedom. But it will also likely determine how women will be able to access a key provision of the Affordable Care Act – one seeking to guarantee no-cost prescription contraception in most health insurance plans.

The justices' ruling on Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius, two cases that are being considered together, is expected by the end of this month. The court will decide whether those companies, and potentially all other for-profit companies, must abide by the so-called contraceptive mandate.

Here is a long list of earlier ILB entries on the contraception mandate.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Courts in general

Ind. Gov't. - More on: Governor's Tax Competitiveness and Simplification Conference on June 24 is by invitation only

Updating this ILB post from June 4th, John Ketzenberger has a column yesterday in the Indianapolis Star on the Tuesday, June 24th conference. It concludes:

The schedule, list of participants and other information is available here.

The public is also invited to send ideas and questions to a page at the same address or mail them to the revenue department’s office ahead of the conference. The information will be shared on the state’s website as it is received.

Since it was announced June 4, the conference has drawn some criticism for not being open to the public. Bob Dittmer, the revenue department’s spokesman, said the auditorium isn’t big enough for the public after invitations were sent to more than 60 legislators in both parties on the key fiscal committees and 200 others across the policy spectrum in Indiana who pay close attention to tax policy.

The media is invited, though, and the session is being recorded. Dittmer said it will be posted to the state’s website the day of the conference.

Government is criticized for generating a lot of activity that produces little action, and it’s possible nothing will come of this conference. Simplifying the state’s tax structure is too important not to try, however, and the organizers have worked hard on this project.

Much of the disenchantment we see with government, I think, is rooted in frustration over the state and federal tax systems. If we can make the state’s tax structure simpler, people will have more confidence they’re paying a fair share of the tax. Indiana will be a stronger, more competitive state if legislators and others in the government can make that happen.

Posted by Marcia Oddi on Monday, June 16, 2014
Posted to Indiana Government

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

From Sunday, June 15, 2014:

From Saturday, June 14, 2014:

Posted by Marcia Oddi on Monday, June 16, 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 6/16/14):

Tuesday, June 17

Next week's oral arguments before the Supreme Court (week of 6/23/14):

Thursday, June 26

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/16/14):

Thursday, June 19

Next week's oral arguments before the Court of Appeals (week of 6/23/14):

Monday, June 23

Tuesday, June 24

Wednesday, June 25 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, June 16, 2014
Posted to Upcoming Oral Arguments

Sunday, June 15, 2014

Ind. Law - Indiana Tech replaces uppercase law dean with lowercase prof

Updating this ILB post from May 29th ("Dean Resigns Abruptly at Indiana Tech Law School"), Rebecca S. Green of the Fort Wayne Journal Gazette has a long story today headed "Mystery shrouds law dean's departure: Indiana Tech insists school's future bright." A few quotes:

FORT WAYNE – With very little fanfare late last month – in sharp contrast to how his hiring was announced – Indiana Tech announced the founding dean of its fledgling law school was gone.

The news release announcing Peter Alexander's departure came late on the Friday afternoon before Memorial Day. * * *

Brian Englehart, vice president of university relations, said Alexander's departure was not something the school would have foreseen, but said the former dean had his reasons for doing so.

“The reasons they have are the reasons they have,” Englehart said. “We respect his decision and appreciate all his efforts here.”

Englehart credits Alexander with building a strong foundation on which the school can continue to grow.

“We're sorry to lose the experience of Dean Alexander, but the law school is about much more than one person,” he said.

After Alexander's departure was announced, the university appointed andré douglas pond cummings as interim dean of the law school. * * *

“Changes in leadership are never easy,” cummings said. “The end game is absolutely the same and we are completely on track to realize it.

“We've hired well and our charter class is terrific,” he said.

With 28 students having completed their first year at the yet-to-be accredited school on Fort Wayne's east side, there is a lot on the line.

Because the school is not accredited by the American Bar Association, those credits earned in that first year would not likely transfer to other law schools should a student get cold feet and not want to wait it out.

Posted by Marcia Oddi on Sunday, June 15, 2014
Posted to Indiana Law

Law - "Don't be scammed by a locksmith: Research carefully before hiring a locksmith for your car or home"

ConsumerReports.org talks about a scam that has been going on for years, but many people are still affected. Here is a sample from the article:

In some instances, the companies advertising these locksmith services go by names similar to those of local companies and use local phone numbers and bogus addresses. But the calls actually go to call centers in another city, warns the Federal Trade Commission. The locksmith, who might be poorly trained, sometimes arrives in an unmarked vehicle and demands significantly more than the price quoted over the phone. Payment often must be made in cash. Frustrated consumers, eager to get into their homes or cars, often end up paying anyway.
See also this article from the Federal Trade Commission. A quote:
Some who claim to be “local locksmith” companies have multiple listings (sometimes 30 or more separate listings in a single phone book) with different names. But the calls to each of these numbers go back to the same central number in a distant city where operators dispatch untrained individuals to do the job.

Posted by Marcia Oddi on Sunday, June 15, 2014
Posted to General Law Related

Ind. Courts - Fired Catholic teacher's lawsuit moves to summary judgment stage

Rebecca S. Green reported yesterday in the Fort Wayne Journal Gazette in a long story that begins:

FORT WAYNE – Filed just over two years ago, the case of Emily Herx v. the Fort Wayne-South Bend Roman Catholic Diocese has moved into the summary judgment stage.

After a series of motions filed this week in federal court, U.S. District Court Judge Robert L. Miller Jr. must now decide whether to rule for the former diocesan English teacher or side with a local Catholic Church in a fight over in vitro fertilization treatments.

If he declines to rule in favor of the diocese, as its attorneys requested, the case will head to mediation or trial, according to court records.

Herx sued the diocese in spring 2012, claiming she had been the victim of discrimination when diocesan officials fired her from her teaching job at St. Vincent de Paul School when she underwent in vitro fertilization.

Herx suffers from infertility, a protected disability under the Americans with Disabilities Act. She argues her termination was a violation of both the Civil Rights Act of 1964 as well as the Americans with Disabilities Act.

In vitro fertilization is banned under Catholic doctrine, and when news of Herx’s treatment came to light, diocesan officials decided not to renew her contract. Herx, a Ball State graduate with a teaching license from Taylor University, had taught language arts at the school. She was also a member of a local Catholic parish, according to court documents.

Here is a list of earlier ILB entries on the lawsuit.

Posted by Marcia Oddi on Sunday, June 15, 2014
Posted to Indiana Courts

Ind. Courts - " No decision on criminal charges of former Clark County drug court staff: Special prosecutor waiting for ISP report"

Updating earlier ILB entries, Gary Popp reported yesterday in the New Albany News & Tribune in a story that begins:

SOUTHERN INDIANA — Four months have gone by since the Jefferson County, Ind., prosecutor was appointed to determine if Clark County Drug Treatment Court employees will face criminal charges, but a decision has not been reached.

Chad Lewis, the special prosecutor, was assigned to the matter in early February, after claims were made that drug court personnel made unlawful arrests, and program participants were held in the Clark County jail for excessive periods of time without being taken before a judge.

“The matter continues to be under investigation by the Indiana State Police. Our office will not be in a position to make a charging decision until we have received a complete investigation by ISP,” according to a statement recently released by Lewis’ office. “We have an obligation to both the citizens of Clark County and any potential defendants to ensure that a charging decision is made in a fair and deliberate manner, only after a thorough evaluation of all available information.”

ISP Sgt. Jerry Goodin said the agency does not put deadlines on its investigations, and when the investigation is completed, it will be handed over to Lewis’ office. The ISP has declined to disclose the identity of the subjects of the investigation.

Posted by Marcia Oddi on Sunday, June 15, 2014
Posted to Indiana Courts

Saturday, June 14, 2014

Courts - "How to Take Out a Supreme Court Justice"

The sub-head to Dahlia Lithwick's column this weekend in Slate is "When politicians target elected judges with big money, the justice system loses." A quote:

Knocking off a state supreme court justice is one of the cheapest political endeavors going. It costs a few measly million bucks to buy a judge’s robe, which is vastly cheaper than a Senate campaign. But when politicians target elected judges and justices with political claims using political tactics (big money and inaccurate accusations), judges are forced to either respond like politicians or judges. Opting to do the former destroys the notion of impartial justice. Opting for the latter ends judicial careers.

And now here we go again. Three justices on the Tennessee Supreme Court are facing an election-year attack, not for any particular decision they have authored or even for any unpopular opinion they have espoused. No, in an ugly campaign in Tennessee that appears to be getting ever uglier, Senate Speaker Ron Ramsey, who is also the state’s lieutenant governor, is attempting to oust three state Supreme Court justices in their Aug. 7 retention elections, chiefly for the judicial outrage of having been appointed to the high court by a Democrat.

Posted by Marcia Oddi on Saturday, June 14, 2014
Posted to Courts in general

Ind. Courts - "Ruling on Indiana gay marriage ban could come soon "

So reports AP reporter Charles Wilson in this article today, here in the Gary Post-Tribune. Some quotes:

INDIANAPOLIS (AP) — A federal judge’s lengthy deliberations on whether to stay his ruling recognizing a same-sex Indiana couple’s marriage could signal that a broader decision is coming, legal experts say.

The state asked U.S. District Judge Richard Young for the stay on May 8, the same day he granted a preliminary injunction requiring Indiana to recognize the marriage of Munster residents Amy Sandler and Niki Quasney.

The state also is asking the U.S. 7th Circuit Court of Appeals to review Young’s decision, which applies just to the one couple — not to others who were legally wed elsewhere and also are seeking to have Indiana recognize their marriages. * * *

Marriage law expert Seymour J. Reisman said it is “absolutely unusual” for a judge to take so much time to grant a stay.

“The purpose of a stay order is immediate relief,” said Reisman, a partner in the New York law firm Reisman Peirez Reisman and Capobianco LLP. “When I say immediately, certainly no more than a week.”

The delay makes Reisman suspect Young may simply skip the stay order and decide whether to throw out Indiana’s gay marriage ban.

“It’s clear to me from what he’s done he’s not going to do what the state wants,” Reisman said.

Gay marriage supporters hope the tide will continue in their favor. Bans have been struck down in five states since Indiana’s ban was argued in federal court in early April. Those states are Arkansas, Idaho, Oregon, Pennsylvania and Wisconsin.

Posted by Marcia Oddi on Saturday, June 14, 2014
Posted to Indiana Courts

Law - Watch this: Women in prison

"Women Inmates: Why the Male Model Doesn’t Work. As the number of women inmates soars, so does the need for policies and programs that meet their needs," is the headline to this moving, powerful, multi-media production in the NY Times, a paid post by Netflix. It includes three videos, each about 4-5 minutes long, featuring real-life women prisoners and former prisoners.

Posted by Marcia Oddi on Saturday, June 14, 2014
Posted to Courts in general

Friday, June 13, 2014

Ind. Courts - More on "Woman stripped naked in Floyd jail will sue"

Updating this story from June 9th, Grace Schneider reports today in the Louisville Courier Journal that:

A woman and three men from Southern Indiana are accusing Floyd County Sheriff Darrell Mills and jail officers in a federal class-action suit of violating their constitutional rights by stripping and torturing them after their arrests.

The suit, filed Thursday in U.S. District Court, contends that there are potentially hundreds of other former inmates who have been incarcerated at the jail in New Albany who faced similar treatment. The plaintiffs are seeking unspecified damages and a permanent injunction.

The suit by the four — Tabitha Gentry, Vincent Minton, Michael Herron and Adam Walker — says that the officers forcibly removed their clothes and left them without clothing for prolonged periods while they did not pose any security threat to warrant the treatment.

The suit also says officers regularly exposed detainees' naked bodies to officers of the opposite sex and withheld clothing while in view of jail employees or through video surveillance. The former inmates' suit asserts they were subjected to "offensive touching" and excessive uses of force during and after their clothing was removed.

The lawyer for the four, Laura Landenwich of Louisville, previously released video obtained from the jail of Gentry, a 32-year-old New Albany woman who was arrested on suspicion of public intoxication, disorderly conduct and resisting law enforcement, all misdemeanors, after a domestic disturbance March 30.

The video from surveillance cameras showed officers — a man and two women — struggling with Gentry as they removed her clothing and leaving her naked or partially covered in a padded cell for five hours. At one point, Gentry had to urinate down a floor drain, the suit says.

According to the 18-page complaint, the three men allege that they faced similar treatment after misdemeanor arrests. Minton, 23, of Nabb, in custody for public intoxication, intimidation and disorderly conduct in February 2013, had refused to respond to questions by officers.

The suit says he was placed in a padded cell where officers removed his clothes after Minton yelled and banged on the door to request a lawyer. Once he was naked, an officer activated a Taser on the man's buttocks, and he was left with a smock for several hours, the suit says.

There is much more, plus video, in today's story, headed "Class action in strip suit claims others harmed." The story also links to the complaint, Gentry, et al v. Floyd County.

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Indiana Courts

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

For publication opinions today (5):

In Brian S. Moore v. Kristy L. Moore, a 4-page opinion, Judge Mathias concludes:

Brian has made a prima facie showing that the trial court erred by denying his request for counsel. We reverse and remand for the trial court to determine if Brian is indigent and, if so, to appoint counsel to represent him at a new contempt hearing.
In In the Matter of the Adoption of M.S.; C.L.S., v. A.L.S., an 18-page opinion, Judge Pyle writes:
On appeal, Mother challenges the trial court’s judgment granting Stepmother’s petition to adopt M.S. without her consent. Generally, a trial court may only grant a petition to adopt a child born in wedlock who is less than eighteen years of age if “each living parent” consents to the adoption. However, INDIANA CODE § 31-19-9-8 provides that consent to an adoption is not required from:
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree. * * * Affirmed.
In Randolph Kelley v. State of Indiana and Paige A. Devlin , an 11-page opinion, Judge Friedlander writes:
Randolph Kelley appeals from the trial court’s order awarding Paige A. Devlin a $50,000 credit toward a restitution order entered in Kelley’s favor. Concluding that the decision to award such a credit was within the trial court’s discretion, we affirm.
In Robert L. Slone v. State of Indiana , a 7-page opinion, Judge Bradford writes:
On appeal, Slone contends that the trial court abused its discretion in sentencing him, claiming that the three thefts for which he was convicted arose from a single episode of criminal conduct. We affirm. * * *

We agree with the trial court’s determination that the burglaries did not arise from a single episode of criminal conduct as the burglaries were not of a simultaneous or contemporaneous nature.

Furthermore, we are unpersuaded by Slone’s assertion that the fact that the State sought to join Cause Nos. FC-13 and FB-15 for trial purposes indicates that Slone’s crimes arose from a single episode of criminal conduct. * * *

Keeping the distinction between Indiana Code section 35-50-1-2(c)(2) and Indiana Code section 35-34-1-9(a)(2) in mind, we conclude that the fact that the State sought to join the charges for trial does not prove that Slone’s criminal actions arose out of a single episode of criminal conduct.
In sum, we conclude that the trial court did not abuse its discretion in sentencing Slone.

In Jonathan Stephens v. State of Indiana , an 11-page opinion, Judge Pyle writes:
Stephens claims that: (1) his conviction for criminal confinement is not supported by sufficient evidence; (2) that his trial counsel rendered ineffective assistance; and (3) that the prosecuting attorney engaged in misconduct during closing argument, resulting in fundamental error. * * *

Stephens has failed to show any prejudice caused by trial counsel’s failure to object to the line of questioning regarding the no-contact order. * * * In light of Dickerhoff’s testimony about the nature of her confinement, corroborated by her 911 call, the jury likely would have reached the same verdict even if they had not known of the no-contact order. Therefore, Stephens’s claim of ineffective assistance of trial counsel fails.

Stephens claims that the prosecutor committed misconduct when he referred to Stephens as a “knucklehead,” “yahoo,” “bully,” and “not a noble heroic guy” during closing argument. In addition, Stephens claims that the prosecutor requested that the jury find him guilty for reasons other than his guilt. However, when the statements occurred, Stephens did not object. * * *

The totality of the circumstances shows that the improper comments had little persuasive effect on the jury. Stephens argues that the prosecutor’s comments placed him in grave peril because it encouraged the jury to infer that Stephens was a bad person who was more likely to commit the crimes charged. However, Stephens has not shown how the prosecutor’s comments placed him in grave peril. The jury’s verdict is supported by evidence, which is what had the more persuasive effect.

NFP civil opinions today (2):

Dena Alfayyad v. U.S. Bank National Association as Trustee for RASC 2007KS3 (NFP)

In the Matter of: A.H., Jb.H., and Je.H., Children in Need of Services, C.P. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

Lakhvir Singh v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Security Concerns Dictate Montgomery Co. Courthouse Changes"

Stan Jastrzebski reports for WBAA, Purdue Public Radio:

Hoping to prevent violent actions like those at the Tippecanoe and Howard County courthouses, Montgomery County officials are trying to expedite security upgrades to their courthouse.

County Commissioner Phil Bane says a judge recently received a phone call threatening his life, leading to discussions about how to make the structure and its inhabitants safer.

“And then we started talking about the exterior of the building – what can we do to keep something from happening here similar to what happened in Lafayette when a guy drove a pickup truck – or tried to – into the basement of their courthouse?”

He’s referring to a 1998 incident which fortunately didn’t result in the explosion intended by whoever packed that truck with gasoline and other flammable materials.

That incident was less severe than an explosion in the Howard County courthouse in 1987, which killed the man who’d packed pipe bombs into a briefcase during his trial on drug charges, hoping to kill the judge in his case.

Tippecanoe County officials installed countermeasures within two weeks, but it could take Montgomery County a year to secure a door off a parking lot through which prisoners are transported.

Bane says there are still some unknowns about the project, including how much must be done to bring all areas of the courthouse into compliance with the Americans With Disabilities Act. All told, he estimates the various projects could cost taxpayers $750,000.

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Indiana Courts

Ind. Courts - "Efforts by Colleges to Curb Assaults Focus on Fraternities "

The ILB has had a number of posts recently involving lawsuit against fraternities for reputed hazing incidents.

Included in the posts was a 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.

Today Richard Perez-Pena and Steven Yaccino of the NY Times report at length on fraternities, and colleges' efforts to curb assaults. A sample:

Facing a barrage of bad publicity and lawsuits, a growing number of federal investigations and a recent White House task force report, colleges are under intense pressure to curb sexual assault, binge drinking and hazing. They have increasingly focused their efforts on fraternities.

In just the past few months, fraternities have been suspended or put on probation at the Universities of Tennessee, Connecticut, Illinois and Mississippi, as well as at Kent State, Emory, Lehigh, Cornell and Northwestern Universities, among others. In March, after being linked to a string of injuries and deaths, Sigma Alpha Epsilon, one of the largest national fraternities, announced a ban on the pledging rituals that often devolve into hazing and drunkenness.

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Indiana Courts

Environment - "Illiana highway ruling slowed by wildlife worries"

From a story in the Gary-Post Tribune, dated Thursday, that begins:

PORTAGE — Federal approval for the Illiana Expressway toll road has been delayed by concerns from the U.S. Fish and Wildlife Service partly over how the project might impact endangered species, an Indiana Department of Transportation project manager said.

James Earl told members of the Northwestern Indiana Regional Planning Commission at its meeting Tuesday that federal officials have raised concerns about how the highway would affect endangered sheepnose mussel and the threatened long-eared bat, as well as its impact on the Midewin National Tallgrass Prairie in Illinois.

Environmental groups have been talking about concerns about the highway since the first draft environmental impact study was in 2012, Andrew Armstrong, a staff attorney with the Environmental Law & Policy Center that has filed two lawsuits trying to stop the highway, according to a published report.

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Environment

Courts - "Legal Confusion Follows Federal Judge’s Ruling on Same-Sex Marriage in Wisconsin"

Erik Eckholm reports today in a long story in the NY Times:

In her ruling last Friday that struck down Wisconsin’s amendment limiting marriage to a man and a woman, Judge Barbara B. Crabb spoke plainly on the basic question.

“Quite simply, this case is about liberty and equality,” she wrote, echoing a string of similar decisions across the country. “I conclude that the Wisconsin laws banning marriage between same-sex couples are unconstitutional.”

But Judge Crabb of Federal District Court in Madison, Wis., took an unusual tack that has led to days of legal confusion, pitting county clerks against the state attorney general.

As in other states where similar rulings were not immediately stayed, county clerks in Madison and Milwaukee quickly began issuing marriage licenses to jubilant couples, some of whom brought wedding cakes to the courthouse. Within days, about 50 of the state’s 72 counties had joined in, issuing marriage licenses to more than 500 same-sex couples so far.

Most legal experts suspected that a higher court would soon temporarily block the ruling, pending appeal, as occurred in Utah and Michigan, and the issuing of licenses would halt. But at issue is whether the same-sex marriages performed before a stay is granted will stand. * * *

Judge Crabb took a different approach. Instead of issuing an implementing order as she voided the state ban, she asked the suing couples and the state to offer opinions this week on what exactly state officials should do and how widely the federal decision applied.

To the frustration of the Wisconsin’s Republican attorney general, J. B. Van Hollen, that meant that the District Court ruling was not final. The state did not automatically have standing to file for a stay with the Seventh Circuit Court of Appeals, which would probably bring same-sex marriages to a temporary halt. * * *

Adding to the confusion, Judge Crabb has made it clear in hearings that once her final order is issued, which could occur over the coming week, she is likely to issue a stay to allow the issue to proceed through the courts. If she does not, the appeals court almost certainly will.

Would the incomplete nature of her ruling last week mean the marriages performed since Friday would prove invalid?

“We don’t know; we’ve never had a situation like this,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota.

“This adds an additional layer of legal questions on top of the existing questions,” he said.

Don't miss reading the whole story.

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Courts in general

Ind. Law - Next Tuesday, June 17th, is GA technical corrections day

This ILB post on May 15th announced details of an upcoming technical correction day. Chelsea Schneider's long $$ story in the Evansville Courier & Press at the time included:

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.

The ILB had not seen the draft bill and initially could not locate it on the General Assembly website, which at first look appears currently to have nothing about the Tuesday meeting of the General Assembly. But it does have a notice of the Legislative Council meeting.

Here is how to find it:

Go to GA website > Upcoming meetings (right column) > Change date to Tuesday, June 17 > Click on Legislative Council > Open agenda for June 17 > Access HB 1448-2014(ts) (technical session corrections bill), a 13-page bill.
Here is the digest:
Citations Affected: IC 6-2.5-5-27; IC 9-17-3-7; IC 35-33-1-1;
IC 35-42-4-7; IC 35-48-4; IC 35-50-2-4.

Synopsis: Technical session corrections. Conforms a provision
intended to temporarily impose the sales tax on natural gas sold to fuel
motor vehicles that provide public transportation for persons or
property to the changes in terminology made in HEA 1180-2014
concerning natural gas, propane, and butane used as motor fuel.
Resolves a conflict concerning conflicting effective dates in certain
provisions affecting the bureau of motor vehicles. Permits a law
enforcement officer who has probable cause to arrest a person who has
committed theft, even if the theft was not committed in the officer's
presence. Corrects an internal reference concerning the penalty for
child seduction. Specifies when certain weight related drug
enhancements apply, and conforms certain weight related provisions
related to possession of marijuana and hashish to other drug offenses.
Makes the penalty for a Level 1 felony committed by a credit restricted
felon the same as the penalty for a Class A felony committed by a
credit restricted felon.

Effective: January 1, 2014 (retroactive); July 1, 2014; January 1, 2015.

Dan Carden has a good story today in the NWI Times headed "Legislature's technical session to focus on criminal code corrections."

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Indiana Law

Ind. Gov't. - "Ethics overhaul can't come soon enough"

That is the headline of this editorial which appears May 30 in the South Bend Tribune and was republished yesterday in the Martinsville Reporter-Times:

State aid could directly benefit the Indiana legislator who, the House Ethics Committee determined last month, didn't technically violate any ethics rules.

The lawmaker in question, House Speaker Pro Tem Eric Turner, had been investigated after lobbying behind closed doors against a nursing home bill that would have stalled development of projects he is invested in through Mainstreet Property Group. According to The Associated Press, Turner had more than $4 million in profits on the line.

Although the bipartisan panel cleared Turner of wrongdoing, it also urged legislators to strengthen the rules, which "do not require enough disclosure."

Change can't come soon enough. Last week brought news that the Indiana Economic Development Corp. is giving Mainstreet -- the company Turner is invested in -- $345,000 for the construction of a nursing home in Terre Haute. The state aid had been placed on hold by Gov. Mike Pence after Turner's connection to Mainstreet was reported. But after a review, the IEDC determined that there was no conflict of interest and cleared the money.

The head of the IEDC panel said he had concerns about Turner's involvement but didn't think that should get in the way of a good project being completed.

On the contrary, the General Assembly needs some strong ethics rules to get in the way more often. Not because the optics of a state lawmaker benefiting from state tax dollars in this way are bad. But because the status quo is unacceptable and further damages the public's already shaky confidence in government.

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Indiana Government

Environment - "Kentucky, Indiana get head start on global warming regs"

James Bruggers of the Louisville Courier Journal reports today in a very long story:

Judging by the howls of protests, the U.S. Environmental Protection Agency's first limits on heat-trapping gases from power plants could deal a fatal blow to the economies of coal-dependent states like Kentucky and Indiana. * * *

But Kentucky and Indiana may actually have a leg up on meeting the newly proposed regulations on greenhouse gases from power plants, the single largest source of carbon pollution in the country. Each state's carbon dioxide emissions are already declining, and the rules were written to take into account their historic reliance on coal and manufacturing.

As a result, some experts are concluding that the EPA's Clean Power Plan unveiled June 2 won't be nearly as onerous as some industries and political leaders suggest, even as state regulators charged with enforcing them and electric utilities are still trying to determine their impact.

Posted by Marcia Oddi on Friday, June 13, 2014
Posted to Environment

Thursday, June 12, 2014

Ind. Decisions - "Three of the 'Elkhart 4' awaiting court's decision on appeals of convictions, sentences"

Updating earlier ILB posts on the "Elkhart Four" appeals, Emily Pfund has a long story posted this afternoon at the Elkhart Truth site that begins:

Three of the four Elkhart teens convicted of felony murder last year in the death of a co-conspirator during a burglary have appealed their convictions and sentences and are now awaiting a decision from the Indiana Court of Appeals.

Blake Layman, Anthony Sharp and Levi Sparks have all filed appeals with the Indiana Court of Appeals, asking that their convictions be thrown out or their sentences reduced. Jose Quiroz, who pleaded guilty to felony murder in November 2012 and was sentenced to 45 years in prison in December 2012, cannot appeal his conviction or sentence under the terms of the plea agreement.

Layman and Sparks began the appeals process in October 2013. The court condensed their appeals into one case. Sharp’s appeal remains separate.

According to a brief filed on behalf of Layman by his attorneys, Cara Schaefer Wieneke and Joel C. Wieneke, the felony murder conviction should be thrown out for one of the following reasons:

  • Layman’s 14th Amendment right to due process was violated because he was charged in adult court instead of juvenile court without a waiver hearing.
  • The felony murder statute does not apply to this case because it only applies when one of the conspirators in the felony is the killer. In this case, it was the victim of the burglary who killed one of the conspirators.
* * *

The Juvenile Law Center and Indiana Public Defender Council have filed amicus curiae briefs for the Layman/Sparks appeal.

Now that all of the the briefs in the case have been filed, the Court of Appeals could issue a ruling based on the briefs or schedule oral arguments, in which the attorneys for both sides would argue their case in front of a panel of three appellate judges, according to Bryan Corbin, a spokesman for the Attorney General’s office.

No oral arguments have been scheduled yet, Corbin said in an email.

No amicus curaie briefs were filed in the Sharp case, which has also been fully briefed, according to court records.

The story links to many of the briefs in the appeal. The earlier ILB posts also provided access to the documents.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Randy L. Knapp v. State of Indiana, a 19-page, 5-0 opinion, Justice Rush writes:

Randy L. Knapp appeals his conviction for murdering Stacey Lawson and his sentence of life imprisonment without the possibility of parole (“LWOP”). He challenges the admission of crime scene photographs and an expert witness’s reliance on those photographs, the denial of his motion for mistrial, and the preliminary jury instructions in the penalty phase of his trial. He also contends that his LWOP sentence is supported by insufficient evidence, unconstitutionally based on uncharged, non-statutory aggravators, and either unconstitutionally disproportionate or inappropriate under Indiana Appellate Rule 7(B). We affirm in all respects.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Ind. Sup.Ct. Decisions

Courts - "Clever piece of code exposes hidden changes to Supreme Court opinions"

Jeff John Roberts writes in Gigaom about a newly devised little robot that watches the opinions of SCOTUS which have been posted to the SCOTUS website, and reports any change. Results are reported through a Twitter account. From the story:

Last week, [David Zvenyach] launched @Scotus_servo, a Twitter account that alerts followers whenever a change is made to a Supreme Court opinion.

The process is fairly simple. As Zvenyach explained in a phone interview, it uses Node, an application written in JavaScript, to crawl the “slip” opinions posted to the Supreme Court website. If the application, which performs a crawl every five minutes, detects a change, it notifies the automated Twitter account, which tweets out an alert.

Shortly after, Zvenyach sends out a manual tweet that calls attention to the change — something he has already had to do ...

ILB: A similar tool would be quite easy to implement to watch our Supreme Court's opinions.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Courts in general

Law - "Stingray Tracking Devices: Who's Got Them?"

Updating this post from June 4th, here is an ACLU map tracking "what we know, based on press reports and publicly available documents, about the use of stingray tracking devices by state and local police departments."

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Lesley Farley Pitcavage v. Joel Michael Pitcavage , a 37-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that the trial court did not abuse its discretion in awarding custody of the Child to Joel. We further conclude that the trial court neither abused its discretion in its valuation of the mortgage debt, engagement ring, and golf clubs, nor in its division of debts and award of fees relating to home repairs, custody evaluations, tax return preparation, and car insurance premiums. We do conclude, however, that the trial court abused its discretion in its valuation of Leslie’s 401(k) account. Affirmed in part, reversed in part, and remanded with instructions.
In Billy Young v. State of Indiana, a 9-page opinion, Judge Robb writes:
Billy Young appeals his conviction for attempted aggravated battery, raising the following issues for our review: (1) whether it was error to enter a conviction against Young of attempted aggravated battery as a lesser included offense of murder; and (2) whether the evidence was sufficient to support Young’s conviction. Concluding the charging information did not give Young sufficient notice of the crime of which he was convicted, we reverse.
In Gabriel McQuay v. State of Indiana, a 9-page opinion, Judge Najam writes:
Gabriel McQuay appeals his convictions for criminal confinement, as a Class D felony, and battery, as a Class A misdemeanor, following a bench trial. McQuay raises a single issue for our review, which we restate as whether the trial court abused its discretion when it allowed a police officer to testify to the victim’s out-of-court statements made to the officer. We affirm. * * *

Under an objective analysis, the circumstances of the encounter as well as the statements and actions of R.S. and Officer Williams indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. As such, R.S.’s identification of herself and McQuay were not testimonial statements. The Confrontation Clause did not bar their admission at McQuay’s trial.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relationship of B.P.V. & B.L.V. (Minor Children) and H.P. (Mother) v. The Indiana Department of Child Services (NFP)

In the Matter of the Termination of Parent-Child Relationship of J.C.G. (Minor Child), and L.A.M. (Mother) v. The Indiana Department of Child Services (NFP)

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

NFP criminal opinions today (12):

Bradley S. Stock v. State of Indiana (NFP)

Shelton B. Stephens v. State of Indiana (NFP)

Tony Lamar Thompson v. State of Indiana (NFP)

Nicholas M. Weatherford v. State of Indiana (NFP)

Darris Blake Galloway v. State of Indiana (NFP)

Vance Gene Bridgemon v. State of Indiana (NFP)

Franklin E. Logan v. State of Indiana (NFP)

Krasimir Pavlov v. State of Indiana (NFP)

Shawkan Darden v. State of Indiana (NFP)

Nita Joyce Trott v. State of Indiana (NFP)

Kevin R. Simmons v. State of Indiana (NFP)

Tracy L. Oaks v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Courts - Yet more on: Lobbyist linked to Abramoff quits Indianapolis firm"

Updating three earlier ILB entries, ranging from 2006 to 2011, MainJustice's Mary Jacoby had a story late Tuesday headed Convicted Abramoff Associate Loses Bid to Unseal DOJ Sentencing Proffer." The story begins:

A convicted former assistant to lobbyist Jack Abramoff has lost his bid to make public a document he says would show how prosecutors use threats of excessive prison time to cow defendants into ceding their constitutional right to a trial.

Kevin Ring, 43, who went to prison at Cumberland, Md., in January after appeals from his 2010 conviction were exhausted, had asked that a 2008 reverse proffer presentation from the government be unsealed to serve the public interest.

The burgeoning use of plea bargains to resolve criminal allegations instead of trials is controversial, with some experts questioning whether the constitutional balance is being tipped too far toward prosecutors.

But U.S. District Judge Ellen Huvelle in Washington, D.C., denied Ring’s motion. She found that since the government’s PowerPoint presentation was not submitted as part of the court record, “neither common law nor First Amendment right of access attaches.”

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Courts in general

Ind. Law - "New Indiana law allows scooter drivers to run red lights under certain conditions"

Really.

This could come as a shock to some motorists with the right-of-way.

Nick LaGrange reports for WFIE, Evansville:

A new traffic law is taking effect soon in Indiana that will allow scooter drivers to proceed through red lights under certain conditions.

The law will take effect July 1, and will help out scooter drivers waiting too long for the traffic light to turn green.

Scooter drivers say traffic sensors on the road don't often sense scooters parked in front of traffic lights, due to the smaller size and weight of the vehicles.

The new law states that if anyone driving a scooter, moped, or motorcycle sits at a red light for two minutes or longer, they may cautiously proceed through the intersections, without being cited.

Many people believe the law will be abused by scooter drivers, as they believe many of them won't wait the full two minutes before driving through the intersection.

The law, effective July 1, is HEA 1080.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Indiana Law

Ind. Decisions - SCOTUS affirms 7th Circuit bankruptcy ruling

The first SCOTUS opinion today affirms the 7th Circuit in Clark v. Rameker, holding "Funds held in an inherited IRA account are not retirement funds within the meaning of the Bankruptcy Code." Thanks to SCOTUSblog, here is their case page.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Indiana Decisions

Ind. Gov't. - State Board of Accounts investigating Evansville City Councilwoman

Updating these ILB posts from mid-May, Jessica Schmidt of WFIE14, Evansville, reported yesterday:

The Indiana State board of Accounts tells 14 News the secret recording of an audit exit conference by Evansville City Councilwoman Stephanie Brinkerhoff-Riley is now being investigated by Indiana State Police.

Indiana State Police's policy is they don't release details or names of an ongoing investigation until charges have been filed, but officials with the State Board of Accounts tell us there is an investigation.

The now former council vice president secretly recorded the closed door meeting, and then leaked it online.

Brinkerhoff-Riley remains on council, but resigned from the VP position.

The story links to a number of earlier, related WFIE stories.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Indiana Government

Ind. Decisions - More on "Blogger Wants Ind. Supreme Court To Reconsider His Case, With One Less Justice"

Updating this ILB post from June 9th, this morning the Brewington docket shows the follow new entries:

Chronological Case Summary

06-02-2014 NOTICE OF APPEARANCE BY DANIEL P. BREWINGTON, PRO SE APPELLANT
(2) CERTIFICATE OF SERVICE (2) MAIL 06/02/14
ENTERED ON 06/11/14 MS
06-04-2014 APPELLANT'S PRO SE VERIFIED MOTION FOR JUDICIAL DISQUALIFICATION
OF THE HONORABLE JUSTICE LORETTA RUSH (6) CERTIFICATE OF
SERVICE (6) BY MAIL 06/04/14.
ENTERED ON 06/11/14 KSB
06-02-2014 APPELLANT'S PRO SE PETITION FOR REHEARING (9) CERTIFICATE OF
SERVICE (9) BY MAIL 06/03/14.
ENTERED ON 06/11/14 KSB
06-06-2014 ****** ABOVE ENTRY MAILED ******
ILB: The ILB has asked this question before (during the J.Brown disciplinary hearings). Why does it sometimes take so long for the Clerk's Office to make docket entries? In this case, the lag has been 9 days.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Indiana Decisions

Ind. Courts - "Indiana's chief justice stepping down" [Updated]

Here is Tim Evans' report in the Indianapolis Star of Chief Justice's Dickson's announcement yesterday. A quote:

Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, called Dickson a very capable leader at a time when the Supreme Court was going through a period of remarkable change, taking on two new members in 2012 and another in 2010.

"He has led a court that issued significant and thoughtful opinions, usually unanimously, on a wide range of issues," Schumm said. "The remarkable civility that has characterized his professional life continued through his tenure as chief justice and has been a shining example for Indiana judges and lawyers."

Indiana's chief justice was designed on a rotation system until 1970. Since 1970, there have been just four permanent chief justices. Dickson's tenure is the shortest of those four. Shepard, his predecessor, served as chief justice for 25 years.

"It has been a great joy and a privilege to have helped continue the court's tradition of excellence — especially with four hard-working colleagues who are devoted to the law," Dickson said in the statement. "I am looking forward to being able to spend most of my time in legal research, deciding cases, and writing opinions."

[Updated at 6:48 PM] Here is a long story from Ken Kusmer of the AP. A quote:
Under Dickson’s leadership, the court last year created a statewide commission aimed at improving the availability of civil legal services for low-income residents. It announced last month that lawyers will be able to file documents electronically to courts throughout the state beginning next year, starting a phase-out of two centuries of paper filings.

One of the court’s most important recent rulings was a 3-2 split last year over fines levied by Indiana House Republicans against Democratic lawmakers for their 2011 walkout and 2012 boycotts in a series of bitterly partisan fights.

Dickson wrote the majority opinion for the ruling, allowing the fines to stand because he said the court didn’t have the constitutional power to intervene in internal legislative decisions.

Posted by Marcia Oddi on Thursday, June 12, 2014
Posted to Indiana Courts

Wednesday, June 11, 2014

Ind. Decisions - Lawyers Relying on Headnotes and Key Numbers For Legal Research Are Missing Some Important Cases

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

In reviewing some of last year’s Indiana Supreme Court sentencing cases, I was surprised that some had no headnotes and associated key numbers.

Although every lawyer likely learned about headnotes and key numbers in law school, the ubiquitousness of online research over the past two decades has certainly diminished their importance and rendered them obsolete among many lawyers. Nonetheless, a Westlaw webpage for law students touts their importance:

The logical organization of legal materials is essential to the maintenance of a legal system based on precedent. For more than 100 years, the bench and bar have relied on the Key Number System's organization of caselaw to locate that precedent.
The publisher reportedly employs a meticulous process to produce headnotes:
A court issues an opinion in a case. A copy of the case is obtained by West, where highly trained Attorney Editors read the cases and pick out the points of law addressed in the case. Written as a short, concise paragraph, these are called headnotes.

So, one point of law = one headnote. Then what?

Those headnotes are then passed along to attorney editors who are experts in figuring out where points of law belong in the huge Key Number System "outline." These "Classifiers" find the correct location on the outline, and assign a Key Number to the headnote. Here is the great part: all headnotes dealing with a particular point of law will have the same Key Number! Talk about a great research tool!!

The Indiana Supreme Court is, of course, the highest court in the state. When it speaks, lawyers should listen. So, too, should these “highly trained editors.” Or maybe they just think the cases are not important. I disagree based on the following examples:

Posted by Marcia Oddi on Wednesday, June 11, 2014
Posted to Schumm - Commentary

Ind. Courts - Chief Justice Dickson's note to fellow judges

Here is the note the Chief Justice has sent to his fellow judicial officers throughout the state:

Dear fellow Indiana judicial officer,

Today I am announcing my decision to step down as Chief Justice and resume my role as an Associate Justice on the Indiana Supreme Court. I have thoroughly enjoyed serving as Chief for two years, but the time is right to pass the baton on to one of my colleagues, each of whom are well-prepared to carry on in the leadership position. I will be 73 years old next month, with only two years left before mandatory retirement. I am looking forward to spending that time primarily doing legal research, making decisions, and writing opinions.

The Judicial Nominating Commission is expected to select my successor on August 6. By September 1, I will turn over the reins to one of my fine colleagues.

I am very proud of the dedicated work done by Indiana’s judicial officers; it has been a privilege and honor to have had the opportunity serve you as Chief Justice. Thank you for your terrific support and cooperation. I look forward to seeing you in September at the annual conference.

Highest regards,

Brent E. Dickson

Posted by Marcia Oddi on Wednesday, June 11, 2014
Posted to Indiana Courts

Ind. Courts - Brent E. Dickson steps down as Chief Justice of Indiana

From the news release:

Today, Brent E. Dickson announced he will step down as Chief Justice of Indiana. He will continue his role as an Associate Justice on the five-member Supreme Court subject to mandatory retirement effective in July 2016 when he turns 75. Dickson informed the Judicial Nominating Commission and said, “It has been a great joy and a privilege to have helped continue the Court’s tradition of excellence—especially with four hard-working colleagues who are devoted to the law.” He further observed, "I am looking forward to being able to spend most of my time in legal research, deciding cases, and writing opinions." * * *

According to the Indiana Constitution, the seven-member Judicial Nominating Commission is tasked with selecting a Chief Justice for a five-year term. The Commission is chaired by Chief Justice Dickson and includes three attorneys elected by their peers and three citizens, two appointed by Governor Pence and one appointed by Governor Daniels.

The Commission plans to invite the other members of the current Court—Justices Robert Rucker, Steven David, Mark Massa and Loretta Rush—to meet with them on August 6 about the role of Chief Justice. The session will be open to the public and press. Afterward, the Commission will deliberate in an executive session. It will reconvene in public to announce its selection of the next Chief Justice.

Chief Justice Dickson expects to step down from his leadership role sometime before September 1. Since he will remain on the Court, the Commission will not need to fill a vacancy.

Posted by Marcia Oddi on Wednesday, June 11, 2014
Posted to Indiana Courts

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

For publication opinions today (3):

In In the Matter of the Petition for Temporary Protective Order: A.N. v. K.G., a 4-page opinion on a petition for rehearing, Judge Riley writes:

In the instant case, appellant-respondent, A.N. appealed the trial court’s order of contempt, asserting that the trial court improperly acted as advocate for the appellee-petitioner, K.G., thereby violating her due process right to a fair trial before an impartial tribunal. Affirming the trial court, we concluded that A.N.’s due process rights had not been violated. Additionally, in a footnote, we noted that A.N. had waived her challenge to the twenty-eight year extension of K.G.’s protective order because the record indicated that she had expressly agreed to “an extension of the protective order.” A.N. v. K.G., 3 N.E.3d 989 (Ind. Ct. App. 2014).

Now, A.N. petitions for rehearing, arguing that, while she had “no objection to the extension” of the protective order because of a new sentence she had incurred, she did not agree to the specific term imposed by the trial court. (Transcript p. 80). We grant A.N.’s petition for rehearing for the limited purpose to review the trial court’s decision to extend the protective order for twenty-eight years. * * *

Absent findings in the present case, we find that the twenty-eight year extension of the protective order is unreasonable. However, because A.N. agreed to an extension, we remand to the trial court to determine a reasonable extension of K.G.’s protective order in accordance with the instructions in this opinion.

In Jeffrey M. Miller and Cynthia S. Miller v. Central Indiana Community Foundation, Inc., and Brian Payne, a 33-page opinion, Judge Bradford writes:
From 1994 until his retirement in 2008, Appellant-Plaintiff Jeffrey Miller (“Miller”) was the president of Junior Achievement of Central Indiana (“JACI”). After his retirement, Miller acted as president of the Experiential Learning and Entrepreneurship Federation (“ELEF”), which is separate from but works with JACI. From approximately August of 2009 until late January or early February of 2010, Miller negotiated with the City of Indianapolis (the “City”) regarding a potential employment opportunity in the Mayor’s Office. Miller was subsequently notified that he would not be offered the negotiated position.

On March 31, 2010, Miller, along with his wife, Appellant-Plaintiff Cynthia Miller (“Cynthia”), filed suit against numerous parties, including Appellees-Defendants the Central Indiana Community Foundation, Inc. (“CICF”) and Brian Payne (“Payne”), whom they sued both individually and in his capacity as President and CEO of CICF, alleging, among other things, defamation and tortious interference with a business relationship. The instant appeal concerns only Miller’s and Cynthia’s (collectively “the Millers”) claims against CICF and Payne. CICF and Payne filed a motion for summary judgment. Following a hearing on CICF’s and Payne’s motion, the trial court granted summary judgment in favor of CICF and Payne. On appeal, the Millers contend that the trial court erred in granting summary judgment in favor of CICF and Payne. We affirm. * * *

In sum, we conclude that summary judgment was proper on each of Miller’s tort claims. Summary judgment was also proper on Miller’s civil conspiracy claim and Cynthia’s loss of consortium claim. Accordingly, we affirm the trial court’s award of summary judgment in favor of CICF and Payne.

In State of Indiana v. Brishen R. Vanderkolk , a 16-page split opinion, Sr. Judge Barteau writes:
Community corrections officers searched home detention participant Jordan Sullivan’s residence and found contraband in the bedroom of his roommate Brishen Vanderkolk. Upon being charged with several offenses, Vanderkolk filed a motion to suppress. Evidence at the hearing showed that Sullivan had signed a waiver of his Fourth Amendment rights before beginning home detention and that the officers searched his residence to ensure he was complying with the program. The officers did not testify as to any reports of suspicious activity. The trial court granted the motion to suppress.

Caselaw from the U.S. Supreme Court as well as our Indiana courts leads us to conclude that Sullivan did not completely waive his Fourth Amendment rights. Because the Fourth Amendment required reasonable suspicion for the search, we affirm the court’s grant of Vanderkolk’s suppression motion. * * *

Because the search was not supported by reasonable suspicion, we conclude that Vanderkolk’s Fourth Amendment rights were violated. * * *

We therefore affirm the suppression.

BAILEY, J., concurs in result with separate opinion.
KIRSCH, J., dissents without opinion.

NFP civil opinions today (2):

In Re the Paternity of C.B.: F.M. v. N.B. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of A.R. and K.R., Minor Children, and B.W., Mother, B.W. v. Indiana Department of Child Services, et al (NFP)

NFP criminal opinions today (1):

Ajayi Folajuwoni v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 11, 2014
Posted to Ind. App.Ct. Decisions

Tuesday, June 10, 2014

Environment - Still more on "No preemption for state statutes of repose"

Updating this post from earlier today, SCOTUSBlog now has a long opinion analysis by Robert Percival that concludes:

The case’s impact should be limited by the fact that only a handful of other states currently have statutes of repose. In these states, victims of exposure to toxics that cause harm with long latency periods will not be able to sue those responsible for their injuries because they are unlikely to discover their harm until after the statute of repose has run. The federal government, which supported CTS in seeking dismissal of the lawsuit, is now likely to avoid liability for allegedly exposing marines and their families to contaminated drinking water at Camp Lejeune, North Carolina.

The decision continues a trend in which the Court has interpreted CERCLA far more narrowly than the lower courts, which frequently have emphasized the broad, remedial purposes of the statute. The majority almost dismissively notes that “almost every statute might be described as remedial in the sense that all statutes are designed to remedy some problem.” Environmentalists may take some small consolation in the fact that Justice Breyer joined Justice Ginsburg in dissent. Five years ago when the Court last interpreted CERCLA narrowly, Justice Ginsburg was the lone dissenter.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Environment

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

In Eric Grandberry v. Sup., Plainfield Corr. Facility (SD Ind., Lawrence), a 6-page opinion, Judge Easterbrook writes:

While Eric Grandberry was the head inmate law clerk at Indiana’s Putnamville Correc-tional Facility, he used computers to download legal materials for other prisoners. He also assisted the prison’s employ-ees. The prison’s librarian asked him to obtain and fill out a petition to stop child support, and another member of the library’s staff asked him to obtain and fill out forms that her daughter could use to apply for a divorce. Grandberry ful-filled these requests.

In April 2011 the prison sent the library’s computers to the Indiana State Police Crime Lab for analysis. Data recov-ered from the hard drives showed what Grandberry had done. He was moved to solitary confinement and charged with administrative offense 207, “Possession of Electronic Device.” This designates as an infraction the “[u]nauthorized alteration, use or possession of any electronic device … . (This offense includes accessing computers, software, the In-ternet, a facility LAN, etc. or using such in a manner not au-thorized by the Department of Correction … .)” A discipli-nary officer revoked 30 days of his good-time credits.

Grandberry sought federal review under 28 U.S.C. §2254. After the district court denied the petition, a panel of this court concluded that he did not need a certificate of appeal-ability. Grandberry v. Keever, 735 F.3d 616 (7th Cir. 2013). Alt-hough every other court of appeals that has considered the subject would require a certificate in a case arising from the revocation of good-time credits, see Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (collecting authority), the panel declined Indiana’s request to overrule Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000). The appeal was then briefed and argued on the merits.

Grandberry contends with some force that the prison did not use all constitutionally required procedures. See Wolff v. McDonnell, 418 U.S. 539 (1974). He also contends that the charge against him is not supported by evidence—and as that argument, if accepted, would prevent the prison from holding a second hearing, we start there. We end there too, because the record does not contain evidence that Grandber-ry used the library’s computers without authorization. Superintendent of Walpole v. Hill, 472 U.S. 445 (1985), holds that the Constitution allows a state to revoke good-time credits only when “some evidence” supports the decision. That’s not a high standard: the Court observed that it entails less than the “substantial evidence” standard commonly used in adminis-trative law, and materially less than the “beyond a reasona-ble doubt” standard used in criminal proceedings. But there must be some evidence; here there is none.

True, Grandberry downloaded forms related to child support and divorce, even though these were outside his remit as assistant to prisoners who needed support with problems arising from their custody. But the offense of which he was accused entails the “unauthorized” use of a computer, including “accessing … the Internet … in a man-ner not authorized by the Department of Correction”. Indi-ana concedes that employees of the prison directed Grand-berry to do exactly what he did. His conduct therefore was authorized.* * *

Indiana maintains that Grandberry failed to alert the dis-trict court adequately to his argument that he acted with of-ficial authorization. Perhaps so, but the state bears the prin-cipal responsibility. It refused to provide Grandberry with the full investigative report, so he could not be sure exactly what he supposedly did wrong. The prison’s hearing officer stated that he found the report persuasive but did not so much as hint at its contents, leaving Grandberry in the dark when asking the district court for relief. Not until this case reached the court of appeals, and we appointed counsel to assist Grandberry, did the state disclose the full report—and then only to counsel. (Grandberry now has a redacted ver-sion, which is more than he was armed with in the district court.) Counsel’s appellate arguments on Grandberry’s be-half are more complete and focused than his pro se argu-ments in the district court, but he made a comprehensible due process argument and is entitled to elaborate on appeal. Cf. Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 379 (1995); United States v. Billups, 536 F.3d 574, 578 (7th Cir. 2008).

The judgment is reversed, and the case is remanded with instructions to issue a writ of habeas corpus restoring Grandberry’s good-time credits.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court decides one today

In Shannon Robinson and Bryan Robinson v. Erie Insurance Exchange, a 6-page opinion, Chief Justice Dickson writes:

This appeal challenges a grant of summary judgment in favor of an insurance company on the issue of whether its automobile policy provided uninsured motorists coverage for automo-bile property damage caused by a hit-and-run driver where no personal injury resulted. We affirm. * * *

Under the undisputed facts of the present case, neither the first nor the second category that may constitute an "uninsured motor vehicle" under the Erie policy encompasses the hit-and-run Jeep that struck the Robinsons' vehicle. In the context of a hit-and-run driver causing an accident, the availability of uninsured motorists coverage (which depends on whether the other vehicle fits one of the three Erie policy meanings for "uninsured motor vehicle") is solely determined by the third meaning, which expressly includes a "hit-and-run motor vehicle" whose driver and owner are unknown, but only if the other vehicle causes bodily injury to the insured. These provisions are not ambiguous and do not require the application of rules of construction. Because personal injury did not result to Bryan Robinson in the accident, the Erie policy does not provide uninsured motorists coverage with respect to the property damage sustained by the Robinsons' vehicle. The trial court was correct to grant Erie's motion for summary judgment.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Ind. Sup.Ct. Decisions

Law - One new law school earns full ABA accreditation

From a story by Karen Sloan, The National Law Journal, some quotes:

The American Bar Association has granted full accreditation to the University of California, Irvine School of Law at the earliest possible opportunity—five years after the school opened its doors in 2009. It gained provisional accreditation in 2011.

“From the outset, our goal has been to build a top law school that emphasizes preparing students for the practice of law at the highest levels of the profession,” dean Erwin Chemerinsky said. “I am very proud that the decision by the ABA is at the earliest possible time under the ABA rules.” * * *

Considerable criticism greeted initial plans to build a new law school in California when the Irvine project was announced. Did a state so loaded with law schools (it now is home to 21 accredited by the ABA) need another one?

Chemerinsky has argued that Irvine would offer something different in its emphasis on both public service and real-world training. For example, each student must complete a live-client clinic, and 1Ls perform client-intake interviews at legal aid and public defender offices.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to General Law Related

Environment - More on the new carbon limits

Updating earlier ILB entries from June 5th and June 6th, the NYT had a long story June 6th headed "In Some States, Emissions Cuts Defy Skeptics," that includes:

The cries of protest have been fierce, warning that President Obama’s plan to cut greenhouse gases from power plants will bring soaring electricity bills and even plunge the nation into blackouts. By the time the administration is finished, one prominent critic said, “millions of Americans will be freezing in the dark.”

Yet cuts on the scale Mr. Obama is calling for — a 30 percent reduction in emissions from the nation’s electricity industry by 2030 — have already been accomplished in parts of the country.

At least 10 states cut their emissions by that amount or more between 2005 and 2012, and several other states were well on their way, almost two decades before Mr. Obama’s clock for the nation runs out.

That does not mean these states are off the hook under the Obama plan unveiled this week — they will probably be expected to cut more to help achieve the overall national goal — but their strides so far have not brought economic ruin. In New England, a region that has made some of the biggest cuts in emissions, residential electricity bills fell 7 percent from 2005 to 2012, adjusted for inflation. And economic growth in the region ran slightly ahead of the national average.

The Hill had a long June 8th story by Laura Barron-Lopez that reported:
The administration is giving states broad flexibility on how they meet Environmental Protection Agency targets for existing power plants to reduce their carbon emissions 30 percent from 2005 levels by 2030.

Under the rules, states may take actions to reduce pollution that aren’t directly related to power plant emissions. A state could avoid retiring a power plant by investing in cleaner technology, push energy efficiency programs that will cut demand, or invest in wind and solar, according to the EPA.

That latitude marks an unprecedented move by the agency, which typically specifies methods of reducing emissions solely for power plants. * * *

Legal observers, though, aren’t sure the EPA’s maneuver will pass muster in the courts.

Under the Clean Air Act, the EPA has the power to mandate states apply "the best system of emissions reductions," to existing power plants.

Critics say the EPA is now using a definition of “best system” that is too broad. Traditionally, the agency used “best system” to refer to specific technologies or practices to reduce pollution from plants.

Now the EPA is defining “best system” to include other flexible options states can use, including cleaner, renewable energy sources to meet the agency’s reduction targets.

A top agency official said the EPA is not bending the Clean Air Act, it is simply changing the pollutant it applies to it, and looking beyond carbon technology for ways to reduce power sector emissions.

The EPA official acknowledged that it was a completely new approach, but said the agency considered the legal implications surrounding it before proposing the rule. The official said EPA wouldn’t have issued the rule if they didn’t think it would be upheld.

A June 7th NYT story by Trip Gabriel is headed "Though Not Quietly, Kentucky Moves to Cut Reliance on Coal." Some quotes:
Here in coal country, the reaction from politicians and the coal industry to President Obama’s climate plan has been swift and close to apocalyptic.

Senator Mitch McConnell of Kentucky, the Republican minority leader, called the proposed rule “a dagger in the heart of the American middle class.” His Democratic opponent in a fierce Senate race this year, Alison Lundergan Grimes, matched his outrage, accusing the president of “targeting Kentucky coal with pie-in-the-sky regulations that are impossible to achieve.”

But beyond the campaign rhetoric, even here in Kentucky, which ranks No. 1 in the nation in carbon emissions per unit of electricity produced from all sources, others more quietly are saying that doom may not be at hand. In drafting its regulation, the Environmental Protection Agency listened to energy-rich states like Kentucky and offered wide flexibility to meet its requirement, the most aggressive federal effort yet to address climate change. Despite cries of a “war on coal” that echo through mining country in eastern Kentucky, the region is already taking hardheaded steps toward a post-coal economy.

John Lyons, Kentucky’s assistant secretary for climate policy, is cautiously optimistic that the carbon limits will not raise electric prices sharply enough to drive out manufacturers, who set up in the state for rates that are among the lowest in the country.

“I think our electric prices are going to go up, regardless of what’s done with this rule,” he said.

Representative John Yarmuth, a Democrat from Louisville, said Kentucky had already been moving toward a future less reliant on coal because of competition from cheaper, cleaner natural gas.

“If you add all the numbers up, we can probably comply with the terms of the rule with very little impact, if any, because everybody’s heading in that direction to begin with,” he said. “Anybody who’s actually looked at the subject understands coal is going to play a dramatically reduced role in our nation’s energy portfolio.”

In drafting its regulation, the E.P.A. endorsed a 23-page “white paper” that Kentucky’s energy department sent last year asking that states be given wide flexibility in reducing carbon. Rather than regulate emissions from every smokestack, the E.P.A. is giving states an overall target to meet — in Kentucky’s case, a reduction of 18 percent of carbon pollution by 2030. The target is lower than for many states, taking into account Kentucky’s heavy coal habit, which accounts for 93 percent of its electricity.

The state has great flexibility in devising a plan to reach the goal. It can include switching plants from coal to natural gas, developing renewable energy like solar, and encouraging the use of efficient home appliances and insulation to reduce demand. And none of it will happen immediately: Any shutdowns are years away, as the E.P.A.’s proposal faces a political and legal onslaught.

But it is clear that if the plan goes into effect, there will be short-term disruptions, including to local economies tied to individual coal plants that might close, and in mining regions like eastern Kentucky, where the number of coal jobs is already at a historic low. The E.P.A. estimated that coal production in central Appalachia would fall by up to 37 percent as a result of its proposal.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Environment

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Lora Hoagland v. Franklin Township Community School Corporation, a 16-page opinion, Chief Judge Vaidik writes:

Indiana’s public schools lost hundreds of millions of dollars when new property-tax caps went into effect in 2010. Franklin Township Community School Corporation (“Franklin Township”)—one of a number of school corporations hit hardest by the new property-tax caps—responded by eliminating student transportation for the 2011-2012 school year. Franklin Township later contracted with an educational service center to provide student transportation for an annual fee. In November 2011 township parents filed a class-action lawsuit against the school corporation, challenging the constitutionality of its actions.

Though this case raises a number of legal questions, one is of primary importance: did Franklin Township act unconstitutionally with respect to student transportation? Applying our Supreme Court’s reasoning in Nagy v. Evansville-Vanderburgh School Corp., 844 N.E.2d 481 (Ind. 2006), we conclude that it did. We affirm in part and reverse in part. * * *

In summary, we affirm in part and reverse in part. We affirm the trial court’s conclusion that Hoagland is not entitled to legal relief, as there is no right of action for monetary damages under the Indiana Constitution. However, we conclude that the ITCA does not apply to Hoagland’s state constitutional claim, and we reverse the trial court on that ground. We also conclude that Franklin Township acted unconstitutionally by discontinuing student transportation to and from school and by later contracting with CIESC to provide that transportation for a yearly fee, and Hoagland is entitled to declaratory judgment to that effect. We therefore reverse the trial court’s denial of declaratory judgment and remand to the trial court with instructions to enter a declaratory judgment consistent with this opinion.

In West Bend Mutual Insurance Company and K.B. Electric, LLC v. MacDougal Pierce Construction, Inc., Amerisure Insurance Company, et al., a 26-page opinion, Judge Kirsch concludes:
We conclude that the trial court correctly granted summary judgment in favor of Amerisure and MacDougall. The parties’ rights and liabilities to each other were outlined contractually by the terms of indemnification. Once that determination was made, then the insurance coverage issues could be resolved. Thus, the trial court’s decision on indemnification was not premature, but in fact, necessary to prevent the hazards of circular litigation. The Subcontract explicitly referred to the Prime Contract and other documents, incorporating their terms into the Subcontract. That K.B. Electric obtained umbrella coverage from West Bend further evinces the understanding that K.B. Electric was required to do just that. Therefore, the trial court’s judgment was correct in all respects.
NFP civil opinions today (1):

Michael A. Riley v. Oscar and Linda Sandlin (NFP)

NFP criminal opinions today (6):

Kevin M. Barber v. State of Indiana (NFP)

Latoya C. Lee v. State of Indiana (NFP)

Robert F. Petty v. State of Indiana (NFP)

Ted Mueller, Jr. v. State of Indiana (NFP)

Dwayne Anderson v. State of Indiana (NFP)

Brandon Kincheloe v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Ind. App.Ct. Decisions

Law - "U.S. law firms flock to gay-marriage proponents, shun other side"

Joan Biskupic has this story in Reuters. (h/t How Appealing)

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to General Law Related

Law - A cautionary tale about doing your own divorce

Ann Carrns begins the "Your Money" column in the June 6, 2014 NY Times:

MARISSA YORK, a real estate broker in Manhattan, used a $50 online do-it-yourself divorce kit when she and her husband of more than nine years decided to part ways. Their breakup was relatively amicable, she said, so she figured they could save money by avoiding lawyers. “We didn’t want to drag it out over months or years,” she said.

But after the courthouse clerk rejected her filing because the document formatting was incorrect, she had the paperwork reviewed by a lawyer, who informed her that if she waited six more months to file, she would be entitled to a portion of her husband’s pension benefits. She ended up paying about $10,000 in legal fees, which was worth it because she received part of the pension, she said. “If I had to do it over, I would hire an attorney immediately,” she said.

More from the column:
In California, roughly three-fourths of family law litigants lack lawyers, said Maureen F. Hallahan, supervising judge in the family law division at San Diego Superior Court. Typically, people file initial divorce paperwork on their own, but they don’t know what to do next, so their file languishes for months. Budget cuts in the state courts reduced available personnel and made the problem worse.

So now some courts in California offer one-day divorce programs for people who either can’t afford or don’t want to hire a lawyer. “The reality is, people are going to do it without lawyers, and we had to accommodate that,” said Judge Hallahan.

The program doesn’t mean a divorce is truly started and completed in a single day — residency and notification requirements have to be met first. You must, for example, already have filed a divorce petition and served your spouse with divorce papers to participate.

But the program does allow you to wrap things up in a single day, or even a matter of hours, once you meet the initial criteria. “This is designed to help people get through the system,” said Judge Hallahan. * * *

Such abbreviated options work best when there is no dispute over custody of children or division of property and no request for financial support, said Ann-Margaret Carrozza, a lawyer in New York who specializes in asset protection.

Maria P. Cognetti, president of the American Academy of Matrimonial Lawyers, noted that many courts already offered self-help clinics to teach divorcing couples how to navigate the legal system. She strongly cautioned couples with any significant assets to avoid one-day programs, since both parties may benefit from legal advice. If either spouse has any assets, “you should be booted out of the one-day divorce scenario,” she said.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to General Law Related

Ind. Courts - "Mandate threat shakes loose new money for local judges"

That is the headline to this June 5th NWI Times story by Bill Dolan. Some quotes:

CROWN POINT | Lake County's fiscal officials are cutting a $300,000 bargain with Lake Superior judges to avoid being dragged into court and being charged even more.

The County Council said Thursday it intends to give the judges authority to spend that money to give some of their employees one-time bonuses, to hire part-time employees and to buy computer software.

They will officially vote on the appropriations at Tuesday's meeting.

Council President Ted Bilski, D-Hobart, said the judges first asked last year for raises for court employees whose pay has been frozen the past six year as well as other money to help run their 17 courts.

However, council members said they couldn't find that money when they were making their 2014 budget. Bilski said the judges threatened to mandate the appropriations if they didn't find it.

Indiana's judiciary has the power to force fiscal officials to support court operations financially through the mandate process where an independent judge rules whether the demands are appropriate.

Councilman David Hamm, D-Hammond, said the judges were demanding a much higher amount than the $300,000 settled on during recent closed-door meetings between council members and the judges.

Council documents indicate supplemental pay will be one-time stipends of more than $1,000 per employee for this year.

"It's a first step to avoid a mandate. We will sit down with the judges later this year to discuss pay raises in 2015," Bilski said.

Hamm said the money is coming from excess user fees charged to attorneys who file and access documents on the court's online system. He said no property taxes are involved in the appropriation.

"And the judges themselves are not getting a nickle of this," Hamm said.

The ILB finds the highlighted sentence to be a matter of concern - excess user fees for access to public documents being used to fund court costs.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Indiana Courts

Ind. Gov't. - "Pro-adoption pledge needs cash backing"

Updating this ILB post from June 3rd, which includes a copy of the complaint, the Fort Wayne Journal Gazette had a related editorial June 8th; here are some quotes:

Gov. Mike Pence used his most recent State of the State address to call for Indiana to become “the most pro-adoption state in America.”

It’s a tall task: Adoptions here declined by 35 percent between 2011 and 2013. The 1,033 adoptions last year were the fewest finalized since 2005.

Why the decline? Look to a class-action lawsuit filed last week alleging the Department of Child Services reneged on its contract to pay adoption subsidies to more than 1,400 families adopting from foster care. According to the lawsuit, the subsidies went unpaid even as DCS returned more than $238 million from its budget to the general fund and ballooning surplus.

Incredibly, the state’s failure to pay the subsidy has cost as much as $235,000 more per child because the foster care maintenance payments DCS is legally obligated to pay are higher than the modest adoption subsidy payments, according to the lawsuit.

“The state’s failure to pay adoption subsidy payment DCS promised to pay in a contract puts children and their caretakers at a considerable disadvantage,” said Lynn Toops of Cohen & Malad LLP, one of the law firms representing the class-action plaintiffs. “Our lawsuit aims to make DCS follow through with its promises to these children and families.”

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Indiana Government

Environment - More on "No preemption for state statutes of repose"

Updating this ILB post from yesterday on the SCOTUS decision in CTS Corp. v. Waldburger, Jeremy P. Jacobs, E&E News, has good coverage titled "Supreme Court rules for industry in fight over contaminated groundwater." Some quotes:

The Supreme Court today ruled against a group of North Carolina landowners in their quest to force a local polluter to clean up groundwater contamination, saying they took too long to file their case.

In a 7-2 decision, the justices reversed a federal appeals court ruling that said the Asheville residents' case against CTS Corp. could go forward.

The case hinged on the difference between two state legal provisions and whether the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, which created U.S. EPA's Superfund program, pre-empts them both.

In an effort to protect those injured by contamination causing latent illnesses like cancer, CERCLA overrules state statutes of limitation, which set a time limit for filing a lawsuit beginning when the injured party discovers the offense.

At issue in CTS Corp. v. Waldburger was whether the same language also pre-empts state statutes of repose, which say an individual only has a certain amount of time to file from when the defendant in the case last acted. North Carolina's statute of repose is 10 years.

In a 17-page opinion, Justice Anthony Kennedy wrote that it does not, largely because CERCLA did not expressly use the term "statute of repose." * * *

CTS, of Elkhart, Ind., operated an electronic components factory in southern Asheville from 1959 to 1986. Part of its manufacturing process included trichloroethylene, or TCE, a common industrial solvent and human carcinogen. * * *

CTS sought to dismiss the case using the statute of repose, claiming its last "act" was selling the property in 1987. A lower court agreed, but the Richmond, Va.-based 4th U.S. Circuit Court of Appeals reversed that ruling, calling for a more liberal reading of "statutes of limitations" that would include statutes of repose. * * *

The ruling has a limited reach because only four states -- North Carolina, Oregon, Kansas and Connecticut -- have statutes of repose.

However, the case did garner the attention of the Obama administration, which intervened on behalf of CTS. The administration's "substantial interest" in the case is similar litigation surrounding groundwater contamination at Marine Corps Base Camp Lejeune.

Thousands of Marines and their families used water at the Jacksonville, N.C., base laced with toxic chemicals from 1957 to 1987. Some experts consider it the largest water contamination event in U.S. history and there have been a significant number of male breast cancer cases, as well as childhood leukemia diagnoses among veterans and their families who spent time at the base.

About a dozen lawsuits have been filed against the Department of Defense seeking damages from the contamination.

Those cases have been put on hold, but today's ruling may help the government seek a dismissal using North Carolina's statute of repose.

Justice Ruth Bader Ginsburg dissented, writing that CERCLA was intended to protect landowners from long-standing environmental harm.

There is much more in the story.

The ILB recalls this April 24, 2014 post, including this quote from a story in USA Today:

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

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

Also, the ILB is surprised to read that only four states, North Carolina, Oregon, Kansas and Connecticut, have statutes of repose ...

See also this $$$ story form the WSJ.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Environment

Ind. Decisions - "7th Circuit holds do-over after secret hearing was recorded but public argument wasn’t"

The ILB has had a number of posts on the way the Indiana appellate courts correct errors in their opinions, including this one from July 12,2013, headed "Current process for dealing with corrected appellate opinions poses perils." The most recent is this one from June 5th, applauding the way a recent correction of a Supreme Court opinion was accomplished. Also of great interest was this one from May 25, 2014, about our nation's highest court: "Final Word on U.S. Law Isn’t: SCOTUS Keeps Editing."

Several times the ILB has held up the 7th Circuit procedures as a model; that Court posts the correction sheet just as it does the initial opinion. Here is an example from the paintball case.

Now it appears that this emphasis to transparency extends to the recording of oral argument. Yesterday Martha Neil of the ABA Journal reported:

News last week of an unusual closed-door federal appeals court argument Wednesday from which even defense counsel was excluded on was quickly followed by news of another rare occurrence the same day in the same case: The public portion of the argument wasn't recorded.

Then on Friday, another unexpected development occurred: The Chicago-based 7th U.S. Circuit Court of Appeals announced that it would hold a do-over on Monday of public oral arguments in the Adel Daoud terrorism case, the Chicago Tribune reports. It is believed to be the first time this has ever occurred in the 7th Circuit.

Although a stenographer with the required security clearance was present to record what was said in the closed portion of the Wednesday appellate arguments, court employees wrongly assumed they weren't supposed to record what was said in public arguments before a "secret hearing" was announced by Judge Richard Posner, the Chicago Tribune reports.

"We screwed up, and there is no excuse," circuit clerk Gino Agnello told the newspaper, explaining that watching a Department of Justice team sweep the courtroom beforehand had been "intimidating" to the employees responsible for the courtroom recording equipment in the case. It is the only hearing he knows of in which oral arguments were not recorded.

Defense lawyer Thomas Anthony Durkin not only wasn't allowed to attend the government's secret session Wednesday before a three-judge panel after the courtroom was cleared but wasn't notified in advance and wasn't allowed to object, he complained afterward to the Chicago Tribune.

Veteran appellate lawyer Joel Bertocchi, told the newspaper this is the only time he knows of that the 7th Circuit has held a closed-session oral argument with only one side present.

Durkin told the Tribune he was astounded to learn no record was made of the public argument and noted that he himself had had to refile briefs in the case due to technical violations of pleading rules. "For a court that makes you cross every 't' and dot every 'i' and count every word of every filing, I would have expected more," he said.

Here is the June 6th Chicago Tribune story by Jason Meisner. It begins:
In an unprecedented mulligan, the federal appeals court in Chicago decided to redo oral arguments in a local terrorism case after it was revealed earlier this week that court personnel failed to record the initial hearing.

The 7th U.S. Circuit Court of Appeals made the surprise announcement on Friday, one day after the court clerk made headlines by acknowledging his staff had “screwed up” in not recording the audio of historic arguments over whether attorneys for Adel Daoud should be allowed to view confidential surveillance documents filed in the case.

The order noted that the step was not legally necessary but that the court took the unusual action because “the inadvertent failure to record the argument occurred in a high-profile case involving very serious charges.”

It was believed that the replay -- scheduled for Monday -- would mark the first time that the 7th Circuit twice held oral arguments for the same case.

Posted by Marcia Oddi on Tuesday, June 10, 2014
Posted to Indiana Decisions

Monday, June 09, 2014

Ind. Courts - More on: First word from 7th Circuit on same sex marriage coming?

That does look to be the case. Chris Geidner of BuzzFeed has a long, constantly updated post, that takes us through today's action, starting with the Wisconsin AG asking the 7th Circuit for an immediate stay; the district judge saying she did not issue an injunction, but a declaratory judgment, so a stay is not appropriate, but neither are same-sex marriages during this period; and now the 7th Circuit has spoken, ordering:

... that the parties shall file, by 5 p.m. on Wednesday, June 11, simultaneous memoranda addressing whether this court has jurisdiction over the appeal.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Indiana Courts

Ind. Decisions - "Blogger Wants Ind. Supreme Court To Reconsider His Case, With One Less Justice"

Mike Perleberg of Eagle County Online has a story this afternoon reporting that Dan Brewington has filed a motion for a rehearing with the Supreme Court. Some quotes:

(Indianapolis, Ind.) – An internet blogger who served more than two years in prison after his conviction for intimidating a Dearborn County judge is trying to get his case before the Indiana Supreme Court for a second time.

Last month, the state Supreme Court unanimously ruled to uphold Brewington’s 2011 jury trial convictions for Intimidation of a Judge and Obstruction of Justice. Brewington had blogged extensively about the handling of his divorce and child custody case by Dearborn Circuit Court Judge James D. Humphrey and a doctor asked to perform the custody evaluation. Prosecutors said – and justices have unanimously agreed – that the posts went beyond protected free speech and crossed into threats.

“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,” Justice Loretta H. Rush wrote in the May 1 opinion for Brewington v. State of Indiana.

In a 36-page pro se request filed with the Indiana Supreme Court last week, Brewington asks that Rush be disqualified from hearing the case, citing a personal experience she had. Brewington had not raised the issue prior to the Supreme Court ruling.

Here is a copy of the 18-page petition for rehearing and the 36-page motion for disqualification of Justice Rush, both as posted by Mr. Brewington. In his blog entry today, Mr. Brewington writes:
Justice Loretta H. Rush and the Indiana Supreme Court have wandered into dangerous constitutional and ethical waters in their recent ruling in Brewington v State. I have addressed some of the major points in the opinion, authored by Justice Rush, in my Petition for Rehearing and my Motion for Judicial Disqualification, both filed with the Supreme Court last week. I decided to write and file the briefs on my own because no lawyer could obtain a knowledge of the two thousand pages of trial records necessary to refute the findings of Justice Rush. It was a conscience decision to fill the Petition for Rehearing with fact and commonsense arguments rather than waste case law on a Court that would go so far as to manipulate the jury’s findings on my perjury conviction to help bolster the Supreme Court’s case against me.
Notice that Mr. Brewington says his pro se documents were filed last week. But the most recent entries in the docket for the case show only that on May 23rd his two attorneys had filed a motion to withdraw their appearance, and on June 4th the motion is shown as granted. There currently is no indication in the docket that Mr. Brewington's documents have been received/accepted by the Clerk's office.

Appellate Rule 25 deals with computation of time; Rule 54(B) with time for filing a petition for rehearing:

B. Time for Filing Petition. A Petition for Rehearing shall be filed no later than thirty (30) days after the decision. Rule 25(C), which grants a three-day extension of time for service by mail or third-party commercial carrier, does not extend the due date, and no extension of time shall be granted.
The Indiana Supreme Court issued its opinion on May 1, which means Mr. Brewington's petition for rehearing was due last Monday, June 2.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Adoption of H.S. and D.S., R.S. v. V.C. and M.C. and D.S. and S.S. (NFP)

In the Matter of Commitment of E.L., E.L. v. Indiana University Health- Bloomington Hospital and Terri Klingelhoefer, MA, LSW (NFP)

NFP criminal opinions today (4):

Michael Dustin Moore v. State of Indiana (NFP)

Jarod G. Allred v. State of Indiana (NFP)

Nathaniel Baston v. State of Indiana (NFP)

Bageera Taylor, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one today, dated June 6th

In Housing Partnerships, Inc. v. Tom Owens, Bartholomew County Assessor, a 12-page opinion, Judge Wentworth writes:

This case asks the Court to determine whether the Indiana Board of Tax Review erred when it held that for the 2006 tax year, Housing Partnerships, Inc. failed to show that its rental properties qualified for the charitable purposes exemption provided in Indiana Code § 6-1.1-10-16. The Court affirms the Indiana Board’s holding.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Ind. Tax Ct. Decisions

Environment - "No preemption for state statutes of repose"

Amy Howe of SCOTUSBlog writes on today's opinion in a post that begins:

In CTS Corp. v. Waldburger, the Court held that North Carolina’s statute of repose is not preempted by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) – commonly known as the Superfund law – which instead only preempts state statutes of limitations on bringing state law environmental tort cases.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Environment

Ind. Gov't. - "Piper Kerman On Her Story That Inspired The Netflix Series 'Orange Is The New Black'"

The Diane Rehm show, WAMU 88.5 in Washington DC., today had an hour interview with Piper Kerman author, "Orange Is The New Black". From the intro:

Piper Kerman was 24 and a new graduate of Smith College when she smuggled a suitcase of drug money across international borders. A decade later, that day came back to haunt her, tearing her away from a privileged life and landing her in a Connecticut prison. Kerman’s memoir “Orange Is The New Black: My Year In A Women’s Prison” documented her 13 months behind bars and became the basis for the popular Netflix series. The second season was released this past Friday. Drawing from her own experience, Kerman now dedicates much of her time to advocating for prison reform and awareness about female incarceration. Piper Kerman joins Diane in studio.
One of the topics is abuse of women in prison. For background, see the ILB posts headed "Pence: Indiana won’t comply with prison rape law."

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Indiana Government

Ind. Courts - First word from 7th Circuit on same sex marriage coming?

Updating this post from this morning, we may soon hear the first word from the 7th Circuit on same-sex marriage:

Same-sex marriage is permitted by law in Illinois.

Indiana Attorney General Zoeller, according to this May 9th post quoting the AP's Charles Wilson:

... filed a formal notice of appeal following U.S. District Judge Richard Young's ruling [requiring Indiana to recognize the out-of-state marriage of a lesbian couple in which one woman is terminally ill]. 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.
Re Wisconsin, Chris Geidner of BuzzFeed is now reporting "Wisconsin Officials Ask Federal Appeals Court To Stop Same-Sex Marriages Immediately: Wisconsin Attorney General J.B. Van Hollen asks 7th Circuit to 'enter an order immediately staying' part of Friday’s marriage ruling."

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Indiana Courts

Ind. Courts - Indiana Supreme Court Arguments Are Being Set in September

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

The Indiana Supreme Court has filled its oral argument calendar through June and is now setting cases for argument in September. (As in prior years, it appears the justices will not hear arguments in July and August.)

Since this March 3 post, which analyzed oral arguments scheduled through April of this year, 29 new cases have been scheduled for oral argument.

THU, SEP 25, 2014 at 9:00 AM State of Indiana v. Michael Cunningham FP Pending
THU, SEP 18, 2014 at 9:45 AM Rodregus Morgan v. State of Indiana FP Granted
THU, SEP 18, 2014 at 9:00 AM Jason Young v. Hood's Gardens, Inc. FP Granted
THU, SEP 4, 2014 at 10:30 AM Shawn Blount v. State of Indiana FP Granted
THU, SEP 4, 2014 at 9:45 AM Ruben Rosales v. State of Indiana FP Granted
THU, SEP 4, 2014 at 9:00 AM Gregory Zoeller, et al. v. James Sweeney, et al. Direct Appeal (unconst statute)
THU, JUN 26, 2014 at 10:30 AM Scott F. Logan v. State of Indiana NFP Granted
THU, JUN 26, 2014 at 9:45 AM Jonathan D. Carpenter v. State of Indiana FP Granted
THU, JUN 26, 2014 at 9:00 AM Charles R. Stephenson v. State of Indiana Direct Appeal (LWOP)
TUE, JUN 17, 2014 at 9:45 AM Joseph Buelna v. State of Indiana NFP Granted
TUE, JUN 17, 2014 at 9:00 AM Wellpoint, Inc., et al v. National Fire Insurance, et al NFP Granted
THU, JUN 12, 2014 at 10:30 AM Jeffrey A. Cleary v. State of Indiana FP Granted
THU, JUN 12, 2014 at 9:45 AM Barbara Pohl v. Michael Pohl FP Granted
THU, JUN 12, 2014 at 9:00 AM Indiana Patient's Compensation Fund v. Judy Holcomb FP Granted
THU, MAY 29, 2014 at 10:30 AM Kevin Charles Isom v. State of Indiana Direct Appeal (death penalty)
THU, MAY 29, 2014 at 9:45 AM Old National Bankcorp v. Hanover College FP Granted
THU, MAY 29, 2014 at 9:00 AM State of Indiana v. Molly Gray FP Granted
THU, MAY 22, 2014 at 10:30 AM State of Indiana v. Frank Greene FP Granted
THU, MAY 22, 2014 at 9:45 AM Twin Lakes Regional Sewer District v. Richard C. Ray, et al. 56(A) -
THU, MAY 22, 2014 at 9:00 AM Indiana State Ethics Commission v. Patricia Sanchez FP Granted
THU, MAY 15, 2014 at 10:30 AM Frank Jacobs v. State of Indiana FP Granted
THU, MAY 15, 2014 at 9:45 AM Tin Thang v. State of Indiana FP Granted
THU, MAY 15, 2014 at 9:00 AM TP Orthodontics, Inc. v. Andrew Kesling, et al. FP Pending
THU, MAY 8, 2014 at 9:45 AM John Luttrell v. Melinda Luttrell FP Pending
THU, MAY 8, 2014 at 9:00 AM Evansville Courier and Press, et al v. Vanderburgh County Health FP Granted
THU, MAY 1, 2014 at 10:30 AM Jerry A. Smith v. State of Indiana FP Pending
THU, MAY 1, 2014 at 9:45 AM Natural Resources Defense Council v. Poet Biorefining, et al FP Pending
THU, MAY 1, 2014 at 9:00 AM First American Title Insurance Company v. Stephen Robertson, et al. FP Granted
THU, APR 24, 2014 at 10:30 AM Seth A. Miller v. State of Indiana FP Pending

Four of these cases are direct appeals to the supreme court. The supreme court has jurisdiction to hear death penalty, life without parole, and cases in which a statute has been declared unconstitutional. In addition, the court occasionally grants emergency transfer under Appellate Rule 56(A), allowing parties to bypass the court of appeals and have their appeal decided by the supreme court instead.

Of the remaining 25 cases before the supreme court on petitions to transfer:

31% of cases decided this year not scheduled for oral argument

So far this year the Indiana Supreme Court has issued opinions in 14 cases without scheduling oral argument. The cases from the first quarter are discussed in this April 11 post about criminal cases and this April 28 post about civil cases.

Since April 1, the Indiana Supreme Court has decided 40% (4/10) of its criminal cases without hearing oral argument.

The court also decided 20% (2/10) of its civil cases without argument. Combining these cases with the ones issued in the first quarter, the court decided 32% (6/19) of criminal cases and 31% (8/26) of civil cases without hearing oral argument.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Schumm - Commentary

Law - "How GM’s legal department failed the company and its customers"

That is the heading of a long article June 5th in Reuters by Alison Frankel that concludes:

I imagine that any lawyer who defends consumer products — whether inside a corporation or outside — will read Valukas’s report and wonder whether they would have behaved as GM’s lawyers did. Perhaps the next time any of them start to tell themselves that they’ve done enough to address safety, they’ll think again.
The article links to the 276-page May 29, 2014 document titled "The results of an investigation overseen by Anton R. Valukas, a former United States attorney, into the company’s handling of a defective ignition switch," posted by the NY Times.

Gretchen Morgenson wrote yesterday, June 8th, in the Sunday NY Times on the problems at G.M, under the heading "A Vow to End Hollow Nods and Salutes." A sample:

The report, which was the result of an investigation by Anton R. Valukas, a partner at Jenner & Block, says G.M. officials showed a “pattern of incompetence” that led to inaction on the defects, Ms. Barra said.

That’s the mild version. The report exposes a mind-set throughout the company that was so self-absorbed, so bent on self-preservation and self-protection that it routinely put its customers last.

The issue of the Cobalt ignition switch “passed through an astonishing number of committees,” the report states. “We repeatedly heard from witnesses that they flagged the issue, proposed a solution, and the solution died in a committee or with some other ad hoc group exploring the issue.”

That’s troubling enough. But the report also concludes that it was impossible to determine the “identity of any actual decision-maker” involved in these discussions. Even identifying who attended these meetings or discovering what topics they discussed was difficult. Why? Because minutes of the meetings, showing who attended and what was said, were rarely taken.

Such a practice seems intended to avoid accountability.

No minutes were taken, for example, at a December 2013 meeting about the potential recall. Such a record would have outlined the discussion by the three G.M. executives who attended, all of whom had to agree that a recall should be issued.

Some employees told Jenner & Block investigators they did not take notes at safety meetings “because they believed G.M. lawyers did not want such notes taken.”

Shifting responsibility for problems to others was deep in the company’s DNA, the report shows. Avoiding accountability was so automatic that it even had a name, like a yoga pose. “The G.M. salute” involved “a crossing of the arms and pointing outwards toward others, indicating that the responsibility belongs to someone else, not me,” the report said.

Along these lines was the “G.M. nod”— when everyone agrees to a plan of action after a meeting “but then leaves the room with no intention to follow through,” the report said.

Another disturbing aspect of the culture at G.M. was the “formal training” the company gave to employees writing about safety issues. A 2008 presentation, for example, warned employees to write “smart.”

What did writing smart mean? Words such as “problem” and “defect” were banned. Employees should instead use softer words — “issue,” “condition” or “matter.” Rather than write about a “defect,” employees should note that the car “does not perform to design.”

Sometimes entire sentences were forbidden, according to the report. “Dangerous ... almost caused accident,” was off limits, for example, as was, “This is a safety and security issue. ...” Finally, employees were advised not to use phrases such as “tomblike” and “rolling sarcophagus.”

Bill Vlasic of the Times wrote at length June 6th on the G.M. legal department's failures. Some quotes:
DETROIT — To the legal department at General Motors, secrecy ruled.

Employees were discouraged from taking notes in meetings. Workers’ emails were examined once a year for sensitive information that might be used against the company. G.M. lawyers even kept their knowledge of fatal accidents related to a defective ignition switch from their own boss, the company’s general counsel, Michael P. Millikin.

An internal investigation released on Thursday into the company’s failure to recall millions of defective small cars found no evidence of a cover-up. But interviews with victims, their lawyers and current and former G.M. employees, as well as evidence in the report itself, paint a more complete picture: The automaker’s legal department took actions that obscured the deadly flaw, both inside and outside the company.

While Mr. Millikin survived the dismissals this week of 15 G.M. employees tied to the delayed recall, his department was hit hard.

At least three senior lawyers are among the employees who lost their jobs as a result of the investigation conducted by the former United States attorney Anton R. Valukas. * * *

Mr. Valukas said employees he interviewed told him they had refrained from taking notes in safety meetings “because they believed G.M. lawyers did not want notes taken.”

Mr. Zitrin said banning note-taking was not a standard practice in corporate law offices.

The secrecy factor extended to how some employees kept or discarded old emails. According to two former G.M. officials, company lawyers conducted annual audits of some employees’ emails that could be used as evidence in lawsuits against the company.

The audits were part of a larger program called “information life-cycle management,” used primarily to downsize data in the company’s computers, a common practice in companies.

A G.M. spokesman, Greg Martin, declined to comment on the program and the legal department’s involvement in it.

The impact of Mr. Valukas’s report on the department has been swift and severe.

A person briefed on the employee dismissals said they included Mr. Kemp and Lawrence Buonomo, head of product litigation. A third lawyer, Jennifer Sevigny, was also dismissed.

All three lawyers were part of the team that handled the confidential settlement in which Mr. DeGiorgio, who has also been fired, was involved.

Even after being expunged from G.M., the lawyers are keeping quiet about the events leading up to the ignition-switch recall in February.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to General Law Related

Courts - More on "Wisconsin federal Judge Strikes Down State's Ban On Same-Sex Couples’ Marriages"

Updating this ILB post from Friday, of the three states that constitute the 7th Circuit:

Lyle Denniston of SCOTUSBLOG had this report Friday evening on the Wisconsin decision.

From a story this morning
in the Milwaukee Journal Sentinel:
Several county clerks in Wisconsin were gearing up Monday morning to issue marriage licenses to more same-sex couples, while other county clerks were waiting for clarification from the state after a federal judge ruled that the state's ban on same-sex vows was unconstitutional.

Rock County officials announced Sunday that the county clerk will issue marriage licenses Monday to all qualified couples, joining clerks in Milwaukee and Dane counties. Between Friday evening and Saturday afternoon, 283 same-sex couples in Wisconsin's two largest cities obtained marriage licenses — 146 in Milwaukee and 137 in Madison.

Same sex-couples lined up in other counties in Wisconsin early Monday, only to be turned away. In Outagamie County, the clerk refused to issue the licenses to three same-sex couples who applied for marriage licenses Monday, saying she was waiting for guidance from the state vital records offices, according to Post-Crescent Media.

In Brown County, a small group of people waited outside the clerk's office for marriage licenses, Press-Gazette Media reported, but they, too, were told they would have to wait while county officials sought further guidance from the state.

Attorney General J.B. Van Hollen is expected to petition a federal appeals court on Monday to stop county clerks from issuing marriage licenses to same-sex couples. He made a similar request of U.S. District Judge Barbara Crabb on Friday after she overturned the state's same-sex marriage ban, but the judge had not taken action on it over the weekend.

Crabb's 88-page decision was different from the others around the country because although she ruled Wisconsin's ban against same-sex marriage was unconstitutional, she did not issue an order instructing county and state officials on what to do about it.

Here is the long J-S story from Saturday by Jason Stein, Patrick Marley and Dana Ferguson. Some quotes:
In the 88-page decision, U.S. District Judge Barbara Crabb ruled that the prohibition on same-sex vows in the state violated the rights of gay and lesbian couples to equal protection under the federal constitution and fair treatment under the law.

She did not stay her ruling but also did not immediately issue an order blocking the enforcement of the ban, sparking a heated and hasty debate on whether the ruling meant that couples could immediately marry in the courthouses of Wisconsin.

Instead, Crabb asked the gay couples who had sued over the ban to say by June 16 exactly what they wanted done to enforce her ruling, with a further wait of one to two weeks for both sides in the lawsuit to file responses. Crabb, who was appointed by President Jimmy Carter, said she would then address whether to stay her decision while the matter is on appeal.

"Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution," Crabb wrote in her decision. * * *

Dane County Clerk Scott McDonell, a Democrat, began issuing marriage licenses at 5 p.m. Friday as gay couples were married there throughout the night. He said state Department of Justice officials advised him not to issue the licenses but McDonell moved forward despite that.

"They don't get to tell me that," he said of DOJ. "A judge gets to....If someone comes to me, how could I say no to them?"

Milwaukee County Clerk Joe Czarnezki, also a Democrat, issued marriage licenses through Friday night and planned to do so again on Saturday.

"Personally, I'm pleased she struck the ban down," he said of Crabb. "It makes us proud to be in Wisconsin and a state that's standing up for marriage equality."

Milwaukee County Executive Chris Abele said he would personally pay for any overtime costs for keeping the courthouse open. Cheers erupted at PrideFest in Milwaukee as Abele announced the extended hours to the crowds. * * *

In her decision, Crabb said the state failed to show that the ban is "substantially related" to an important state goal. She questioned whether the state could even count as important public interests its stated goals of tradition, procreation and avoiding a "slippery slope" toward polygamy or incest.

She said that many other policies later found unconstitutional, such as segregation, were longstanding and popular among a majority of a state's voters.

She closed by quoting former Supreme Court Justice Benjamin Cardozo: "Justice is not to be taken by storm, but must be wooed by slow advances."

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Courts in general

Ind. Decisions - Transfer list for week ending June 6, 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 6, 2014. It is one page (and 13 cases) long.

Two transfers were granted last week:

Both of the above cases were transferred by the Supreme Court, with opinion, on June 2nd - see the ILB summaries here.

Re State of Indiana v. Molly Gray, the Court now orders:

Transfer that was granted on 02/06/14 is now vacated, and Transfer is Denied - All Justices concur, except David and Massa, JJ., who dissent.
The ILB posted about this on June 5th.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit decided one Indiana case Friday, June 6th, a reversal

In Whitfield v. International Truck and Engine (SD Ind., Young), a 17-page opinion, Judge Cudahy writes:

This rather complex matter in-volves a failure to hire claim under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act. At the heart of this case is plain-tiff-appellant Matthew Whitfield’s application for an electri-cian position at one of defendant-appellee Navistar’s engine manufacturing plants. Whitfield is African-American, and prior to applying with Navistar, he worked as an electrician for various employers, including four years with the U.S. Navy. Navistar is a manufacturer of engines, among other equipment, and employed a number of electricians at the time of Whitfield’s application. * * *

Whitfield’s claim finally proceeded to a bench trial in June 2012. After the first day, Whitfield filed a submission regarding evidence from the earlier class trial, Allen, et al. v. International Trucking, in an attempt to introduce 59 exhibits and testimony from 19 trial exhibits. Navistar objected, and the district court took the issue under advisement, and the trial proceeded until completion. On July 31, 2013, the court issued its findings of fact and conclusions of law as well as an entry of final judgment. The court rejected Whitfield’s submission regarding evidence from the class trial, stating that Whitfield gave the court no authority to support admission of evidence from the class action. Further, the court found that Whitfield’s submission, proffered one day into trial, was untimely. The court then concluded that Whit-field’s evidence was insufficient to directly or indirectly prove discrimination. Specifically, the court determined that Whitfield’s evidence did not imply any discrimination, that Whitfield did not meet Navistar’s unstated qualifications for the job, and that he did not offer any compelling comparator evidence. Because we find the district court made several errors in analyzing Whitfield’s evidence, we now reverse. * * *

Apparently Navistar and the court did not understand that the chart reflects the total experience of Navistar’s electricians, thus showing that Whitfield was more qualified than several employees even after they received on-the-job training. The updated EEOC chart is clear and persuasive evidence that Whitfield was more qualified than many of the white electricians Navistar hired during the limitations period—the district court committed clear error in determining that Whitfield had failed to submit any comparator evidence regarding Navistar’s preferred qualifications. * * *

AFFIRMED in part, REVERSED in part, and REMANDED.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - Two articles for students of the SCOTUS

"Measuring Circuit Splits: A Cautionary Note," by Aaron-Andrew Bruhl, highlighted here in the blog, Circuit Splits.

"Three Recently Accepted Cases Shed Light on the Supreme Court’s Process for Granting Review," an article in Verdict by Vikram David Amar.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Courts in general

Ind. Gov't. - "The American Legislative Exchange Council (ALEC) is expanding its reach beyond the states to local governments"

The June issue of Governing has this report by Alan Greenblatt.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Indiana Government

Ind. Gov't. - Implementing the new law allowing Indiana farmers to grow industrial hemp

Here is CNHI reporter Maureen Hayden's long story in the Lebanon Reporter that begins:

INDIANAPOLIS – It may take Robert Waltz some time to get used to his new role as Indiana’s “hemp czar.”As the state’s seed commissioner, Waltz may soon oversee the planting of Indiana’s first legal crop of cannabis in decades.“It’s not a title I would take up on my own,” said the 60-year-old Waltz. “But I’ve been called worse.”In April, Gov. Mike Pence signed legislation to allow Indiana farmers to grow industrial hemp. He tasked Waltz – appointed in 2009 as both the state chemist and seed commissioner – with clearing the way for that to happen. It’s no easy task.

Hemp lacks the psychoactive punch of marijuana but both are derived from the cannabis sativa plant. Hemp was once an abundant crop in Indiana – production peaked during the war effort in 1943 – but it’s been illegal to grow since 1970. That’s when the Controlled Substances Act lumped industrial hemp with marijuana and outlawed production of both, despite their chemical differences.

The farm bill passed by Congress earlier this year re-opened the door for industrial hemp production as a cash crop. It allows states and universities to grow hemp for agricultural research if they can get a waiver from the U.S. Drug Enforcement Administration.

Some see growing hemp as a first step toward wider production of a plant that other countries already use for a range of household purposes – including paper, cosmetics and textiles.

Waltz, who’s based at Purdue University, has sought the DEA’s permission, but it may be months before the state gets approval.

Until then, he and a team of researchers are working on myriad hemp-related issues – from licensing procedures for farmers to security rules that will keep potheads from passing off marijuana as the lookalike hemp.“One of the questions we have to answer is, ‘How stringent do the regulations need to be?’” Waltz said. “We want to encourage its production while recognizing the social concerns that come with it.”Waltz is no stranger to exercising regulatory power. In a past job as the state’s insect expert, he ordered the takedown of thousands of mature trees on private property that were infested with killer pests, and he quarantined wide swaths of forested land to curb their spread.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Indiana Government

Ind. Courts - "Woman stripped naked in Floyd jail will sue"

Grace Schneider reported in the Louisville Courier Journal Saturday in a long story, with video, that begins:

A 31-year-old New Albany woman says Floyd County jail officers attacked, forcibly stripped her and humiliated her by walking her through the facility partially naked after she was taken into custody following a misdemeanor arrest in March.

The allegations — and jail surveillance video of the incident — were released this week by lawyer Laura Landenwich of Louisville, who recently settled a lawsuit on behalf of another New Albany woman over similar alleged abuses by Floyd County corrections officers.

She said a second federal lawsuit will be filed next week in U.S. District Court in New Albany against Floyd County Sheriff Darrell Mills and other officials. Landenwich said other former detainees have called to report similar treatment, which she is investigating.

The allegation from March involves Tabitha Storms Gentry, who is accusing Mills and Floyd jailers of violating her constitutional rights for using excessive force, removing her clothes and humiliating her by parading her half naked in front of male officers.

Posted by Marcia Oddi on Monday, June 09, 2014
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 6/9/14):

Thursday, June 12

Next week's oral arguments before the Supreme Court (week of 6/16/14):

Tuesday, June 17

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 6/9/14):

Tuesday, June 10

Next week's oral arguments before the Court of Appeals (week of 6/16/14):

Thursday, June 19

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, June 09, 2014
Posted to Upcoming Oral Arguments

Friday, June 06, 2014

Courts - "Wisconsin federal Judge Strikes Down State's Ban On Same-Sex Couples’ Marriages"

So Chris Geidner of BuzzFeed reports late this afternoon in a post highlighting a good quote from the opinion, plus the opinion itself. The ruling will not go into effect immediately.

Posted by Marcia Oddi on Friday, June 06, 2014
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

Commissioner of Labor ex rel Vincent Scialdone and Antimo Scialdone v. An Island, LLC (NFP)

NFP criminal opinions today (1):

Charles Howlett v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, June 06, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Competent translators required for limited English defendants"

Yesterday's Supreme Court decision in Victor Ponce v. State of Indiana (ILB summary here) is the subject of a story by Dan Carden in today's NWI Times:

INDIANAPOLIS | Justice requires criminal defendants with limited English proficiency be provided competent translators to explain their constitutional rights and enable meaningful participation in their trials, the Indiana Supreme Court ruled Thursday.

In a 5-0 decision written by Justice Robert Rucker, a Gary native, the high court threw out the guilty plea of Victor Ponce, an Elkhart County man convicted in 1999 of selling cocaine near a school. Ponce is serving a 40-year prison term.

The Supreme Court determined through its review of the trial record that due to translating errors by the court interpreter, Ponce, a Spanish speaker, was not properly advised before pleading guilty of his rights to a jury trial, to confront witnesses and not testify against himself.

"To declare that a defendant with limited English proficiency who received an incorrect interpretation of the trial court's (constitutional) advisements should be equally culpable for his guilty plea as a defendant who is fluent in the English language and received an accurate and uninterrupted advisement directly from the trial court would work a great injustice not only on the (limited English) defendant, but on the integrity of our system as a whole," Rucker said.

While the justices acknowledged that Ponce knew a little English, they found he did not understand the language well enough to comprehend legal terms.

Coupled with the mistranslation of his rights by the Spanish interpreter, the court said it's clear Ponce's guilty plea was not knowingly and voluntarily given, and must be vacated and sent back to the trial court for a new hearing.

"Ensuring meaningful access to justice requires that all litigants — including those with limited English proficiency — are equally given the opportunity to participate meaningfully throughout the legal proceedings," Rucker said.

The NWI Times story also links to the Court's courtroom interpreter program and reports:
Since 2003, the Indiana Supreme Court has overseen a court interpreter program that certifies and sets ethical standards for courtroom translators. Lake Superior Court Judges Calvin Hawkins and Sheila Moss serve on the program's advisory committee.

Currently certified translators in 22 languages are available to Indiana criminal defendants.

Rucker notes in the Ponce ruling that the Supreme Court is considering creating a second tier of "qualified" translators to cover languages where certified translators are not available.

Posted by Marcia Oddi on Friday, June 06, 2014
Posted to Ind. Sup.Ct. Decisions

Environment - "EPA's McCabe begins carbon rule roadshow at home in Indiana"

That is the headline to this lengthy June 5th E&E EnergyWire story by Jeffrey Tomich that begins:

INDIANAPOLIS -- Forty-eight hours after proposing the most ambitious step yet to combat climate change, U.S. EPA opened its roadshow to help explain its power plant rule to dozens of state utility regulators.

In a speech yesterday morning to the Mid-America Regulatory Conference here, EPA's acting air chief Janet McCabe largely repeated the agency's message in telephone briefings Monday -- that it will achieve the Obama administration's goal of slashing greenhouse gas emissions while providing states the flexibility in approach and timing that they had sought.

McCabe also continued to underscore related environmental benefits that will come from reducing energy use and altering the mix of fuels used to produce power.

"When you reduce carbon from the power sector, there will be some very significant co-benefits that come along with that," she said, referring to estimated reductions in emissions of other pollutants. "These will bring immediate local and regional health benefits to everyone in the country."

For McCabe, acting assistant administrator for EPA's Office of Air and Radiation, the appearance at the conference wasn't so much a road trip as a homecoming.

McCabe lives in Indianapolis. Prior to going to work for the federal government, she led Improving Kids Environment Inc., a children's environmental health advocacy group. Before that, she spent a dozen years working for the Indiana Department of Environmental Management's Office of Air Quality and helped the state implement several strategies under the Clean Air Act -- much like the plans that states will have to develop to meet the carbon rule.

Those who worked with McCabe in that role in Indiana described her as an effective and pragmatic regulator who was accessible to the public even in the face of pressure from industry.

"I think she was one of the best, if not the best assistant administrators that IDEM has ever had," said Grant Smith, who spent 30 years at Citizens Action Coalition, an environmental and consumer advocacy group in Indiana.

"It's always good for people in her position to be responsive to the public and that's difficult in the political climate in Indiana."

McCabe, in fact, said she drew on her experience as a state environmental regulator in helping craft the proposed carbon rule.

In particular, the experience led her to push for giving states additional time -- an extra year for states developing plans on their own and two years for multistate groups -- to finalize implementation strategies.

"I was one of the loudest voices on this because I used to develop these plans," she said.

See also yesterday's ILB post on how much each state has to cut carbon emissions under the new federal regs.

Posted by Marcia Oddi on Friday, June 06, 2014
Posted to Environment

Thursday, June 05, 2014

Ind. Courts - "Gibson sentencing will detail 'heinous' slaying"

Updating this ILB post from Tuesday, Grace Schneider of the Louisville Courier-Journal reported late yesterday:

Despite William Clyde Gibson pleading guilty Tuesday to Stephanie Kirk's 2012 murder, the public will still learn "the heinous facts of what occurred that night," Floyd County Prosecutor Keith Henderson said Wednesday.

Floyd Superior Judge Susan Orth will now hear witness testimony in Kirk's 2012 death for an estimated three days starting July 28 before deciding whether to sentence the New Albany man to death, life in prison without parole or a prison term, Henderson said at a press conference.

Gibson's decision to plead will save Floyd County the cost of a two-week trial, Henderson said, including expenses for sequestering jurors from Evansville which had been arranged to ensure Gibson received a fair trial.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Indiana Courts

Ind. Courts - No tweeting (etc.) from SD Indiana courtrooms

The May 29th order from Chief Judge Richard L. Young doesn't specifically mention tweeting, or texting, or taking notes on your laptop, but it does order:

... that cellular phones, electronic tablets, personal digital assistants, and all other electronic devices capable of audio or video recording be turned off (and not simply silenced) in all courtrooms of the United States District Court for the Southern District of Indiana.
This includes counsel, unless the presiding judge expressly so permits.

The order relies on the familiar airlines contention that the ban will "mitigate interference with sensitive courtroom sound equipment." It also relies on the:

... Rule 53 of the Federal Rules of Criminal Procedure and policy of the Judicial Conference of the United States [provisions] that courtroom proceedings in civil and criminal cases in federal district courts may not be broadcast, televised, recorded, or photographed.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind Fed D.Ct. Decisions

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

Background: On March 24th the ILB wrote that the Supreme Court had posted an opinion on March 21st, State of Indiana v. I.T., that was simply a minor corrected version of the opinion posted on March 12th. But it confused several entities; the Court website and Twitter account both identified it as a new opinion, as did IndyStar. The ILB commented:

[T]here is nothing in the opinion filed March 21st to indicate that it is merely a corrected version of the opinion filed March 12th.

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

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

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

What to do? At a bare minimum, the changed version should be so identified. A change sheet should be included in the posting so that the changes are easily found.
Revised Procedure: On Wed., May 28th, the Supreme Court decided the case of Smith v. Delta Tau Delta. When you click on the opinion, you get this version, still marked "filed May 28, 2014", but clearly stating on p. 2: "May 28, 2014, Corrected."

A check of the docket reveals:

06-02-2014 The court has issued the attached notice of change:

It has come to the court's attention that the opinion handed down on May 28, 2014, contains a misstatement of the procedural history of the case. On page one of the opinion, it says "the court of appeals affirmed the trial court." It should say "the court of appeals affirmed in part but reversed the trial court's grant of summary judgment." This inadvertent error was corrected in a revised opinion that was delivered to the clerk with this notice. No other change was made to the opinion, and neither the corrected opinion nor this notice alter the due date for a petition for rehearing.

The clerk is directed to (1) enter this notice of change on the chronological case summary; (2) serve all counsel of record with a copy of the corrected opinion and this notice; (3) remove the original opinion from the court's website and post the corrected opinion in its place; and (4) send a copy of this notice to Thomson/Reuters, LexisNexis, and Wolters Kluwer.

Brent E. Dickson, Chief Justice
(Notice rec'd on 06/02/14 @ 2:39 pm) entered on 06/02/14 ab

Notice how this correction was handled:But how was the ILB even aware of this change? Only because a reader told me. But as long as the Court is dealing with minor misstatements like this, this latest iteration of the correction process seems quite adequate.

My only suggested addition would be to institute an online dynamic list of opinions corrected post-filing, perhaps similar to the one now used by the Court of Appeals for NFPs changed to FP.

[More]
For background, see this May 25th ILB post, headed: "Final Word on U.S. Law Isn’t: SCOTUS Keeps Editing."

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Indiana Decisions

Environment - "How Much Each State Has to Cut Carbon Emissions Under New EPA Regulations"

Governing has a good graphic in this June 4 article re "How Much Each State Has to Cut Carbon Emissions Under New EPA Regulations," and background in this June 2 article titled "EPA Rule Requires Major Carbon Reductions from States."

Gannett's Maureen Groppe wrote June 2 in an article titled "http://www.governing.com/topics/energy-env/gov-epa-rule-requires-major-carbon-reductions-from-states.html."

And Andrew Restuccia of Politico reported yesterday, June 4 in this article headed "Some states already lashing at climate rule." Kentucky is featured, Indiana isn't mentioned.

According to the Governing graphic mentioned in the first paragraph of this post, which "shows the percentage of carbon dioxide (from 2012 levels) each state will have to reduce from its power utilities," Indiana needs a 20.4% reduction and Kentucky, 18.3%. See also this EPA map and state-by-state explanation.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Environment

Ind. Decisions - Two Tax Court opinions, filed June 4th

In Jaklin Idris and Dariana Kamenova v. Marion County Assessor, an 8-page opinion, Sr. Judge Fisher writes:

This case concerns whether the Indiana Board of Tax Review erred in upholding the 2006 assessment of Jaklin Idris’s and Dariana Kamenova’s condominium unit. The Court finds it did not. * * *

Kamenova’s and Idris’s presentations to both the Indiana Board and the Court reflect some of the challenges taxpayers have in understanding the complexities of our property tax system. While the Court is sympathetic to their plight, it is bound to apply the laws as written because pro se litigants are held to the same rules and standards as licensed attorneys. See Lacey v. Indiana Dep’t of State Revenue, 959 N.E.2d 936, 940 (Ind. Tax Ct. 2011). Accordingly, the final determination of the Indiana Board is AFFIRMED in its entirety.

In Nick Popovich v. Indiana Department of State Revenue (NFP), a 5-page opinion, Judge Wentworth concludes:
For all of the reasons discussed above, Popovich’s Motion to Reconsider Denial of Petitioner’s Second Motion to Compel is DENIED. The Court EXPECTS the parties to obey its order to work cooperatively to resolve their discovery disputes without further Court intervention. See Popovich v. Indiana Dep’t of State Revenue (Popovich I), 7 N.E.3d 406, 419 (Ind. Tax Ct. 2014).

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Supreme Court suspends Unionville attorney, without automatic reinstatement

In In re Craig R. Benson, a 4-page, 4-1 opinion, the Court writes in part:

On or about June 27, 2010, Respondent filed bankruptcy petitions on behalf of the clients. Respondent advised clients to file for bankruptcy to remove jurisdiction from the state trial court to circumvent the trial court's orders.

On August 12, 2010, Co-Alliance filed a motion in the state trial court to find Respondent in contempt ("Contempt Motion"). The trial court held a hearing at which Respondent admitted that he was aware of the orders prohibiting the distribution of the sale proceeds and that he distributed funds from the sale after the orders were issued. The trial court entered an order ("Contempt Order") finding Respondent in contempt, fining him $75,000, and ordering him incarcerated until the fine was paid. Respondent spent two days in jail before he paid the fine and was released. Respondent appealed the Contempt Order to the Court of Appeals, which affirmed. See In re the Order of Contempt against Benson, 955 N.E.2d 215 (Ind. Ct. App. 2011), trans. denied.

[There is much more, re arguments made by respondent] * * *

Conclusion. For the reasons stated above, the Court concludes that Respondent violated the Professional Conduct Rules as charged by the Commission.
Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 180 days, without automatic reinstatement, beginning July 14, 2014. * * *

All Justices concur, except David, J., who dissents regarding the sanction, believing that more severe discipline is warranted.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court reinstates State v. Gray as COA precedent

On Feb. 10th the Supreme Court granted transfer in State of Indiana v. Molly Gray. Oral argument was held May 29th and may be viewed here.

Posted today, and filed June 2nd, is this order, stating in part:

By order dated February 6, 2014, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals, and heard oral argument on May 29, 2014. After further consideration and discussion among the Justices following the argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion, State v. Gray, 997 N.E.2d 1147 (Ind. Ct. App. 2013), should be REINSTATED as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end. The Court extends its appreciation to the attorneys, Cynthia L. Ploughe and Michael H. Hagedorn, for their presentations at the argument.
The Nov. 13, 2013 COA opinion, now reinstated, concluded:
Without addressing the validity of the initial stop, we conclude that the free-air canine sniff was not conducted incidental to the traffic stop and so required reasonable suspicion to justify increasing the duration of the stop. Finding that Officer Jackson lacked reasonable suspicion, we hold that the seizure was a violation of the Fourth Amendment and that the trial court did not err in suppressing the evidence. We affirm.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Larry D. Russell, Jr. v. State of Indiana, an 11-page opinion, Judge Najam writes:

Larry D. Russell, Jr. appeals his sentence following his convictions for five counts of neglect of a dependent, as Class C felonies, and two counts of criminal confinement, as Class C felonies, pursuant to a guilty plea. Russell presents a single issue for our review, namely, whether the trial court sentenced Russell as provided in the plea agreement. But our resolution of this issue requires us to address a more fundamental issue sua sponte, namely, whether Russell’s plea agreement is void and unenforceable as a matter of law. [ft. On April 2, 2014, we ordered the parties to file supplemental briefs on this issue.]

We hold that the sentencing provision in Russell’s plea agreement is contrary to law, and we reverse and remand with instructions. * * *

In sum, the plea agreement and sentence were based on the faulty premise that Russell’s sentence must be limited to ten years under Indiana Code Section 35-50-1-2(c). Thus, the sentence imposed pursuant to the plea agreement was an erroneous sentence, and we cannot uphold Russell’s plea agreement with the sentencing cap intact. See Lee, 816 N.E.2d at 38. We reverse Russell’s sentence and remand to the trial court with the following instructions: on remand, Russell shall first have the option to ratify and proceed with the current plea agreement without the illegal sentencing limitation. If he chooses that option and enters an open plea on all five counts, the trial court shall have total discretion in resentencing Russell, and he would face a possible maximum sentence of fifty-six years.5 If he does not exercise that option within thirty days after this opinion has been certified (unless extended by the trial court), the plea agreement shall be vacated. See, e.g., Alvey v. State, 911 N.E.2d 1248, 1251 (Ind. 2009) (holding that the defendant had the option to keep his plea agreement without an unenforceable provision).

NFP civil opinions today (0):

NFP criminal opinions today (2):

Curtis Oakes v. State of Indiana (NFP)

Keith Scruggs v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re due process right to adequate translation

In Victor Ponce v. State of Indiana, an 11-page, 5-0 opinion, Justice Rucker writes:

Victor Ponce is a non-native English speaker who pleaded guilty under terms of an agreement. He appeals the denial of his petition for post-conviction relief essentially contending that the Spanish translation of the rights he was waiving by entering the plea was so inaccurate his plea of guilty was not entered knowingly, intelligently, and voluntarily. We agree and reverse the judgment of the post-conviction court. * * *

[From the must-read "background on pp. 2-4]
For the last decade the State of Indiana has endeavored to create a more comprehensive and centralized interpreter program that ensures competent interpreter services in order to improve the quality of language access for LEP litigants. “Audits of interpreted court proceedings in several states have revealed that untested and untrained ‘interpreters’ often deliver inaccurate, incomplete information to both the person with limited English proficiency and the trier of fact.” Certification Program. Therefore, simply providing “any” interpreter upon request is insufficient. A “failure to accommodate persons with [language] disabilities will often have the same practical effect as outright exclusion[.]” Tennessee v. Lane, 541 U.S. 509, 531 (2004) (discussing claim made by paraplegics that state denied them access to the courts). Thus, it is imperative to ensure accurate interpretation throughout the proceedings lest we run the risk of diminishing our system of justice by infringing upon the defendant’s rights of due process. It is with this background that we turn to the facts of this case. * * *

Had the trial court uttered the words relayed to Ponce by the interpreter, we doubt that a court of review would hesitate to declare that Ponce had not been given his Boykin advisements. Thus, we are of the view that an advisement from the mouth of the court-appointed interpreter instead of that of the trial judge to be a distinction without a difference. In sum, we conclude that Ponce has demonstrated that his 1999 guilty plea hearing was not conducted in accordance with the mandates of Boykin. * * *

Ensuring meaningful access to justice requires that all litigants—including those with limited English proficiency—are equally given the opportunity to participate meaningfully throughout the legal proceedings. As Justice Frankfurter aptly declared long ago, “there is no greater inequality than the equal treatment of unequals.” Dennis v. United States, 339 U.S. 162, 184 (1950) (Frankfurter, J., dissenting). To declare that a defendant with limited English proficiency who received an incorrect interpretation of the trial court’s Boykin advisements should be equally culpable for his guilty plea as a defendant who is fluent in the English language and received an accurate and uninterrupted advisement directly from the trial court would work a great injustice not only on the LEP defendant, but on the integrity of our system as a whole.9

Conclusion. In this case Ponce carried his initial burden of demonstrating that at the guilty plea hearing he was not properly advised of the constitutional rights he was waiving by pleading guilty. And the State failed to show that the record as a whole nonetheless demonstrated that Ponce understood his constitutional rights and waived them. Therefore, Ponce’s plea of guilty must be vacated. We thus reverse the judgment of the post-conviction court and remand this cause for further proceedings.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind. Sup.Ct. Decisions

Courts - Ill. Sup. Ct. rules federal district court decisions, in and of themselves, cannot establish a conflict between the law of different states, since a “predictive” judgment is not, in fact, state law.

That is the May 22, 2014 Illinois Supreme Court ruling in Bridgeview Health Care Center, Ltd. v. State Farm Fire and Casualty Company - 2013 IL App (1st) 121920:

This appeal presents the following question: When a federal district court sitting in a sister state makes a prediction under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), that the supreme court of that state would resolve a legal issue in a way that is at odds with Illinois law, does that prediction, in itself, establish an actual conflict between the two states’ laws for purposes of a choice-of-law analysis? For the reasons that follow, we answer that question in the negative. * * *

No Indiana state court has addressed the question of whether the sending of unsolicited faxes falls within a comprehensive liability policy’s provisions, either as an advertising injury or as property damage. However, two unreported federal district court decisions, Ace Mortgage Funding, Inc. v. Travelers Indemnity Co. of America, No. 1:05-cv-1631-DFH-TAB, 2008 WL 686953 (S.D. Ind. Mar. 10, 2008), and Erie Insurance Exchange v. Kevin T. Watts, Inc., No. 1:05-cv-867-JDT-TAB, 2006 WL 1547109 (S.D. Ind. May 30, 2006), have predicted Indiana law. These decisions predicted that the Indiana Supreme Court would hold there is no coverage for claims such as Bridgeview’s under comprehensive general liability policies. In so holding, the district courts relied on American States Insurance Co. v. Capital Associates of Jackson County, Inc., 392 F.3d 939 (7th Cir. 2004). In that decision, the Circuit looked at Illinois law and predicted that this court would hold that coverage was unavailable under a comprehensive general liability policy. That position was subsequently rejected by this court in Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352 (2006). The question before us in this case is whether the federal district court decisions can be the source of an outcome determinative conflict so as to trigger a choice-of-law analysis. State Farm contends they can. State Farm maintains that the federal district court decisions, in and of themselves, establish a conflict between Illinois and Indiana law. We disagree. * * *

Because a federal district court’s Erie prediction is not state law, such a prediction cannot, by itself, establish a conflict between state laws. Thus, the fact that the federal district court decisions cited by State Farm in this case predicted that the Supreme Court of Indiana would reach a result at odds with Illinois law is not, standing alone, sufficient to establish a conflict between the law of Illinois and Indiana. This is not to say, however, that when a circuit court in Illinois is confronted with a motion alleging a conflict of laws it may not consider what the federal district court has to say about our sister state’s law.

See also this story in Legal Newsline.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Indiana Courts

Ind. Decisions - More on "Indiana shoreline jurisdiction dispute turns into 2-year legal battle"

Updating this March 4, 2014 ILB post, yesterday the Natiional Park Service had this story leading their daily publication, The Morning Report:

Indiana Dunes National Lakeshore (IN) Court Confirms Park Jurisdiction In PWC Use Case

In March of 2012, Ranger Frank Quinto saw a man, later identified as Robert Carstens, 57, of Dune Acres, Indidana, riding a personal watercraft (PWC) along the Lake Michigan shoreline inside the boundary of the park. Knowing he was spotted and that PWCs are prohibited within the park, Carstens anchored near the beach and left the area.

As darkness fell that day, he returned to the public beach near the town of Dune Acres with an all-terrain utility vehicle and loaded the watercraft onto a trailer. When contacted by Quinto, Carstens said that he received permission to operate the PWC and drive on the beach from the chief ranger and superintendent, an assertion that was refuted when the chief ranger arrived on scene a minute later. Carstens received violation notices for the operation of the PWC as well as launching/recovering a watercraft in an unauthorized location and driving off of the road.

In June of 2012, Carstens appeared in federal district court and pled not guilty to all charges. Carstens, a longstanding proponent of PWC use in the lakeshore, entered into a series of delaying tactics to prolong the case until July of 2013, when a bench trial was held.

During that trial, Carstens’ attorney moved for dismissal of the charges based upon his opinion that the National Park Service does not have jurisdiction on the beaches within the park. In answering the motion for dismissal, the U.S. Attorney’s Office responded with citations of case law going back for nearly 75 years that supported the United States’ authority to regulate the use of lands and waters within the boundaries of national parks.

In January of 2014, a federal judge found that the National Park Service does have jurisdiction over the beach within the boundary of the park and found Carstens guilty on all three counts. He was sentenced to fines totaling $275.

This case serves as an important event in the history of the park. Since the establishment of the national lakeshore, local resident have long argued that the park does not have legal jurisdiction along Lake Michigan and have regularly threatened civil suits to assert private property rights over public lands. This was the first case that actually tested that opinion and confirmed that the NPS has the authority to regulate activities taking place within park boundaries along Lake Michigan.
[Submitted by Mike Bremer, Chief Ranger]

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions. - "State won't appeal dismissal in David Lott Hardy case"

Niki Kelly reports in the June 5th Fort Wayne Journal Gazette:

INDIANAPOLIS – Indiana Attorney General Greg Zoeller has decided not to appeal an earlier ruling dismissing criminal charges against Fort Wayne man David Lott Hardy.

That means the criminal case against Hardy is officially over.

Bryan Corbin, spokesman for the office, said the appeal is “likely unwinnable even if the court accepted the case for hearing, so it would not be appropriate to request transfer.

“This is not due to a mere technicality: The Indiana Supreme Court selects which cases it hears and takes cases of broad importance with lasting impact in the law.

"Because the legislature has spoken and amended the official misconduct statute to exclude Hardy’s conduct from being considered a criminal act, any Supreme Court decision in this case would be limited to one individual only, and would have no wider or lasting relevance to other defendants.”

Zoeller had sought to reinstate criminal charges against the former state utility regulator. Hardy was charged with several felony counts of official misconduct in December 2011. * * *

The General Assembly had modified the law effective July 1, 2012, and the judge said that action to clarify the law showed the legislature’s intent to apply the change retroactively.

But Zoeller said "if the legislature intended to make a 2012 change in the law retroactive as the trial court ruled, it would have written that into the statute, and it did not."

He further asked that Hardy face charges under the law that was in effect in 2010.

The Indiana Court of Appeals ruled in April that an Indiana Supreme Court holding under the previous law governed the case. That precedent said an official misconduct charge requires the case to rest upon criminal behavior related to the person’s official duties.

Posted by Marcia Oddi on Thursday, June 05, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, June 04, 2014

Ind. Gov't. - Governor's Tax Competitiveness and Simplification Conference on June 24 is by invitation only

I saw a post on Twitter this afternoon from reporter Maureen Hayden: "Gov Pence's pro-business tax conference in June bars public from attending. Speaker list released today."

Here is the agenda.

As it turns out, the subscription-only weekly newletter, Indiana Legislative Insight, reported in its May 12 issue on the plans; here are some quotes from the front-page story, reprinted by permission:

Some June tax confab details: Invitation-only event now taking shape

In early April, Governor Mike Pence (R) revealed that he would be hosting the Indiana Tax Competitiveness and Simplification Conference on June 24, a conference aimed at gathering ideas to help strengthen, make more competitive, and simplify state business and personal tax laws. * * *

Gov. Pence was particularly enamored with leaning on outside sources to offer Hoosiers “new and fresh ideas and best practices from other states around the country.”

We’ve learned a bit more about the session, which will be an invitation-only event limited to around 125 attendees, and while potential speakers are being told that “We welcome all thoughts and are trying to create a politically neutral environment for ideas (as much as that is possible in today’s world),” the conference intends to lean heavily for input upon those representing a few entities that many Hoosiers would probably describe as the elite or establishment, and Democrats would likely lament as serving up largely a conservative business perspective.

Invitations from the Indiana Department of Revenue expand on the Governor’s own call, explaining that the event will be “focused on discussing ways in which Indiana’s tax code can be simplified and made more competitive in terms of attracting and keeping businesses, as well as promoting job growth.”

The conference will be recorded and downloadable from the Department of Revenue website. Revenue is encouraging anyone (speakers an the general public) to submit “ideas, thoughts, suggestions, white papers, etc.,”and plans to make the documents publicly available on a website created for the conference. * * *

Following the event, staff plans to compile and organize the conference discussions and submitted ideas into a comprehensive document that will be presented to the Governor and the General Assembly. “Our hope is that the administration and the legislature will then work together in upcoming legislative sessions to enact sound tax policies,” Revenue staffers explain to invitees.

Among the “silos” to be represented at the event: academics (among those who have been invited are Indiana University property tax and local government finance expert Prof. John Mikesell, Ball State University economist Mike Hicks, and Indiana University McKinney School of Law Prof. Larry Jegen, retiring from his post after educating generations of Hoosier lawyers about the intricacies of the tax code); national think tanks (including the conservative-leaning Tax Foundation — at whose award event the conference was unveiled by the Guv; the Mercatus Center at George Mason University — whose research focuses on how markets solve problems; the conservative American Legislative Exchange Council (ALEC); and others); and practitioners and stakeholders. These two categories will encompass large local law firms; large CPA firms; state and local officials; the Indiana Chamber of Commerce and Indiana Manufacturers Association, and others. Individual subject-matter experts will also be among those invited to participate.

Posted by Marcia Oddi on Wednesday, June 04, 2014
Posted to Indiana Government

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

For publication opinions today (4):

In Lori Nicklas v. Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber; and Von Tobel Lumber Company, Inc., an 8-page opinion, Judge Robb writes:

Lori Nicklas (“Lori”) appeals the trial court’s grant of summary judgment in favor of Von Tobel Corporation (“Von Tobel”) and its denial of her summary judgment motion. Lori raises three issues for review, which we consolidate and restate as whether the trial court erred when it granted summary judgment in favor of plaintiff Von Tobel and against Lori after Von Tobel had obtained a judgment against her co-defendant, Shawn Nicklas (“Shawn”) in the same proceeding. Concluding summary judgment in favor of Von Tobel was proper, we affirm. * * *

Concluding Von Tobel’s claim against Lori was not extinguished by its agreement with Shawn, claim preclusion does not apply, and Von Tobel is not placed in a better position than if the contract had not been breached, we affirm.

In Michael W. Palmby v. Karen M Palmby, a 9-page opinion, Judge Riley writes:
[Issue] Whether the trial court abused its discretion when it denied Michael’s request to revoke spousal maintenance which the parties had agreed upon and the trial court had incorporated in the final divorce decree. * * *

Mindful of the “great restraint” which we should exercise in reviewing settlement agreements, we cannot say that the trial court abused its discretion in denying Michael’s request to revoke the spousal maintenance and instead modified the payment terms of the accumulated rehabilitative maintenance. See Voigt, 670 N.E.2d at 1277.

In Indiana Insurance Company v. Patricia Kopetsky, and KB Home Indiana Inc., a 34-page opinion, Judge Bradford writes:
In 1998, Appellee/Defendant KB Home Indiana Inc., f/k/a Durabuilders, Inc. (“KB Home”) entered into an agreement (“the Agreement”) to purchase lots from Appellee/Defendant/Counterclaim Plaintiff Patricia Kopetsky’s late husband George Kopetsky in Cedar Park, a housing development being developed by George. In the Agreement, George represented that he was unaware of any contamination in Cedar Park at the time of the Agreement’s execution. Additionally, George indicated that at each lot closing, he would certify that he had not received any notice from any governmental agency or private person concerning the existence of any toxic or hazardous waste on that lot. After purchasing over sixty lots from George, KB Home became aware that some of the lots it had purchased contained contaminants. In 2007, KB Home filed suit against George and other defendants, alleging that George knew of possible contamination in the Cedar Park lots as early as April of 2002, he was negligent in failing to notify KB Home of potential environmental issues, he breached the Agreement by violating the requirement that he inform KB Home if he received notice concerning the presence of toxic waste, and he committed constructive fraud on KB Home.

In April of 2009, Appellant/Plaintiff/Counterclaim Defendant Indiana Insurance Company, who at relevant times had been George’s commercial general liability (“CGL”) insurance carrier, filed a declaratory judgment action against George and KB Home, asking for a declaration that it had no duty to defend and/or indemnify George in KB Home’s suit against him. George filed a counterclaim against Indiana Insurance, alleging that it had breached its insurance contracts (“the Policies”) with George in bad faith. In 2010, George passed away, and Patricia was substituted as a defendant and counterclaim plaintiff. Ultimately, the trial court granted summary judgment in favor of Patricia on the coverage question but dismissed her bad faith counterclaim. Indiana Insurance contends that the trial court erred in granting Patricia summary judgment because (1) no damages were alleged by KB Home that qualify as “property damage” under the Policies; (2) the damages alleged were not the result of an “occurrence” under the Policies; (3) the Policies’ “expected and intended” exclusion barred coverage; (4) the Policies’ “contractual liability” exclusion barred coverage; (5) the “known loss” doctrine barred coverage; (6) Patricia was not properly substituted for George in the underlying lawsuit as counterclaim plaintiff; and (7) the trial court erred in concluding that Indiana Insurance would have to indemnify Patricia for any judgment rendered in KB Home’s favor. Patricia cross-appeals, claiming that the trial court erred in dismissing her bad faith claim against Indiana Insurance. Concluding that there is a genuine issue of material fact as to whether the known loss doctrine bars coverage and that the question of whether Indiana Insurance is obligated to indemnify Patricia is not yet ripe for adjudication, we affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings.

In In the Matter of the Supervised Estate of Mildred Borgwald, Deceased v. Old National Bank and Raelynn Pound , a 17-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that (1) the trial court properly excluded the testimony of Dr. Lalouche pursuant to Evid. R. 702; (2) the Estate was not denied the opportunity to make an offer of proof regarding Dr. Lalouche’s anticipated testimony; (3) the trial court did not abuse its discretion by admitting redacted, certified copies of medical records; and (4) ONB’s mortgage was not invalidated.
NFP civil opinions today (2):

Shemika L. Boyd v. Review Board of the Indiana Department of Workforce Development and Amazon Com INDC, LLC (NFP)

Nathan Feguson and Deanna Ferguson v. Shiel Sexton Company, Inc. d/b/a Shiel Sexton, And WR Dunkin & Son, Incorporated; Lynch, Harrison & Brumleve, Inc.; et al (NFP)

NFP criminal opinions today (6):

Marilee Garrison v. State of Indiana (NFP)

Corday C. Dixon v. State of Indiana (NFP)

Dennis Daniels v. State of Indiana (NFP)

Aubrey Thompson v. State of Indiana (NFP)

>Jason Severs v. State of Indiana (NFP)

Jacob Lutz v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, June 04, 2014
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from March 25, 2014, the Fort Wayne Jounral Gazette today has this follow-up story by Amanda Lee Myers of the AP - some quotes:

CINCINNATI – Although a rural Ohio county’s judge’s actions were “petty, unethical and unworthy of his office,” he is still immune from being sued by an attorney who got fired after the judge kicked him off all the cases in his courtroom, an appeals court panel found Tuesday.

The decision by the 6th Circuit Court of Appeals stems from a 2012 lawsuit filed by attorney Robert Bright against Judge David Dean Evans in Gallia County in southeastern Ohio’s Appalachian country, just across the West Virginia line.

Bright’s lawsuit accused Evans, the county, its board of commissioners and its public defender’s office of violating his rights to freedom of speech and due process.

The public defender’s office fired Bright in September 2011 after Evans removed him from all the 60-some cases pending in his courtroom because of a “conflict he created with the court.” The judge cited a lengthy motion in which Bright criticized some of Evans’ practices, such as setting strict deadlines for entering plea agreements.

Don't miss reading the rest of the story.

Here is the 25-page, June 3rd opinion in Bright v. Gallia County.

Posted by Marcia Oddi on Wednesday, June 04, 2014
Posted to Courts in general

Ind. Courts - "Online traffic school website not approved by court"

From the Sunday Michigan City News Dispatch:

La PORTE — A website providing traffic school and defensive driving courses claims to be sponsored by the Indiana courts, but has not been officially approved by the courts.

La Porte County Superior Court No. 3 Judge Jennifer Koethe wants the public to be cautious when signing up online for a defensive driving program.

“Recently, a member of the public contacted the La Porte Superior Court 3 Traffic Department regarding an online defensive driving program that appeared to be court sponsored,” Koethe said.

The falsely sponsored site is www.gototrafficschool.com where you can select any court in Indiana by county to complete online traffic school, online defensive driving, online ticket dismissal, online point reduction or online driving improvement.

Indiana Code 9-30-3-16 provides that a court may require a person who has committed a traffic offense to complete a driver’s safety program approved by the court or the Indiana Bureau of Motor Vehicles.

The site provides a traffic school course for $40 and an Indiana insurance reduction course for $35, if the participant views the list of courses available for La Porte County Superior Court No. 3 on the website.

“Luckily, a concerned citizen questioned the site and brought this matter to the clerk’s attention prior to paying the fee for the program,” Koethe said. “Anyone who needs to complete a defensive driving program should verify that the program is approved by the Indiana Bureau of Motor Vehicles prior to signing up or paying for the program.”

The site is misleading because it has not been approved by the courts or by the Indiana BMV. The site has been reported to the Indiana Judicial center, the BMV and the Indiana Attorney General’s Office.

Posted by Marcia Oddi on Wednesday, June 04, 2014
Posted to Indiana Courts

Law - "U.S. Marshals Seize Cops’ Spying Records to Keep Them From the ACLU"

This is the headline to this WIRED article by Kim Zetter that @DougMasson pointed out yesterday. The long story begins:

A routine request in Florida for public records regarding the use of a surveillance tool known as stingray took an extraordinary turn recently when federal authorities seized the documents before police could release them.

The surprise move by the U.S. Marshals Service stunned the American Civil Liberties Union, which earlier this year filed the public records request with the Sarasota, Florida, police department for information detailing its use of the controversial surveillance tool.

The ACLU had an appointment last Tuesday to review documents pertaining to a case investigated by a Sarasota police detective. But marshals swooped in at the last minute to grab the records, claiming they belong to the U.S. Marshals Service and barring the police from releasing them.

ACLU staff attorney Nathan Freed Wessler called the move “truly extraordinary and beyond the worst transparency violations” the group has seen regarding documents detailing police use of the technology.

“This is consistent with what we’ve seen around the country with federal agencies trying to meddle with public requests for stingray information,” Wessler said, noting that federal authorities have in other cases invoked the Homeland Security Act to prevent the release of such records. “The feds are working very hard to block any release of this information to the public.”

Stingrays, also known as IMSI catchers, simulate a cellphone tower and trick nearby mobile devices into connecting with them, thereby revealing their location. A stingray can see and record a device’s unique ID number and traffic data, as well as information that points to its location. By moving a stingray around, authorities can triangulate a device’s location with greater precision than is possible using data obtained from a carrier’s fixed tower location.

The records sought by the ACLU are important because the organization has learned that a Florida police detective obtained permission to use a stingray simply by filing an application with the court under Florida’s “trap and trace” statute instead of obtaining a probable-cause warrant. Trap and trace orders generally are used to collect information from phone companies about telephone numbers received and called by a specific account. A stingray, however, can track the location of cell phones, including inside private spaces.

The government has long asserted it doesn’t need a probable-cause warrant to use stingrays because the device doesn’t collect the content of phone calls and text messages, but instead operates like pen-registers and trap-and-traces, collecting the equivalent of header information. The ACLU and others argue that the devices are more invasive than a trap-and-trace.

ILB readers may recall a series of posts around the end of 2013 involving the public records requests of Indianapolis Star's Ryan J. Sabalow, who wanted simply to verify that the Indiana State Police had purchased such devices. They were headed "Indiana State Police tracking cellphones — but won’t say how or why."

Posted by Marcia Oddi on Wednesday, June 04, 2014
Posted to General Law Related

Ind. Gov't. - More on "Indiana plan to use untested sedative in executions draws opposition from drug maker, attorney"

Updating this ILB post from Monday, Lafayette Journal Courier columnist Dave Bangert has a long, important article today headed "The bad business of Indiana executions." A sample:

Putting people to death isn’t so good for business, it seems.

Not that Indiana is listening, yet. Which is surprising. Because if there’s one thing the General Assembly and the governor’s office can get behind, it’s catering to the call of a corporate complaint.

But as a New Jersey company flinches over its drug being held up as a makeshift substitute in this state’s death row executions, Indiana has reached another time for when the General Assembly and Gov. Mike Pence need to ask: Is the death penalty really worth it?

As if a business begging, “Please, don’t use our product that way,” isn’t enough, consider the price in every other way — ethically, judicially and in dollars and cents. Capital punishment keeps getting harder to buy as ultimate justice. And not just because companies don’t want their products used to put down another killer.

In the past week, Par Pharmaceutical started protesting after Indiana Department of Correction officials said they planned to use the anesthetic Brevital as the first of three stages in the state’s execution. The state put Brevital into the mix after having trouble getting, as other states have had, sodium thiopental, a barbiturate that was last made in the United States in 2011 by the company Hospira.

Another quote, from later in the column:
Department of Correction officials so far have been unmoved by the company or by lawyers for Michael Dean Overstreet, one of 13 murderers on Indiana’s death row and likely next in line to be Indiana’s first prisoner put to death since 2009. Doug Garrison, DOC spokesman, said Brevital would work as intended — put someone into a deep and painless sleep, allowing deadlier drugs to do their work.

The chance that DOC is wrong on this account and that the next execution will play out, slow, lingering and torturous, the way the botched one for Oklahoma death row inmate Clayton Lockett did in late April, is real enough to force state leaders to ask for more than cocky assurances and ignored drug labels.

That should be enough for Pence to back away slowly by issuing a moratorium on executions in Indiana, one of 32 states with the death penalty.

And it should be just one more reason for members of the General Assembly to add Indiana to the list of states that have repealed the death penalty.

Posted by Marcia Oddi on Wednesday, June 04, 2014
Posted to Indiana Government

Ind. Courts - More on "Lake Co. judicial interviews postponed"

In this May 7th post the ILB reported that the interviews scheduled by the Lake County Judicial Nominating Commission with candidates for judge in the civil division of Lake County Superior Court had been postponed. (Here are some other ILB posts on the vacancy.)

The interviews have now been rescheduled, to begin Tuesday, July 1, per this June 2nd order of CJ Dickson, who is also Chair, Lake County Judicial Nominating Commission:

Notice is hereby given that on July 1, 2014 the Lake County Judicial Nominating Commission will begin interviewing applicants for nomination as Judge of the Superior Court of Lake County, Indiana, Civil Division. The interviews are open to the public and will be conducted in the hearing room of the Lake County Board of Commissioners located in the Government Center in Crown Point, Indiana. Only persons who previously submitted copies of their application to Richard C. Wolter, Secretary of the Commission, on or before the 18th day of April, 2014 are eligible for nomination.

After conducting interviews, the Lake County Judicial Nominating Commission will make its nominations and submit to the Governor of Indiana the names of three (3) candidates for Judge of the Superior Court of Lake County, Indiana, Civil Division.

Bill Dolan of the NWI Times reported yesterday:
The nine-member commission on July 1 will begin interviewing 21 lawyers who have applied to fill a vacancy created by the January death of the late Judge Gerald Svetanoff.

Lake Superior Court Justice Robert Rucker, chairman of the county judicial nominating commission, set the new interview date Monday. He had postponed the interviews last month after questions about whether the commission's membership followed political and gender regulations set out by state law.

The commission is composed of Rucker, four local lawyers elected by lawyers across the county and four non-lawyers appointed by the Lake County Board of Commissioners. State law mandates a set quota of males, females, minorities and party affiliations for the nonlawyer members.

The commissioners erroneously appointed a female last year instead of a male. Commissioners corrected that last month by naming Silas C. Wilkerson III, a Gary Republican, to the judicial nominating commission.

The commission is expected to complete the interviews as early as July 2 and choose three finalists from among the 21 applicants. Their names would be forwarded to Gov. Mike Pence, who is expected to appoint the new judge from among the trio.

Posted by Marcia Oddi on Wednesday, June 04, 2014
Posted to Indiana Courts

Tuesday, June 03, 2014

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

Updating this ILB post from May 22nd, the ILB has just received this information from Kathryn Dolan, Indiana Supreme Court Chief Public Information Officer:

Media, Judge Orth wanted me to let you know the following:

During the second day of jury selection, defendant William C. Gibson plead guilty to the murder of Stephanie Kirk. Gibson has been on trial for the murder of Stephanie Kirk and faces the death penalty. The penalty will now be determined by Judge Susan Orth. By pleading guilty to murder, in a death penalty case, Gibson waived his right for the penalty to be determined by a jury.

It is anticipated that the penalty phase will last approximately three days. It has been set for July 28, 2014 at 9 a.m. in Floyd Superior Court.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides prosecutorial misconduct case [Updated]

Yesterday the Court of Appeals decided the case of Brandon Brummett v. State of Indiana. The opinion included this footnote:

[5] We note that the circumstances in this case in regard to prosecutorial misconduct are similar to those in Ryan v. State. 992 N.E.2d 776 (Ind. Ct. App. 2013), trans. granted. The prosecutor in this case also prosecuted the defendant in Ryan. [ILB emphasis]
Today the Supreme Court has handed down its opinion in Bruce Ryan v. State of Indiana. Chief Justice Dickson authors the 11-page, 5-0 opinion, in which J. Rucker "concurs in result." From the opinion:
Following a jury trial, Bruce Ryan was convicted on two of three counts of Class C felo-ny Sexual Misconduct with a Minor. Appealing his convictions, the defendant argues that sev-eral statements made by the State during closing argument — statements to which he raised no objection at trial — constitute prosecutorial misconduct and that the cumulative effect of such misconduct rises to the level of fundamental error, warranting reversal of his convictions. The Court of Appeals agreed and reversed his convictions. Ryan v. State, 992 N.E.2d 776, 791 (Ind. Ct. App. 2013). We granted transfer, thereby vacating the opinion of the Court of Appeals, and we now affirm the trial court, concluding that some of the prosecutor's conduct was improper, but because of the absence of any timely objection by the defendant, reversal is not warranted. * * *

The defendant contends that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, improperly commented on the truth-fulness of the victim, and improperly urged the jury to convict him for reasons other than his guilt. * * *

We recognize only a single instance of prosecutorial misconduct, namely that the prose-cutor improperly urged the jury to convict the defendant for reasons other than his own guilt. But we decline to conclude that the trial court erred by not correcting the prosecutor's misstatements.

With regard to the impact of the "send the message" remark, we recognize that the prose-cutor began her closing argument reminding the jury "it's about what this defendant did in this case and how you are in a unique position to be able to now hold him accountable for that," Tr. at 133–34. Such correct statement so distanced from an improper one cannot qualify its sub-stance, but it may counteract its harm. Thus, while we find the "send the message" remark im-proper, we decline to hold that such error had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. * * *

Conclusion. The prosecutor improperly urged the jury to convict the defendant for reasons other than his guilt, but the defendant's failure to contemporaneously object and enable the trial court to take corrective action results in procedural default of the defendant's appellate claim. The effect of this prosecutorial misconduct did not make a fair trial for the defendant impossible. Thus, the doctrine of fundamental error does not overcome procedural default. While we do not endorse the prosecutor’s trial tactics in this case, we affirm the judgment of the trial court.

[Updated at 3:06 PM] Notice that the name of the Marion County Deputy Prosecutor involved, Gillian D. Keiffner, appears on the list of the attorneys for the appellee at the top right of the opinion's first page. In addition, Ms. Keiffner sat with the AG’s counsel at the table during oral argument before the Supreme Court. The Court's video lists her as a Counsel for the Appellee.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

For publication opinions today (1):

In Celadon Trucking Services, Inc., a/k/a Celadon Trucking Services of Indiana v. United Equipment Leasing, LLC, an 8-page opinion, Judge Friedlander concludes:

The trial court’s grant of United’s motion for relief is sustainable under the trial court’s inherent power to reconsider, vacate, or modify any previous order so long as the case has not proceeded to final judgment. This is precisely what the trial court did in this case. The trial court was well within its discretion to grant United the requested relief.
NFP civil opinions today (2):

5200 Keystone Limited Realty, LLC v. Filmcraft Laboratories, Inc., Eric J. Spiklemire, Portrait America, Inc., A.C. Demaree, Inc., Russ Dellen, Inc., Clean Car, Inc., et al. (NFP)

Michael G. Stoner v. Amy M. Stoner (McIntire) (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "More flexibility for judges, but reforms could push greater costs on counties"

Chelsea Schneider, Evansville Courier & Press, had a long story yesterday, here published at CorrectionsOne.com. Some quotes:

INDIANAPOLIS — Key pieces of the first overhaul of the state’s criminal code in 35 years will take effect in July, and two Southwestern Indiana sheriffs say the changes may place a strain on their operations.

The Indiana General Assembly approved the reforms the byproduct of years of work this year and in 2013.

The ultimate goal is for violent offenders to serve in state prisons for longer periods of time, while offenders convicted of less serious felonies will serve their sentences in county jails or local corrections programs.

The ultimate question is how the reforms will play out in reality.

What Vanderburgh County Sheriff Dave Wedding knows for sure is that more low level offenders, such as people convicted for simple thefts or possession of marijuana, will remain in the county. After July 1, Wedding said the new law requires the county to keep those offenders locally after sentencing instead of transferring them to the Indiana Department of Corrections.

“We certainly like the fact that violent offenders or hardened offenders will serve more time at (the Department of Corrections,)” Wedding said. “Now conversely, for them to mandate for us to house more people here without adequately funding us that would create more burden.” * * *

A thought behind the reforms is the Department of Corrections will realize savings by serving fewer inmates and those savings could be shifted to the counties. If costs are reduced, state lawmakers approved the ability to transfer up to $11 million in grants to community corrections agencies and probation programs. State Rep. Greg Steuerwald, a lead crafter of the reforms, said the $11 million is a good faith provision to show any savings by the state will be passed on to locals.

The way the law is written offenders convicted of the lowest level of felony will stay in county programs if their sentence is less than 90 days. An estimated 500 to 600 people statewide met the criteria last year. Beginning July 2015, offenders with sentences less than a year would stay locally. Currently counties receive $35 per day for felony offenders they house locally, and that funding would be maintained in the new law, Steuerwald said.

Steuerwald said the reforms pair with extensive data gathering to understand the extent offenders are being shifted from state jails to county programs, and if the state is realizing any cost savings.

“There is no doubt that this is going to be a continuing evaluation,” Steuerwald said.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Indiana Government

Ind. Courts - St. Joe deputy prosecutor resigns following drug arrest

Madeline Buckley has the story here, in the South Bend Tribune. It begins:

A deputy prosecutor with the St. Joseph County Prosecutor's Office resigned Monday afternoon after police in Ohio arrested him over the weekend for possession of marijuana.

Police on Saturday arrested John Rulli, 44, a prosecutor in the traffic and misdemeanor division, in Shawnee Hills, Ohio, a community northwest of Columbus.

An officer with the Shawnee Police Department saw two men who appeared to be preparing to urinate in a lightly wooded area around 6 p.m., a police report said.

The report said one of the men, identified as Rulli, ran when he saw the officer, and threw away something from his pocket.

The officer asked Rulli what he threw away, and he replied "marijuana and a one hitter," referring to a pipe, the report said.

The officer eventually recovered the marijuana and the pipe and arrested Rulli.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, so far

In Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc., a 14-page, 5-0 opinion, Justice Massa writes:

Nearly two centuries ago, Justice Stephen C. Stevens observed: “the wisest of judges have had much trouble in wading through the labyrinth of difficulties, discriminations, technicalities and shades that have gathered around the statute of limitations.” Raymond v. Simonson, 4 Blackf. 77, 84 (Ind. 1835).1 Although the case before us concerns the statutory filing period of a non-claim statute rather than a statute of limitation, we find Justice Stevens’s metaphor equally applicable here, where plaintiffs appeal the trial court’s determination that their wrongful death claim was untimely filed. Ultimately, we navigate this labyrinth and conclude we must reverse the trial court. * * *

Plaintiffs argue the Fraudulent Concealment Statute requires they be given two years after the discovery date to file their wrongful death claim. Defendant contends the Wrongful Death Act’s two-year filing period is a condition precedent to the existence of the claim and thus not susceptible to tolling under any circumstance whatever. The interaction of these two statutes presents us with an issue of first impression. * * *

Based upon our review of the historical and precedential records, we conclude that if a plaintiff makes the necessary factual showing, the Fraudulent Concealment Statute may apply to toll the Wrongful Death Act’s two-year filing period. In so holding, we break very little new ground. * * *

Public policy considerations further bolster our conclusion. Were we to hold otherwise, we would be incentivizing fraud and thus thwarting the obvious purpose of the Fraudulent Concealment Statute. And our decision today is consistent with that of courts in other jurisdictions, which have routinely found fraud may toll a statutory filing period even when it is a condition precedent to the existence of the claim rather than a statute of limitation. * * *

We therefore reverse the trial court’s grant of summary judgment to Good Samaritan and remand this case to the trial court for further proceedings consistent with our opinion today.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana meth lab registry to go online"

Emily Metheny, TheStatehouseFile.com, reports in the Louisville Courier Journal in a story that begins:

NDIANAPOLIS – A new state law should protect Hoosier homebuyers and real estate agents from buying or selling properties contaminated by meth labs.

The law — passed as House Bill 1141 — puts Indiana State Police in charge of a registry that will list all houses or apartments that have been used to produce meth, until they’ve been decontaminated.

The list will be open to the public.

“It’s a big bill for consumer protection and citizens,” said state police Sgt. Niki Crawford. She said the “brunt of the work” has been done and the links would be working on July 1, when the law goes into effect.

The law calls for a house or apartment to be added to the meth lab registry website 180 or more days after it was reported to the police. That gives the owner time to decontaminate the property before it goes on the list. The listing must then be removed within 90 days of decontamination.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Indiana Government

Ind. Courts - State's first "Domestic Violence Problem Solving Court To Begin In July"

That according to this story from WBIW.com:

(BEDFORD) - Lawrence Superior Court I Judge Michael Robbins announces the Domestic Violence Problem Solving Court will begin in July.

Robbins, accompanied by Nedra Brock Fleetwood and Joe Dibert of the Lawrence County Probation Department, sought and received authorization from the Lawrence County Council to implement the project geared to address the issue of domestic violence.

The court was established after county officials raised concerns about the issue to state health officials. A study of cases from 2007-2009 led to the recommendation of a domestic violence court.

Then, in 2013, the county received a $40,000 grant from the Indiana Supreme Court to form Indiana's first certified Domestic Violence Problem Solving Court.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Indiana Courts

Ind. Courts - "1,400 Indiana families sue Indiana DCS for unpaid subsidies"

Faran Fronczak reported yesterday for FOX28:

Cohen & Malad, LLP and Friedman & Associates, P.C. have filed a class action lawsuit for more than 1,400 Indiana families who have adopted children from the DCS. The lawsuit alleges a breach of contract by the DCS for failing to pay adoption subsidy payments to those who agreed in a contract, like [LaPorte resident Debra Moss]. * * *

Moss' attorneys are suing for nearly $40,000, just for her. The amount for other families is still being calculated.

The attorneys' press release says in part:
Court documents indicate that the DCS has returned over $238 million to the State of Indiana in excess funds since 2009, yet the agency claimed there were no funds available to pay the adoption subsidy payments promised in the contract. * * *

"The state of Indiana has advised numerous adoptive families that they are eligible for the state adoption subsidy and that they are being placed on a waitlist for payments due to a lack of funding. At the same time, the DCS is returning hundreds of millions of dollars in excess funds back to the state. This is manifestly unfair to these families who are counting on the adoptive subsidy," said Shaw Friedman of Friedman & Associates, P.C.

The ILB has obtained a copy of the complaint; access it here. It includes a copy of the State Adoption Subsidy Agreement.

[More] The Indianapolis Star has a story today by Marisa Kwiatkowski on the suit. A quote:

Attorney Richard Shevitz, of the firm Cohen & Malad, said DCS’ decision not to pay the subsidies is why adoptions from foster care have dropped 35 percent since 2009. He said it is a “lose-lose” for DCS because it costs more for children to remain in foster care than it would for the agency to pay the subsidy.

“People can’t afford to bring these children into their homes without having the resources to care for them,” Shevitz said. “It’s obviously very significant for these families.”

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to Indiana Courts

Law - Obama's signing statements vs. Bush's

The ILB had a number of posts on presidential signing statements a few years back, including this one from July 24, 2006, headed "Law - Bar Task Force finds presidential signing statements undermine separation of powers."

Today the Washington Post has a story by Karen Tumulty, headed "Obama circumvents laws with ‘signing statements,’ a tool he promised to use lightly." It begins:

Back when Barack Obama was a presidential candidate who boasted his background as a professor of constitutional law, he frequently criticized President George W. Bush for what Obama said was a “clear abuse” of executive power.

As president, Obama is being accused of doing the same, albeit not as frequently.

The issue at hand is his use of “signing statements,” official pronouncements in which a president offers his interpretation of legislation that he is signing — and in the modern era, sometimes announces that he feels free to disregard it.

While Obama has not issued as many signing statements as Bush did, many say he employs them in much the same manner.

“The difference is really with volume, not in kind,” said Kevin Evans, a Florida International University professor who has researched the practice of presidential signing statements. “Senator Obama had a very different view than President Obama.”

The story goes on to detail the law Obama signed requiring:
...that the defense secretary must notify relevant congressional committees at least 30 days before transferring anyone from Guantanamo Bay and provide assurances that those released would not be in a position to again threaten the United States or its interests.
And the signing statement he issued at the time:
In the signing statement with the law, Obama declared that he thought the requirement was potentially unconstitutional.

“The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers,” Obama said.

Posted by Marcia Oddi on Tuesday, June 03, 2014
Posted to General Law Related

Monday, June 02, 2014

Ind. Decisions - Supreme Court decides two, posted late today

In Martez Brown v. State of Indiana, a 10-page, 5-0 opinion, and one of two cases involving the same crime, Justice Rucker writes:

Martez Brown appeals his 150-year sentence imposed for two counts of murder and one count of robbery. Exercising our constitutional authority we revise Brown’s sentence. * * *

[In considering the sentencing under Rule 7(B)] The record in this case reveals two circumstances we find important with respect to the nature of Brown’s offense.

First, and particularly important, although receiving the same maximum sentence as his two cohorts, Brown was apparently found guilty of both murders as an accomplice. As the prosecutor noted in closing argument, “the evidence suggests and probably indicates [Brown] did not kill anybody himself.” Tr. at 409. “The evidence in this case suggests he probably was not [one of] the murderers. Not one of the persons that actually pulled the trigger and took a life himself.” Id. However, the prosecutor correctly contended: “[Brown is] still guilty under the theory of accompli[ce] liability.” * * *

Our second observation is that although senseless and reprehensible, the murders in this case were not particularly heinous. * * *

Brown was only sixteen years old at the time of the crime. We take this opportunity to reiterate what the United States Supreme Court has expressed: Sentencing considerations for youthful offenders—particularly for juveniles—are not coextensive with those for adults. * * *

Consistent with the Supreme Court’s reasoning this Court has not been hesitant to reduce maximum sentences for juveniles convicted of murder. * * *

Similar to a life without parole sentence, Brown’s 150 year sentence “‘forswears altogether the rehabilitative ideal.’” Miller, 132 S. Ct. at 2465 (quoting Graham, 560 U.S. at 74)). Indeed, Brown’s sentence essentially “‘means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of the [juvenile] convict, he will remain in prison for the rest of his days.’” Graham, 560 U.S. at 70 (quoting Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989)). * * *

We affirm Brown’s convictions and remand this cause to the trial court with instructions to issue an amended sentencing order consistent with this opinion.

In Jacob Fuller v.State of Indiana, an 8-page, 5-0 opinion, Justice Rucker writes:
In the case of sixteen-year-old Brown we employed our collective sense of what was an appropriate sentence and determined he “should receive an enhanced sentence of sixty years for each count of murder to be served concurrently and an enhanced sentence of twenty years for robbery to be served consecutively, for a total aggregate sentence of eighty years imprisonment.” Brown, No. 48S02-1406-CR-363, slip op. at 10. We believe Fuller is entitled to a sentence revision as well. But we are not inclined to revise Fuller’s sentence to be precisely the same, or even less than that of his cohort. Although only a year older than Fuller, Brown unlike Fuller was an accomplice—a factor that we found particularly important. Instead Fuller was one of the actual shooters. We conclude that Fuller should receive the maximum enhanced sentence of sixty-five years for each count of murder to be served concurrently, and an enhanced sentence of twenty years for robbery to be served consecutively for a total aggregate sentence of eighty-five years imprisonment.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Ind. Sup.Ct. Decisions

Law - "Today, Monday — the first business day that Illinois' same-sex marriage law is in effect"

Stephanie K. Baer has a report today in the Chicago Tribune. A quote:

Because the state's same-sex marriage law took effect Sunday, clerks in most collar counties said they planned to begin issuing licenses to same-sex couples Monday morning. * * *

Although more than 1,600 same-sex couples have been able to get marriage licenses from the Cook County clerk's office since Feb. 21, when a federal judge in Chicago ruled that the delayed effective date of the state law was unnecessary, June 1 still carries significance for many who had waited to hold wedding receptions and other celebrations until Sunday.

The February ruling, which was only effective in Cook County, expanded the decision by another federal court judge to allow a terminally ill woman with breast cancer to marry her female partner before the law's effective date.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to General Law Related

Ind. Courts - Canned hunting policy the focus of interim committee study and an appeals court challenge

Updating three ILB posts from last Friday on canned hunting:

Today the Fort Wayne Journal Gazette has a long editorial:
For more than a decade, Indiana has been struggling to resolve the issue of canned hunting – the practice of confining docile, farm-bred deer within a high-fenced “preserve” and charging visitors thousands of dollars to shoot them.

During this year’s session, the Indiana Senate fell just short of approving a measure that would have imposed a few regulations on the state’s four canned-hunting sites but would have legitimized them and perhaps encouraged the opening of others.

Those who backed the bill seemed to be unduly concerned about the economic benefits that flow from this inherently unsporting practice and oddly dismissive of the dangers posed to wild deer herds by the domesticated deer imported from other states.

Imported deer could bring chronic wasting disease, an always-fatal deer malady that could devastate the legitimate hunting industry in Indiana as it has in other states. Some balance may be restored to the discussion this summer. At the request of Senate President Pro Tem David Long, R-Fort Wayne, and Rep. Sean Eberhart, R-Shelbyville, the chairman of the House Natural Resources Committee, the legislature has authorized a summer study committee to look carefully at the CWD issue as it relates to the four canned-hunting operations and the nearly 400 deer farms in the state.

Long has spoken caustically about canned hunting in the past and voted against passage of this year’s measure. A powerful series about the issue in The Indianapolis Star a few weeks ago galvanized concern.

Last week, the office of Attorney General Greg Zoeller also weighed in, filing a brief urging the Indiana Court of Appeals to recognize that responsibility for regulating the high-fenced hunting operations rightly belongs to the state’s Department of Natural Resources.

The DNR tried to shut down canned hunting in 2005, but that effort remained in limbo until last year, when a judge in Harrison County ruled against the DNR, though an Owen County judge previously had ruled in favor of the agency.

In an effort to resolve the matter, the attorney general’s appeal of the Harrison County ruling argues that denying DNR oversight on a wildlife-related issue creates “a regulation-free environment where individuals can hunt without a license, out of season, with weapons not typically used for hunting and with blatant disregard for Indiana’s safety and ethical hunting standards.”

Preserve operators have argued that their deer are exempt from DNR oversight because they really should be classified as livestock. But if that’s the case, the attorney general’s office argued, state law would prevent them from being hunted.

It’s encouraging to see the legislature giving the issue more thought, and Zoeller is to be commended for taking the issue on in the courts. One way or another, the reckless trafficking in and unethical slaughter of deer have to be brought under control.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - "Indiana plan to use untested sedative in executions draws opposition from drug maker, attorney"

Tom Coyle of the AP reported May 30th in a long story - some quotes:

SOUTH BEND, Indiana — The maker of a drug Indiana wants to use for its first execution since 2009 says the anesthetic, which has never been used in lethal injections, isn't approved for that purpose and that it only recently learned of the state's intentions.

Stephen Mock, spokesman for Woodcliff Lake, New Jersey-based Par Pharmaceutical, said Friday the company didn't know Indiana had purchased Brevital for use in an execution until seeing news reports about it. He said the company is amending its distribution agreements to state that the product should not be sold to departments of correction but won't try to stop Indiana from using the Brevital it already has.

Indiana officials are standing by their decision to switch to Brevital because of a shortage of sodium thiopental. They say the drug, a powerful anesthetic used in hospitals for decades, is appropriate for an execution.

"Brevital, the way we intend to use it, will do exactly what it's intended purpose is, which is to induce a deep, painless, unconsciousness," Department of Correction spokesman Doug Garrison said Friday.

Indiana's switch to Brevital, also known as methohexital sodium, as part of its three-drug lethal injection series is its first change in execution protocol since it stopped using the electric chair in 1995.

The move comes amid increased scrutiny of lethal injection drugs. Drug makers have begun refusing to sell their products for use in executions, and condemned men in Ohio and Oklahoma took an unusually long time to die after being injected with different drug combinations.

"It sounds to me like Indiana intends to experiment with some new drug and see what happens, and that concerns me greatly," said Steve Schutte, an attorney representing Michael Dean Overstreet, who is expected to be the next inmate executed in Indiana.

The use of Brevital was successfully challenged in Oklahoma in 2010 by a lawyer who contended it was experimental and might lead to a "torturous" death.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Indiana Government

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

For publication opinions today (1):

In Brandon Brummett v. State of Indiana, a 20-page opinion, Judge Baker writes:

Appellant-defendant Brandon Brummett asks this Court to reverse his convictions for Child Molesting as a class B felony, Child Molesting as a class C felony, and three counts of Sexual Misconduct with a Minor, class D felonies. More particularly, Brummett argues that prosecutorial misconduct placed him in grave peril and amounted to fundamental error. Additionally, Brummett argues that the testimony of K.A. was incredibly dubious and, therefore, there was insufficient evidence to support one of his convictions for sexual misconduct with a minor. Finally, Brummett contends that the trial court committed fundamental error when it admitted evidence that Brummett touched A.A. in other states on family vacations. We conclude that the prosecutor’s continued misconduct did constitute fundamental error that placed Brummett in grave peril. Therefore, we reverse and remand for a new trial. * * *

Brummett contends that the prosecutor engaged in misconduct that placed him in grave peril and rendered a fair trial impossible. Although Brummett did not object to the misconduct at trial, he argues that the repeated instances of misconduct resulted in fundamental error.[5]

We conclude that the prosecutor engaged in prosecutorial misconduct by improperly distinguishing between the role of the defense and the prosecution, by improperly vouching for the State’s witnesses, and by asking argumentative and inflammatory questions. The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial.
________
[5] We note that the circumstances in this case in regard to prosecutorial misconduct are similar to those in Ryan v. State. 992 N.E.2d 776 (Ind. Ct. App. 2013), trans. granted. The prosecutor in this case also prosecuted the defendant in Ryan. [ILB emphasis]

ILB: The case of Bruce Ryan v. State was argued before the Supreme Court on Jan. 16th. (Watch it here.) No opinion has yet been handed down.

Although the COA opinion of July 31, 2013 in Ryan was vacated with the grant of transfer, the ILB summary is of interest, particulary the end of footnote 6, which states, in referring to another case, Spiegel:

In his concurring opinion, Judge Friedlander observed that despite admonishment from this Court, “instances of condemnable prosecutorial behavior continue to come before us on appeal. It would seem that our admonishments are falling on deaf ears on an all-too-regular basis.” Id., slip op at * 7. This case demonstrates the unfortunate result of the failure to heed our admonishments; namely, prosecutorial misconduct that requires reversal. [ILB: Note, however, that Spiegel was NFP.]

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Ind. App.Ct. Decisions

Environment - "Indiana power plants set for pollution limits"

Maureen Groppe, Star Washington Bureau, has a lengthy story today on the new air requirements, accompanied by good graphics. The story begins:

WASHINGTON — Now that the Supreme Court has upheld federal attempts to address pollution that blows into other states, Indiana's power plants will have to meet new limits on emissions that help cause smog and soot.

Most power companies operating in Indiana say they're prepared to meet those limits. However, the federal government is set today to call for a separate, national 30 percent reduction in carbon dioxide, the chief gas linked to global warming, from the nation's power plants. That will pose a new challenge for Indiana's plants, which produce the fourth-largest carbon dioxide emissions among states.

But the reductions in sulfur dioxide and nitrogen oxide emissions signed off on by the high court appear largely achievable in Indiana because electric rates here have already risen, and were already expected to rise some more, in part to pay for pollution controls.

"With the equipment we've added, we're well-positioned and don't expect to have to make any further investments on our Indiana system to comply with" the rule about pollution traveling to other states, said Angeline Protegere, a spokeswoman for Duke Energy, which owns the most power plants in Indiana.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Environment

Ind. Decisions - Transfer list for week ending May 30, 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 30, 2014. It is one page (and 12 cases) long.

Two transfers were granted last week, both with opinions:

The opinions were summarized in this May 28th ILB post.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Indiana Transfer Lists

Courts - "Double-Parking Is Exception on Liability in Rear-End Crashes, NYC Trial Judge Says"

Interesting story in the NY Times May 27th, reported by Marc Santora. Some quotes:

From huge potholes to a taxi door suddenly swinging open into traffic, New York City drivers must routinely avoid all manner of unexpected events and hazards.

Yet almost without exception, drivers are responsible for avoiding such obstacles; if their vehicle strikes another, they are presumed to be negligent and at fault.

The one exception is a double-parked car.

In a ruling issued this month, a judge in State Supreme Court in Manhattan found that “double-parking is the only exception to the rule” found in previous case law “that the stopped front car is presumed not negligent.”

Justice Arlene P. Bluth wrote that in almost all cases, if a driver hits another vehicle from behind, that driver could be found negligent without a trial. But when the victim is double-parked, the matter is best left for a jury to decide.

“If plaintiff was moving and stopped suddenly because, say, she thought a child was about to dart out, or because she thought the architecture was interesting, or because a bee flew into her car and frightened her, then she would be entitled to summary judgment if defendant rear-ended her, because the defendant should have left enough room between the cars to stop in time,” she wrote.

“But if she was already stopped and double-parked,” the judge wrote, “being hit from the rear may be a reasonably foreseeable consequence of double parking on a busy Manhattan street, and the determination of negligence must be left to a jury.” * * *

The judge’s refusal to grant summary judgment was reported in The New York Law Journal.

Sean Coonerty, a managing partner at Seigel & Coonerty, a personal injury law firm, said it was perhaps worth the State Legislature’s revisiting the traffic laws so that a driver waiting for a space to open up would not be technically double-parking.

“But even if it does go to a jury, what is the difference?” Mr. Coonerty said. “There is no way a jury is going to find someone negligent who was waiting to park with their brake lights or hazard lights on.”

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Courts in general

Environment - Properly cleaning up a meth lab

The Brazil Times has this article, headed "IDEM clears the air on meth lab cleanups."

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Environment

Ind. Courts - The Purdue shooter's insantiy plea and how the insanity defense works in Indiana

This weekend the Lafayette Journal Courier published this useful, very long story by Ron Wilkins - some quotes:

Ever since the awful morning in January when Andrew Boldt was stabbed and shot to death in front of a classroom of Purdue University electrical engineering students, authorities have said nothing about a possible motive for the killing of the popular undergraduate teaching assistant. Nor have Purdue students or professors offered any potential reason.

Perhaps that may be because there was none.

The fellow teaching assistant accused of murder in the case, Cody Cousins, is laying the groundwork for an insanity defense, according to a legal notice filed last month by his public defender. Cousins will attempt to convince jurors that he was unable to appreciate the wrongfulness of his act because of a mental illness or mental defect.

If a jury decides that Cousins was insane at the time of Boldt's death on Jan. 21, Cousins could be found either not guilty due to mental illness or guilty but mentally ill. Either way, legal experts say, such a defense faces long odds in Indiana.

"It's rare (that the defense succeeds)," said Larry Landis, executive director of the Indiana Public Defender Council, "but there are cases when at the time of the act, they are not aware of the wrongfulness of the conduct."

"In the majority of the cases it fails," noted Dr. Don Olive, a clinical psychologist in Indianapolis who specializes in forensic psychology. * * *

The first hint that Cousins, 23, might raise the insanity defense occurred at a May 8 court hearing. Cousins, responding to a question from Tippecanoe Superior Court Judge Thomas Busch, said he was prescribed medicine to balance his moods after he arrived at Tippecanoe County Jail. He told the judge he was taking the drug — Depakote — for treatment of schizophrenia.

On May 21, Cousins' public defender, Lafayette attorney Kirk Freeman, filed formal notice of his intention to use the defense of mental disease or defect.

When the defense is formally raised, the court appoints mental health experts to evaluate the accused. The experts must determine if the defendant is competent to stand trial and then must reach a conclusion about the defendant's sanity at the time of the crime, said Madison County Prosecutor Rodney Cummings.

Cummings said he's tried about 60 murder cases, and in about 10 of them, the insanity defense was raised. None was successful, he said. * * *

Under Indiana law, if a defendant is not competent to stand trial, he or she receives treatment until competency can be established and the trial can proceed, Cummings said.

A defendant can be deemed competent to stand trial but still be judged insane at the time of the crime, and vice versa.

When Olive, the Indianapolis forensic psychologist, is called upon to testify in a case, he said he reviews court documents and police reports and talks with witnesses to determine competency and a defendant's mental status at the time of the crime.

"You're basically trying to retrospectively get a view of a person's state of mind," Olive said. For instance, friends, family members or others might be able to identify behavior that might indicate the accused's mental state or mental health.

"I also would interview the person to get their perspective as to what happened and why it happened," Olive said. "In some cases, you can get a fairly clear sense that they appreciated the wrongfulness of their conduct."

The challenge of determining the defendant's state of mind at the time of the crime, however, becomes more difficult as time passes and the defendant adjusts to events after the crime, Olive explained.

If a defendant is hospitalized shortly after arrest, psychologists can begin documenting and evaluating the person's mental state close to the time of the alleged crime, Olive said. But that rarely happens, and it did not happen after Cousins was arrested Jan. 21.

The defense must prove that the defendant is insane or that the defendant did not appreciate the wrongfulness of his actions at the time of the offense, said Fran Watson, a professor at the Indiana University McKinney Law School. But the burden is a "preponderance of the evidence," rather than the higher standard of "beyond a reasonable doubt." In other words, the defense must show that it was more likely than not that the defendant was unable to appreciate the wrongfulness of his actions because of a mental illness or defect. * * *

If jurors are not convinced by a preponderance of the evidence that the defendant's mental state was impaired, they could come back with a typical guilty or not guilty verdict. But if they are convinced that a mental illness, disease or defect was involved, they are left with two choices: Not responsible (not guilty) due to mental illness, or guilty but mentally ill.

"The 'guilty but mentally ill' really means guilty," said Landis, of the Indiana Public Defender Council. "The only difference is that they are supposed to receive appropriate mental treatment" while in prison.

Landis, however, questioned the effectiveness of that treatment at the Indiana Department of Correction.

Landis explained that those found guilty but mentally ill are treated just as any other offender. At the Indiana Department of Correction's diagnostic center, every offender receives psychological testing. But since the offender's mental health problem might not be a continuing state of mind, the affliction might not show up on Department of Correction testing, so the offender doesn't necessarily receive mental health treatment.

Indiana's insanity defense does not have many supporters among health care professionals, such as Olive, or defense advocates, such as Landis, who noted that the defense rarely brings justice to truly mentally ill defendants who find themselves locked away in prisons.

"I'm not a fan of GBMI (guilty but mentally ill)," Olive said, adding that the verdict doesn't get the offender needed treatment. * * *

It is not impossible, Landis said, to get a verdict of not guilty by reason of insanity.

A delusional person, for example, might snap and think he is confronting a monster or some nightmarish manifestation, so he was acting out of fear, Landis said.

Such a not guilty verdict, however, does not mean the defendant simply walks out of court a free man, experts said.

Instead, the defendant is immediately detained to determine whether civil commitment to a mental institution is appropriate. The determining factor is whether the person is a danger to himself or others.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Indiana Courts

Ind. Decisions - Two opinions imposing reciprocal discipline

The Supreme Court issued two orders in late May imposing reciprocal discipline.

In In re Jeremy S. Berman, filed 5/22/14, the Court ordered:

Respondent was admitted to practice law in Indiana and in Illinois. On January 17, 2014, the Supreme Court of Illinois found Respondent's conduct violated that jurisdiction's rules of professional conduct. For this misconduct, Respondent was suspended from the practice of law in Illinois for three years until further order of the court. * * *

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order. Respondent is already under indefinite suspension in Indiana for noncooperation pursuant to an order entered in Cause No. 53S00-1212-DI-707, as well as suspension for noncompliance with this state's continuing legal education ("CLE") requirements.

In In re Hubert E. Kelly, filed 5/29/14, the Court ordered:
Respondent was admitted to practice law in Indiana and in Arizona. On February 20, 2014, the Supreme Court of Arizona found Respondent's conduct violated that jurisdiction's rules of professional conduct. Pursuant to an agreement by the parties, Respondent was suspended from the practice of law in Arizona for six months and one day followed by two years of probation, effective 30 days after the date of the order.

The Court finds that there has been no showing, pursuant to Admission and Discipline Rule 23(28)(c), of any reason why reciprocal discipline should not issue in this state.

Being duly advised, the Court orders Respondent suspended indefinitely from the practice of law in this state as of the date of this order.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Ind. Sup.Ct. Decisions

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

Nearly two weeks ago, on May 20th, the ILB had a post including Maureen Hayden's CNHI story headed "Pence: Indiana won’t comply with prison rape law." The following day the ILB had a post providing more context, including the text of the Governor's letter, a similar letter from the governor of Texas, and background information.

This morning the ILB was interested to see that the Indianapolis Star's lead story, spread across five columns at the top of the front page, but so short that there is no jump page, was a report by John Tuohy, headed "Indiana won’t comply with prison rape act, will lose federal funding." The only new news in the story may be this line:

Indiana is one of seven states to tell the Department of Justice that it will not follow federal guidelines designed to reduce prison rape and sexual abuse.
Yesterday, Doug Ross of the NWI Times had a Sunday column headlined "Indiana won't free money to protect jailed kids." It begins:
When Indiana Gov. Mike Pence announced he didn't plan to spend the money to meet federal standards for prisons, I was surprised. Lake County is spending millions to get out from under the federal consent decree requiring improvements at the Lake County Jail.

But what Pence and the federal government are talking about isn't the same as what got Lake County into trouble with the U.S. Justice Department.

It's worse.

Pence is balking at spending money on additional prison guards and other measures to protect prisoners from rape and sexual assault.

Including juveniles.

Posted by Marcia Oddi on Monday, June 02, 2014
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 6/9/14):

Thursday, June 12

Webcasts of Supreme Court oral arguments are available here.


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

Wednesday, June 4

Thursday, June 5

Next week's oral arguments before the Court of Appeals (week of 6/9/14):

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, June 02, 2014
Posted to Upcoming Oral Arguments