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Thursday, July 31, 2014

Ind. Courts - "Notice of Contracting Opportunity for Statewide Electronic Filing Manager"

The Supreme Court has just posted a Public Notice of Contracting Opportunity (PNCO), responses are due Sept. 15th, stating:

In May, the Indiana Supreme Court announced it was moving away from paper and going to a statewide e-filing system for court information. The first step is for the Division of State Court Administration to seek competitive bids for an e-filing manager. That manager will be required to work with multiple e-filing service providers statewide. The Division will coordinate the process, including certification of those providers. By having multiple providers, litigants will have filing choices.
See this May 22 ILB post for background.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Indiana Courts

Ind. Decisions - How will time be divided between consolidated plaintiff-appellees in Indiana's SSM case before the 7th Circuit?

Some quotes from the 7/31/14 brief of Counsel for the Baskin Plaintiffs [h/t @EQCF], asking the Court to allow them argue on behalf of plaintiffs in all three Indiana consolidated cases before the 7th Circuit panel next month.

2. On July 25, 2014, this Court ordered oral argument for all three consolidated cases to take place on August 26, 2014, allocating 20 minutes per side.

3. Seventh Circuit Rule 34(c) provides:
(c) Divided Argument Not Favored. Divided arguments on behalf of a single party or multiple parties with the same interests are not favored by the court. When such arguments are nevertheless divided or when more than one counsel argues on the same side for parties with differing interests, the time allowed shall be apportioned between such counsel in their own discretion. If counsel are unable to agree, the court will allocate the time.
No counsel in any of the consolidated cases believe divided time best serves the interests of the parties or the panel, but counsel are at an impasse.

4. For the following reasons, the Baskin Plaintiffs request that this Court direct their counsel to argue on behalf of plaintiffs in all three cases. * * *

10. Counsel for the Baskin Plaintiffs are skilled and experienced in arguing marriage cases and are more than qualified to argue on behalf of plaintiffs in all three consolidated cases. Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”), is the nation’s oldest and largest legal organization advocating on behalf of lesbian, gay, bisexual, transgender people, and people with HIV. Lambda Legal has been party counsel for plaintiffs in numerous state and federal cases challenging the constitutionality of laws excluding same-sex couples from marriage, and also was party counsel in Lawrence v. Texas, 539 U.S. 558 (2003), and co-counsel in Romer v. Evans, 517 U.S. 620 (1996), two of the Supreme Court’s leading cases redressing sexual orientation discrimination.

11. Finally, Camilla B. Taylor, counsel who would argue for the Indiana consolidated cases, is a skilled appellate advocate and well suited to provide the most cogent arguments on behalf of all the Plaintiffs’ legal claims and most responsive answers to the panel’s questions. As Lambda Legal’s National Marriage Project Director, she has served as party counsel in 10 cases in state and federal courts seeking the freedom to marry and marital protections for same-sex couples and is thoroughly familiar with the facts and legal history of the more than 90 marriage equality decisions rendered over the past two decades.

CONCLUSION

In the interest of providing the panel the greatest diversity of argument across the four cases, and because counsel for the Baskin Plaintiffs are most familiar with the record and history that primarily resulted in the District Court’s decision, the Baskin Plaintiffs respectfully request that this Court enter an order directing counsel for the Baskin Plaintiffs to argue on behalf of plaintiffs in all three Indiana consolidated cases.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (4):

In Linda M. Turner v. Sally A. Kent and Stanley J. Kazlauski , a 10-page, 2 opinion ruling, Judge Bradford writes:

Appellant-Respondent Linda Turner, trustee and beneficiary of the Kazlauski Family Trust (the “Trust”), appeals the trial court’s grant of summary judgment in favor of Trust beneficiaries Appellees-Petitioners Sally Kent and Stanley Kazlauski on the issue of whether a separate writing prepared after the execution of the Trust validly modified the Trust’s distribution terms. The separate writing provides for specific gifts of real property to Linda and Stanley. The trial court determined this to be an invalid attempt to incorporate by reference. On appeal, Linda argues that the writing constitutes a valid amendment to the Trust and, alternatively, a valid incorporation by reference. We conclude that the settlor intended the separate writing to be incorporated by reference into the Trust and, therefore, that it cannot be construed as an amendment to the Trust. We further conclude that the Indiana Trust Code prohibits incorporation by reference of specific gifts of real property and, therefore, that the separate writing is an invalid incorporation by reference. We affirm the trial court’s grant of summary judgment in favor of Sally and Stanley. * * *

As a result of our holding, the distribution of the Parcel remains subject to the Equal Shares Provision of the Trust. In dividing the Parcel equally among the three beneficiaries, we note that Stanley and Linda’s respective shares might include the homes which Selma arguably intended that they receive. The adoption of such an equitable solution, however, we leave to the sound discretion of the trial court. The judgment of the trial court is affirmed.

RILEY, J., concurs.
ROBB, J. concurs in result with opinion. [which begins, at p. 9] I, too, would affirm the trial court’s grant of summary judgment in favor of Sally and Stanley. However, I write separately because I find it unnecessary to determine Selma’s intention with respect to the Specific Gifts Form in order to reach that conclusion.

In State of Indiana v. Chase R. Downey , a 12-page, 2-1 opinion, Judge Bradford writes:
Appellee-Defendant Chase R. Downey was arrested after guns, marijuana, and a large sum of cash were discovered during a traffic stop of the vehicle in which he was a passenger. At the time of the stop, Downey indicated that the cash belonged to him. The cash was seized at the time of his arrest. On August 23, 2011, Downey was charged in Division One of the Clark County Circuit Court (the “Division One Circuit Court”) with Class B felony unlawful possession of a firearm by a serious violent felon, Class C felony carrying a handgun without a license, and Class D felony possession of marijuana. On September 16, 2011, the funds seized from Downey were transferred to the federal government pursuant to a transfer order that was issued by the trial judge presiding over Division Three of the Clark County Superior Court (the “Division Three Superior Court”).

Downey filed several requests in the Division One Circuit Court to have the seized funds returned to him before filing a motion to set aside the transfer order on July 27, 2013. The Division One Circuit Court subsequently granted Downey’s petition to set aside the transfer order and instructed Appellant-Plaintiff the State of Indiana (the “State”) to return the seized funds to Downey. On appeal, the State contends that the Division One Circuit Court abused its discretion in setting aside an order of the Division Three Superior Court, a separate court of equal jurisdiction. Concluding that the Division One Circuit Court abused its discretion in setting aside the transfer order, we reverse the judgment of the Division One Circuit Court. * * *

RILEY, J., concurs.
ROBB, J., dissents with opinion. [which begins, at p. 7, and includes] Moreover, even if I were to accept the majority’s premise that we must treat the courts as they existed when the case was filed, I would still disagree with the result. The Circuit Court had jurisdiction over the criminal case against Downey, and therefore, over the evidence relevant to that case. Yet, the State did not seek transfer of that evidence in the Circuit Court. Instead, it filed the motion in Superior Three, but took the motion to the Superior One judge for signature. If one court cannot control the processes of any other court of equal jurisdiction, then neither the Superior Three court nor the Superior One judge should have been issuing orders affecting a Circuit Court case. To the extent the distinction between the courts was important prior to reorganization or remains important now, the State itself did not hold the distinction in high regard and treated the courts even when they were separate as if they were interchangeable, filing the motion to transfer funds relating to a circuit court criminal case in one superior court and obtaining a signature on the order from the judge of an entirely different superior court. Accordingly, I also do not agree with the majority that Downey must challenge the transfer order only in Division Three if at all. See slip op. at 7. Even if that was the case, however, I question how he could do so when he was not even aware there was a transfer order out of Division Three until nearly two years after it was issued. Likewise, I do not agree with the majority that Downey’s request is moot. The money still exists even if it is no longer in the State’s immediate possession. That the State may need to recover it from the federal government or take other action to provide the relief the court ordered does not make this issue moot.

In Brookview Properties, LLC and First Merchants Bank of Central Indiana v. Plainfield Plan Commission, a 30-page opinion, Judge Najam concludes:
Brookview purchased the Hearthview parcel with knowledge that the original owner and developer had agreed with the Town of Plainfield to “rezone Metropolis as [a] PUD without approved land uses so that the Town and the Developer could work together, through the Metropolis Development Process, to establish use and development requirements for Metropolis.” Appellee’s Br. at 20-21. The first Commitment of the original developer set out in the Metropolis PUD clearly states that no preliminary plan and, hence, no land use had been approved for the Hearthview parcel. Because no preliminary plan had been approved for the Hearthview parcel, Brookview has not shown that the Plan Commission’s denial of its petition for development plan approval was arbitrary or capricious. And, finally, the Plan Commission’s decision does not constitute a taking. The trial court did not err when it granted the Plan Commission’s cross-motion for judgment on the administrative record and affirmed the Plan Commission’s denial of Brookview’s development plan.
In William T. Calvert v. State of Indiana , a 9-page opinion, Judge Najam writes:
William T. Calvert appeals his conviction for illegal consumption of alcohol by a minor, a Class C misdemeanor, following a bench trial. Calvert presents two issues for our review: 1. Whether the trial court erred when it tried him in absentia while he was on active duty with the United States Army in Afghanistan. 2. Whether a retrial would violate the prohibition against double jeopardy under Article 1, Section 14 of the Indiana Constitution. We reverse and remand for a retrial. * * *

Notwithstanding the tardy motion for a continuance, the reason for Calvert’s absence is undisputed, and the timing of the motion does not obviate the fact that the motion was made for undeniable good cause. Calvert had a constitutional right to be present at his trial, but he was bound by his U.S. Army Orders for deployment overseas, which compelled him to be absent from the trial. We conclude that the motion for a continuance should have been granted and that Calvert should not have been tried in absentia. Thus, we reverse his conviction. * * *

The general rule is that retrial of a defendant is permissible when the conviction is reversed on grounds other than sufficiency of the evidence. Hastings v. State, 560 N.E.2d 664, 670 (Ind. Ct. App. 1990), trans. denied. Because we reverse Calvert’s conviction on the basis that the trial court erred when it tried him in absentia, the State may retry Calvert.

NFP civil opinions today (0):

NFP criminal opinions today (8):

Marlon D. McKnight v. State of Indiana (NFP)

Tobin Pettiet v. State of Indiana (NFP)

Joshua W. Sanford v. State of Indiana (NFP)

Ronald Williams v. State of Indiana (NFP)

Terry Lee Carr v. State of Indiana (NFP)

Robert Hubbard v. State of Indiana (NFP)

Justin Stephens v. State of Indiana (NFP)

Mark McCoy v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Columbus agency's future on line in tax-exemption fight"

The Indiana Tax Court's June 6th decision in Housing Partnerships, Inc. v. Tom Owens, Bartholomew County Assessor, is the focus of a long article today by Matt Hansel of The Republic on the agency's pending motion to reconsider. A few quotes:

HPI was formed in 1989 to assist low-income residents in finding affordable housing in Bartholomew County. The organization combined with Aging and Community Services in 2013 to become Thrive Alliance, a strategic partnership of agencies under common management.

Mark Lindenlaub, executive director of Thrive Alliance, said that unless overturned, the June 6 Tax Court ruling threatens the viability of HPI as a community service organization.

"Our business model is based on HPI being tax exempt, and the decision to deny the exemption, if it stands, will create serious challenges for us," Lindenlaub said.

Lindenlaub said HPI focuses on improving the quality of housing and quality of life for residents and develops strategies to create and support good neighborhoods.

HPI renovates and builds homes as rental properties and assists residents in buying their first home and to understand the responsibilities associated with home ownership.

The organization also completes repair projects for elderly or disabled homeowners. * * *

In its June 6 decision, the Indiana Tax Court noted it gives great deference to the tax boards' conclusions and stated an adequate reason to overturn that ruling was not provided.

The court determined that HPI failed to demonstrate that the properties in its portfolio are owned, occupied and used for a charitable purpose as described in the Indiana Code.

In the eyes of the court, HPI also failed to present evidence outlining any conditions applied to the grants it received that would indicate it relieved a burden of the government.

HPI has asked the Indiana Tax Court to reconsider its decision. If the June 6 ruling stands, the next recourse for the nonprofit is to appeal to the Indiana Supreme Court.

HPI presented testimony from tenants, former tenants, the executive director of the Columbus Housing Authority and others, attesting to its value in the county, but to no avail.

Lindenlaub said the agency is taking matters one step at a time and has not yet decided if it would pursue the case to the high court if the upcoming decision goes against HPI.

Wilson said it is important to recognize that HPI's reasonable rents and nonprofit status do not automatically qualify it for a property tax exemption.

"The courts have continually concluded that just because a nonprofit corporation charges low-income individuals below-market rents for its apartments, that is not enough to show that the property is being used for a charitable purpose," Wilson said.

HPI was, however, granted a property tax exemption from 2002 to 2006 and its long-term business model has been based on that decision.

Lindenlaub said when HPI does housing projects, it puts together a budget to purchase, renovate and manage those properties over a 15- to 30-year period.

"When we do that, we have to project our expenses, one of which would be property taxes — and we didn't plan to have to pay for taxes," Lindenlaub said.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Ind. Tax Ct. Decisions

Courts - "Attorney General Eric Holder to Oppose Data-Driven Sentencing"

Post from Sentencing Law Blog, quoting from a new article in Time.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Courts in general

Ind. Courts - "Supreme Court observers predict ‘wide open’ process of picking of next chief"

Maureen Hayden of the CNHI Statehouse Bureau reported in a long story in the Kokomo Tribune on July 29th:

State Supreme Court Chief Justice Brent Dickson surprised observers in June when he decided to step down after a brief tenure in the leadership post.

Another surprise may be in store when his replacement is named.

A seven-member panel of lawyers and lay people will meet at the Statehouse on Aug. 6 to select the court’s next leader. Unlike Dickson’s selection two years ago, when other justices unanimously supported their long-serving colleague, there may be a four-way contest for his successor.

The panel’s decision will come after public sessions in which each justice has 20 minutes to talk about the qualities they think are important in the chief’s job — and, if they want, to make a pitch for themselves.

The sole woman on the bench, Justice Loretta Rush, may be the favorite, but there are no safe bets.

“It’s probably never been as wide open a process as it’s going be this time,” said former Justice Frank Sullivan, who retired from the bench in 2012.

Joel Schumm, an Indiana University law professor who writes about the court for the Indiana Law Blog, concurs.

The court has only had four chiefs since 1970, when Indiana switched from elections for Supreme Court to a merit system for selecting them. Candidates for the Supreme Court are vetted by a commission composed of three members appointed by the governor, three lawyers elected by fellow lawyers, and the sitting chief justice, who chairs the commission.

While the governor has final say over justice appointments, picking from three candidates selected by the commission, it’s the commission that decides who is chief justice.

“The commission will have to make a choice among some very accomplished people,” said Schumm.

The job is important. In addition to overseeing the court’s caseload, the chief sets priorities for the state’s justice system and conveys expectations for the legal profession.

It’s been a long time since there’s been a true contest for the spot.

Dickson, 73, who will return to his prior position as associate justice, saw his role as temporary when his fellow justices persuaded him to take the job two years ago. He replaced former Chief Justice Randall Shepard, the state's top judge for 25 years and the nation’s longest serving judge when he retired in 2012.

Shepard’s elevation in 1978 came with some controversy. A fellow justice coveting the position publicly accused him of drug and alcohol abuse, allegations that were unfounded but embarrassing to Shepard and the court.

Dickson has said publicly it’s “not likely” that the other justices will agree among themselves who should be their new leader, but no one expects a contentious selection.

Dickson has said any of the justices are capable of leading the court.

The committee’s choices include three justices with significant legal careers but no more than four years of experience on the Supreme Court.

Justice Steven David, of Lebanon, had a 25-year military career and spent 15 years as a trial court judge before former Gov. Mitch Daniels appointed him to the court in 2010. Justice Mark Massa, a former federal prosecutor who was Daniels’ general counsel, was appointed in 2012 by his former boss.

Rush, who worked with Dickson at the same law firm 30 years ago and was his protégé while there, spent 14 years as a juvenile court judge in Lafayette before joining the Supreme Court in 2012. She also was appointed by Daniels.

All three — David, Massa and Rush — are in their 50s and potentially could replicate Shepard’s long tenure.

Justice Robert Rucker, the only African-American member of the court, is seen as a less likely pick because of his age and party affiliation. At 67, he’d be limited to eight years as chief justice if selected. He is the only justice appointed by a Democrat, Gov. Frank O’Bannon, in 1999.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Indiana Courts

Law - Use of private or secret email accounts by government officials to avoid public access

The ILB posted in January about private email accounts being used by state officials in New Jersey to circumvent public records laws, and in February about Gov. Scott Walker and a secret email system.

Yesterday Tim Cushing at TechDirt reported under the heading "DC Circuit Court Tells District Officials They Can No Longer Hide From FOIA Requests By Using Personal Email Accounts," that begins:

With the FOIA process increasingly being routed through courtrooms, it's refreshing to see a court stand up and tell public officials to stop trying to find ways to be less transparent. The DC circuit court recently issued a ruling that shuts down a potential opacity loophole for public officials: the use of personal email accounts.
A copy of the ruling is included.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to General Law Related

Ind. Courts - "Photo of serial killer's inaccurate 'death row' tattoo made public"

Grace Schneider of the Louisville Courier Journal has been providing daily coverage of the penalty phase of William Clyde Gibson's capital murder case before Floyd Superior Court Judge Susan Orth. Here is the most recent story. A few quotes:

Gibson already has pleaded guilty to killing Florida beautician Karen Hodella in 2002 and was sentenced to 65 years. He was convicted last fall and sentenced to death for murdering Clarksville resident Christine Whitis, 75, a family friend, whose mutilated body — minus a breast — was recovered in Gibson's garage in April 2012.
This is his third murder trial. Readers may recall that Gibson had his head tattooed to so indicate. See this April 8th ILB post headed "Judge: Killer must cover tattoo before 3rd trial."

Yesterday, as reported (with photos) by Joey Brown of WAVE News from New Albany:

An image of a disturbing -- and inaccurate -- tattoo on serial killer William Clyde Gibson's head was made public on Wednesday.

The tattoo, which reads "Death Row X3," covers much of the back of Gibson's head and is an obvious reference to his convictions in three murders; however, Gibson can only be sentenced to death twice. He was given the death penalty for killing his mother's best friend, 75-year-old Christine Whitis, in 2012. After making a plea deal in the 2002 murder of Karen Hodella, he received a 65-year prison term for her death. The sentencing phase of the third murder case currently is underway. Although Gibson pleaded guilty to Stephanie Kirk's 2012 murder, he could be sentenced to death for her killing.

The tattoo has not previously been seen widely by the public because cameras are not allowed inside Indiana courtrooms. The Indiana Office of the Courts released the photo on July 30 as part of evidence logged in by police and presented to the court by the Floyd County Prosecutor's Office.

Gibson's tattoo is particularly controversial because he got it while in police custody, although no one has come forward claiming to know exactly when or where it was done.

A picture that a representative for the Indiana Department of Corrections said was taken in December 2013, shortly after Gibson arrived at the Indiana State Prison's Death Row, shows Gibson with short hair. When he returned to the Floyd County Jail on March 14, 2014, his hair was even shorter -- closely shaven -- and the tattoo was visible.

"He left our facility without it and returned with it," said Floyd County Jail Commander Andrew Sands in a March interview.

Indiana Department of Corrections staff members said the tattoo was not noted when Gibson arrived on death row. A spokesperson for DOC speculated that perhaps the tattoo was covered by hair. The Floyd County sheriff disputed that assertion.

"When they took him to corrections and released him over to [DOC], his head was completely shaved at that point, and no tattooing was visible at that time," said Sheriff Darrell Mills in March.

Floyd County Prosecutor Keith Henderson wants to know how an inmate who is supposed to be segregated 23 hours a day could get such an elaborate tattoo.

"Quite frankly, I think there needs to be some explanation from the Department of Corrections on how that could occur when somebody's on Death Row in Indiana Department of Corrections," Henderson said in March.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Indiana Courts

Ind. Decisions - More on: Hamilton County Clerk gains voluntary dismissal from State of Indiana's same sex marriage appeal to 7th Circuit

Yesterday Indiana's Hamilton County clerk moved for voluntary dismissal from the defendant's appeal (Baskin v. Borgan) to the 7th Circuit. She did not really give a reason. The 7th Circuit granted the motion.

Today, in the State of Wisconsin appeal, Wolf v. Walker, which is proceeding at the same time, Joseph Czarnezki, the Milwaukee County Clerk, has filed a document noting his opposition to the defendants' positions:

The plaintiffs-appellees named him in his official capacity as a defendant in the action from which this appeal has been filed. But his interests are aligned with the plaintiffs-appellees, not with the co-defendants who have brought this appeal.

Mr. Czarnezki files this memorandum to make clear that he does not appeal the injunction against him entered by the district court. (R. 57-16:443, 444.) He stands ready to follow its terms, consistent with his request below for a declaration that he is “authorized and empowered to issue marriage licenses to all couples, whether or not same-sex couples, who are otherwise qualified to receive a license under Wisconsin law.” (R. 57-5:65.) Mr. Czarnezki opposes all arguments of his co-defendants-appellants to the contrary.

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

Ind. Gov't. - "Charlestown residents continue fight to preserve neighborhood"

A July 7th story from Alex Schuman, WHAS11 Louisville, reports:

CHARLESTOWN, Ind. (WHAS11) – Crowds waited outside Charlestown City Hall Monday evening with a serious message.

“Demolishing the Pleasant Ridge neighborhood will send a deafening message that the American dream is at risk in Charlestown,” Melinda Haring said.

Haring works for the Institute for Justice out of Arlington, Virginia.

The group specializes in helping neighborhoods like Pleasant Ridge protect themselves from eminent domain.

"They claim that the homes in the Pleasant Ridge neighborhood are transcient, temporary, and that people are coming and going. I think this is false. I believe the people who live there believe this to be false."

Community members asked Haring to come with them to a city council meeting to speak on their behalf to Charlestown Mayor Bob Hall.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Indiana Government

Ind. Gov't. - "Special prosecutor says Brinkerhoff-Riley did not violate law"

Updating earlier ILB posts, Sean Edmondson reported yesterday for WFIE14 Evansville:

Gibson County Prosecutor Robert Krieg, the special prosecutor appointed in the case of Evansville Councilwoman Stephanie Brinkerhoff-Riley, says she did not violate the law when she secretly recorded a confidential meeting of the State Board of Accounts.

Brinkerhoff-Riley admitted to using her phone to secretly record a state audit exit interview about the about the city audit.

She then made that information public.

Court documents show that Krieg determined that the confidentiality of exit conferences only applies to the auditor or examiner and not attendees.

The story links to Prosecutor Krieg's full, 5-page report.

The State Board of Account reaction:

State Examiner Paul Joyce says as a result of the Brinkerhoff-Riley case there will be "a lot of changes."

Joyce says he will no longer allow any council members at the exit conference for cities. The only person allowed will be the person audited.

Posted by Marcia Oddi on Thursday, July 31, 2014
Posted to Indiana Government

Wednesday, July 30, 2014

Ind. Decision - Petition for rehearing filed by State in recent COA prosecutorial misconduct decision [Updated]

On June 2nd the Court of Appeals issued an opinion in Brummett v. State, concluding:

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.
Here is footnote 5 from the opinion:
[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.
The following day, June 3rd, the Supreme Court issued an opinion in Ryan v. State:
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.
A check of the docket in Brummett shows that the State of Indiana filed a petition for rehearing (available here via the ILB) on July 1st. Here is the summary:
This Court did not apply the appropriately high standard for fundamental error when it reversed Defendant's convictions for child molesting on the basis of an unpreserved claim of prosecutorial misconduct. The day following this Court's decision in this case, the Supreme Court of Indiana issued an opinion in Ryan v. State reinstating convictions this Court had vacated on the basis of fundamental error prosecutorial misconduct. Ryan v. State, cause no. 49S02-1311-CR-734, slip op. 7 (Ind. June 3, 2014). This Court should grant rehearing in the present case and apply the same fundamental error standard that was re-stated in Ryan, and like the Court in Ryan, reinstate the child molesting convictions here.
The ILB has also obtained a copy of Brummett's brief in response [large file] to the petition for rehearing. It begins:
This case can be distinguished from Ryan v. State. There was prosecutorial misconduct in this case that amounted to fundamental error. This Court should not change its opinion. * * *

This Court found three types of prosecutorial misconduct in this case that, cumulatively amounted to fundamental error, reversed Mr. Brummett's convictions and ordered a new trial. Brummett v. State, 10 N.E.3d 78 (Ind.Ct.App.2014). In light of the reversal of this Court's decision in Ryan v. State, 9 N.E.3d 663 (Ind. 2014), which involved the same deputy prosecutor, the State requests that this Court revisit its decision to reverse Mr. Brummett's conviction. Because the misconduct in this case is more egregious than that in Ryan, this Court need not revisit its decision here. Mr. Brummett is entitled to a new trial.

[Updated at 6:55 PM] Forgot to point to yesterday's COA opinion in another prosecutorial misconduct case, Bean v. State.

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

Ind. Decisions - Hamilton County Clerk gains voluntary dismissal from State of Indiana's same sex marriage appeal to 7th Circuit

Hamilton County Clerk Peggy Beaver, one of the defendants in Baskin v. Bogan, moved today for voluntary dismissal from the appeal to the 7th Circuit. The rationale stated:

3. The Hamilton County Clerk has no additional arguments to add to this Appeal.

4. After discussion with undersigned counsel, the Hamilton County Clerk desires to
voluntarily dismiss her Appeal pursuant to Federal Rules of Appellate Procedure Rule 42.

The other defendants did not object.

The 7th Circuit has now issued an order granting the Hamilton County Clerk's motion for voluntary dismissal.

ILB: I have no idea why this was done or what might be the significance...

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

Ind. Decisions - Two new 7th Circuit opinions, one from yesterday and one from today (a reversal)

In U.S. v. Gutierrez (SD Ind., Pratt), a 15-page opinion dated 7/29, Judge Flaum writes:

Based on a tip that Oscar Gutierrez was involved in drug trafficking, law enforcement went to his home with a certified narcotics canine and knocked at the front door. Officers saw movement inside, but no one answered the door. The officers had the dog examine the front door for the scent of narcotics, and he alerted. After knocking for fifteen minutes, the officers forcibly entered and se-cured the home, but they did not conduct a search until an officer swore out an affidavit and returned with a search warrant. That warrant relied on the dog’s positive alert. The ensuing search revealed eleven pounds of methamphetamine in Gutierrez’s home.

All of this occurred in November 2012. In 2013, however, the Supreme Court held that the use of a drug-sniffing dog on an individual’s porch is a Fourth Amendment search. Florida v. Jardines, 133 S. Ct. 1409, 1414–16 (2013). There is thus no question that the sniff in Gutierrez’s case is no long-er permissible, for the officers lacked a warrant (at the time of the sniff) and no exception to the warrant requirement applied; moreover, a warrant based primarily on an impermissible sniff would be invalid. However, under Davis v. United States, 131 S. Ct. 2419 (2011), the evidence in this case should not be suppressed if “binding appellate precedent specifically authorize[d]” the officers’ conduct at the time they acted. Id. at 2429 (emphasis omitted). The district court found that our precedent did authorize the officers’ conduct. We agree, and therefore affirm.

In U.S. v. Davison (ND Ind., Moody), a 6-page opinion dated 7/30, Judge Posner writes:
The defendant, a member of the “Concord Affiliated” street gang in Gary, Indiana, was convicted in 2003 of two counts of having distributed at least 50 grams of crack cocaine. 21 U.S.C. § 841(a)(1). In October 2003, the district judge, determining that the defendant had foreseen the gang’s sale of “way in excess of” 1.5 kilograms of crack—at that time the threshold quantity for the highest base offense level (38) for a federal drug offense—sentenced crack. That was the entire amount that the conspiracy of which the defendant was a member had been found to have sold, and we had upheld that finding in United States v. Hall, 600 F.3d 872, 876 (7th Cir. 2010), a case that involved a mo-tion for a reduction in sentence by two of the current de-fendant’s co-conspirators.

Both the district judge in denying the defendant’s motion for a reduction in the length of his sentence, and the gov-ernment in defending that denial in this court, appear, how-ever, to have misunderstood “relevant conduct,” the basis on which the judge had computed a base offense level of 38 for the defendant and sentenced him to 360 months in pris-on. Relevant conduct is conduct by the defendant that even if not charged is to be used to determine his base offense level, U.S.S.G. § 1B1.3 and Application Note 1. * * *

The possible significance of the murders to the question of the defendant’s relevant conduct thus remains an unre-solved issue. It is a factual issue for the district judge to re-solve in the first instance, as are any other factual issues re-garding the defendant’s relevant conduct. We reverse the judgment and remand the case for recon-sideration of the defendant’s motion.

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

Ind. Decisions - Court of Appeals issues 8 today (and 13 NFP)

For publication opinions today (8):

In Land Innovators Company, L.P., R.N. Thompson, Trinity Homes, Inc. and Trinity Homes, LLC d/b/a Beazer Homes v. Michael L. Bogan and Melody A. Bogan, a 22-page opinion, Judge Robb writes:

This case centers on a newly constructed home purchased by Michael and Melody Bogan (collectively, “Bogan”) in the Lake Stonebridge subdivision in Fishers. Since the home’s construction in 1999, it has experienced two incidents of flooding in the lower level. In response to these instances of flooding, Bogan filed suit against the subdivision developer and its general partner, Land Innovators, L.P. and R.N. Thompson, respectively, (collectively, the “Developers”) and against the homebuilder, Trinity Homes, LLC (“Trinity”). Bogan asserted a multitude of claims against the defendants, including breach of contract, negligence, negligence per se, constructive fraud, breach of covenants, breach of implied warranty of habitability, and abuse of process. The Developers also raised a cross-claim against Trinity seeking indemnification. On April 29, 2013, the trial court issued an order that: (1) awarded partial summary judgment to Bogan against Trinity on liability as to claims of negligence, negligence per se, breach of contract, and breach of covenants; (2) awarded partial summary judgment to Bogan against Developers on liability as to the claim of breach of covenants; (3) found genuine issues of fact existed regarding Bogan’s claims against Trinity of constructive fraud and breach of warranty of habitability; (4) found genuine issues of fact existed regarding Bogan’s claims against the Developers of negligence, breach of warranty of habitability, and abuse of process; and (5) granted Trinity’s motion for judgment on the pleadings against Developers’ claim for indemnification. On May 31, 2013, the trial court issued another order granting Bogan’s request that the home be demolished.

All three parties have raised issues for our consideration in this appeal. Trinity asks (1) whether the trial court erred in granting partial summary judgment on claims of negligence, negligence per se, breach of contract, and breach of covenants, and (2) whether the trial court erred in concluding Bogan was entitled to attorney fees on their breach of covenants claim. The Developers ask whether the trial court erred in granting summary judgment against them for breach of covenants. Additionally, both Trinity and the Developers challenge the trial court’s determination that the Bogan home must be torn down. Bogan, as cross-appellant, raises two issues: (1) whether the trial court erred by denying summary judgment on Bogan’s claim of constructive fraud against Trinity, and (2) whether the trial court erred by denying summary judgment on Bogan’s claim of negligence against the Developers. Finding no error in the trial court’s April 29, 2013 order on summary judgment and Trinity’s motion for judgment on the pleadings, we affirm that order in all respects. However, we conclude the trial court’s decision to enter an injunction for removal of the house without presentation of evidence or findings as to the requisite elements for an injunction was improper, and we reverse and remand on that sole issue.

In Selective Insurance Company of South Carolina and 500 Rangeline Road, LLC v. Erie Insurace Exchange, Welch & Wilson Properties, LLC d/b/a Hammons Storage, Allianz Global Risks U.S. Insurance Company, a 39-page, 2-1 opinion, Judge Brown writes:
The Appellants argue that: (A) Rangeline was covered under the Policy as an additional insured; and (B) the care, custody, or control exclusion contained in the Policy does not apply. * * *

For the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of Erie and denial of the Appellants’ motion for partial summary judgment, and we remand for further proceedings consistent with this opinion. Reversed and remanded.

BARNES, J., concurs.
ROBB, J., dissents with opinion. [which begins, at p. 37] Because I agree with the trial court that the A/I Endorsement of the Policy does not provide coverage for Rangeline in the Underlying Litigation, I respectfully dissent from the majority’s decision reversing the trial court.

In Bartholomew County, Indiana v. Review Board of the Indiana Department of Workforce Development, and Robert L. Amos, an 8-page opinion, Judge Bradford writes:
Appellant employer Bartholomew County (“the County”) appeals the determination of Appellee the Review Board of the Indiana Department of Workforce Development (“the Review Board”) that Appellee unemployed claimant Robert L. Amos was not discharged for just cause and, therefore, is eligible for unemployment benefits. Amos was employed as a merit deputy sheriff when he playfully shot a fellow officer in the groin with non-lethal training ammunition. The Bartholomew County Sherriff’s Merit Board (“the Merit Board”) found Amos to have violated six Sheriff’s Department rules and determined these violations to be “cause” for Amos’s discharge under Indiana Code section 36-8-10-11(a). The Review Board found that the County did not uniformly enforce its rules, as required for “just cause” discharge under Indiana Code section 22-4-15-1(d)(2). The County argues that (1) the issue of whether Amos was discharged for “just cause” was collaterally estopped by the Merit Board’s determination that Amos’s rules violations were “cause” for his discharge; (2) the Review Board erred in defining the class against which uniform rule enforcement is measured; and (3) the Review Board abused its discretion in denying the County’s request to present the transcript of the Merit Board hearing as additional evidence. We affirm.
Rogelio Garcia v. Garau Germano Hanley & Pennington, P.C.

James E. Whitfield, M.D. and St. Joseph Primary Care, LLC v. Jerry Wren, Individually and As Personal Representative of The Wrongful Death Estate of Leslie Wren, et al.

Duneland Properties, LLC, Duneland Sand, Inc., Duneland Sand Enterprises, LLC, Duneland Holdings, LLC, David Lasco and Lasco Family Trust v. Northern Indiana Public Service Company

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

Micah D. Perryman v. State of Indiana

NFP civil opinions today (5):

Frederick Bazeley, Jr., As Personal Representative of the Estate of Frederick T. Bazeley, III v. Robert Price and Sampson Fiberglass, Inc. (NFP)

Northern Indiana Public Service Company v. Ruth A. Cranor (NFP)

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

Michelle Rose f/k/a Michelle Grabbe v. Jay D. Grabbe (NFP)

In the Matter of the Finding of Contempt Against Tad Bohlsen During the Proceedings of Health and Hospital Corporation of Marion County v. Dickson Street Investments, LLC (NFP)

NFP criminal opinions today (8):

Warren Parks v. State of Indiana (NFP)

Nicolas Duesler v. State of Indiana (NFP)

Natosha L. Stillions v. State of Indiana (NFP)

Eric Barnett v. State of Indiana (NFP)

Angela M. Littrell v. State of Indiana (NFP)

Thomas J. Wiater v. State of Indiana (NFP)

Jeremy D. Jones v. State of Indiana (NFP)

Travis L. Chizum v. State of Indiana (NFP)

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

Ind. Courts - Second Quarter Indiana Supreme Court Cases: More Unanimity, Fewer Court of Appeals’ Reversals

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

The Indiana Supreme Court issued opinions in 12 civil cases and 17 criminal cases between April 1 and June 30. The two tables below include detailed information about the disposition time, authorship of majority opinions and separate opinions, and whether the Supreme Court reached the same or opposite result as the Court of Appeals and Trial Court.

Indiana Supreme Court Opinions (Criminal Cases): April 1, 2014 - June 30, 2014
  Days from
Transmitted
to Grant
Grant to
Oral Arg.
Oral Arg
to Opinion
Total Time Majority Author Dissent COA Trial Ct.
Thang v. State 26 104 43 173 BD SD/RR R A
Gaddie v. State 37 118 54 209 BD U A R
Berry v. State --- --- --- 233 LR CR-RR R R
Murdock v. State) --- --- --- 46 BD U A A
McIlquham v. State 28 84 71 183 LR U A A
Knapp v. State (LWOP) direct 115 84 199 LR U --- A
Ponce v. State 38 153 140 331 RR U R R
Ryan v. State 31 70 138 239 BD U R A
Fuller v. State --- --- --- 258 RR U R R
Brown v. State --- --- --- 249 RR U R R
State v. Harper --- --- --- 68 BD U R A
Bond v. State 36 147 96 279 SD U R R
Brewington v. State* --- 171 232 403 LR U R A
Meehan v. State 39 147 110 296 SD U R A
Ramirez v. State 15 150 209 374 LR Co-MM A A
Rice v. State (LWOP) direct --- --- 198 MM U --- A
Wilson v. State 31 --- --- 239 SD U R R
                 
Averages 31 126 118 234        
* Oral argument held on whether to grant transfer; thus, transmittal date used.

Indiana Supreme Court Opinions (Civil Cases): April 1, 2014 - June 30, 2014
  Days from
Transmitted
to Grant
Grant to
Oral Arg.
Oral Arg
to Opinion
Total Time Majority Author Dissent COA Trial Ct.
South Shore Baseball 107 147 169 423 MM U A R
Andrews v. Mor/Ryde --- --- --- 100 LR U R R
Robinson v. Erie Ins. 51 119 96 266 BD U R A
Alldredge v. Good Samaritan) 41 203 180 424 MM U A R
Asklar v. Empire Fire Ins. 35 177 210 422 MM U R R
David v. Kleckner * --- 184 111 295 BD U R R
Smith v. Delta Tau Delta --- --- --- 223 BD U R A
Mental Health Actions A.S. --- --- --- 144 SD U A/R R
Ballard v. Lewis - Rule 56(A)** --- 132 55 187 Per U --- R
Alva Elec. v. Evansville-Vand 57 84 210 351 RR U A R
Bleeke v. Lemmon 44 203 132 379 SD U A/R A/R
Groce v. Amer. Fam. Ins. 65 77 189 331 BD U A A
                 
Averages 57 147 150 295        
* Began counting when case was transmitted on transfer. Transfer was granted when opinion was issued.
**Began counting when 56(A) was granted.

90+% Unanimity

No matter how you dice it, the vast majority of the Indiana Supreme Court’s opinions were unanimous. All twelve civil cases were joined by all justices without a single dissenting or concurring opinion. Only one of the nineteen criminal opinions — Thang v. State — generated a dissenting opinion (written by Justice David and joined by Justice Rucker) while Justice Massa wrote a separate concurring opinion in Ramirez. (Justice Rucker concurred in the result in Berry but did not write separately to explain his rationale.) Thus, looking only at cases with a dissenting opinion, the justices were unanimous in 97% of their second quarter opinions; that rate falls to 93% if including the separate concurring opinion.

Oral Argument in Less Than Two-Thirds of Decided Cases

The justices heard oral argument in only 59% (10/17) of criminal cases and 75% (9/12) of the civil cases in which they issued opinions last quarter. That leaves nearly 35% of cases decided without oral argument. As explained in a previous post, the Court sometimes hears argument to decide whether to grant transfer in a case, although that practice has been declining.

Disposition Time

Counting from the time a case is “transmitted” to the Supreme Court with all briefs filed, a decision took an average of a little under eight months in criminal cases and just under ten months in civil cases. This is similar to the averages of 278 days in criminal cases and 275 days in civil cases during the first quarter. During the second quarter, two straightforward criminal cases in which oral argument was not held — Murdock and Harper — were at the low end of about two months or less while Brewington v. State and three civil cases — South Shore Baseball, Alldredge, and Asklar — each took well over 400 days.

As explained in the April posts about first quarter statistics, the initial period of delay (transmission on transfer to grant of transfer) is relatively short and necessary for the justices to prepare to discuss the cases at conference (31 days in criminal cases) or for the Administrator’s office to prepare a memo in addition to each justice’s preparation for conference discussion in civil cases (57 days).

The delay in scheduling oral argument — an average of four and a half months and sometimes more than six months—seems unnecessarily long in many cases. The shortest time between a transfer grant and oral argument was 70 days in the Ryan case, which is more than adequate for lawyers to prepare for an argument in nearly any case.* Although the justices do not hear arguments in July and August, they generally hear arguments on Thursdays most weeks during the remaining ten months of the year, allowing ample opportunity for prompt scheduling of arguments.

Finally, the delay between oral argument and issuance of an opinion varied widely. Surprisingly, the shortest delay was in the only case with a dissenting opinion, Thang v. State, where Chief Justice Dickson’s six-page majority opinion and Justice David’s seven-page dissent were both penned and coordinated in just 43 days. Perhaps putting disagreements to paper is more expeditious than the justices working through the differences to reach a unanimous opinion. Unanimous opinions in two civil and two criminal cases took more than 200 days after oral argument.

Court of Appeals Usually Reversed; Trial Courts a Mixed Bag

Similar to the first quarter, trial courts were generally affirmed by the Supreme Court in criminal cases (59% or 10/17) and reversed in civil cases (27% or 3/11, excluding the partial affirmance/reversal). The Court of Appeals was reversed in 56% (5/9) of civil cases and 73% (11/15) of criminal cases. Lawyers and litigants who have prevailed in the Court of Appeals shouldn’t necessarily assume the worst if they end up on the receiving end of a grant of transfer (a reasonable assumption in civil cases during the first quarter when the affirmance rate was a paltry 19%).

Several Narrow Victories for Criminal Defendants

The first quarter brought very little good news for criminal defendants as the trial court was affirmed in seven of the nine cases, and the two cases that were reversed were appeals by the State. (But two other appeals by the State were affirmed: Keck and I.T.) The second quarter included a number of reversals of convictions or sentencing relief but mostly on narrow grounds unlikely to apply broadly to many future cases:

The notable exception is Gaddie v. State, where a unanimous Court concluded “[t]o 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 reasonable suspicion or probable cause.”

Conclusion

The last quarter under Chief Justice Dickson’s leadership brought an unusually high number of unanimous opinions, oral argument in less than two-thirds of cases resolved by opinion, and disposition times in excess of a year in more 20% of those opinions. Next quarter will bring a new Chief Justice and perhaps changes to one or more of these trends.
________________
*As explained in this March 3 post, the Court has sometimes given counsel as little as two weeks to prepare for oral argument, but the court administrator calls and secures counsels’ consent before scheduling oral argument with less than a month’s notice.

Posted by Marcia Oddi on Wednesday, July 30, 2014
Posted to Schumm - Commentary

Tuesday, July 29, 2014

Ind. courts - Appellees file brief in State of Indiana's 7th Circuit appeal

Here is the State of Indiana brief in Baskin v. Borgan, filed Tuesday, July 15th by the Indiana attorney general.

Today the three sets of appellees/plaintiffs in the consolidated appeal filed their brief in response. Access it here.

Posted by Marcia Oddi on Tuesday, July 29, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - The NRA's top lawyer was once sentenced to life for murder in Indiana

A long, amazing story in Mother Jones, reported by Dave Gilson. A few quotes:

[In 1963 Robert J.] Dowlut was charged with first-degree murder. A year and a half later, a jury found him guilty of second-degree murder. Before the judge handed down a life sentence, he asked the defendant if there was any reason why he shouldn't be put away. Dowlut replied, "I am not guilty." A day later, the Indiana State Prison in Michigan City registered Dowlut, now 19, as prisoner number 33848.

Less than six years later, Robert Dowlut would be a free man—his murder conviction thrown out by the Indiana Supreme Court because of a flawed police investigation. The court ordered a new trial, but one never took place. Dowlut would return to the Army and go on to earn college and law degrees. Then he would embark on a career that put him at the epicenter of the movement to transform America's gun laws.

Today, the 68-year-old Dowlut is the general counsel of the National Rifle Association. As the NRA's top lawyer, he has been a key architect of the gun lobby's campaign to define the legal interpretation of the Second Amendment. He helped oversee the NRA's effort to strike down Chicago's handgun ban in the 2010 Supreme Court case McDonald v. Chicago, and he is the longtime secretary of the organization's Civil Rights Defense Fund, which has spent millions assisting gun owners in court and sponsoring gun rights researchers. Dowlut's journal articles have been cited by federal judges and are quoted by pro-gun activists. Chris W. Cox, the executive director of the NRA's lobbying operation, has praised him as "a longtime distinguished Second Amendment scholar." Dowlut's behind-the-scenes legal work may have done as much to tighten the NRA's grip on gun policy as its blustery talking heads and provocative PR campaigns.

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

Ind. Decisions - More on "ACS CAN: Marion County Superior Court Upholds Indy’s Smoke-Free Ordinance"

Thanks to Smoke Free Indiana, which has sent the ILB a copy of the 19-page opinion by Marion County Superior Court Judge James B. Osborn, signed July 25th. The case is Whistle Stop Inn v. City of Indianapolis.

From the news release:

Katy Ellis Hilts, chair of Smoke Free Indy, said: “Smoke Free Indy is pleased by the order of the court upholding the smoke-free ordinance that went into effect in 2012. It has been well established across the United States that smoke-free laws are constitutional and well within the scope of power of our elected officials.

“We would like to thank the many individuals, organizations and groups that are committed to a smoke-free community as well as the City of Indianapolis Corporation Counsel for their hard work and dedication defending the smoke-free ordinance.

Posted by Marcia Oddi on Tuesday, July 29, 2014
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (1):

In Ryan E. Bean v. State of Indiana , a 19-page opinion reversing the trial court, Chief Judge Vaidik writes:

After this Court reversed Ryan E. Bean’s Class A felony child-molesting conviction, Bean was retried and convicted a second time. He received a thirty-year sentence. On appeal, Bean argues that fundamental error occurred at his retrial. Bean’s retrial, which turned on the uncorroborated testimony of the alleged child victim, was tainted by vouching testimony and troubling prosecutorial misconduct, making a fair trial impossible. We therefore reverse. * * *

We are mindful of our Supreme Court’s recent caution that the fundamental-error doctrine is meant to correct only the most egregious trial errors. See Ryan, 9 N.E.3d at 668. But Ryan involved only one instance of prosecutorial misconduct, and the evidence against the defendant was overwhelming. Here, we have two instances of prosecutorial misconduct—one of which is particularly troubling—and significant vouching testimony. By eliciting testimony about Bean’s pretrial interview, the prosecutor did not merely stumble into error; despite being warned, he defied the trial court’s instructions. In addition, two key witnesses—the alleged victim’s mother and the DCS investigator—vouched for the alleged victim’s credibility and invaded the province of the jury. The prosecutor reinforced this vouching testimony in closing argument, telling the jurors that numerous other people believed the alleged victim and suggesting that they should as well. Notably, unlike Ryan, Bean’s retrial hinged on the uncorroborated testimony of the alleged victim. For these reasons, Bean was denied a fair trial.

NFP civil opinions today (3):

Martin's Markets, Inc., Dale Martin and Alisa Martin v. Coonie's Corner, LLC (NFP)

In Re: The Petition of John Oberleas for Issuance of Tax Deed, Tax Sale Certificates #801063, 801066, 801067, 801068, Parcel No. 006-00168-00; 006-01232-00; 006-01233-00; 006-01234-00; et al (NFP)

Mark Keaton v. Christine L. Zook (NFP)

NFP criminal opinions today (7):

Richard Dodd v. State of Indiana (NFP)

Charles Gaylor v. State of Indiana (NFP)

Jaime Miguel Cordero v. State of Indiana (NFP)

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

Grover E. Lowe v. State of Indiana (NFP)

John Hollins v. State of Indiana (NFP)

Joshua W. Doughty v. State of Indiana (NFP)

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

Ind. Decisions - "ACS CAN: Marion County Superior Court Upholds Indy’s Smoke-Free Ordinance"

According to a brief press release from Tracy Lytwyn, American Cancer Society Cancer Action Network

On Friday, July 25, the Marion County Superior Court upheld Indianapolis’ smoke-free ordinance, challenged on the basis of exempting one off-track betting facility. The court ruled the city’s ordinance does not violate the Equal Privileges and Immunities Clause of the Indiana Constitution by excusing certain businesses from the ban.
The ILB would like to post a copy of the ruling, if anyone has it.

Posted by Marcia Oddi on Tuesday, July 29, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Public records requests lead to insight on jail death; dash cam video in Ohio

Kara Kenney of WRTV6 had a strong story, with video, last evening on "what happened to Kendra Shaw, a 25-year-old inmate who died after a severe asthma attack inside the Grant County Jail." See the long story for details.

Re the public records requests, the story reports:

Call 6 Investigator Kara Kenney filed a public records request with the Grant County Sheriff's Department on May 20 and May 27 to find out what happened with Kendra Shaw and to obtain jail policies.

When the sheriff’s department did not provide records, Kenney filed a formal complaint with the Indiana Public Access Counselor.

On June 24, the sheriff’s department, through its attorney, issued an apology for not complying with the public records law and provided 42 pages of documents. [The ILB did not locate a PAC opinion re Grant County, perhaps none was issued.]

Kenney also requested video from the jail showing Shaw. That video was released after RTV6 paid $200 for copies of eight DVDs.

ILB: A somewhat related public records story from the Cincinnati Enquirer earlier this month reported that:
Video from police cruiser cameras are not public records, according to a recent appellate court decision that applies to most southwest Ohio counties.

The May 27 ruling by the Ohio 12th District Court of Appeals involved a 2011 drunken driving arrest.

Mark Miller, who was not associated with the case but is a founder of the Coalition Opposed to Additional Spending and Taxes (COAST), had requested public records involving investigations by the arresting trooper from the Ohio State Highway Patrol.

The state patrol handed over some records but refused the dash cam saying it was exempt from the Ohio Public Records Act because it was an investigatory record. Miller received the dash-cam video after the case was finished in court.

“The cruiser camera video and the impaired driver report were both prepared by and on behalf of law enforcement officials with a specific investigatory purposes in mind,” said the decision by Judges Robert Hendrickson, Robin Piper and Mike Powell.

“Unlike 911 calls or reports detailing other people’s observations leading to the initiation of a criminal investigation, the withheld records ... document the criminal investigation triggered by the trooper’s own suspicion of a violation of Ohio law.”

The woman was pulled over for speeding, according to the judicial decision.

The ruling sets case law for an eight-county area, including Butler, Warren, Clermont, Brown, Clinton, Fayette, Madison and Preble counties. * * *

Jack Greiner, The Enquirer’s First Amendment attorney, said he thinks the 12th District’s ruling is “overly broad.”

“My understanding of the dash cam video is that it’s turned on regardless of whether there’s criminal activity or not. It is not a situation where only gets turned on if there’s a crime in progress,” Greiner said.

Keeping dash-cam videos confidential deprives the public of information on how police officers do their jobs, he said.

Posted by Marcia Oddi on Tuesday, July 29, 2014
Posted to Indiana Government

Ind. Gov't. - Double whammy of PERF changes and criminal code changes

From a July 28th story by Jeff Schultz in the Chesterton Tribune:

A “unique situation” was evidently unique enough for the Porter County Council to go against it current hiring freeze Tuesday as it voted 5-0 Tuesday for Superior Court Judge Roger Bradford’s request to add a full-time second legal assistant to his staff.

Bradford addressed the Council in a letter late last week explaining three of his staff members, with a combined total of 67 years experience, have announced their retirements within the last few weeks. They are leaving in August before changes in Public Employee Retirement Funds take effect on Sept. 1 that would lower their pensions, Bradford said.

The PERF changes have influenced others in Porter County Government to retire, such as County Treasurer Mike Bucko, whose last day is this Friday, and County Highway Superintendent Al Hoagland, who will be leaving on Friday, Aug. 14.

Bradford said his staff retirements also come at a difficult time due to state changes in the criminal code that took effect this year such as new penalty procedures for both high level and low level offenders. The new code guidelines won’t necessarily mean a heavier workload, Bradford told the Chesterton Tribune later, but those replacing the outgoing employees will need to learn the new system and won’t have much opportunity to learn from his current staff.

Bradford said he hopes having an additional position will help avoid errors.

Posted by Marcia Oddi on Tuesday, July 29, 2014
Posted to Indiana Courts | Indiana Government

Environment - New wetlands mitigation option is being called an “in-lieu fee”

From the July 28th Chesterton Tribune, some quotes from this story:

A proposed program would allow an applicant applying to the U.S. Army Corps and IDEM for “unavoidable impacts to Indiana’s streams and wetlands” to pay a fee to offset these impacts.

Three public information sessions have been scheduled next month to introduce the proposed program. * * *

Currently, permits submitted to the U.S. Army Corps of Engineers and the Indiana Department of Environmental Management for impacts to the state’s aquatic resources require the applicant to mitigate the impacts either (1) by restoring habitat at or near the project site or (2) by using an approved mitigation bank.

The proposed new mitigation option is being called an “in-lieu fee” and it would allow an applicant to make a payment to the Indiana Natural Resources Foundation (INRF), which will oversee the accumulated funds. The DNR will then be required to establish or restore aquatic resources within designated areas of the state.

The DNR has developed a document called a “prospectus” for the program and is working with the Army Corps and IDEM to develop procedures for this in-lieu program. Representatives of the DNR and INRF will be on hand at all three public information sessions to answer questions.

Meanwhile, the DNR said, the Natural Resources Commission recently approved new rules to allow for an in-lieu fee for mitigation required for construction in a floodway, public freshwater lake, or navigable waterway issued by the DNR Division of Water.

Confusingly, it is not the IDNR site, but the IDEM site that turns up most often in searches re Indiana wetlands migiation. Here, from The Outdoor Wire, is an announcement of the three information sessions in August. And here, dated June 25, 2014, on the Army Corps site, is an 81-page document titled "In-Lieu Fee Program Prospectus for Indiana Stream & Wetland Mitigation Program."

Posted by Marcia Oddi on Tuesday, July 29, 2014
Posted to Environment

Ind. Decisions - "When does a threat to blow your supervisor’s head off fall outside the scope of a state court’s jurisdiction? "

The answer, from Indianapolis attorney Gerald F. Lutkus, in this July 29th article in the National Law Review, begins:

Apparently, when you are employed in Indiana.

The Indiana Court of Appeals recently vacated an injunction entered against an employee under Indiana’s Workforce Violence Restraining Orders Act finding that the employee’s threat against his supervisor actually arose out of a “labor dispute” with his employer.

The July 11th opinion is A.H. v. C.E.G.

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

Monday, July 28, 2014

Ind. Gov't. - Updating "Four Hoosiers filed suit Wednesday over an alleged Open Door violation by the Indiana State Board of Education"

That was the headline of this Dec. 5, 2013 ILB post, quoting a story by Niki Kelly of the FWJG, and including a copy of the complaint filed in Marion Superior Court. The issue was whether or not the members of the State Board of Education violated the open meeting law in agreeing to and ratifying by email a letter to legislative leaders, after the adjournment of an open meeting. See also a Dec. 6, 2013 FWJG editorial here.

Today the ILB obtained a copy of a 7-page order denying defendants' motion for judgment on the pleadings, signed July 24th by Marion County Superior Court No.4 Judge Cynthia Ayers. From the ruling:

Defendants next argued that even if Plaintiffs filing was not untimely, the Motion for Judgment on the Pleadings should still be granted because there was no "meeting" as defined in the Indiana Open Door Law. * * *

There is no Indiana case law on whether electronic communications fall within the meaning of the word "meeting" as defined in §2(c) of the ODL. Since the email circulated in this case did not qualify as a "serial meeting", the portion of the statute that mentions the use or exclusion of electronic mail is inapplicable. Therefore, in order for the Court to properly determine this issue while liberally construing the provisions of the ODL, a full examination of the facts and circumstances of the events in question is necessary. Accordingly, Defendants' Motion for Judgment on the Pleadings is denied as to whether there was a "meeting" under the ODL.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendants' Motion for Judgment on the Pleadings is denied. The Stay of Discovery entered on April
21, 2014 is hereby vacated.

According to attorney William Groth, who represented the plaintiffs in the case, Eiler v. State Board of Education:
The import of this decision is that the case can return to the discovery stage, which means the BOE members will now be required to respond to the discovery we served upon them several months ago, including producing any emails discussing state business on their personal email accounts. Importantly, the Court squarely rejected the State’s argument that the email exception to the serial meetings section of the ODL precluded our argument that a “meeting” occurred when emails were sent or exchanged among the Board members at the request of and pursuant to the oversight of Ms. Fiddian-Green. Judge Ayers also correctly noted that the Court cannot determine whether an ODL violation occurred without examining all of the facts and circumstances surrounding the issuance and signing of the letter to the legislative leaders in October of last year.

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

Courts - In light of the 4th Circuit opinion, North Carolina AG Roy Cooper makes statement

Watch this video of North Carolina Attorney General Roy Cooper making a public statement about the impact of the 4th Circuit's opinion today in the Virginia case upon North Carolina, another 4th Circuit state.

Very clear, direct, and concise.

h/t @chrisgeidner: "NC AG Cooper says it's time to stop defending state's marriage ban: 'There are really no arguments left to be made.'"

From AG Cooper's prepared remarks (again h/t @chrisgeidner):

In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable. Since the US Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it's time for the State of North Carolina to make making them.

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

Ind. Decisions - The fate of the original Indiana same-sex marriage lawsuit, Love v. Pence

In mid-March, five separate cases (see list in this post) were filed in federal court challenging various aspects of Indiana's prohibition against same-sex marriage. The first case filed was Love v. Pence, it was filed in the SD Ind., New Albany District where Chief Judge Richard L. Young presides, amid much publicity, by a private firm located in Kentucky. Four more cases were filed within a week and subsequently all five cases were consolidated under Judge Young.

Judge Young issued his ruling on June 25th in the Baskin, Fujii and Lee lawsuits - these are the cases that have been consolidated and are now pending before the 7th Circuit. On page 10 of J. Young's ruling, the court states that Gov. Pence was not a party to the lawsuits:

Governor Pence is sued in the Fujii and Lee cases. As the court found in Love v. Pence, another case challenging the constitutionality of Section 31-11-1-1, the Governor is not a proper party because the Plaintiffs’ injuries are not fairly traceable to him and cannot be redressed by him. (Love v. Pence, No. 4:14-cv-15-RLY-TAB, Filing No. 32 (S.D. Ind. June 24, 2014). Therefore, the court GRANTS the Governor’s motions for summary judgment (Fujii Filing No. 44) (Lee Filing No. 41).
At the end of the opinion, the court states again:
This Order does not apply to Governor Pence, who the court found was not a proper party.
On July 22nd the plaintiffs in Pence v. Love filed a motion for reconsideration of the order of dismissal with the federal district court, and a 7-page supporting memo. The memo states that plaintiffs named Gov. Pence as the sole defendant in their lawsuit, and that on June 25th the court dismissed the lawsuit:
...on the grounds that he was not a proper defendant because he, as the Governor of Indiana, has no authority to enforce IC § 31-11-1-1. * * *

Also on June 25, 2014, this Court struck down IC § 31-11-1-1 in a consolidated entry on cross-motions for summary judgment in Baskin v. Bogan, Fujii v. Pence, and Lee v. Pence (“June 25 Order”).

The memo continues:
That day, Defendant [Gov. Pence] issued an order to all executive branch agencies directing them to comply with the June 25 Order, and Indiana began issuing marriage licenses to hundreds of same-sex couples. (Exhibit 1, Mark G. Ahearn’s June 26, 2014 memo to all executive branch agencies). Also on that day, Indiana Attorney General Greg Zoeller filed a notice of appeal and an emergency request for a stay of the June 25 Order. Two days later, on June 27, 2014, the U.S. Court of Appeals for the 7th Circuit issued a stay pending resolution of Indiana’s appeal. In reaction to the stay, “the Governor’s general counsel instructed all executive branch agencies to stop any processes they had commenced in complying with” this Court’s order. (Exhibit 2, Mark G. Ahearn’s July 7, 2014 memo to all executive branch agencies (emphasis added)). The Governor declared IC § 31-11-1-1 to be “in full force and effect” and ordered all executive branch agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” (Id.). * * *

The directives discussed above make clear that Governor Pence does in fact have the authority to enforce IC § 31-11-1-1, and necessitates that this Court reconsider its grant of Defendant’s Motion to Dismiss and restore Governor Pence as the Defendant in this action. * * *

This Court took Defendant at his word and dismissed Plaintiffs’ action, stating that Plaintiffs “point to no gubernatorial authority - as is their burden - to issue executive decrees telling other elected officials how to do their jobs when it comes to laws affecting marriage.” (DN 32, pg. 5). The same day this Court granted Defendant’s Motion to Dismiss, the Governor did precisely that: he told the executive branch agencies how to do their jobs when it comes to laws affecting marriage. * * *

The most telling display of gubernatorial authority over IC § 31-11-1-1 occurred on July 7, 2014, when the Governor declared IC § 31-11-1-1 to be “in full force and effect” and ordered all executive branch agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” (Exhibit 2). In other words, the Governor single-handedly revoked hundreds of marriage licenses that had been granted to same-sex couples as a result of this Court’s June 25 Order. The decision was solely the Defendant’s[12] and it clearly constitutes the Governor “enforc[ing] against parties affected an unconstitutional act,” such that he may be enjoined from such action under the doctrine of Ex parte Young.13 The decision to revoke same-sex marriage licenses validly issued by the State of Indiana, as well as the other actions taken by the Governor following the Court’s June 25 Order, definitively show that the Governor of Indiana does indeed have “some connection with the enforcement of the act” required to make the Governor a proper party to the instant action. * * *

CONCLUSION. The memoranda issued by the Governor following this Court's orders on June 25, 2014 are directly contrary to every argument made by the Governor in his Motion to Dismiss. For the foregoing reasons, Plaintiffs respectfully ask that this Court reconsider its June 25, 2014 Entry on Defendant’s Motion to Dismiss and grant the Plaintiffs their requested relief.
____________
[12] When explaining his decision, the Defendant stated, "I appreciate the confusion that has been created by different federal court decisions, but as governor I have to see to it that the state operates in a manner consistent with Indiana law.” http://www.indystar.com/story/news/politics/2014/07/09/state-recognize-june-marriages-sexcouples/ 12410207/ (accessed July 22, 2014).

Posted by Marcia Oddi on Monday, July 28, 2014
Posted to Ind Fed D.Ct. Decisions

Courts - The 4th Circuit has joined the 10th in striking down a state's same-sex marriage ban

Here is Chris Geidner's BuzzFeed story this afternoon, including the opinion holding "that Virginia’s ban on same-sex couples’ marriages is unconstitutional." More:

The 4th Circuit is the second federal appeals court to consider a state’s marriage ban after the Supreme Court’s decision striking down part of the Defense of Marriage Act in June 2013. The 10th Circuit earlier this agreed with the federal trial courts in Utah and Oklahoma that those state’s respective bans on same-sex couples’ marriages are unconstitutional.

Although this specific case is only about Virginia’s ban, the decision creates a precedent for all federal courts in Virginia, as well as Maryland, which has marriage equality, and West Virginia, North Carolina, and South Carolina, which do not.

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

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

For publication opinions today (4):

In J.P. v. G.M. and R.M. , a 10-page opinion, Judge Brown writes:

J.P. (“Father”) appeals the trial court’s order granting the petition for visitation filed by G.M. (“Grandmother”) and R.M. (“Grandfather” and collectively “Grandparents”), the maternal grandparents of his daughter M.P. Father raises two issues which we revise and restate as: I. Whether the trial court abused its discretion in denying his motion for a continuance; and II. Whether the trial court erred in its order granting Grandparents visitation. We reverse and remand. * * *

Under the circumstances, we conclude that Father demonstrated good cause for a continuance of the hearing, that this case involved at least some complexity as well as a fundamental right of Father, and that Father was prejudiced by the denial of his motion for a continuance. We also conclude that a delay would not have prejudiced Grandparents to an extent to justify denial of the continuance. Therefore, we conclude that the trial court abused its discretion in denying Father’s motion to continue, and because we so find, we do not address Father’s other arguments.

In Bobby Alexander v. State of Indiana , an 11-page opinion, Judge Pyle writes:
Bobby Alexander (“Alexander”) appeals, following a jury trial, one of his two convictions for Class B felony aggravated battery. We reverse and remand.

ISSUE. Whether sufficient evidence supports one of Alexander’s aggravated battery convictions. * * *

Because the State did not present sufficient evidence to prove that Little’s injury created a substantial risk of death, we must reverse Alexander’s conviction for Class B felony aggravated battery in Count III.

Nevertheless, when we reverse a conviction for insufficient evidence, we may remand to the trial court to enter a judgment of conviction upon a lesser-included offense if the evidence is sufficient to support the lesser offense. * * *

Accordingly, we reverse Alexander’s Class B felony aggravated battery conviction and remand to the trial court with instructions to enter judgment of conviction for battery as a Class C felony on Count III and to resentence accordingly.

In Chad Matthew McClellan v. State of Indiana , a 6-page opinion, Judge Mathias writes:
Chad McClellan (“McClellan”) was convicted in Hamilton Circuit Court of Class C felony battery and Class B misdemeanor battery. McClellan appeals his Class C felony battery conviction and argues that the State failed to present sufficient evidence that the offense was committed by means of a deadly weapon. We affirm.
In Ashley Bell v. State of Indiana, a 6-page opinion, Judge Crone writes:
Ashley Bell was the passenger of a vehicle that was stopped by a police officer because of an illegally displayed temporary license plate. The officer learned that the driver did not have a valid driver’s license and ordered the vehicle’s occupants to exit. As Bell exited the vehicle, the officer smelled raw marijuana coming from both the vehicle and Bell’s person. The officer handcuffed Bell and conducted a patdown search which revealed ten baggies of marijuana. Bell was convicted of class A misdemeanor possession of marijuana.

On appeal, she claims that the search of her person during the traffic stop violated the Fourth Amendment and that the marijuana found during the search should not have been admitted at trial. Concluding that the search was permissible under the Fourth Amendment, we affirm.

NFP civil opinions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.S., D.S., and N.S., Minor Children, and Their Father S.S., S.S. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Uriah M. Levy v. State of Indiana (NFP)

Henry Lewis v. State of Indiana (NFP)

Charles E. Decker v. State of Indiana (NFP)

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

Ind. Decisions - Transfer list for week ending July 25, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the June 20, 2014 list.]

Here is the Clerk's transfer list for the week ending Friday, July 25, 2014. It is three pages (and 30 cases) long.

Five transfers were granted last week:

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

Law - More on "Pa. home sellers can keep murders, suicides secret" But what about Indiana?

Updating this ILB post from Jan. 26, 2013, last week How Appealing had this post on a July 21st Supreme Court of Pennsylvania opinion ruling that "Pa. home sellers don't have to disclose murders, satanic rituals."

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

Ind. Courts - ABAJournal: "An interview with Judge Richard A. Posner"

Joel Cohen has a long interview with Richard Posner, a judge on the U.S. Court of Appeals for the 7th Circuit, in the July issue of the ABA Journal. Access it here.

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

Courts - "Kentucky courts one step closer to online public access"

Carrie Blackmore Smith reported July 23rd for the Cincinnati Enquirer:

A statewide project to digitize court records – and eventually make them more accessible to the public – advanced this week with the launch of electronic filing in Kenton County Circuit Court.

Boone, Campbell, Kenton, Gallatin and Franklin counties now provide the 24-7 service for civil cases.

But the goal is to get all 120 Kentucky counties and all types of cases operating on a single system by the end of 2015, said Kentucky Supreme Court Justice Michelle Keller, chair of the courts’ Technology Governance Committee and leader of this effort, already 10 years in the making.

Here in Northern Kentucky, the goal is to give the public the ability to look up cases online – for a nominal subscription fee – by the end of the year or early next year, Keller said. * * *

Funding had been the system’s biggest hurdle, Keller said, until the Kentucky Legislature gave the state’s courts permission in 2013 to borrow $28.1 million – enough to get everyone up and running. * * *

E-filing simplifies the work for court clerks, lawyers and judges. * * *

E-filing should also save law firms and legal aid agencies time and money, Keller said, because they won’t have to constantly send runners to and from the court houses to file and pick up documents.

Keller hopes all of these efficiencies will reduce the cost of doing business in the courts. * * *

She’s eager for the Court of Appeals and Supreme Court to be included in the effort, too, so she can carry around a DVD or thumb drive of the cases she reviews, instead of lugging around boxes and boxes of records.

Keller sees this as just another efficiency in the Kentucky court system, which has already done away with bail bondsmen, records court proceedings with audio and video (instead of relying on court reporters) and has implemented video arraignments.

“By studying other state’s (computerized) systems, we’ve learned from their mistakes and successes,” Keller said, “and think we’ll have one of the best systems in the country.”

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

Ind. Gov't. - "Howard County jail has become the largest mental-health facility in north central Indiana"

That was from the headline to this lengthy July 14th story in the Kokomo Tribune, reported by Carson Gerber. A few quotes, beginning with the editor's note:

Editor's note: People suffering from mental illness commit fewer than 4 percent of all violent crimes. But state cuts in mental health funding have limited opportunities for treatment before some people wind up on the wrong side of the law. Today, the Kokomo Tribune begins a series exploring the network available to people in need of services. * * *

The Howard County jail is full of people like Lewis — people in need of mental health treatment with no criminal history whose illness causes them to act out and end up on the wrong side of the law.

“We are here for people who commit crimes,” said Howard County Jail Commander Capt. Harold Vincent. “Unfortunately, we see a lot of people commit crimes who have a mental illness. This is not the place for those folks.”

“That’s the frustrating thing for jail officers,” [Ken Gardner, a master-level therapist clinician who serves as the jail’s on-call therapist] said. “These are people who really need to be in a mental health facility where they can be medicated and treated daily.”

Despite that, the jail is the place where most people in Howard County suffering from a mental illness end up.

Howard County Sheriff Steve Rogers said the jail holds more people in need of mental health treatment or who have been in the mental health system than Community Howard Regional Health. Community Howard is designated as a community mental health center by the Indiana Department of Mental Health and Addiction.

The hospital serves Howard, Tipton and Clinton counties, which have a combined population of about 131,000.

In fact, more people receive mental health treatment at the Howard County jail than at any other facility in north central Indiana, the sheriff said.

Currently, more than 20 percent of the jail’s 375 inmates are on psychotropic drugs to help treat mental illnesses, Vincent said. More than 40 percent are involved in some kind of therapy or counseling.

“The jail environment is meant to contain people,” Gardner said. “We’re not in a position to house multiple mental health patients. The jail is the largest mental health provider in north central Indiana that shouldn’t be one.”

So how did a county jail built with just two padded rooms end up treating more mental illness than any other facility in the area?

That was just the beginning of the first story in the series.

Posted by Marcia Oddi on Monday, July 28, 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 7/28/14):

Next week's oral arguments before the Supreme Court (week of 8/4/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 7/28/14):

Next week's oral arguments before the Court of Appeals (week of 8/4/14):

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, July 28, 2014
Posted to Upcoming Oral Arguments

Saturday, July 26, 2014

Ind. Decisions - So will the oral arguments in the Indiana and Wisconsin same sex marriage appeals be consolidated, or not?

Friday the 7th Circuit issued a notice of oral argument in the Indiana consolidated appeals (Baskin, et al), and a notice in the Wisconsin appeal (Wolf), each setting the time for oral argument as 9:30 in room 2721 on August 26th. [h/t @EQCF for docs]

Each notice states: "Oral argument will be no more than 20 minutes for each side."

The question is, will the Indiana appeal be heard separately from the Wisconsin appeal, with 20 minutes per side in the Indiana case, followed by the panel hearing the Wisconsin appeal, also with 20 minutes per side?

Or will the appeals of the two states be consolidated by the 7th Circuit, with the States of Indiana and Wisconsin splitting 20 minutes, and the Indiana and Wisconsin plaintiffs sharing the other 20 minutes?

The volume, Case Management Procedures in the Federal Courts of Appeals, Federal Judicial Center, 2011, is helpful. Discussion of the procedures of the 7th Circuit begins at p. 135 (141 of the PDF). Section V on p. 140 concerns "Argument Panel Operations." Some quotes:

The calendar for a particular day will generally consist of six appeals scheduled for oral argument. The amount of time allotted for oral argument will be based on the nature of the case and is generally 10–20 minutes per side. The clerk will notify counsel of the allocation approximately 21 days before the argument. * * *

Cases are set for oral argument about a month before argument and will usually be scheduled for oral argument shortly after the last brief is due. In criminal cases, the setting of oral argument often occurs as soon as the appellant’s brief is filed, and in civil cases after the appellee’s or respondent’s brief is filed. Counsel for the parties, or the parties themselves if they are without counsel, are notified of the setting approximately 21 days before the scheduled date of oral argument. After receipt of the court’s “Notice of Oral Argument,” counsel are directed to notify the clerk, at least two days in advance of the scheduled oral argument date, of the name of counsel who will be appearing in court to present the oral arguments. A return postcard is enclosed with the “Notice of Oral Argument” for this purpose. It must be completed and returned to the clerk immediately. * * *

The circuit executive reviews the briefs and sets the time for oral argument in each appeal to be argued. He or she then assembles a week’s worth of cases, designating six cases to be argued on each of the five days, and balancing civil and criminal cases between easy and difficult cases. The calendar is circulated to the judges, who note the days they cannot sit because of date conflicts or conflicts in individual cases. Panels of judges are then randomly assigned for each day. In setting the calendar, the court considers several factors, including the following:

  • Issues similarity. The court schedules appeals with the same issue for argument before the same panel on the same day. * * *
The panel judges’ names and the order of cases to be argued that day are posted at 9:00 a.m. each morning that the court is in session. Also, a card on the rostrum that day will list the names of the panel judges and their positions on the bench.
Prof. Schumm, who pointed me to the procedures handbook, notes re the posting of the judges’ names and the order of cases to be argued at 9:00 a.m. each morning that the court is in session:
I think the only other circuits with this policy are the Fourth and Federal Circuits. The Tenth, for example, posts the panel members names the Monday of the preceding week. The Indiana Court of Appeals, of course, informs us weeks in advance with the order scheduling argument.
The ILB has a question in to the Indiana Attorney General's office from late Friday afternoon, re whether the Indiana and Wisconsin oral arguments will be combined or separate, but has not yet had a response.

The ILB has asked an attorney who practices frequently before the 7th Circuit the import of the fact that the notices sent to Indiana and Wisconsin individually both say 9:30 in the same courtroom. The response:

You won’t know the order or the panel until you get there. But it is a cattle-call system, and I think they set arguments for two different times – maybe 9:30 and 11 or something like that. That way everyone is there and ready if an argument is cancelled at the last minute or doesn’t last the full amount of time it was scheduled for.

So Indiana and Wisconsin were always going to be set for the same time on the argument order. I do not know whether that means the arguments have been consolidated, or whether it means simply that one case will go first and then the second one will go separately – that’s something a phone call to the Clerk’s office is going to have to resolve for sure, I imagine.

So the answer: they will certainly be held the same morning, and will be either one argument or two arguments held back-to-back. Read nothing into the fact that they were both set at exactly the same time because that’s what the orders would look like under either scenario.

In sum, the answer to the question of whether the oral arguments are to be consolidated on August 26th in the appeals of the State of Indiana and the State of Wisconsin is not yet clear.

Posted by Marcia Oddi on Saturday, July 26, 2014
Posted to Ind. (7th Cir.) Decisions

Friday, July 25, 2014

Ind. Decisions - More on: The oral argument in the Wis./Ind. SSM appeal has been scheduled

Although the ILB said last hour that when the oral argument starts at 9:30 on August 26th in Room 2721, there will be 20 minutes per side, with sides defined as Indiana and Wisconsin sharing one 20 minute period, and the three sets of Indiana plaintiffs, plus the Wisconsin plaintiffs sharing the other, this seems to be in some dispute. I'm hoping to get clarification.

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

Ind. Decisions - The oral argument in the Wis./Ind. SSM appeal has been scheduled

I'm told the oral argument before a three-judge panel now has been set for August 26th. Hope to post the order shortly.

[More]

Docket Text:
Argument set for Tuesday, August 26, 2014, at 9:30 a.m. in the Main Courtroom, Room 2721. Each side limited to 20 minutes. [100] [6593117] [14-2386, 14-2387, 14-2388] (RS)

These appear to be only the Indiana cases.

[More] Actually, both the Indiana and Wisconsin order say 9:30 in room 2721 on August 26th. [h/t @EQCF]

[Still more] I'm told this means Wis. and Ind. litigants have to share their argument time, and there may be a a tug of war over who's going to make the argument for each side, given the difficulty of splitting 20 minutes between more than a single counsel.

And as the panel likely will have questions, 20 minutes in not much ...

There will be three sets of Indiana plaintiffs, plus the Wisconsin plaintiffs, represented on one side, and the Indiana and Wisconsin attorneys general on the other.

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

Ind. Decisions - 7th Circuit denies Ind. and Wis. petitions for hearing en banc in their SSM appeals

Here is the one-page order.

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

Ind. Courts - Update on Same-Sex Marriages in Indiana from the ACLU

Read it here.

Posted by Marcia Oddi on Friday, July 25, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Reminder: Elkhart 4 felony-murder convictions to be focus of ABC's Nightline Prime on Saturday

See this site for more on ABC's Nightline Prime on Saturday.

Posted by Marcia Oddi on Friday, July 25, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - "Legal briefs filed in Indiana and Wisconsin cases are majority anti-gay"

That is the headline from PinkNews, identified as "Europe's largest gay news service." Some quotes:

Marriage equality opponents have filed legal briefs citing everything from political theory to social stability to biblical text in the federal court cases concerning Indiana and Wisconsin’s same-sex marriage bans.

Of the almost 20 legal briefs filed, almost all supported Indiana and Wisconsin in appealing the overturning of same-sex marriage bans in the states.

One brief was filed Monday by the attorneys generals of Colorado, Alabama, Alaska, Arizona, Idaho, Louisiana, Oklahoma, South Carolina, South Dakota, and Utah.

They argue the issue of same-sex marriage should be left to the people, not to the courts. * * *

Several religious groups filed a brief Tuesday stating: “Marriage has its origin, not in the will of any particular people, religion, or state, but rather, in the nature of the human person, created by God as male and female.

“If pursued consistently, a policy of voiding laws when they reflect controversial religious or moral judgments would mean the end of representative government as we know it.”

On Wednesday, Wisconsin’s Attorney General filed a legal brief in which he compared same-sex marriage to abortion, arguing there is no fundamental right to either and calling state laws defining marriage as between one man and one woman “reasonable.”

Other briefs filed include those by individuals, interest groups, and a group of five social science professors who say studies that defend same-sex parenting are flawed.

This AP story from Thursday is headed "Briefs piling up in gay marriage rulings appeal." Some quotes:
INDIANAPOLIS (AP) — Opponents of same-sex marriage cited political theory, social stability and even biblical text in legal briefs filed this week in federal court, where Indiana and Wisconsin are appealing rulings that overthrew their bans on gay weddings.

At least 20 briefs have been filed in the case that's currently before the 7th U.S. Circuit Court of Appeals, including several filed Wednesday. Virtually all of the briefs stand up for the states. * * *

A brief filed Tuesday by the United States Conference of Catholic Bishops, the National Association of Evangelicals, The Church of Jesus Christ of Latter-day Saints, The Ethics and Religious Liberty Commission of the Southern Baptist Convention, and The Lutheran Church's Missouri Synod cites both the Old Testament and the New Testament to back up its argument.

"Marriage has its origin, not in the will of any particular people, religion, or state, but rather, in the nature of the human person, created by God as male and female," the churches wrote. * * *

Among the other briefs filed in the case were briefs by special interest groups, individuals, and a group of five social science professors who claim that psychological studies validating gay parenting are flawed.

See also this ILB post from July 23rd, noting about the 10 states' amicus brief: "These are many of the same 10 states that have signed on to the numerous amicus briefs authored in Indiana and filed by Attorney General Zoeller on behalf of the citizens of the State of Indiana in same-sex marriage cases throughout the country."

You can access all the amicus briefs here
, at the website of one of the attorneys representing plaintiffs in one of the three Indiana same-sex marriage cases pending before the 7th Circuit.

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

Ind. Decisions - 7th Circuit decides a third Indiana case today, this one a reversal

In Leonard DeWitt v. Corizon, Inc (SD Ind., Lawrence), an 11-page opinion, Judge Williams writes:

Leonard Dewitt, a 51-year-old former inmate at the Indianapolis Re-Entry Educational Facility, challenges the grant of summary judgment against him in his deliberate indifference suit and also appeals the district court’s denial of his three motions to recruit counsel. Because we find that the district court abused its discretion in denying the motions for recruitment of counsel, and those denials affected Dewitt’s ability to develop and litigate his case, we will not reach the merits of the summary judgment order. Therefore, we reverse and remand so that the court may recruit counsel and so Dewitt can conduct further discovery in order to litigate the case. * * *

Accordingly, we REVERSE the district court’s denial of Appellant’s motions for recruitment of counsel, VACATE the district court’s judgment in favor of Appellees, and REMAND for proceedings consistent with this order.

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

Ind. Decisions - Supreme Court finds January 7, 2013 COA order is not an appealable final judgment

In a one-page order dated July 24th, in a case before the Court on a petition to transfer, the Supreme Court writes:

We find the January 7, 2013 order is not an appealable final judgment. The order does not dispose of all claims as to all parties and does not fit within any other definition of "final judgment" listed in Indiana Appellate Rule 2(H). In addition, the order appealed is not within any of the categories of interlocutory orders from which an appeal may be taken as of right under Appellate Rule 14(A), and the appellant did not seek certification to file a discretionary interlocutory appeal under Appellate Rule 14(B). The Appellate Rules therefore do not authorize this appeal.

Accordingly, the Court GRANTS transfer, thereby vacating the Court of Appeals opinion, and DISMISSES the appeal.

Here is the 2-1 Jan. 27, 2014 Court of Appeals opinion. Judge Brown's dissent begins: "I respectfully dissent from the majority’s conclusion that the order is a final judgment."

Posted by Marcia Oddi on Friday, July 25, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (5):

In Phyllis Dodson, as Special Administrator of the Estate of Eboni Dodson, Deceased v. Curt D. Carlson, Carmel Hotel Company, d/b/a Grille 39, Seven Corners, Inc., et al., a 9-page opinion, Judge May writes:

On February 22, 2010, Curt Carlson was driving home from a business meeting over dinner and drinks at the Renaissance Hotel in Carmel, Indiana. He struck a disabled vehicle on the side of I-465 and its driver, Eboni Dodson, was killed. Dodson’s estate (hereinafter “Dodson”) sued Carlson’s employer, Seven Corners, Inc., and others. The trial court granted summary judgment for Seven Corners on the ground there was no issue of fact as to whether Carlson was acting in the scope of his employment when he hit Dodson’s car. We affirm. * * *

Dodson brought a wrongful death and negligence action against Carlson, the hotel, and Seven Corners. Dodson alleged Seven Corners was liable for Carlson’s actions under a theory of respondeat superior. The trial court entered summary judgment for Seven Corners, noting “It is assumed from the case citations of the parties that Indiana case law has not addressed a circumstance involving an employee consuming alcohol within the course of scope of [sic] employment, and then immediately engaging in a non-employment related activity, such as driving home.” * * *

Carlson was not acting in the scope of his employment at the time of the accident. The doctrine of respondeat superior is limited by the “going and coming” rule: “an employee on his way to work is normally not in the employment of the corporation.” * * *

That Carlson’s drinking before he drove home might have been in some way work-related does not render inapplicable the “going and coming” rule. * * *

As there was no designated evidence that would suggest Carlson was outside the “going and coming” rule, the trial court properly entered summary judgment for Seven Corners, and we accordingly affirm.

In Joseph D. Barnette, Jr., and Charlene Barnette, and City of Carmel Department of Community Services, Division of Building and Code Services, et al. v. US Architects, LLP, Albert D. Bowen, et al., a 19-page opinion, Judge Crone writes:
Carmel residents Albert D. Bowen and Julie A. Bowen hired US Architects to design what the Carmel Zoning Ordinance (“the Ordinance”) categorizes as an accessory building. The Bowens submitted the design plans to the Carmel Department of Community Services (“the DCS”), which issued a building permit and a certificate of occupancy. The Bowens’ neighbors, Joseph D. Barnette, Jr., and Charlene Barnette, complained to the DCS about the height of the Bowens’ building. The DCS notified the Bowens that their building violated the height limits of the Ordinance and advised them to apply for a variance with the Carmel/Clay Board of Zoning Appeals (“the BZA”), which they did. The BZA denied the variance. The Bowens did not appeal the DCS’s determination that their building is too tall, nor did they appeal the BZA’s denial of a variance. The DCS again notified the Bowens that their building violated the Ordinance, that they had to bring it into compliance, and that the DCS would be withdrawing the certificate of occupancy. The Bowens did not appeal that determination.

Instead, the Bowens and US Architects (collectively “the Plaintiffs”) filed a complaint for declaratory relief against the DCS and the BZA (collectively “the City”), seeking an interpretation of the Ordinance and a determination that their building complied with it. The City filed a motion for judgment on the pleadings based on the Bowens’ failure to exhaust their administrative remedies and counterclaimed for both an injunction ordering the Bowens to bring their building into compliance with the Ordinance and a civil penalty for a zoning violation. The Barnettes filed a motion to intervene, which the trial court granted, and joined the City’s motion for judgment on the pleadings. The Plaintiffs filed a motion for summary judgment. * * *

On appeal, the Plaintiffs contend that the appeal is moot because the Barnettes cannot enforce the Ordinance on the City’s behalf. We conclude that the appeal is not moot because a party of record in the trial court is a party on appeal, and we may grant appropriate relief to any party. Also, as intervenors and parties to the judgment, the Barnettes may appeal the trial court’s judgment to the extent that it is adverse to the interests that made intervention possible in the first place.

The Barnettes contend that the declaratory judgment action should be dismissed for lack of subject matter jurisdiction because the Bowens failed to exhaust their administrative remedies. We agree. The DCS is not estopped from enforcing the Ordinance because the relevant facts were equally known by or accessible to the Bowens and the City. And because the Bowens failed to exhaust their administrative remedies, which would have afforded them due process, they cannot complain about a due process violation. Therefore, we reverse and remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to the Bowens and for further proceedings consistent with this opinion, such as reconsideration of the City’s counterclaims.

Finally, US Architects contends that the trial court erred in determining that it lacks standing to bring a declaratory judgment action. Because any injury suffered by US Architects would be derivative of that suffered by the Bowens, and because it may not seek an advisory opinion for guidance in designing future buildings, we affirm the trial court on this issue and remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to US Architects.

In sum, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In Chris T. Collins v. State of Indiana , a 12-page opinion, Judge Robb writes:
Chris Collins, pro se, appeals the post-conviction court’s denial of his petition for post-conviction relief, raising the following issues for our review: (1) whether the post-conviction court erred by denying Collins’s request for subpoenas; (2) whether Collins was denied the right to assistance of counsel at his guilty plea hearing where he was represented by a certified legal intern; (3) whether Collins’s plea was knowing, intelligent, and voluntary; and (4) whether Collins was denied the right to effective assistance of counsel. Concluding the post-conviction court’s denial of Collins’s request for subpoenas was not an abuse of discretion and that its denial of Collins’s petition for post-conviction relief was proper, we affirm.
In Jennifer L. Patch v. State of Indiana , a 7-page opinion, Judge May writes:
Jennifer L. Patch appeals her conviction of Class B felony conspiracy to commit burglary. She asserts two issues on appeal: 1. Whether the evidence was sufficient to support her conviction, and 2. Whether the trial court properly denied her motion for mistrial when the prosecutor conferred with a State’s witness between direct and cross examinations. We affirm.
In Michael B. Eliseo v. State of Indiana, a 6-page opinion, Judge May writes:
Michael B. Eliseo appeals an order that he pay $300.00 for a supplemental public defender service fee and $166.00 in court costs. He asserts the trial court abused its discretion in imposing a public defender fee larger than $100.00 and erred in assessing the fee and costs without an explicit finding that he was able to pay. We affirm. * * *

Michael B. Eliseo appeals an order that he pay $300.00 for a supplemental public defender service fee and $166.00 in court costs. He asserts the trial court abused its discretion in imposing a public defender fee larger than $100.00 and erred in assessing the fee and costs without an explicit finding that he was able to pay. We affirm.

NFP civil opinions today (1):

Merrill C. Roberts v. Unlimited, LLC d/b/a Remax Unlimited and Matthew A. Gunning (NFP)

NFP criminal opinions today (2):

Kelsey Lynn Wilson v. State of Indiana (NFP)

Andrew Prairie v. State of Indiana (NFP)

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

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

In Toni Ball v. City of Indianapolis (SD Ind., Barker), a 17-page opinion, Judge Rovner writes:

Plaintiff Toni Ball sued Indianapolis police detective Clifton Jones and various state and municipal defendants after she was arrested in error based on a probable cause affidavit that Jones prepared. The district court dismissed Ball’s claims against the state defendants and granted judgment on the pleadings as to all of the municipal defendants, leaving only her Fourth Amendment claim against Jones. Ball then sought leave to amend her complaint to abandon the remaining federal claim and assert only state-law claims against Jones. The court granted the motion to amend and, at Ball’s request, remanded the case to state court, where it had originated. Ball now appeals the district court’s adverse rulings on her other claims. We affirm. * * *

Because the allegations of the complaint did not support Ball’s claims for relief, apart from the Fourth Amendment false arrest and imprisonment claim that she later dropped, the district court properly dismissed and granted judgment on the pleadings as to those claims. The parties shall bear their own costs of appeal.

In Che B. Carter v. Keith Butts (SD Ind., Barker), an 11-page opinion, Judge Bauer writes:
Che B. Carter (“Carter”) appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that his appellate counsel rendered ineffective assistance by failing to challenge the attempted murder jury instruction given at his trial and that this unduly prejudiced him. Carter argues that the Indiana Supreme Court unreasonably applied Supreme Court precedent when it determined that he suffered insufficient prejudice to warrant relief. For the reasons that follow, we affirm the district court’s decision to deny Carter’s petition for a writ of habeas corpus. * * *

While Choate’s performance may well have been deficient, we find that the Indiana Supreme Court’s conclusion that Carter failed to satisfy the prejudice prong of the Strickland test was not an unreasonable one.

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

Ind. Courts - More on: Judicial Qualifications Commission issues advice to judges running for office

The ILB posted this Advisory Opinion #1 of 2014 from the Judicial Qualifications Commission, on June 26th, answering questions from judges and judicial candidates regarding conduct around judicial campaigns – both their own conduct and that of their opponent(s).

On April 25, 2014, Indiana Court Times had this article by Adrienne Meiring, headed "On Your Mark, Get Set…Go? The Ethics of Judicial Campaigns (part 1 of 2)."

A second article, "Speak when you are angry & you will make the best speech you’ll ever regret: The Ethics of Judicial Campaigns: Part 2," also by Ms. Meiring, Counsel for the Commission, dated June 26, 2014, is available here.

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

Ind. Decisions - Supreme Court decided one, posted late yesterday

Carol Sparks Drake v. Thomas A. Dickey, Craig Anderson, Charles E. Podell, and Duke Realty Corp. is a 2-page per curiam opinion. The Court:

... grants transfer and summarily affirms the Court of Appeals opinion pursuant to Appellate Rule 58(A)(2), with the exception of footnote 2, which is hereby vacated.
As the Court explains:
The footnote indicates the appellees failed to denominate as a cross-appeal an argument rejected by the trial court that the appellees contend is an alternative ground for affirming the summary judgment order. * * *

The Appellate Rules do not require the filing of a cross-appeal where the appellee does not seek reversal of the order or judgment appealed, but instead raises a ground for affirming that appears in the record and was rejected or not considered by the trial court or agency.

Here is the ILB summary of the Dec. 11, 2013 COA opinion. See also this Dec. 31, 2013 ILB post, headed "Lawyer Has Triable Tort Claim Against Client That Allegedly Got Her Kicked Out as Partner."

Posted by Marcia Oddi on Friday, July 25, 2014
Posted to Ind. Sup.Ct. Decisions

Thursday, July 24, 2014

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

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

Larry A. Jones v. State of Indiana (NFP)

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

Ind. Decisions - "2nd judge rules against Indiana’s right-to-work law"

Lesley Weidenbener, editor of TheStatehouseFile.com, reports today in the Indianapolis Star:

A Lake County judge has struck down Indiana’s 2012 right-to-work law that made it illegal for companies to compel nonunion members to pay fees for union services. * * *

Lake Circuit Judge George Paras issued his ruling July 17 and said it would take effect immediately upon its entry into the chronological case summary, which makes it official. * * *

The Indiana Supreme Court has set oral arguments in a separate right-to-work case for Sept. 4.

In that case, Lake Superior Court Judge John Sedia also found the right-to-work law unconstitutional. But Sedia stayed his own ruling during the state’s appeal, which went directly to Indiana’s highest court.

See this ILB post from Sept. 9, 2013, on the Sedia ruling. Here are a number of later ILB posts mentioning the ruling.

The ILB does not recall another Indiana trial court declaring a state statute unconstitutional (unusual in itself) and then declaring that the opinion was to take effect immediately. One might call this unprecedented (at least until I learn differently). Compounding this, this week's ruling was made by a second judge in Lake County, on what look to be the same grounds as the first Lake Co. judge ruled last year, which earlier ruling is currently pending before the Indiana Supreme Court.

Attorney General Zoeller reportedly will be filing for an immediate stay.

Posted by Marcia Oddi on Thursday, July 24, 2014
Posted to Ind. Trial Ct. Decisions

Environment - Still more on: Right to Farm Act prevails in Randolph County lawsuits

Updating the ILB posts from July 16th and 17th on Judge Vorhees' rulings in the Maxwell Farm lawsuits, Seth Slabaugh of the Muncie Star-Press today has a long story headed "Pork powerhouse wins nuisance lawsuits: Delaware County judge throws out suits filed in Randolph County." Some quotes:

WINCHESTER — A trial-court judge has ruled in favor of one of the nation’s largest pork producers in four nuisance lawsuits brought by neighbors of industrial hog farms in Randolph County.

The inventory of hogs and pigs in Randolph County more than tripled, from 55,443 to 177,605, between 2007 and 2012, according to the latest Census of Agriculture.

That sparked nuisance lawsuits against Goldsboro, N.C.-based Maxwell Foods, aka Maxwell Farms, which operates Buena Vista Sow Farm; Unionport Nursery Farm; Stone Road Farms; and Gary Foulke’s farm, all of which began production in the 2007-08 time frame.

Maxwell branched out to Indiana after North Carolina enacted a ban on construction of big hog farms because of environmental degradation, says Chris Hurt, an agricultural economist at Purdue University.

In addition, North Carolina's livestock industry uses more corn than is produced in the state. “They said, ‘We have to get our pigs to the corn,” Hurt said. “If North Carolina wanted expansion, they were not going to be able to do it in North Carolina.”

The lawsuits accuse Maxwell and other defendants of allowing hog waste to accumulate and “noxious fumes and odors to discharge from and be sensed beyond the boundaries of their property.”

But Special Judge Marianne Vorhees, of Delaware Circuirt Court 1, ruled the Indiana Right to Farm Act is constitutional. “Plaintiffs’ nuisance action can proceed only if they produce evidence that defendants were negligent, and defendants’ negligence was the cause of the odors,” Vorhees ruled. “Plaintiffs admitted they have no such evidence.”

The story continues:
Indianapolis attorney Rich Hailey, who represents the dozen plaintiffs, told The Star Press, “These are industrialized facilities. They are not family farms. The uncontroverted truth is all the plaintiff were living in those areas first (before the hog operations). Many had owned these properties for generations. These are people who grew up in the country. One day they looked out and had 4,000 to 8,000 hogs putting out 3 million gallons of untreated waste.”

The Right to Farm Act protects farmers if certain conditions are met, including “no significant change occurred in the type of agricultural operation on the locality.”

Under Indiana law, “changing from crop production to hog production does not constitute a significant change,” Vorhees ruled. She granted Maxwell a pre-trial summary judgment. * * *

“They take a big fan and blow the air out of those buildings,” Hailey said. “If they didn’t blow the noxious gases and odors from the buildings it would be fatal to workers and to the animals. Worse yet, they spread the waste on top of the soil, claiming it is fertilizer. It is fertilizer. So is human waste, but you’re not allowed to spread that on your lawn.”

Hailey said an appeal of the ruling is likely.

Successful Farming magazine ranked Maxwell Foods 11th in its “Top 25 U.S. Pork Powerhouses” in 2013. Maxwell ranked behind powerhouses like first place Smithfield Foods and eighth place Cargill but ahead of powerhouses including Tyson Foods and Hormel Foods.

National Hog Farmer had this story July 18th headed "Indiana Pork Producers Prevail in Right to Farm Lawsuits."

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

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

Updating a series of ILB posts on this issue, the most recent one from June 2nd, Indianapolis Star columnist Erika D. Smith has a story today connecting Gov. Pence's decision last month "that Indiana will opt out of the federal Prison Rape Elimination Act, a collection of guidelines designed to reduce sexual abuse behind bars," because the "law is too expensive to implement," with the 7th Circuit's ruling Monday finding a “severely sexualized climate” at the Pendleton state prison.

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

Ind. Decisions - Elkhart 4 felony-murder convictions to be focus of ABC's Nightline Prime on Saturday

Updating earlier ILB entries on the "Elkhart Four," ABC Nightline Prime this Saturday, July 26th at 10 PM, will cover the case of the the Elkhart 4. Here is information from Free the Elkhart 4.com.

Posted by Marcia Oddi on Thursday, July 24, 2014
Posted to Ind. Trial Ct. Decisions

Wednesday, July 23, 2014

Courts - "Federal prosecutors Are Reading Emails From Inmates to Lawyers"

From Stephanie Clifford's story today in the NY Times:

Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.

The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided. * * *

In Brooklyn and across the country, the issue is being decided case by case. A spokesman for the Bureau of Prisons declined to comment, citing the continuing litigation.

Posted by Marcia Oddi on Wednesday, July 23, 2014
Posted to Indiana Courts

Ind. Decisions - "Businesses have a legitimate interest in the orderly operations of their workplaces, which extends to taking actions to prevent employees from having sex on the premises"

That quote from this Wisconsin Appellate Law Blog commentary on Monday's 7th Circuit decision (Ortho-Bell v. State) relating to state employee conduct at Pendleton state prison. The blog post, by Ryan N. Parsons, is headed "Hoosier Daddy? Rampant Sexual Misconduct in Indiana Prison Shows Pitfalls for Employers."

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

Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)

For publication opinions today (2):

In Joseph Laycock v. Joseph Sliwkowski, M.D., a 13-page opinion, Judge Barnes writes:

Laycock raises one issue, which we restate as whether there is designated evidence that Dr. Sliwkowski caused injury or damages to Laycock. * * *

[B]ecause there is no claim, let alone evidence, that Laycock had a fifty percent or worse change of recovery from the original injury, we must conclude he has not established that the Mayhue approach applies here. Thus, traditional causation principles apply to his case. Accordingly, Laycock had the burden of producing expert testimony rebutting Dr. Sliwkowski’s evidence that he did not cause Laycock’s injuries. * * *

Because the designated evidence does not establish a genuine issue of material fact on the issue of causation, the trial court properly granted Dr. Sliwkowski’s motion for summary judgment. We affirm.

In Willie L. Montgomery v. State of Indiana , an 8-page opinion, Judge Baker writes:
In this interlocutory appeal, appellant-defendant Willie Montgomery challenges the trial court’s denial of his motion to dismiss the charge of Failure to Register as a Sex or Violent Offender1 in Vanderburgh County. Montgomery argues that the trial court erred in dismissing his motion because he had already been prosecuted for failing to register as a sex offender in Pike County. More particularly, Montgomery contends that prosecuting him for failing to register in both counties is barred under Indiana Code section 35-34-1-4(a)(7) and violates double jeopardy principles. We find that the charge in question is not barred under Indiana Code section 35-34-1-4(a)(7) and does not violate double jeopardy principles. We remand to the trial court for trial.
NFP civil opinions today (4):

Walter J. Bramage v. Discover Bank (NFP)

In Re: the Termination of the Parent-Child Relationship of: S.J. (Minor Child), And D.C. (Father) v. The Indiana Department of Child Services (NFP)

Adam Trusty and Brittany Trusty v. David L. Hood (NFP)

Michael J. Frey and Theresa Frey v. Quality Dining, Inc. d/b/a, Chili's and Chili's of Christana, Inc., d/b/a Chili's Restaurant (NFP)

NFP criminal opinions today (8):

Freemond Jordan v. State of Indiana (NFP)

Joseph Chadwick Cole v. State of Indiana (NFP)

Briandre Q. Howard v. State of Indiana (NFP)

David Jastrzembski v. State of Indiana (NFP)

Joseph R. Mosley v. State of Indiana (NFP)

Shannon Goodman v. State of Indiana (NFP)

Delvon Tolbert v. State of Indiana (NFP)

Adam Taylor v. State of Indiana (NFP)

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

Ind. Courts - "10 states join Indiana’s appeal of federal judge’s same-sex marriage ruling" [Updated]

Tim Evans reports in the Indianapolis Star:

The attorneys general of 10 states have joined in Indiana’s appeal of a federal judge’s ruling that found the state law banning same-sex marriage unconstitutional.

In a filing this week, the attorneys general of Alabama, Alaska, Arizona, Colorado, Idaho, Louisiana, Oklahoma, South Carolina, South Dakota and Utah filed a friend of the court brief alleging it is not the judicial branch’s role to determine whether same-sex marriage should be permitted.

Here is the amicus brief, authored by the Attorney General of Colorado, and joined by the other states listed.

ILB: No surprises here! These are many of the same 10 states that have signed on to the numerous amicus briefs authored in Indiana and filed by Attorney General Zoeller on behalf of the citizens of the State of Indiana in same-sex marriage cases throughout the country. See for example, this amicus brief, authored in Indiana and filed by the State of Indiana in the 9th Circuit, in support of the Governor and Attorney General of the State of Nevada. It was joined by ALABAMA, ALASKA, ARIZONA, COLORADO, IDAHO, MONTANA, NEBRASKA, OKLAHOMA, SOUTH CAROLINA AND UTAH.

Notice, however, that these numbers may be falling, this Feb. 26, 2013 ILB post notes:

Indiana is also the lead counsel on an amicus brief in Windsor, joined by 16 other states, arguing in favor of the federal Defense of Marriage Act (DOMA).
Among those who joined the Indiana-authored Windsor amicus brief were states such as Wisconsin, Michigan, and Virginia, now, like Indiana, parties in their own same-sex marriage lawsuits.

[Updated] Here is the amicus brief filed by the states in support of the State of Indiana's position. (h/t Celestino-Horseman)

Posted by Marcia Oddi on Wednesday, July 23, 2014
Posted to Indiana Courts

Ind. Courts - "Man who threatened to bomb courthouse arraigned on federal charge"

Man who threatened to blow up Tippecanoe County Courthouse "arraigned in federal court Monday after a grand jury indicted him on a single charge: willfully making a threat to use fire or explosive materials.." See the IndyStar story by Steven Porter.

And don't miss the July 7th ILB post titled: "Threats v. satire in social media age", which I introduced as "A very long and important story today by Dave Bangert of the Lafayette Journal Courier. The nutshell subhead: 'Did Samuel Bradbury write threats or satire when he threatened judges and cops and vowed to blow up the Tippecanoe County Courthouse? Similar free speech questions headed to Supreme Court.'"

Posted by Marcia Oddi on Wednesday, July 23, 2014
Posted to Courts in general

Ind. Courts - "New rules for Clark County Drug Court"

Updating a slew of earlier ILB entries on problems at the Clark County Drug Court, Gary Popp reported yesterday in a good story in the Jeffersonville News & Tribune - some quotes:

JEFFERSONVILLE — Changes have been made to the Clark County Drug Treatment Court participant handbook that will allow those in the alternative-to-prison initiative to more easily succeed in the program, officials say.

The court held an orientation last week to notify the nearly 40 people who remain in the program of the modifications, which were handed down from the Indiana Judicial Center, or IJC.

Clark County Circuit Court No. 4 Judge Vicki Carmichael was given temporary certification to continue offering drug court in the community after the IJC stripped the program’s certification from Clark County Circuit Court No. 2 Judge Jerry Jacobi earlier this year, following accusations of misconduct by the then-drug court staff.

Carmichael says the most significant changes involve curfew, collection of fees and medically assisted treatments.

Prior to the updates, the program’s participants were subjected to a blanket curfew of 11 p.m., but now the court and case managers have discretion to modify or completely lift a participant’s curfew.

Carmichael said she and others on the drug court staffing team were concerned about participants with employment opportunities or obligations that conflicted with their curfews.

“We didn’t want to have that be a violation,” Carmichael said. “We wanted to address curfew on a case-by-case basis. There can be some incidents where a curfew isn’t necessary for [employment] situations. That was really the impetus behind changing the curfew regulation.”

With fewer curfew restrictions, some participants may now be able to attend required substance abuse meetings scheduled later in the day that would have previously prevented them from meeting curfew.

When the program operated in Clark County Circuit Court No. 2, participants paid out of pocket for each drug test administered, or amassed a significant debt to the court.

Now, a monthly fee of $50 covers all drug-testing fees for each participant.

Under the old structure, a participant was not able to fully anticipate what fees he or she would have to pay each week for drug tests, as the amount of tests a participant may be subject to each week can fluctuate as well as type of tests, which vary in cost. * * *

Finally, the new handbook for the program redefines the regulations regarding prescribed medication, specifically methadone, suboxone and subutex, which are used to treat opiate dependence.

Previously, those who were actively using methadone or other relevant medications could enter the drug court program, but could not progress through the stages, which is required to graduate, if they continued using the substances.

“There is a fine line that the courts have to follow. We can not interfere with medical treatment, and these are medical treatments,” Carmichael said. “That is a person’s right to have medical treatment, so it shouldn’t exclude them from participating in drug court.”

Carmichael hopes the new handbook will be as well received by the participants as has the overall drug court program since it was moved to her court.

“The comments I have heard in court is that they appreciate the structure. They have appreciated the work that the prosecutor and defense attorneys and [the case managers] have put in to make it successful,” she said. “I think, from the drug court-participant standpoint, it is a program now that they believe in.”

Posted by Marcia Oddi on Wednesday, July 23, 2014
Posted to Indiana Courts

Ind. Gov't. - "Squawk over chickens muted for now" in Porter

Paulene Poparad of the Chesterton Tribune reported earlier this month on a council meeting in the adjoining town of Porter:

Porter Town Council member David Wodrich moved to amend the zoning ordinance regulating backyard chickens, but the motion died for lack of a second Tuesday.

The council took public input on the matter followed by council members Jeannine Virtue, Elka Nelson and Rob Pomeroy expressing concern over relaxing the rules as suggested. President Greg Stinson was absent.

Police chief James Spanier said the current Porter ordinance regulating urban chickens was adopted in 2005 and modeled after Valparaiso’s at that time.

In May, Porter resident Laura Madigan asked that the town allow chickens on smaller residential lots than the current 5-acre minimum. After last night’s meeting she urged supporters of urban chickens to keep coming back.

"I think if more people are concerned about it, it might make a difference if it’s brought up repeatedly,” she said.

Madigan removed her chickens after learning they weren’t allowed on her property because of its size; Tuesday she told the council that chicken owners have no right to conduct an illegal activity, but they do have a right to challenge an unreasonable ordinance.

Also speaking to relax the rules were Eric Joll and Journey Joll; he brought the matter to the council in 2013 but the issue was never revisited.

This time, six residents as well as council members presented opinions on property rights versus municipal zoning, enforcement, fresh eggs for a healthier lifestyle, and whether chickens are pets or farm animals.

Wodrich, a restaurant owner, said he favors two chickens --- no roosters --- with restrictions and registration for a normal lot. He said chicken owners typically are dedicated, although Nelson said history hasn’t always proven that to be the case.

Virtue said it’s an invalid argument that property rights are being denied by not allowing chickens on smaller lots. A town can exercise control over property in a legal manner, she explained, and having chickens is a want, not a right, and no one has the right to conduct illegal activity.

Virtue also noted there is an expense to amending town ordinances and she’s not sure it’s warranted at the request of two families, especially when more people she’s talked to are opposed to or neutral about it than in favor.

Resident Norm Tapper, Madigan’s neighbor, said relaxing the rules regarding chickens would discourage potential buyers of adjacent property resulting in a lower property value; chickens also can carry disease and face being abandoned when they stop laying eggs, according to Tapper.

Madigan said there’s no evidence chickens lower property values, and dogs/cats can be considered nuisances as well, especially if allowed to run. Nevertheless, “You don’t say you can’t have beagles.” Wodrich agreed dogs can present problems for neighbors.

The concerns voiced are appropriate to talk about, said Madigan, but chickens shouldn’t be banned over a theoretical problem with no evidence to back up whether it actually occurs.

Eric Joll said one can get salmonella in a restaurant but they’re not banned. He said the discussion was turning into a pro-chicken and anti-chicken divide when there is a middle ground to be found through good enforcement of sensible regulations.

Resident Milissa Beale said she has 1 acre and her family eats a lot of eggs so she prefers to know where they come from. Chickens also offer the opportunity for 4H interaction. She called for further investigation but said a few chickens on 1 acre isn’t excessive.

Council member Elka Nelson said she did educate herself on the topic, including talking to people who tired of their chickens after a few years. If town rules are relaxed, Nelson predicted it could be an administrative nightmare to enforce new rules like requiring a license to keep chickens with several requirements involved.

Nelson also observed it can be more expensive per-egg when chicken upkeep is factored into the cost than buying organic eggs at the store. “I love grass-fed beef. Can I have a cow in the front yard?” she asked, reminding residents that restrictions as well as rewards come with living in a town.

Virtue asked whether the council wanted to let the current ordinance stand or begin the process of amending it, which would include a future public hearing. Wodrich called for changes, but no one else supported doing so at this time.

This list of many other related posts was created via a search for "chickens" in the ILB.

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

Ind. Decisions - 7th Circuit finds a “severely sexualized climate” at the Pendleton state prison.

The ILB highlighted this opinion yesterday, a reversal of a SD Ind. ruling. Today Tim Evans reports for the Indianapolis Star in a long story that begins:

When a female counselor at Pendleton Correctional Facility complained that some one was using her desk at night, an internal investigation quickly uncovered the truth.

Prison employees working the night shift were having sex on the woman’s desk.

But when the counselor asked the prison’s internal affairs investigator what should be done about the discovery, she was in for yet another surprise.

“I suggest,” the investigator told the counselor, “you wash off your desk every day.”

The exchange is among details in a federal lawsuit filed by the counselor, who, ironically, was fired in 2010 for having sex with a Department of Correction employee on his desk at the prison about 60 miles east of Indianapolis.

In a ruling Monday, a three-judge federal appeals court panel said a district judge in Indiana was wrong to dismiss the discrimination and hostile work environment claims leveled by Connie J. Orton-Bell in connection with her dismissal. The ruling notes a “severely sexualized climate” at the state prison.

The order handed down by the 7th Circuit Court of Appeals panel details the atmosphere inside the prison as “saturated” with sexual comments aimed at female employees and a don’t-ask-don’t-tell attitude toward workers having sex on the job.

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

Tuesday, July 22, 2014

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

In U.S. v. Haitham Mohamed (SD Ind., Barker), a 25-page opinion, Judge St. Eve (Amy J. St. Eve, District Judge for the United States Dis-trict Court, Northern District of Illinois, sitting by designation) writes:

On March 26, 2013, a jury convict-ed Haitham Mohamed of one count of knowingly transport-ing and possessing contraband cigarettes in violation of 18 U.S.C. § 2342(a). Mr. Mohamed appeals his conviction, claiming that the district court erred in denying his motions for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. For the reasons set forth in the following opinion, we agree and reverse the district court’s decision. * * *

We do not believe that Mr. Mohamed’s possession of cigarettes in Indiana under these circumstances is sufficient to support a finding, beyond a reasonable doubt, that Mr. Mo-hamed intended to sell, distribute, or otherwise dispose of the cigarettes in Indiana. * * * Without evidence that Mr. Mohamed intended to sell or otherwise dispose of the cigarettes in Indiana, the government failed to prove beyond a reasonable doubt that Indiana law required the cigarettes to bear Indiana tax stamps. Mr. Mohamed’s conviction, therefore, cannot stand.[7]

For the foregoing reasons, we REVERSE the decision of the district court and REMAND with instructions to enter a judgment of acquittal.
______________

[7]This does not mean that Mr. Mohamed’s conduct necessarily must go unpunished. As Mr. Mohamed has acknowledged, the State could have charged him with a misdemeanor for violating Indiana’s requirements for transporting unstamped cigarettes. See Ind. Code § 6-7-1-19.5. The CCTA, moreover, contains recordkeeping and reporting requirements that apply to the shipment, sale, or distribution of more than 10,000 ciga-rettes in a single transaction, see 18 U.S.C. § 2343, and violations of those requirements also may result in criminal liability. See 18 U.S.C. § 2344(b). We make no comment on whether the government’s evidence at trial would have been sufficient to convict Mr. Mohamed under Indiana state law or under other provisions of the CCTA. We hold only that the evi-dence at trial was not sufficient to support a conviction for violation of 18 U.S.C. § 2342(a).

Posted by Marcia Oddi on Tuesday, July 22, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "Courts Issue Conflicting Rulings on Health Care Law"

Robert Pear just filed this long NY Times story on today's opinions; it begins:

WASHINGTON — Two federal appeals court panels issued conflicting rulings Tuesday on whether the government could subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange. The decisions are the latest in a series of legal challenges to central components of President Obama’s health care law.

The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the subsidies, saying that a rule issued by the Internal Revenue Service was “a permissible exercise of the agency’s discretion.”

The ruling came within hours of a 2-to-1 ruling by a panel of the United States Court of Appeals for the District of Columbia Circuit, which said that the government could not subsidize insurance for people in states that use the federal exchange.

That decision could cut potentially off financial assistance for more than 4.5 million people who were found eligible for subsidized insurance in the federal exchange, or marketplace.

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

Ind. Decisions - Court of Appeals issues 6 today (and 3 NFP)

For publication opinions today (6):

In Mark Rolley v. Melissa Rolley, a 21-page opinion, Judge Pyle writes:

Issue. Whether the trial court abused its discretion in granting Mother’s petition to modify child support because the amount of Father’s child support deviated by more than twenty percent from the Child Support Guidelines. * * *

Because we are not persuaded by Father’s arguments and because the trial court followed the Child Support Guidelines in calculating Father’s modified amount of child support, we conclude that the trial court did not abuse its discretion in its support calculation. Affirmed.

In City of Gary v. Review Board of the Indiana Department of Workforce Development and Guadalupe T. Franco, a 17-page opinion, Judge Brown writes:
The City of Gary, Indiana (the “City”), appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in connection with Guadalupe Franco’s application for unemployment benefits finding that Franco had been discharged but not for just cause and was entitled to unemployment benefits. The City raises two issues, which we consolidate and restate as whether the record supports the Board’s decision. We affirm.
In James K. Melton, Perdue Foods, LLC f/k/a Perdue Farms Incorporated and FPP Business Services, Inc., et al. v. Chad Stephens, Guardian of the Person and Estate of Stacy S. Stephens and Chad Stephens, an 18-page opinion, Judge Riley concludes:
[T]he trial court correctly determined that in the case at bar, the place of the tort has extensive connection with the legal action, and thus, the doctrine of lex loci delicti retains its vitality. We hold that the trial court correctly applied the Hubbard test and concluded that Illinois substantive law governs the action.

CONCLUSION. Based on the foregoing, we conclude that the trial court properly held that Illinois substantive law is applicable to a collision which occurred in Illinois between two Indiana residents. Affirmed.

In Tender Loving Care Management, Inc., d/b/a TLC Management LLC, et al. v. Randall Sherls, as Personal Representative of the Estate of Berdie Sherls, Deceased, a 13-page opinion, Judge Mathias writes:
Tender Loving Care Management, Inc., d/b/a TLC Management, LLC, d/b/a Lincolnshire Health Care Center, Inc., d/b/a Riverview Hospital and Lincolnshire Health Care Center, Inc. (hereinafter “Lincolnshire”) appeals challenging the trial court’s judgment denying its motion to compel arbitration in a lawsuit filed by Randall Sherls, as personal representative of the Estate of Birdie Sherls (hereinafter “the Estate”). Lincolnshire challenges the trial court’s conclusion that the arbitration agreement was ambiguous because the parties bound by the agreement are not clearly named.

The Estate cross appeals and argues that the trial court erred when it concluded that the decedent’s son had the authority to waive the decedent’s right to a jury trial. The Estate also contends that the trial court erred when it determined that the agreement was not an unconscionable adhesion contract.

We affirm in part and reverse in part and remand for proceedings consistent with this opinion.

In Robert L. Dixon v. State of Indiana, a 17-page, 2-1 opinion, Judge Riley writes:
Dixon raises one issue on appeal, which we restate as: Whether Dixon’s patdown search following a traffic infraction violated his rights under the Fourth Amendment of the United States Constitution. * * *

Under the Terry doctrine, a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has stopped. Nothing in Terry can be understood to allow a generalized cursory search for weapons or indeed, any search for anything but weapons. Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). “The narrow scope of the Terry exception does not permit a frisk for weapons on less than a reasonable belief or suspicion directed at the person to be frisked.” Id. Here, Officer Loudermilk’s actions ostensibly belie the fact that he was concerned for his safety. We reverse the trial court’s decision and remand to the trial court for further proceedings in accordance with this opinion.1

CONCLUSION. Based on the foregoing, we conclude that the trial court abused its discretion when it denied Dixon’s motion to suppress evidence located in violation of Dixon’s Fourth Amendment rights. Reversed and remanded.

ROBB, J. concurs
BRADFORD, J. dissents with separate opinion [which begins, at p. 10] Because I conclude that Officer Loudermilk had sufficient reason to believe that Dixon might have been armed and dangerous during their encounter, I believe that the officer’s pat-down of Dixon was justified by concerns for officer safety. Consequently, I would not suppress the drugs that were subsequently found on Dixon’s person, and I respectfully dissent.

In Steven R. Perry v. State of Indiana, a 7-page opinion, Judge Robb writes:
Steven R. Perry appeals the trial court’s denial of his motion for credit time for time spent on electronic monitoring as a drug court program participant. Perry frames the issue as whether Indiana jurisprudence should be modified to adopt a single analysis for awarding credit time for periods of electronic monitoring served regardless of the pretrial or post-conviction status of the defendant. This, rather, is a case of whether the trial court abused its discretion in denying credit time to a person who failed to comply with conditions for participating in a drug court program. Concluding the trial court did not abuse its discretion, we affirm.
NFP civil opinions today (1):

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

NFP criminal opinions today (2):

Scott Greenier v. State of Indiana (NFP)

Jacob A. Phillips v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court decides one today, 3-2

In Kenyatta Erkins v. State of Indiana, a 20-page 3-2 opinion, Justice David writes:

Following his conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury, Kenyatta Erkins presents us with a matter of first impression: whether the State must establish the existence of serious bodily injury for his conviction to stand. Without actual serious bodily injury to his alleged victim, he reasons, there is insufficient evidence to support his conviction. However, because conspiracy is a crime consisting of intent to commit an underlying crime, an agreement between or among conspirators to commit the underlying crime, and an overt act by one of the conspirators in furtherance of the agreement, the State needed only to prove these elements beyond a reasonable doubt to support Erkins’s conviction. We find that the State met its burden and affirm Erkins’s conviction.

Erkins also claims that the trial court erred by permitting the State to amend the charging information on the second day of trial to reflect that a co-conspirator, and not he, committed the overt act. However, because the precise identity of the conspirator committing the overt act is not essential to the conspiracy charge, the amendment was one of form and not substance. As the amendment did not impact Erkins’s ability to prepare his defense, we conclude that the trial court did not err in permitting the change. * * *

[I. Amendment to Charging Information] Based on the evidence available to Erkins before the beginning of his trial, it would have come as no surprise to him that the State would attempt to prove that it was in fact Ojile who conducted the surveillance on S.M. inside the Grand Victoria Casino, and the mistaken placement of his name on the charging information would not have affected his ability to prepare his defense. We thus conclude that the State’s amendment was one of form, and that the trial court did not err in permitting it. * * *

[II. Sufficiency of the Evidence] Based on the probative evidence and reasonable inferences supporting the verdict, we conclude that a reasonable fact-finder could find, beyond a reasonable doubt, that Erkins intended and agreed with Ojile to rob and seriously injure S.M. in the course of the robbery, and that Ojile’s surveillance of S.M. at the Grand Victoria Casino and the men’s possession of guns and potential robbery tools at the time of their arrests constituted overt acts in furtherance of their agreement. Thus, sufficient evidence underlies Erkins’s conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury.

Conclusion. While under three different forms of surveillance, Erkins and Ojile expressed their intent and agreement to rob and seriously injure S.M., and the men performed overt acts in furtherance of their agreement. The State therefore presented sufficient evidence at trial to support Erkins’s conviction for class A felony conspiracy to commit robbery resulting in serious bodily injury. And because the particular identity of the conspirator performing the overt act is not essential to the conspiracy charge, the trial court did not err in permitting the State’s amendment of form to Erkins’s charging information. Accordingly, we affirm Erkins’s conviction.

Massa and Rush, J.J., concur.
Rucker, J., concurs in part and dissents in part with separate opinion in which Dickson, C.J., joins.

[J.Rucker's opinion begins, on p 17] The majority declares: “Whether the State must establish the actual existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery resulting in serious bodily injury is an issue of first impression before this Court.” Slip op. at 10 - 11. I agree the precise question has not been previously presented to us. However, our existing case authority as well as familiar tenets of statutory construction compels the conclusion that the State must prove the existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery. I therefore respectfully dissent from the majority’s contrary view.

Central to this discussion is that serious bodily injury is not an element of the offense of robbery. Instead it is a penalty enhancement that increases the class of the offense from a C to an A felony. “The primary purposes of statutorily enhanced penalties for robbery resulting in bodily injury [or serious bodily injury] include deterring those who would commit robbery from in any way harming their victims, and protecting society from those persons who demonstrate the propensity to harm the victims of their crimes.” Payne v. State, 484 N.E.2d 16, 19 (Ind. 1985). In consequence, for the completed offense of robbery the State is required to prove serious bodily injury in order to enhance the offense to a class A felony. * * *

In this case the State failed to prove that Erkins’ conspiracy to rob the victim resulted in serious bodily injury justifying an enhancement. I would therefore vacate his conviction as a class A felony and remand this cause with instructions to enter judgment as a class C felony and to resentence accordingly. In all other respects I concur in the majority opinion.

Dickson, C.J., joins.
_______________
[ILB kudos for footnote 4, wherein the majority clearly delineates the issues not vacated in granting the petition to transfer] [4] Erkins and Ojile also raised issues relating to the admission of evidence gathered after they left the casino, the admission of testimony interpreting the slang used in their phone conversations, and prosecutorial misconduct during closing arguments. Additionally, Ojile asserted that his counsel provided ineffective assistance by failing to argue the defense of abandonment. The Court of Appeals properly resolved each issue, and we summarily affirm those portions of its opinion pursuant to Ind. Appellate Rule 58(A).

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

Ind. Decisions - 7th Circuit decided a second case July 21st, a reversal

In Orton-Bell v. State of Indiana (SD Ind., Lawrence), a 21-page opinion, Judge Manion writes:

Connie J. Orton-Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton-Bell’s desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning. When the situation was brought to the superintendent’s attention, he agreed and said that, as long as inmates were not involved, he was not concerned either. Immediately thereafter, the superintendent discovered that Orton-Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk) and both were terminated. Both separately appealed their terminations to the State Employees’ Appeals Commission. The prison settled the Major’s appeal and then called him to testify against Orton-Bell at her appeal. This tactic enabled the Major to keep all of his benefits, including his pension, to quickly get unemployment benefits, and to subsequently begin working at the prison as a contractor. Orton-Bell was not afforded similar benefits and opportunities, so she filed this suit alleging Title VII claims of sex discrimination, retaliation, and hostile work environment. The district court granted summary judgment to the state, concluding that Orton-Bell was not similarly situated to the Major, that she failed to prove retaliation under either the “direct” or “indirect” methods, and that the sexual tenor of the prison’s work environment was not severe or pervasive enough to qualify as hostile. We reverse with regard to Orton-Bell’s discrimination and hostile environment claims, but affirm with regard to her retaliation claims. * * *

Because there is evidence that Orton-Bell was similarly situated to Ditmer, but treated less favorably, it was error to grant summary judgment on her discrimination claim. Further, because her supervisors failed to remedy the severely sexualized climate at the prison, it was likewise error to grant summary judgement on her hostile work environment claim. However, because she has failed to show that her complaint about night-shift employees having sex on her desk was rooted in her protected status, it was not a protected complaint, so her retaliation claim fails. Accordingly, we AFFIRM IN PART and REVERSE IN PART and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, July 22, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Two stories re INDOT in lawsuits

"Judge rules Monroe County can’t block I-69 work at night" reported Ryan Sabalow of the Indianapolis Star last evening. Some quotes from the story:

For the time being, Monroe County officials won’t be using a noise ordinance to shut down nighttime construction work on the I-69 project.

Marion Superior Court Judge David Dreyer issued a preliminary injunction today that allows the Indiana Department of Transportation to resume work on the controversial freeway project at night — beeping backup alarms and all.

Neighbors, some of whom are longtime opponents of the freeway project, had complained to Monroe County officials that those backup alarms and other construction noises were keeping them up at night. The county changed its noise ordinance in response.

Faced with up to $7,500 fines per violation, INDOT’s contractors shut down nighttime work, saying they couldn’t run their equipment and keep workers safe without the backup signals.

INDOT sued, saying it needed to work at night to finish the $100 million section of the freeway on time. INDOT alleged the ordinance violates Indiana’s Home Rule Act, which prevents a county from imposing burdens on the agency or regulating matters that fall under INDOT’s purview.

"Suit tests INDOT policy of charging for highway repairs" is the heading of a long July 19th IBJ story by Kathleen McLaughlin that begins:
A trucking company is challenging the Indiana Department of Transportation’s authority to sue for damage to state property, a lawsuit that could affect thousands of motorists and millions of dollars in revenue.

Tennessee-based Averitt Express Inc. brings its case to the Indiana Court of Appeals as INDOT ramps up its efforts to collect for damage to guardrails and other infrastructure. INDOT’s property-damage billing grew more than 50 percent, to $7.1 million, in the fiscal year ended June 30 and covered 4,354 incidents.

Most of those bills are settled out of court by insurance companies, but Averitt’s case went to Putnam Circuit Court. In a summary-judgment ruling early this year, the trial court judge found in favor of the state, which said Averitt owed $59,969 after a 2011 accident that damaged a guardrail and pavement on Interstate 70 and killed Averitt’s driver, John Goins.

Averitt’s attorney at Indianapolis-based trucking specialist Scopelitis Garvin Light Hanson & Feary argued that INDOT’s long-standing policy of collecting for routine highway repairs is illegal because those repairs are already paid for by tax dollars.

Other courts observe the rule that governments cannot recover the cost of routine functions through civil suits when those costs are already funded through taxation, Scopelitis attorney Michael Langford said in his April 21 appeals brief. “This rule expresses the common-sense principle that taxpayers should not be asked to fund the same government functions twice,” he said.

Here is the appellate docket in the case, Averitt Express, Inc. v. State of Indiana, et al..

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

Monday, July 21, 2014

Ind. Decisions - More on: Appellees’ Response to Appellants’ Petition for Initial Hearing En Banc

Earlier this afternoon the ILB posted a link to and briefly discussed the Wisconsin plaintiffs' response to Wisconsin's motion that the initial hearing of Wisconsin's appeal be conducted before an en banc 7th Circuit, rather than before a 3-judge panel.

Here now is the Indiana plaintiffs' brief response to the Indiana Attorney General's motion for an initial en banc consideration.

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

Ind. Decisions - Appellees’ Response to Appellants’ Petition for Initial Hearing En Banc

The plaintiffs in the Wisconsin same-sex marriage case, which has been joined with the Indiana appeal before the 7th Circuit, today filed their response to Wisconsin's motion that the initial hearing of Wisconsin's appeal be conducted before an en banc 7th Circuit, rather than before a 3-judge panel. Here is the response, thanks to @EQCF. It is 5-pages and worth reading in full; it may say it all.

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

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

In US v. Donella Locke (SD Ind., McKinney), a 15-page opinion, Judge Rovner writes:

In her second appeal before this court, Donella Locke asks us to reverse the district court’s judgment on sentencing, claiming that the lower court errantly calculated the amount of loss attributable to her conduct. Because Locke waived this issue, we decline to consider the matter and affirm, and in doing so revisit the factors that distinguish loss and restitution. * * *

Although it is true that the application notes to U.S.S.G. 2B1.1 instruct that loss amounts also should be offset by the collateral, the issue of loss had been waived. Had it not been waived, the district court could have considered the evidence about sale of the homes to determine the amount of offset of the collateral, but then the relevant conduct of the unconvicted counts would also have been fair game. Locke cannot argue that the court should have considered evidence to lower the amount of loss, but not to consider conduct that surely would have increased the amount of loss. That smacks of wanting to have one’s cake and eat it too.

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

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

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

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

Ind. Decisions - Supreme Court decides one today

In Camoplast Crocker, LLC, The Kelch Corporation, and Seats, Inc. v. Kris Schoolcraft, as Personal Representative of the Wrongful Death Estate of Rickie D. Schoolcraft, Deceased, et al., a 2-page, 5-0 per curiam opinion, the Court writes in full:

The plaintiff sued the original defendant, Magic Circle Corporation d/b/a Dixie Chopper, for wrongful death. Later, on the last day before the applicable two-year limitation period expired, the plaintiff moved to amend the complaint to add new defendants and tendered an amended complaint and summonses for the new defendants. Eleven days later, the trial court granted the plaintiff’s motion to amend. The new defendants then moved to dismiss or for judgment on the pleadings and argued the amendment was too late, outside the limitation period. The trial court denied the new defendants’ motions and certified its ruling for discretionary interlocutory appeal.

The Court of Appeals affirmed in an opinion authored by Judge May and reported as Magic Circle Corp. v. Schoolcraft, 4 N.E.3d 768 (Ind. Ct. App. 2014)[see ILB summary here, 1st case]. The Court of Appeals held the amendment was timely, deciding not to follow A.J.’s Automotive Sales, Inc. v. Freet, 725 N.E.2d 955, 964-66 (Ind. Ct. App. 2000), reh’g denied, trans. denied, which reached a different result under similar facts.

We agree with Judge May’s analysis and the result reached by the Court of Appeals in the present appeal. Accordingly, we grant transfer, expressly adopt and incorporate by reference pursuant to Indiana Appellate Rule 58(A)(1) the Court of Appeals opinion in this case, and affirm the trial court.

Posted by Marcia Oddi on Monday, July 21, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on "Changes to expungement process poses danger to public"

That was the headline to a story in the May 11th Martinsville Reporter Times; unfortunately it was and remains behind a paywall.

Now it seems that the prosecutor in the adjoining Monroe County shares the concerns. A story headed "Law intended to provide a fresh start draws mixed reviews" appeared in the Sunday, July 13th Bloomington Herald-Times, unfortunately also behind a paywall. From the teaser:

Many people say the trend toward expungement is a good idea, an opportunity for people charged with or convicted of breaking the law to have their criminal slates wiped clean if they stay out of trouble and proceed with their lives in a law-abiding manner.

Others say the process can demean the criminal justice system by effectively making a person’s bad acts disappear. Asked on a job application about any felony convictions, someone with a successful expungement can respond “no.”

Yesterday, Newsbug.com has an AP version of the Herald-Times story. Some quotes:
"There is good, and bad, where this law is concerned," Monroe County Chief Deputy Prosecutor Bob Miller told The Herald-Times (http://bit.ly/WfjFPf ). "On the one hand, it provides a sort of amnesty for people who made a mistake when they were younger that has haunted them since in terms of education and employment. That part is a good thing."

But victims can think it's unfair for an offender to clear his record, Miller said.

That's happened in Morgan County, where Prosecutor Steve Sonnega has challenged expungement petitions he doesn't think should be granted.

Sonnega said the positive aspects of the law are often outweighed by the loss of the victim's rights.

He cited one case in which a man charged with sexual battery had a trial where 11 jurors voted to convict and one stood firm on her not-guilty vote. The victim, a child at the time of the crime, didn't want to testify a second time, so the charge was reduced to battery and the man pleaded guilty.

During the perpetrator's expungement hearing earlier this year, the victim testified that she still is haunted by what happened.

"She testified, very powerfully, that she had to live with the consequences of his actions every day and that she believed he should, too — a logical argument from a crime victim," Sonnega said. * * *

Morgan Superior Court Judge G. Thomas Gray, a former prosecutor, said he dislikes the expungement process and objects to a provision that says victims can address the court, but the judge cannot consider their testimony if the expungement fits the statute.

He also objects to a requirement that expungement petitions and hearings be kept confidential.

"It's an oxymoron. You can't allow anyone in the courtroom to hear what they say, and it can't be considered anyway," he said.

Posted by Marcia Oddi on Monday, July 21, 2014
Posted to Indiana Law

Courts - " In U.S. gay marriage cases, children emerge in the limelight"

That is the headline to a lengthy Reuters story this weekend by Joan Biskupic. A few quotes:

(Reuters) - With legal battles over gay marriage simmering across the United States, proponents are showcasing a group they had once sidelined: children.

Lawyers are recruiting same-sex couples who have children, putting interviews with kids as young as seven in court filings, and organizing media events featuring teenagers. * * *

The lawyers’ approach marks a strategic shift from several years ago, when proponents of gay marriage kept the focus away from children, if there were any.

Advocates were wary of provoking negative responses from judges and the public at a time when prevailing opinion was more likely to view children as harmed by gay marriage.

As recently as 2006, when New York and Washington state high courts upheld bans on same-sex marriage, they sided with states that said having gay parents could hurt youngsters. The New York court said, "a child benefits from having before his or her eyes, every day, living models of what both a man and woman are like."

But in the milestone case of U.S. v. Windsor last year, in which the Supreme Court extended federal spousal benefits to same-sex couples, Justice Anthony Kennedy - a moderate conservative appointed by President Ronald Reagan - turned that around. In the majority opinion he wrote that the federal law that denied benefits to same-sex couples “humiliates” tens of thousands of their children.

In a separate dispute, involving California's former ban on gay marriage known as Proposition 8, Kennedy said during oral arguments that the 40,000 children in California who live with same-sex parents "want their parents to have full recognition and full status.”

Posted by Marcia Oddi on Monday, July 21, 2014
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Hi-Tec Properties, LLC v. Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier, a 17-page opinion, Judge Crone writes:

Hi-Tec Properties, LLC (“Hi-Tec”), appeals the trial court’s denial of its motion to correct error following a jury verdict and award of compensatory and punitive damages entered in favor of Brittany Murphy, Kendall Murphy, Lorie Murphy, and Jay Frazier (collectively “Plaintiffs”) on their claims for negligence, breach of contract, and fraud against Hi-Tec. Hi-Tec filed a motion to correct error claiming, in essence, that the jury verdict and resulting award of damages was improper and unsupported by the evidence. The trial court denied the motion, and Hi-Tec appealed. Finding a portion of the compensatory damages award to be unsupported by the evidence, we reverse that portion of the award and remand to the trial court with instructions for revision. We affirm the trial court in all other respects.
In James Giles, Individually and as Executor of the Estate of Ruth Giles, deceased v. Anonymous Physician I, Anonymous Corporation I, Anonymous Hospital I, Anonymous Physician II, et al., a 14-page opinion, Judge Pyle writes:
This appeal involves a preliminary determination in a medical malpractice case filed in the county court while the case was pending before the Indiana Department of Insurance (“IDOI”). Anonymous Physician I (“Hospitalist”) and Anonymous Corporation I (“Medical Corporation”)—after being sued by James Giles (“Giles”), individually and as executor of the estate of Ruth Giles, deceased (“Ruth”)—moved for summary judgment on the basis that Hospitalist owed no duty to Ruth because he did not treat her or have a physician-patient relationship with her. Giles now appeals the trial court’s order granting summary judgment to Hospitalist and Medical Corporation. We affirm.
NFP civil opinions today (2):

Glenn Hatmaker v. Betty Hatmaker (NFP)

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


NFP criminal opinions today (3):

Alvino Pizano v. Indiana Attorney General Gregory Zoeller, et al. (NFP)

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

Charles Howlett v. State of Indiana (NFP)

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

Law - "Ag-gag laws facing federal court challenges nationally"

From the IBJ/AP, this long July 20th story that begins:

The years-long fight between farm organizations and animal rights activists over laws prohibiting secretly filmed documentation of animal abuse is moving from state legislatures to federal courts as laws in Utah and Idaho face constitutional challenges.

Half of U.S. states have attempted to pass so-called ag-gag laws, but only seven including Indiana have been successful.

Indiana's proposed ag-gag law was scaled back considerably before receiving Gov. Mike Pence’s signature earlier this year. It makes trespassing on the production area of a farm a criminal offense and causing property damage to a farm an act of criminal mischief.

Among the other states with ag-gag statutes are Idaho, where the law says unauthorized recording is punishable by up to a year in jail and a $5,000 fine, and Utah, whose 2012 law makes it a crime to provide false information to gain access to a farm.

Both states now face separate but similarly worded lawsuits that say the measures violate federal statutes offering whistleblower protections and free-speech guarantees.

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

Ind. Gov't. - Intent of the drafters of the current constitutional provision re the Superintendent of Public Instruction

The ILB has seen several references recently to this ILB post from Dec. 5, 2012, discussing the thinking behind the change to Art. 8, Sec. 8 of the Indiana Constitution, ratified by the voters in 1972.

From 1851 to 1972, the provision provided that the General Assembly should "provide for the election" of the State Superintendent of Public instruction.

The new language, ratified in Nov., 1972, provides that the Superintendent's "method of selection, tenure, duties and compensation shall be prescribed by law."

The 2012 ILB post then goes on to quote at length from the report of the drafters of the constitutional change, the 1969 Constitutional Revision Commission, including:

Effect of the Proposed Amendment

The effect of the Commission's proposed amendment to Article 8, section 8, would be to grant to the General Assembly the authority, should it choose to exercise it, to change the term of office and/or the method of selection of the Superintendent of Public Instruction.

Should the General Assembly choose to exercise the authority to change the length of the term of office of the Superintendent, it is most likely that the term would be lengthened to four years. Such a lengthening of term seems most advisable to the members of the Commission.

Should the General Assembly choose to change the method of selection of the Superintendent of Public Instruction, it seems likely that the change would be from state-wide election to appointment, either by an elected state board of education created by the General Assembly, or by the Governor. Such a change would serve to insure that the head of our State's educational system would be a person qualified in the areas of education and administration.

See the 2012 post itself for more.

Posted by Marcia Oddi on Monday, July 21, 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 7/21/14):

Next week's oral arguments before the Supreme Court (week of 7/28/14):

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 7/28/14):

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, July 21, 2014
Posted to Upcoming Oral Arguments

Sunday, July 20, 2014

Ind. Decisions - Indiana's Anticipatory Motion for Stay of Judgment Pending Appeal in pending same-sex marriage lawsuit

Of the five same-sex marriage cases filed in Indiana federal court in March, one, Bowling v. Pence, has not yet been decided by Judge Young.* Here is the complaint in that case, which seeks recognition of same-sex marriage performed in other jurisdictions. Last Monday, July 14th, the Indiana Attorney General filed this "Anticipatory Motion for Stay of Judgment Pending Appeal." (h/t Equality Case Files), that begins:

In anticipation of final judgment against one or more of them, and pursuant to Federal Rule of Civil Procedure 62(c), Defendants Michael Pence, Greg Zoeller, Michael Alley, and Anita Samuel respectfully move this Court to stay the enforcement of all judgments, injunctions, and declaratory or other relief contemporaneously with the issuance of this Court’s final judgment, pending appeal to the United States Court of Appeals for the Seventh Circuit. A stay in this case is warranted because on June 27, 2014, the Seventh Circuit stayed this Court’s final judgment, including all injunctive and declaratory relief granted by this Court, in the related cases Baskin v. Bogan , No. 1:14-cv-355-RLY-TAB, Fujii v. Governor , No. 1:14-cv-404-RLY-TAB, and Lee v. Pence , No. 1:14-cv-406-RLY-MJD. See Baskin, et al. v. Bogan, et al. , Nos. 14-2386, 14-2387, 14-2388 (7th Cir. June 27, 2014) (order granting stay of all relief and ceasing recognition of all same-sex marriages in Indiana pending appeal).
_____
* In Love v. Pence, Judge Young dismissed the suit on June 25th (the same day that he ruled in the three others), on the basis that Gov. Pence was not the appropriate defendant.

Posted by Marcia Oddi on Sunday, July 20, 2014
Posted to Ind Fed D.Ct. Decisions

Friday, July 18, 2014

Environment - Comment period for EPA/Army Corps proposed rules to define ‘‘waters of the United States’’ ends Monday, July 21

Here is the 88-page proposal, which has this summary:

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act (CWA), in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). This proposal would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of "waters of the United States" protected under the Act.
Governing has a July 18th article on the proposal by Daniel C. Vock, headed " Local Governments Divided over New Clean Water Rules: After court rulings muddied up the law, new federal rules seek to clarify which bodies of water have to abide by the Clean Water Act."

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Environment

Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)

For publication opinions today (0):

NFP civil opinions today (4):

In re the Marriage of: Monica S. Yoldash n/k/a Monica S. Orta v. Ibrahim E. Yoldash (NFP)

John Zapata d/b/a Zapata Collection Services, An Individual and as Assignee v. Ball State University, Facilities Management and Planning (NFP)

Indiana Commissioner of Insurance Stephen W. Robertson, on behalf of Indiana Patient's Compensation Fund v. Kimi Clark, Personal Representative of the Estate of William Troy Clark, Deceased (NFP)

In In re: The Visitation of A.W., J.W. v. State of Indiana (NFP), a 6-page opinion, Judge Bailey writes:

J.W. (“Mother”) purportedly appeals the denial of her motion to correct error, which challenged an order granting Mother’s father (“Grandfather”) grandparent visitation with Mother’s child, A.W. (“Child”). The Attorney General of Indiana intervened to defend the constitutionality of the Grandparent Visitation Act, Indiana Code section 31-17-5-1, et seq. (“the Act”). We dismiss.

Mother contends that the Act violates the Equal Protection Clause of the United States Constitution and that the trial court erroneously entered a visitation order without requisite findings of fact. We address a single, dispositive issue raised by the State on cross-appeal: whether Mother’s appeal is untimely.

NFP criminal opinions today (3):

John V. Guthrie v. State of Indiana (NFP)

Emmanuel Winters v. State of Indiana (NFP)

Lloyd Hedstrom v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court discovery orders discussed

Faegre Baker Daniels attorney Brent Auberry had an interesting post July 15th headed "The Gambler Breaks Even: Tax Court Orders Indiana Department Of Revenue To Answer Discovery Requests But Denies Taxpayer’s Second Motion To Compel In Income Tax Appeal," opening with: "The Tax Court does not often address discovery issues in published decisions and orders."

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Law - In Indy, " Confusing laws vex Indiana drivers, cyclists"

Brian Easton had this story July 15th in the Indianapolis Star. A few quotes:

State law generally puts the burden on motorists to "exercise due caution" to avoid vulnerable road users. But it can be confusing for motorists what a cyclist is planning to do — and Worland said "rogue cyclists" who break the rules of the road make it that much more difficult for the two sides to get along.

"That means stop at stop signs, stop at red lights ... there are a lot of cyclists that don't do that," Worland said. "It gives cyclists who are serious about it a bad rap."

ILB: My biggest issue is cyclists who don't stop at red lights. One specific problem I've experienced twice when making a right turn on red, after carefully checking traffic and with my right turn signal on, has been having a cyclist appear out of nowhere from behind me, on the sidewalk to my right, and zoom through the red light just as I have been half-way through the right turn.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Indiana Law

Law - In Chicago, "Red light cameras tag thousands for undeserved tickets"

David Kidwell and Alex Richards of the Chicago Tribune have a very long story today that begins:

Thousands of Chicago drivers have been tagged with $100 red light fines they did not deserve, targeted by robotic cameras during a series of sudden spikes in tickets that city officials say they cannot explain, a Tribune investigation has found.

The Tribune's analysis of more than 4 million tickets issued since 2007 and a deeper probe of individual cases revealed clear evidence that the deviations in Chicago's network of 380 cameras were caused by faulty equipment, human tinkering or both.

Chicago transportation officials say they had no knowledge of the wild swings in ticketing until they were told by the Tribune — even though City Hall legally required the camera vendor to watch for the slightest anomaly in ticketing patterns every day. Many of the spikes lasted weeks.

The lack of oversight raises new questions about the controversial traffic enforcement program, the largest in the country, now embroiled in a federal corruption probe into allegations that the city's longtime red light camera manager took bribes from the camera company.

"Something is terribly amiss here," said Joseph Schofer, an associate dean at Northwestern University's McCormick School of Engineering and Applied Science who reviewed the Tribune's research.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to General Law Related

Environment - "DC Circuit upholds Obama's crackdown on mountaintop mining"

Last Friday Jeremy P. Jacobs and Manuel Quiñones reported for E&E in a long story beginning:

A federal appeals court today sided with U.S. EPA in a broad challenge from two states and the mining industry to controversial Obama administration policies aimed at addressing the environmental effects on waterways of mountaintop-removal coal mining.

The ruling from the U.S. Court of Appeals for the District of Columbia Circuit is a major win for the administration and reverses a lower court ruling siding with West Virginia, Kentucky and a host of mining interests.

The story links to the opinion in Nat'l. Mining Ass'n. v. Gina McCarty.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Environment

Ind. Decisions - Supreme Court Clears a Possible Minefield for Real Estate Sellers

Yesterday's Supreme Court opinion in Gayle Fischer v. Michael and Noel Heymann (ILB summary here) is the subject of a long post today by Michael Smith in the Indiana Business Law Blog, headed "Anticipatory Breach and Mitigation of Damages revisited: The Indiana Supreme Court Clears the Minefield." A sample:

When one party breaches a contract, the other party is entitled to damages sufficient to put the non-breaching party in the same position it would have occupied had the contract been performed. However, the non-breaching party must use reasonable efforts to mitigate the damages. This case illustrates the concept nicely. The original purchase price was $315,000. Sometime later, Fisher received, but rejected, an offer of $240,000. Ultimately, she sold it for $180,000. The trial court found (and the Supreme Court affirmed) that Fisher acted unreasonably when she rejected the offer of $240,000. Accordingly, the most she could recover was the difference between $315,000 and $240,000, not the difference between $315,000 and $180,000. The question, however, is whether the doctrine of mitigation of damages required Fisher to comply with the Heymans' demand to have the electrical problem fixed. If so, she would be able to recover only $117, the amount it cost her to fix the electrical problems. Last year, the Court of Appeals said yes.

Today, Supreme Court said no, agreeing with Judge Cale Bradford of the Court of Appeals. In his dissenting opinion, Judge Bradford reasoned that the doctrine of mitigation of damages does not require the non-breaching party to accede to a demand that creates a breach. The Supreme Court agreed with that reasoning and elaborated that, just as a non-breaching party may not put itself in a better position than it would have been had the contract been performed as agreed, neither can the breaching party. Here, the buyers agreed to pay $315,000 for a condo that had minor electrical problems (if tripped ground fault interrupters and burnt out light bulbs can be considered "problems"), and the seller was not obligated to sell them a condo with no electrical problems for the same price. Result: The Heymans owed Fisher not $117, but more than $90,000.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Ind. Sup.Ct. Decisions

Environment - "Rogers Group gains permit for proposed Americus quarry"

WLFI's Dan Klein reported July 16th:

AMERICUS, Ind. (WLFI) — The Rogers Group, which hopes to build a quarry near Americus, clears one more step in the approval process from the state.

The Indiana Department of Environmental Management has issued a permit allowing wastewater associated with the quarrying operation to go into the Wabash River as well as an unnamed tributary nearby. The permit expires in 2019.

Here are earlier ILB posts on the Americus quarry.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Environment

Ind. Courts - Disciplinary Commsion releases latest report

The Indiana Supreme Court Disciplinary Commission, which is responsible for investigating and prosecuting claims of misconduct against lawyers licensed to practice law in Indiana, has released its latest annual report. Note that it covers the period from July 1, 2012 through June 30, 2013.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Indiana Courts

Ind. Gov't. - "Lake County to snitch on reckless drivers to insurance firms"

Bill Dolan reported yesterday in the NWI Times in a story that begins:

CROWN POINT | Lake County officials are now in the business of sharing residents' latest traffic violations with their insurance companies.

The Lake County Board of Commissioners approved an agreement Wednesday to sell court records to an East Coast data-mining firm that, in turn, will supply it to insurers that use it to impose surcharges on reckless drivers.

Mark Pearman, executive director of county government's information technology department, said Driver's History Information of Cherry Hill, N.J., becomes the third private company authorized to extract bulk data from the county's electronic court database.

He said Driver's History will pay a one-time $1,000 fee to initially tap into the records system, $1,500 a month for continuing records access and 10 cents for every one it pulls over a 1,500-records limit per month.

All other data-mining firms have been paying a similar rate for years. The money goes into a fund used to support the court's electronic record system.

Later in the story:
Pearman said the State Court Administrator must approve any private firm wishing to extract data from Indiana courts as well as approval from local judges and county officials.

Chief Lake Superior Court Judge John Pera said Wednesday he is satisfied the Driver's History agreement conforms with state law.

He said the firm only has access to public records anyone could request and see in the county clerk's office. He said no private records or identification numbers are released.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Indiana Government

Ind. Gov't. - More on: State Board of Accounts investigating Evansville City Councilwoman

Updating this ILB post from June 12th, WFIE14 Evansville reported yesterday, in a story headed "Special prosecutor appointed in Brinkerhoff-Riley case," reports:

A special prosecutor has been appointed in the case of Evansville City Councilwoman Stephanie Brinkerhoff-Riley.

Gibson County Prosecutor Robert Krieg tells 14 News that he is looking into the case.

Krieg said, "This incident occurred in Vanderburgh County but Prosecutor Nick Hermann requested a special prosecutor. Judge Tornatta is handling the matter and appointed me as special prosecutor in the case. This remains a Vanderburgh County matter and it will be handled there just like any other case with the exception that I, as Gibson County Prosecutor, will handle the case and have the jurisdiction to do so due to the appointment by Judge Tornatta," he said.

The investigation began after Brinkerhoff-Riley, then Evansville City Council Vice President, admitted to secretly recording a confidential meeting about the city audit.

She released that recording to the public.

Brinkerhoff-Riley remains on council, but resigned from the VP position.

The Indiana State Police are investigating the case. Krieg tells 14 News it was assigned to Special Investigations Detective Jan Kruse at the ISP Bloomington Post.

Posted by Marcia Oddi on Friday, July 18, 2014
Posted to Indiana Government

Thursday, July 17, 2014

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

In U.S. v. Smith (ND Ind., Van Bokkelen), an 11-page opinion, Judge Rovner writes:

Garrett Smith pleaded guilty to a charge that he possessed with the intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), and the district court ordered him to serve a prison term of 168 months. Despite having expressly waived his right to appeal the sentence in his written plea agreement, Smith nonetheless has appealed, contending that he was deprived of the effective assistance of counsel when his counsel failed to challenge the district court’s finding that he was a career offender. Smith urges us to overlook the waiver on the ground that his attorney’s alleged ineffectiveness at sentencing was “patent.” We enforce the appellate waiver and dismiss the appeal. * * * ,p> Smith knowingly and voluntarily waived his appellate rights, including his right on appeal to contend that his counsel below was ineffective as to any matter other than the waiver and his negotiation of it. He is, consequently, barred from pursuing the instant appeal. The appeal is therefore DISMISSED.

Posted by Marcia Oddi on Thursday, July 17, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - An amicus brief supporting AG Zoeller's position in the same-sex marriage cases [Updated]

Yes indeed, an amicus brief supporting AG Zoeller's position in the same-sex marriage cases has just been filed in the 7th Circuit. After a quick look, however, I doubt that the Attorney General or his client, the State of Indiana, is really happy for the support.

Here is the argument, as summarized in the table of contents on p. 2:

The district court decision would allow a man to marry his elderly mother. There is no possibility that the Framers intended the Constitution and its Amendments to give a man the right to marry a blood relative or a man ........ 5

Legislatively enacted same-sex marriage is less likely to lead to incestuous marriage than court-ordered same-sex marriage is .................. 18

Same-sex marriage diminishes heterosexual marriage and misleads people, especially children and adolescents, about reproductive biology ...... 20

The amicus brief is 32-pages long and filed by an attorney in Connecticut.

[Updated at 6:58 PM] The 7th Circuit has just sent a brief deficiency letter sent to the Connecticut amicus.

Here, BTW, is the 7th Circuit's brief filing checklist.

Posted by Marcia Oddi on Thursday, July 17, 2014
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (4):

In Moran Electric Service, Inc., and Threaded Rod Company, Inc. v. Commissioner, Indiana Department of Environmental Management, City of Indianapolis, Ertel Manufacturing Corp., 6-page opinion on a motion for rehearing, Judge Barnes writes:

The Indiana Department of Environmental Management (“IDEM”) and the City of Indianapolis (“the City”) have filed a joint request for rehearing from our opinion in Moran Elec. Serv., Inc. v. Comm’r, Indiana Dep’t of Envtl. Mgmt., 8 N.E.3d 698 (Ind. Ct. App. 2014). We grant rehearing to acknowledge and address some of their rehearing arguments, but we reaffirm our original decision in all respects.
In Todd DeWayne Kelly v. State of Indiana , a 6-page opinion, Judge Bradford writes:
On appeal, Kelly contends that the State did not present sufficient evidence to sustain his conviction for Class A misdemeanor invasion of privacy. We affirm. * * *

In the instant matter, the State presented clear evidence that Kelly indirectly communicated with S.B. During trial, the trial court heard evidence that Kelly texted L.K. stating, “contacting court next week, if you see your mom tell her I said rattle, rattle, rattle.” Oct. 8, 2013 Tr. p. 44. Unlike the third party in Huber, L.K. did not tell Kelly that she would not give the message to S.B. Instead, L.K. immediately showed the text to S.B., with whom she lived. S.B. read the message and believed it was threatening and meant to intimidate her because Kelly had used the phrase “rattle, rattle, rattle” as a way of intimidating S.B. when she and Kelly were still married. Oct. 8, 2013 Tr. p. 30. Further, at some point before trial, Kelly again communicated “rattle, rattle, rattle” to S.B. via Facebook. Oct. 8, 2013 Tr. p. 29. The above-stated evidence is sufficient to sustain Kelly’s conviction. Kelly’s claim to the contrary effectively amounts to an invitation for this court to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.

In Clyde Davis v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Clyde Davis appeals from his conviction for Class B misdemeanor public intoxication. On appeal, Davis contends that the State failed to provide sufficient evidence of endangerment. We reverse. * * *

The common thread in these cases is past or present conduct by the defendant did or did not place life in danger. While the statute does not require that actual harm or injury occur, some action by the defendant constituting endangerment of the life of the defendant or another person must be shown. This is true even where an officer testifies that the defendant was a danger to himself or others. See, e.g., Sesay, 5 N.E.3d at 479. Were it otherwise, citizens could be convicted for possible, future conduct. The policy behind the current public intoxication statute is to encourage intoxicated persons to avoid danger by walking or catching a ride rather than driving. Stephens, 992 N.E.2d at 938. Although we acknowledge that intoxicated persons may also create danger by walking in public places, that danger must have manifested itself in order for the State to obtain a conviction.

In the instant case there was no such past or present conduct by Davis that amounted to endangerment of his or another’s life. * * *

Although the State argues that Davis was in danger of being struck by a car if he left the apartment complex, the argument is merely speculative, not proof beyond a reasonable doubt. Appellee’s Br. 4, 9. The State may not convict Davis for what would or could have happened. Reversed.

In Carlin Graffenread v. State of Indiana, a 7-page opinion, Judge Barnes writes:
The sole issue before us is whether Indiana Code Section 35-48-4-12 allows for the deferral of a dealing in marijuana charge. * * *

We conclude that the language of Indiana Code Section 35-48-4-12 is clear and unambiguous on its face and does not run afoul of double jeopardy or collateral estoppel. We therefore must not expand or restrict what the statute clearly and plainly expresses. The statute’s conditional deferment and dismissal clearly applies only to first time offenders who are charged with possession of marijuana, hashish, salvia, or a synthetic drug. There is no language within the statute to indicate that the legislature intended to include within the statute greater offenses that might include possession as an element. The legislature chose to allow leniency for some drug possession charges, but not drug dealing charges.

NFP civil opinions today (1):

Phyllis Roy v. Jerry Gidrewicz (NFP)

NFP criminal opinions today (2):

Joseph M. Bell v. State of Indiana (NFP)

Kenneth Ferrell v. State of Indiana (NFP)

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

Ind. Decisions - Supreme Court decides one today, re breach of real estate contract

In Gayle Fischer v. Michael and Noel Heymann, a 9-page, 5-0 opinion, Justice Rush writes:

This is the second appeal in protracted litigation over the breach of a real-estate sales contract. The first appeal established that Buyers breached the contract when they unreasonably demanded that Seller fix a minor electrical problem as a condition of purchase. In this second appeal, we granted transfer to consider whether the trial court acted within its discretion in calculating Seller’s damages. Both parties appealed the trial court’s findings regarding Seller’s efforts to mitigate her damages. Seller argues that her efforts were reasonable and justify a full award. Buyers argue Seller failed to mitigate her damages in two ways: 1) by failing to respond to their demand for electrical repairs and thus preserve the contract, and 2) by failing to accept a substitute offer to purchase the property after the agreement fell through. The trial court disagreed with Buyers’ first argument but agreed with the second, and reduced Seller’s damages accordingly. We hold the trial court was within its discretion to reach this conclusion, and therefore affirm the award of damages and attorney fees. * * *

The record supports the trial court’s findings and conclusions on Fischer’s duty to mitigate. The trial court acted within its discretion by finding that Fischer could have mitigated her damages by selling the condo in 2007 instead of waiting until 2011, and in refusing to find that her duty to mitigate required yielding to the Heymanns’ breach. The trial court also acted within its broad discretion in determining reasonable attorney fees and costs based on the results that Fischer achieved in this litigation. We therefore affirm the trial court’s award of $93,972.18.

Dickson, C.J., and David and Massa, JJ., concur.
Rucker, J., concurs in result.

Posted by Marcia Oddi on Thursday, July 17, 2014
Posted to Ind. Sup.Ct. Decisions

Environment - More on: Right to Farm Act prevails in Randolph County lawsuits

Updating the ILB post from yesterday, which included Judge Vorhees' ruling in Armstrong v. Maxwell Farms, three other similar orders on summary judgment motions were also filed by the judge on July 10, all with the same results (each one differs slightly but all come to the same result), granting defendant Maxwell Farms' motion for summary judgment on the basis that the Indiana Right to Farm Act was constitutional and that it barred plaintiff' nuisance claims: Pegg, et al v. Maxwell Farms, Neudecker v. Maxwell Farms, and Williams v. Maxwell Farms.

Gary Baise, a law school classmate of mine, who practices farm law nationally out of his Washington DC firm, was lead attorney for Maxwell Farms. Mary Ramey and Richard Hailey of Indianapolis represented the plaintiffs.

The Right to Farm Act. Per the opinions, these cases were decided under Indiana's 1981 statute, which the legislature amended in 2005, IC 32-30-6-9. A key paragraph of each ruling, which appears as para. #29 of the Armstrong opinion, reads:

Plaintiffs have argued the increased size and scope of the current swine operations constitutes a new and different use. This is not correct under Indiana law. The Court must read the statutory language, which is unambiguous, and apply it as written. The Indiana Legislature had to know in 2005, when it amended the Right to Farm Act, that the number of animals being confined in swine and dairy operations was growing exponentially, and yet the Legislature did not give neighbors surrounding the operations any relief. In 2005, the Legislature made the Right to Farm Act even more restrictive to potential lawsuits. The Legislature has made its intent known to protect farming operations against nuisance actions, even if the operation grows from a few hogs to several thousand, and even if the operation changes from growing com to raising thousands of hogs.
Interestingly, Indiana now has two Right to Farm acts, plus there have been efforts to add it to the Indiana Constitution.

In the 2014 session, legislation was introduced to, as the ILB wrote on Jan. 14, 2014, put "right to farm" in the Indiana Code, again. (The ILB's Jan. 14th post is well worth rereading.)

The bill, SB 186, passed and became law on July 1, 2014. See this Feb. 25, 2014 ILB post. The new law includes this provision:

The Indiana Code shall be construed to protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.

Posted by Marcia Oddi on Thursday, July 17, 2014
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Decisions - 7th Circuit asks for answers to the requests for en banc consideration

In a filing yesterday, Wisconsin filed its own request for en banc hearing before the 7th Circuit on the same sex marriage cases.

Today, the 7th Circuit issued this one-page order re the Indiana and Wisconsin petitions:

Petitions for Initial Hearing En Banc were filed by counsel for the appellants on July 11, 2014, in appeal nos. 14‐2386, 14‐2387, and 14‐2388 and on July 16, 2014, in appeal no. 14‐2526.

Counsel for the appellees in each appeal are requested to file an answer to the Petitions for Initial Hearing En Banc by July 23, 2014. Counsel shall file thirty (30) copies of the answer, which shall not exceed fifteen (15) pages. Fed. R. App. P. 40(b). The cover of the answer, if used, must be white. Fed. R. App. P. 32(c)(2)(A).

Posted by Marcia Oddi on Thursday, July 17, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Supreme Court has filled two advertised positions

First, as the ILB posted on June 26th, the position of Deputy Clerk, the job Heather Smith (now Clerk in Kansas) formerly held, has been filled. This April 29th ILB post reported the announcement of the opening.

Second, on Sept. 25, 2013, the Supreme Court announced a new position that intrigued many:

The Indiana Supreme Court is seeking applicants for a new position which will provide counsel to the Chief Justice in fiscal and operational matters and assist the Chief Justice in various administrative duties. A job description can be found at [ILB: no longer available] which gives details as to the expected duties and responsibilities.

Minimum qualifications are admission to legal practice and good standing, with at least 5 years of Indiana law practice. Due to the financial and business responsibilities, preference will be given to candidates who are also a CPA, have an MBA, or significant business experience.

Essential skills for the position include good communication skills and experience, strong working knowledge of Microsoft Word, PowerPoint, and Outlook products, and ability to create and manipulate spreadsheets, database programs, and work with numbers and financial calculations.

This is an unclassified executive position; the salary will range from $85,000.00 to $110,000.00, depending on experience and strengths. General state benefits apply.

The deadline for applying for this position is October 31, 2013.

In reponse to an inquiry from the ILB on July 10th, saying that I had heard that both positions have been filled, but that I may have missed the announcement, the ILB received this prompt note from the Supreme Court's public information office:
Hi Marcia,

Here is some information on these two positions. We do not write press releases for most hires — so you did not miss anything. I have you on our regular media distribution list.

Fenton D. Strickland is the new Counselor to the Chief Justice for Finance and Operations. He brings a high degree of finance and legal training and experience. Fenton is a Summa Cum Laude graduate of the Indiana University Robert H. McKinney School of Law with an undergraduate accounting degree from Indiana University. He is a CPA (inactive) and has over ten years of experience serving several businesses in various financial roles, including assistant controller, cost accounting manager, corporate finance supervisor, and accountant. After law school and following two years serving as a law clerk to Justice Brent Dickson, Fenton joined the Indianapolis law firm of Faegre Baker Daniels LLP as a member of the Tax Advocacy practice group representing clients ranging from sole proprietorships to multinational corporations.

Gregory R. Pachmayr is the new Deputy Clerk of Courts. He earned his JD and MPA from IU-Bloomington. He served with the Peace Corps in South Africa for two years before going to law school. Gregory most recently served as the Director of the Board of Pharmacy at the Indiana Professional Licensing Agency.

KD

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

Wednesday, July 16, 2014

Ind. Decisions - 7th Circuit decides a second Indiana case today

In U.S. v. Mosley (ND Ind., Moody), an 11-page opinion, Judge Manion concludes:

The district court erred by failing to balance Mosley’s constitutional interest in confronting and cross-examining Simmons with the government’s reasons for not producing her. But that error was harmless because the result would have been the same even without any of Simmons’s out-of-court statements. Accordingly, we AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Enbridge Pipeline case decided by 7th Circuit

This opinion by Judge Easterbrook today, Knight v. Enbridge Pipelines, originating in Illinois, gives an idea of just what a landowner is up against.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Anything new in Indiana's appeal to the 7th Circuit of Judge Young's ruling? [Updated with more speculation on en banc]

7th Circuit held a conference call with parties to Indiana same-sex marriage case at 4PM today, to work out details. [Update: wrong, this was bad info]

Here is the State of Indiana brief in Baskin v. Borgan, filed Tuesday.

Here is what the Fort Wayne Journal Gazette wrote about the brief yesterday:

INDIANAPOLIS – Indiana has outlined its reasons for appealing a federal judge’s decision that struck down the state’s gay marriage ban.

The state’s arguments appear in a brief filed Tuesday with the 7th U.S. Circuit Court of Appeals in Chicago. It repeats the same arguments the state has made previously, essentially that regulating marriage should be up to the state, which has a legitimate interest in promoting traditional marriage.

The appellate court consolidated Indiana’s case with a similar case from Wisconsin on Monday and put them on a fast track.

Both states have requested that all 10 judges on the 7th Circuit Court of Appeals hear the cases.

Check back for any additional details from today's conference call. [Update: See above correction]

[Updated at 4:39 PM] The new Court ORDER:

The court, on its own motion, ORDERS that oral argument in this appeal set for Wednesday, 08/13/2014 is VACATED. CF [6590621] [14-2386, 14-2526, 14-2387, 14-2388] (RS)
What does this mean? It could mean the Court is going to accommodate the Wisconsin appeal, as you will recall, Wisconsin jumped in late, and would have little time to participate without some changes in the timetable.

It could mean the Court is considering the en banc option, but I still believe that is unlikely, although it could be good for plaintiffs.

[Updated at 7:07] A reader points out that when it appears a three-judge panel will enter an opinion that would cause a circuit split, the panel will offer, as Judge Tinder wrote earlier this week in a footnote on p. 10 of U.S. v. Harden:

Because this opinion creates a split among circuits, we circulated it in advance of publication to all judges of this court in regular active service, pursuant to Circuit Rule 40(e). None voted to hear the case en banc.
There currently is only one circuit court opinion in the same sex marriage cases, that of the 10th Circuit. So only if a panel voted to reverse Judge Young's SD Indiana opinion would there be the chance of a circuit split. Per the reader:
So, if the case is heard by a panel that decides to rule for the State, presumably an opportunity to hear the case en banc would be presented to all judges before the panel opinion is issued. If the panel rules against the State, no such opportunity would be presented.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - The Power of One: How Do Dissenting Court of Appeals’ Opinions Fare on Transfer?

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

Dissents are a pretty rare occurrence at the Indiana Court of Appeals. As discussed in this March 13 post, dissenting opinions were issued in only 72 (about 3.5%) of the court’s more than 2,000 opinions last year.* Not surprisingly, as explored below, and as highlighted repeatedly in the weekly transfer list (which last week included two 2-1 opinions in its four grants), these unusual cases appear to receive more scrutiny if a petition to transfer is filed - and transfer is granted at a significantly higher rate than from unanimous opinions.

Court of Appeals’ Dissents: Civil/Criminal and Published/Unpublished

Although civil cases comprise about 40% of the Court of Appeals’ caseload, civil cases drew 51% of the dissenting opinions in 2013. Not surprisingly, unlike the overall publication rate of 25% of Court of Appeals’ opinions, 60% (43/72) of the opinions with dissents were published. Considering how unusual it is for a judge to feel strongly enough to dissent in a case, one might expect an even higher percentage of published opinions - or at least published dissents; Appellate Rule 65(A) provides that a “judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria [for publication] is met.”

Transfer Sought

A party who loses an appeal but receives a dissenting opinion may feel emboldened to seek transfer, especially if the dissenting opinion is especially well-reasoned and published. Last year, transfer was sought in 892 cases, which is about 42% of the cases decided by the Court of Appeals.** But transfer was sought in 60% (43/72) of the 2013 Court of Appeals’ cases with a dissenting opinion. ***

Significantly Higher Rate of Transfer Grants - Especially From Unpublished Opinions

Last year the Indiana Supreme Court granted transfer in about 21% of FP cases in which transfer was sought but only 3.5% of NFP cases - with an overall rate of 9.3%.

The success of petitions in cases with dissenting opinions, though, was much higher. One petition remains pending and 31% (13) of the remaining 42 petitions from opinions that included a dissent were granted. Of the 29 petitions denied, 17 were unanimous while 7 had two votes for transfer and 5 had one vote for transfer. Of the 17 unanimous denials, one was initially granted but then vacated after oral argument and two others were denied after hearing oral argument.

Transfer was granted in 29% (4 of 14) of the NFP opinions with a dissent and 31% (9 of 29) of published opinions with a dissent - a high and remarkably similar rate. While the 300+% improved overall odds are remarkable, the FP/NFP difference is especially stark. Litigants with a dissent in a FP opinion have about 50% better odds at transfer than those seeking transfer from a unanimous opinion, and those with a dissent in a NFP are eight times more likely to receive a grant of transfer than those with a unanimous opinion.

The Cases - and Almost Always Different Result

Although opinions have not yet been issued in five of the 13 cases in which petitions were granted, only one (12.5%) of the remaining eight — Alva Electric v. Evansville-Vanderburgh School Corp. — reached the same result as the Court of Appeals’ majority. The seven cases reaching the opposite result were:

The high reversal rate is not surprisingly in light of these April 11 and April 28 posts discussing first-quarter Indiana Supreme Court opinions. As explained there, a grant of transfer is usually followed by an opinion reaching a result opposite the appellate court’s conclusion, although the odds were not quite as stark as from opinions that included a dissent - 31% of criminal cases and 19% of civil cases reached the same result.

But is it possible that the high rate of transfer grants among cases with a dissent in the Court of Appeals is being driven by something else? The sample size is admittedly small, and it is impossible to know if the Indiana Supreme Court would have granted transfer in a case had no dissent been written. Perhaps the majority opinion, if joined by two - instead of just one - of the other judges, would not have escaped scrutiny. It is notable that the Attorney General petitioned to transfer in five of the seven cases and generally enjoys a much higher rate of success than do criminal defendants seeking transfer.

Beyond these opinions, transfer has been granted and opinions are pending in the following five cases that included a dissenting opinion in the Court of Appeals:

(Transfer is pending in Klepper v. Ace American Insurance Co. The case was transmitted on transfer on April 29, 2014.)

Disagreements Among Panels

The court decides cases in three-judge panels that rotate every four months. Therefore, with 72 dissents from the fifteen judges over the course of three panels during the year, just under 5 dissents are expected per panel.**** As discussed in an August 23, 2013 post, however, the Riley-Brown-Bradford panel had an especially large number of dissents last year - ultimately a whopping 15, which is more than three times the average.

None of the fifteen judges were able to draft all their majority opinions in 2013 without drawing a dissent from a colleague. Judges Bailey and Najam fared the best, drawing just one dissent each. Judge Brown had the most with nine.

Dissents by Individual Judges

The following table provides individual data about the 2013 dissenting opinions of each judge and how each dissent fared on transfer.

2013 Dissenting Opinions
Judge Total Dissents Transfer Sought Transfer Grant Aff/Rev
Bailey 3 1 0 (0%) ---
Baker 12 4 0 (0%) ---
Bradford 4 2 1 (50%) P
Brown 7 3 0 (0%) ---
Crone 4 3 (1 pending) ---
Friedlander 2 2 1 (50%) A
Kirsch 10 6 3 (50%) 2R, 1P
May 1 1 0 (0%) ---
Najam 2 1 1 (100%) R
Riley 14 9 1 (11%) R
Robb 8 6 4 (67%) 1R, 3P
Vaidik 5 5 2 (40%) 2R
Notes: Judges Barnes, Mathias, and Pyle wrote no dissenting opinions in 2013. The final column notes the number of opinions in which transfer was granted that were (A)ffirmed, (R)eversed, or are (P)ending.

Conclusion

Considering the significantly higher rate at which transfer is granted in cases that include a dissenting opinion from the Court of Appeals - and the strong likelihood the Indiana Supreme Court will reach a result opposite the one the Court of Appeals reached - one might expect transfer to be sought at a rate even higher than the 60% last year. Moreover, judges on the Court of Appeals, who are generally a pretty agreeable group, can easily wield their power - through even a short dissenting opinion in an NFP case - to enhance the chances of Indiana Supreme Court review.

________________
*I have counted any opinion with the word “dissent” in the vote line as a dissenting opinion. This includes three cases in which Judge Kirsch dissented without writing an opinion and a number of cases in which the separate opinion was titled both a concurring and dissenting opinion. My methodology appears to differ a bit from that used in the Court of Appeals’ annual report, which included 72 dissenting opinions allocated somewhat differently among a few of the judges.

**The Indiana Supreme Court counts cases on a July to June fiscal year, while the Indiana Court of Appeals uses a calendar year. The Court of Appeals decided 2143 cases by opinions in 2012 and 2058 in 2013, which I have averaged (2100) and used as the denominator of 892 (the number of cases in which transfer was sought).

*** The timing is admittedly not perfect. I am comparing 2013 Court of Appeals’ opinions and 2013 transfer dispositions, some of which involve Court of Appeals’ opinions decided weeks or even a few months into 2014.

****This number would be slightly lower because it does not account for senior judges, who are assigned to author opinions on rotation as a 16th judge for panels throughout the year. Only three opinions authored by senior judges (one each by Judges Barteau, Sharpnack, and Shepard) drew a dissent in 2013.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Schumm - Commentary

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

In U.S. v. Jonassen (ND Ind., Moody), a 21-page opinion, Judge Sykes writes:

Martin Jonassen kidnapped his 21-year-old daughter E.J. from her home in Missouri and took her to a motel in Indiana, where he held her against her will and sexually assaulted her. On the third day of her captivity, E.J. managed to escape and was seen fleeing naked from the motel, rope still tied around her leg, desperately screaming for help. Jonassen chased her through the street and into a nearby liquor store, and after a violent struggle, recaptured her. Police responding to the scene arrested him in the liquor store parking lot. E.J. described the ordeal to police, and Jonassen faced serious federal felony charges.

Almost immediately after he was arrested, Jonassen began a concerted effort to get E.J. to recant. She did not do so, but the intimidation was successful in the sense that it made her unavailable as a witness. Although she had cooperated with the government when Jonassen was indicted and throughout the pretrial period, she suddenly clammed up when called to testify at trial, saying “I don’t remember” (or something equivalent) in response to all of the prosecutor’s questions. The government moved to admit her statements to police under Rule 804(b)(6) of the Federal Rules of Evidence, which allows admission of hearsay against a party who wrongfully procures a witness’s unavailability. The district court granted the motion. The jury convicted Jonassen of kidnapping, see 18 U.S.C. § 1201(a)(1), and obstruction of justice, see id. § 1512(b)(1), and the court imposed a lengthy prison sentence.

Jonassen raises three issues on appeal. First, he argues that the district court should have conducted a competency hearing under 18 U.S.C. § 4241. Second, he challenges the court’s decision to admit E.J.’s prior statements under Rule 804(b)(6). Finally, he argues that the court erred in denying his posttrial motion regarding Jencks Act material. See 18 U.S.C. § 3500.

We reject these arguments and affirm. The district court properly declined to conduct a competency hearing. Although Jonassen asserted bizarre legal theories based on his claim of “sovereign citizenship,” that alone does not provide a reason to doubt his competence to stand trial, and the record does not otherwise suggest that he lacked the ability to understand the proceedings. The court’s evidentiary ruling also was sound. The government laid an ample foundation for admission of the hearsay statements under Rule 804(b)(6); the evidence established that Jonassen used bribery, guilt, and various forms of psychological intimidation to procure E.J.’s unavailability. Finally, because Jonassen did not request Jencks Act material before the close of trial, his claim for relief under the Act necessarily fails.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In John M. Abbott, LLC, Class Representative and All Others Similarly Situated v. Lake City Bank , a 9-page opinion, Judge Crone writes:

John M. Abbott, LLC (“Abbott LLC”), acting as class representative, filed a class action against Lake City Bank (“the Bank”), maintaining that the Bank breached the terms of its promissory note (“the Note”) executed in conjunction with certain commercial real estate loans. The dispute concerned the Bank’s use of a 365/360 interest calculation method and its alleged impact on the interest owed. The Bank filed a motion for summary judgment, which the trial court granted. Abbott LLC now appeals, asserting that genuine issues of material fact exist that render summary judgment improper. Finding no genuine issue of material fact, we affirm the trial court’s summary judgment order. * * *

Under Indiana law, a party to a contract “is presumed to understand and assent to the terms of the contracts he or she signs.” Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 418 (Ind. Ct. App. 2004), trans. dismissed (2006). Additionally, here, the Note specifies that each borrower acknowledges reading and understanding the Note’s terms before signing. In other words, the timeframe for a borrower to seek clarification concerning the terms is before signing. In the case of Abbott LLC, there is no designated evidence to indicate that John Abbott ever sought clarification before signing. Instead, Abbott LLC’s designated extrinsic evidence comprises evaluations and opinions offered years after the date of execution of the Note. Even if an ambiguity were present, this evidence would shed no light on the parties’ intent as of the time of contract formation.[2]

Based on the foregoing, we conclude as a matter of law that the Note is not ambiguous. As such, we affirm the trial court’s order granting summary judgment in favor of the Bank. Affirmed.
_______________
[2] We reject Abbott LLC’s assertion that the Note is a contract of adhesion, observing that adhesion contracts (standardized contracts, which, imposed and drafted by a party of superior bargaining strength, relegate subscribing parties only the opportunity to adhere to the contract or reject it) are not per se unconscionable. Sanford, 813 N.E.2d at 417. A contract is unconscionable only where there is a great disparity in the parties’ bargaining power, such that the weaker party is made to sign unwillingly or without being aware of the contract’s terms. Id. Abbott LLC has failed to designate any evidence that the class member borrowers were made to sign unwillingly or were unaware of the Note’s terms.

In Serenity Springs, Inc. and Laura Ostergren v. The LaPorte County Convention and Visitors Bureau, by and through its Board of Managers, a 17-page, 2-1 opinion, Judge May writes:
Serenity Springs appeals a judgment in favor of the LaPorte County Convention and Visitors Bureau (“the Bureau”) that permanently enjoined Serenity Springs from using the internet domain name visitmichigancitylaporte.com and transferred the domain name to the Bureau. As “Visit Michigan City LaPorte” was not a protectable trade name and Serenity Springs’ use of it was not unfair competition, we reverse. * * *

In Serenity Springs I, we determined the designation “Visit Michigan City LaPorte” was not subject to protection because it was merely descriptive of the geographic location of the goods and services the Bureau promotes, and it had not acquired a secondary meaning through actual use of the mark prior to Serenity Springs’ first use. Id. at 325. As the Bureau had asserted additional claims, including common-law unfair competition, that the trial court had not yet addressed, we remanded. Id. at 327.

On remand, the trial court found Serenity Springs had committed seven common-law torts: common-law trade name infringement, a common-law tort based on Serenity Springs’ intent to deceive, common-law acts amounting to cybersquatting, unfair competition in the form of conversion of intangible value, tortious interference with a contract or business relationship, tortious behavior in the nature of “palming off,” and general unfair competition. It permanently enjoined Serenity Springs from using the mark “Visit Michigan City LaPorte” or the domain name visitmichigancitylaporte.com. The case now before us is an appeal from the trial court’s decision on remand. * * *

[1. Trade Name Infringement] As there was no protectable trade name, the trial court erred in determining there was a “tort in the nature of trade name infringement.”

2. Unfair Competition

The trial court found Serenity Springs had committed six more torts it explicitly characterized as variants of unfair competition: a common-law tort based on Serenity Springs’ intent to deceive, common-law acts amounting to cybersquatting, unfair competition in the form of conversion of intangible value, tortious interference with a contract or business relationship, tortious behavior in the nature of “palming off,” and a “general unnamed tort of unfair competition.” (Id. at 32.) As the phrase “Visit Michigan City LaPorte,” had not become identified with the Bureau before Serenity Springs began using it, it was error for the trial court to find Serenity Springs’ use of the phrase was unfair competition. * * *

We acknowledge authority from other jurisdictions suggests a “single use” or an “initial use” is sufficient, e.g., Blue Bell, Inc. v. Farah Mfg. Co., Inc., 508 F.2d 1260, 1265 (5th Cir. 1975) (use of trademark need not have gained wide public recognition and even a single use in trade may sustain trademark rights if followed by continuous commercial utilization). But even that standard is not met in the case before us; we have only the Bureau’s statement of its intention to commence using that phrase.3 Serenity Springs’ actions therefore did not amount to unfair competition, and it was error for the trial court to so hold.

As “Visit Michigan City LaPorte,” was not a protectable trade name and Serenity Springs’ use of it was not unfair competition, we reverse.

VAIDIK, C. J., concurs.
RILEY, J., concurs in part and dissents in part. [which begins, at p. 10] Although I agree with the majority’s rather sparse analysis that ‘Visit Michigan City LaPorte’ is not a protectable trade name and therefore no trade name infringement can exist, I respectfully dissent from its treatment of the Bureau’s common law unfair competition claim. * * *

In light of this emerging move away from the rigid adherence to a “long established use” of the trademark or trade name, I would consider the Bureau’s bona fide use of the domain name during the ordinary course of its business.

Although acknowledging this new trend in the case law, the majority rather nonchalantly declared in its opinion that “even that standard [of single use] is not met in the case before us; we have only the Bureau’s statement of its intention to commence using that phrase.” Slip op. p. 9. Rather than relying on the heavily sanitized version of the facts used by the majority but instead considering the actual record before me, I find that the evidence reflect otherwise. The Bureau presented that it contracted with a private marketing firm in early 2009 to conduct a branding study for the purposes of identifying new and better ways to promote tourism in the area. On the morning of September 9, 2009, the Bureau held a televised public meeting, pursuant to its compliance with the Open Door provisions, during which it announced the results of its branding study and introduced the public to ‘Visit Michigan City LaPorte’ as its unique identifier. * * *

By registering the domain name ‘visitmichigancitylaporte.com’ and linking it to its website, Serenity ensured that Web surfers searching for information about the diverse attractions and accommodations located in La Porte County and promoted by the Bureau were diverted to Serenity’s own Web page instead. * * *

By appropriating the Bureau’s trade name and linking it to its own website, Serenity created this probable confusion and deception and consequently committed unfair competition with the Bureau. I would affirm the trial court’s finding of unfair competition in favor of the Bureau.

In light of Indiana’s sparse and outdated case law, I would urge our Legislature and supreme court, if the opportunity arises, to look beyond the man and cart method promoted by Hartzler and approved by an out-of-touch majority, and instead usher Indiana into the technological realities of the 21st Century by formulating tools appropriate to handle the complexities of the internet’s realm.

In Larry D. Knox v. State of Indiana, a 6-page opinion, Judge Najam writes:
Larry D. Knox appeals his conviction for torturing or mutilating a vertebrate animal, a Class D felony, following a bench trial. Knox raises a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We affirm.
NFP civil opinions today (2):

In the Matter of K.L., K.L., and K.G., C.L. v. Indiana Department of Child Services (NFP)

Connie Hinsenkamp, Town of Seelyville Clerk-Treasurer v. Seelyville Town Council; Jerry Jones, Council President; Jerry Reynolds, Council Member; and John Wade, Council Member (NFP)

NFP criminal opinions today (6):

M.G. v. State of Indiana (NFP)

Hubert Cook Mayhugh III v. State of Indiana (NFP)

Randell Lee v. State of Indiana (NFP)

Marvin Strong v. State of Indiana (NFP)

Ashley N. Lemon v. State of Indiana (NFP)

Maurice Amos, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Ind. App.Ct. Decisions

Law - Indiana wine shipping prohibitions hit home to former Star reporter

The ILB, which has posted many entries on the wine shipping issue over the years, noticed these tweets by former IndyStar statehouse reporter Mary Beth Schneider on July 13th. Schnider was vacationing in California wine country:



On July 14th the Wine Spectator run this story by Robert Taylor, headed "U.S. Wine Shipping Laws, State by State: Where can consumers have wine shipped directly to their homes?" Here is a sample:
Which wineries and retailers will sell and ship wine directly to consumers varies from state to state, winery to winery and retailer to retailer. In most states, consumers may have wine shipped to them directly from a winery, though most states prohibit consumers from ordering wine from an out-of-state retailer. Today it is illegal for a state to permit consumers to buy wine directly from an in-state winery but not from an out-of-state winery, but a state's right to regulate retailer shipping is less clear, and most states will allow consumers to have wine delivered from a local retailer, but not from one beyond the state's borders.

As for who does the actual delivering, it's not the United States Postal Service, which won't accept packages containing alcohol. Most direct-to-consumer wine deliveries in the United States are handled by a common carrier such as UPS or FedEx, and the package must be signed for by an adult age 21 or older.

If that all weren't enough to keep track of, wine-shipping laws are very loosely enforced: Some wineries and retailers are happy to ship wine to states that may not permit it, and not since Prohibition has an adult consumer been prosecuted for illegally receiving wine for their own personal consumption. Many wine lovers have violated their state's wine shipping laws without even realizing it.

So how did we fall into this seemingly impossible-to-navigate sea of shipping laws?

Don't miss the great charts and table that accompany the Wine Spectator story.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Indiana Law

Ind. Decisions - More on: 7th Circuit decides one Indiana case today, a reversal

Supplementing this ILB post from July 14th on the 7th Circuit opinion in Center for Inquiry v. Marion County Clerk, here are several stories about the ruling with catchy headlines:

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Still more on: The Indiana Appellate Jurists Facing Their First Retention Vote in November

Reiterating this ILB post from July 8th, the July 15th filing deadline has now passed and all four jurists eligible to face their first retention vote have filed to be placed on the 2014 general election ballot to gain voters' approval for a 10-year term.

The Indiana Courts has now made available its Retention Website for 2014. Interestingly, as I don't recall this from previous times, ALL the opinions in which the Supreme Court and Court of Appeals jurists participated are listed, not just the ones in which they wrote an opinion, but you can do a sort to provide just their majority opinions.

In the case of the Tax Court, Judge Wentworth decides alone. The Tax Court list is useful because you can sort the columns by date, type, and where appealed from.

Also useful is the table the ILB created for this May 20th post:

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

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Indiana Courts

Environment - Right to Farm Act prevails in Randolph County lawsuits

With much fanfare lawsuits were initiated in 2009 by "three high-powered trial lawyers who vow[ed] to make Randolph County 'ground zero' in a courtroom food fight over how Indiana produces pork and milk." That quote is from a long Dec. 23, 2009 Muncie Star-Press story by Seth Slabaugh headed "Lawyers target pig, dairy farms: Attorneys seek justice for neighbors allegedly injured by pork and dairy producers" and the ILB's quotes are worth rereading.

Yesterday the ILB learned that on July 10, Delaware County Judge Marianne L. Vorhees, appointed Special Randolph Circuit Judge for the case, ruled on a motion for summary judgment filed by defendants Maxwell Farms in one of the four cases, granting the motion (I understand there are three other similar rulings, but haven't seen them yet).

Here is the 8-page opinion in Armstrong v. Maxwell Farms.

Plaintiffs challenged the constitutionality of Indiana's "Right to Farm" act. The Court concluded:

43. For all these reasons, the Court finds Plaintiffs have not met their burden to overcome the presumption of constitutionality. The Indiana Right to Farm Act is constitutional.

44. The Indiana Right to Farm Act applies in this case and bars Plaintiffs' Nuisance claims.

45. Plaintiffs' nuisance action can proceed only if they produce evidence that Defendants were negligent, and Defendants' negligence was the resulting cause of the odors. Plaintiffs admitted they have no such evidence.

46. Plaintiffs have asked for additional time to conduct discovery to develop the negligence claims. As the findings above show, Plaintiffs have had ample time to conduct discovery. Plaintiffs have had more than enough time to retain an expert, who could have presented an affidavit to the Court Cleating a fact issue as to Defendants' negligence.

47. Defendants are seeking summary judgment as to the nuisance and negligence claims asserted in the Amended Complaint.

48. Plaintiffs have nOI resisted the summary judgment motion as to the negligence claim, other than asserting (as in the Nuisance Claim) that they have presented evidence showing negligence. The Court has found Plaintiffs have no evidence of negligence in this case.

49. For all the above reasons, Defendants' Motion for Summary Judgment is well taken and should be granted.

50. This is a final and appealable judgment; no issues or claims remain pending.

The ILB may add more information to this post later.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Decisions - "7th Circuit dismisses lawsuit to force action on carp"

Dan Egan reported yesterday for the Milwaukee Journal Sentinel in a story that begins:

A federal appeals court has dismissed a lawsuit brought by coalition of Great Lakes states to force the U.S. Army Corps of Engineers to do more to stop the advance of Asian carp into the Great Lakes.

On Monday, the 7th Circuit Court of Appeals upheld an earlier district court's decision to dismiss the case brought by Wisconsin, Michigan, Ohio, Minnesota and Pennsylvania, Wisconsin Attorney General J.B Van Hollen's office reported Tuesday.

Van Hollen's office noted the lower court's rejection was based on the Army Corps' contention that the agency did not have an obligation to stop a Great Lakes invasion of the jumbo fish, and that the demand by the states to force the agency to sever the artificial link between Lake Michigan and the Mississippi River was a remedy that could not be provided.

Monday's ruling, however, was based on the idea that the Army Corps is already doing enough to stop the advance of the fish up the Chicago canal system, formally known as the Chicago Area Waterways.

"The court rejected the U.S. Army Corps of Engineers' argument that it has no responsibility to run Chicago Area Waterway System in a way that would prevent invasive species from entering the Great Lakes," Van Hollen said in a news release.

"This is an important outcome, and I am pleased the court went on to invite our filing of a subsequent public nuisance action in the event the Army Corps fails to take adequate measures to prevent Asian carp from entering Lake Michigan."

Indiana was not among those suing.

Here is the July 14th, 30-page opinion in State of Michigan, et al v. U.S. Army Corps, wherein Chief Judge Wood's opinion begins:

Meddling with Mother Nature is not always a good idea, as the ongoing saga of the Asian carp illustrates. The unfortunate confluence of two interven-tions—the linkage of the Mississippi River system to the Great Lakes and the effort to control weeds in southern aquatic farms by importing Asian carp, a voracious non-native fish—has led to a situation in which two particular species of carp have overwhelmed the Mississippi River and its tributaries and threaten to migrate into the Great Lakes. Once the carp reach one of the Lakes, they have reached all of them, thanks in part to the last Ice Age and in part to the Erie Canal and later measures to facilitate shipping between Lakes Huron and Erie and Lakes Erie and Ontario around Niagara Falls. See, e.g., http://web2.geo.msu.edu/geogmich/phy_feature.html (all websites cited in this opinion were last visited on July 14, 2014). For an interesting account of the construction of the Erie Canal and the Chicago Sanitary Canal, see Simon Winchester, THE MEN WHO UNITED THE STATES at 196–222 (2013). Adding locks and canals to the natural links between the Lakes opened the way for commercial navigation all the way to the Atlantic Ocean. It is enough for our purposes, however, to focus on the connections between the Mississippi system and the Lakes.
And concludes:
We conclude where we started. We accept for purposes of this appeal that immeasurable environmental and economic damage would be caused not only to Lake Michigan, but to the Great Lakes as a whole, if the Asian carp establish breed-ing populations there. But this point is uncontested, as the active efforts of the Asian Carp Regional Coordinating Committee demonstrate. The Corps and the District in par-ticular are engaged in intensive efforts to prevent the carp from reaching the Great Lakes, and there is a great deal of evidence that indicates they have succeeded thus far in do-ing so. Under these circumstances, we hold that the States have failed to state a claim upon which relief can be granted, either under a public nuisance theory or under the APA. We therefore AFFIRM the judgment of the district court.

Posted by Marcia Oddi on Wednesday, July 16, 2014
Posted to Environment | Ind. (7th Cir.) Decisions

Tuesday, July 15, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

In Jacqueline Myers v. Mark Myers, a 14-page opinion, Chief Judge Vaidik writes:

Jacqueline Myers (“Mother”) filed a notice of intent to relocate from Indiana to Texas with her daughter, fourteen-year-old H.M. Mark Myers (“Father”) objected and filed a motion to prevent Mother’s relocation with H.M., which the trial court granted following an evidentiary hearing. Mother now appeals. She contends that because H.M. is not a child of the marriage, Father could not object to her relocation and the trial court should not have entertained issues related to H.M.’s custody. She also argues that the court erred by denying her relocation request.

We conclude that the presumption that H.M. is a child of the marriage has not been rebutted; thus, H.M.’s relocation was properly before the court upon Father’s valid objection. We also conclude that the trial court did not err in finding that Mother did not meet her burden of proof in seeking to relocate. We do find, however, that the trial court erred in ordering that Father would receive automatic physical custody of H.M. if Mother moved to Texas. We affirm in part and reverse in part.

In In re: The Grandparent Visitation of C.S.N.: Brooke Neuhoff v. Scott A. Ubelhor and Angela S. Ubelhor, a 26-page, 2-1 opinion, Judge Riley writes:
Appellant-Respondent, Brooke Neuhoff (Mother), appeals the trial court’s Order awarding visitation with her minor child to the paternal grandparents, Appellees-Petitioners, Scott A. Ubelhor (Grandfather) and Angela S. Ubelhor (Grandmother) (collectively, Grandparents). * * *

The trial court’s Order/Revised Order awarding visitation to Grandparents is hereby vacated, and Mother’s discretion to determine the level of Grandparents’ visitation in accordance with her parental rights and the Child’s best interests is restored.

Based on the foregoing, we conclude that the trial court clearly erred by awarding visitation to Grandparents. Reversed.

MAY, J. concurs
VAIDIK, C. J. dissents with separate opinion [which begins at p. 18 of 26] The majority concludes that the trial court erred by awarding visitation to Scott and Angela Ubelhor (“Grandparents”). Because I believe the trial court did not err, I respectfully dissent.

In Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased, and Drayden Powell, Deceased v. James E. Szymanowki, M.D. and Gyn, Ltd., Inc., and Joseph B. Clemente, M.D. , a 14-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that (1) the trial court properly concluded that Dr. Brickner’s testimony did not create a genuine issue of material fact as to the liability of Dr. Szymanowski; (2) GYN cannot be held vicariously liable for the perceived acts of medical malpractice committed by Dr. Smith when Dr. Smith’s conduct was never reviewed by the medical review panel; and (3) the trial court properly concluded that no recovery exists for the 2007 death of a child not born alive under the Child Wrongful Death Statute, as amended.
In Juan Manzano v. State of Indiana, a 14-page opinion, Judge Mathias writes:
In 1997, in Madison Circuit Court, Juan Manzano (“Manzano”) pleaded guilty to and was convicted of Class A felony rape and ordered to serve fifty years executed in the Department of Correction. Manzano has now filed a petition for post-conviction relief arguing that his trial counsel and appellate counsel were ineffective. The post-conviction court denied his petition, and Manzano appeals.

Concluding that Manzano did not receive ineffective assistance of trial or appellate counsel, we affirm.

In Antonio L. Vaughn v. State of Indiana; a 26-page opinion, Judge Kirsch concludes, after covering the other issues in the case:
Here, in the trial court’s oral sentencing statement, it imposed a three-year sentence for Vaughn’s conviction for Class D felony maintaining a common nuisance. Sent. Tr. at 16. However, the trial court’s written sentencing imposed a three-and-a-half year sentence. Appellant’s App. at 20. The maximum sentence for a Class D felony is three years. Ind. Code § 35-50-2-7(a). We believe that it was the trial court’s unambiguous intent to sentence Vaughn to three years for his Class D felony conviction. Therefore, the written sentencing statement and the abstract of judgment contain clerical errors. We remand to the trial court to correct these errors and reflect that Vaughn’s sentence for his maintaining a common nuisance conviction is three years. Affirmed and remanded.
NFP civil opinions today (4):

In the Matter of J.W., A Child in Need of Services J.W. (Minor Child), and M.K. (Mother), & D.W. (Father) v. The Indiana Department of Child Services (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of W.H., Minor Child, and His Mother, J.F., J.F. v. Indiana Department of Child Services (NFP)

Alan R. Kohlhaas, on behalf of himself and all others similarly situated v. Hidden Valley Lake Property Owners Association, Inc., and Robert A. Will, William Acra, Carl Adkins, et al. (NFP)

James E. Manley v. Monroe County Prosecutor (NFP)

NFP criminal opinions today (7):

Paul A. Croucher v. State of Indiana (NFP)

Christopher Anderson v. State of Indiana (NFP)

Brandon Hicks v. State of Indiana (NFP)

Cynthia Marx v. State of Indiana (NFP)

Brian Baxter v. State of Indiana (NFP)

James Washington v. State of Indiana (NFP)

Jerrimica T. Madding v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 15, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Creating a split, 7th Cir. says magistrate judges not permitted to accept felony guilty pleas"

h/t to Michael A. Scarcella, @MikeScarcella

The 7/14/14, 11-page opinion is U.S. v. Harden, out of the SD Ill. Judge Tinder writes:

Pursuant to a written plea agreement, Defendant-Appellant Stacy Lee Harden pled guilty to possession with the intent to distribute cocaine. With Harden’s consent, the district court instructed a magistrate judge to conduct a Federal Rule of Criminal Procedure 11 plea colloquy under a local rule allowing for magistrate judges to accept felony guilty pleas. The magistrate judge accepted Harden’s guilty plea, and the district court then conducted a sentencing hearing and imposed sentence. Harden now appeals the magistrate judge’s acceptance of his guilty plea, arguing that the magistrate judge’s acceptance of a felony guilty plea, instead of preparing a report and recommendation to the district court, was a violation of the Federal Magistrates Act, 28 U.S.C. § 636; Rule 59 of the Federal Rules of Criminal Procedure; and the United States Constitution. * * *

Because we find that the magistrate judge’s acceptance of Harden’s guilty plea violated the Federal Magistrates Act, we reverse. Although Harden has not shown that he suf-fered prejudice from the role the magistrate judge played in this case, and although nothing has been suggested to criticize the magistrate judge’s performance, the statute simply does not authorize a magistrate judge to accept a felony guilty plea. * * *

We note that our reasoning places us in conflict with several of our sister circuits. * * *

The desire to make more efficient the district courts’ management of large criminal caseloads is understandable. These days, over 97% of criminal convictions are the result of guilty pleas. See “Statistical Tables for the Federal Judiciary,” Table D-4 (June 2013), available at http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederalJudiciary/2013/june/D04Jun13.pdf (visited July 14, 2014) (finding that of 84,060 total criminal convictions in a twelve-month period, 81,955 were the result of guilty pleas). Truly, “criminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012). Yet, the prevalence of guilty pleas does not render them less important, or the protections waived through them any less fundamental. A felony guilty plea is equal in importance to a felony trial leading to a verdict of guilty. And without explicit authorization from Congress, the district court cannot delegate this vital task. The authority to experiment set forth in Peretz is bounded; the Court has never suggested that magistrate judges, with the parties’ consent, may perform every duty of an Article III judge, regardless of the duty’s importance.

The judgment of the district court is REVERSED.

Posted by Marcia Oddi on Tuesday, July 15, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "Supreme Court stay in Utah marriage recognition case not automatic"

Fascinating story from Dennis Romboy, Salt Lake City Deseret News, explaining that unless the SCOTUS acts before July 21 on a (not-yet-filed) petition from the Utah AG, "Utah must extend benefits to same-sex couples who married during the brief time it was legal in the state this past December and January."

Posted by Marcia Oddi on Tuesday, July 15, 2014
Posted to Courts in general

Ind. Gov't. - "South Bend council rejects ban on smoking"

Erin Blasko reports today in the South Bend Tribune:

SOUTH BEND — Supporters of a comprehensive smoke-free air ordinance vowed to keep fighting Monday after the Common Council rejected a bill expanding the statewide smoking ban here to include bars and taverns.

The vote was 5-4, with council members Tim Scott, Gavin Ferlic, Fred Ferlic and Karen White favoring the ban. * * *

“To only single out smoking as a killer does not paint the right picture,” Oliver Davis said. “Drinking is a killer but we don’t stop drinking here.”

“I don’t think it’s our business to regulate all the alcohol and all the drugs in this area,” he added. “(Tobacco) is a legal substance in the U.S.”

Said Dieter, “For people that want to (smoke), that’s your choice. And it’s the choice of the business owners and the business people to do what they want to do in their own establishments.”

Dieter noted he grew up around people who smoked and worked in a smoking environment for many years as a South Bend police officer. And yet he never experienced any ill health effects as a result. “I think I’m very healthy and it hasn’t affected me personally,” he said, adding that his father and grandmother did die of smoking-related diseases.

The owner of the Rum Village Inn characterized the proposed ban as un-American.
“This is not Russia, this is not China, where they can tell you what to do, I have a right,” he said. “Let the people have the choice, it’s totally up to them. And I would appreciate it if you’d stay out of my business.”

Supporters of the bill, meanwhile, framed it as a measure to protect employee health, noting exposure to second-hand smoke has been linked to a number of deadly diseases and illnesses, including heart disease, lung cancer and asthma.

Posted by Marcia Oddi on Tuesday, July 15, 2014
Posted to Indiana Government

Ind. Gov't. - "Porter County treasurer says he’ll step down" because of PERF changes

The ILB keeps hearing that PERF/TRF changes are leading to increased retirements throughout state and local agencies, plus schools. For background, start with this August 30, 2013 ILB post.

Here is a story yesterday by Amy Lavalley in the Gary Post-Tribune is illustrative. Some quotes:

VALPARAISO — Porter County officials from both parties praised Treasurer Mike Bucko, who announced Monday he is resigning from office, almost midway through his second term.

Citing his age — he will turn 70 at the end of next month — and changes in the Public Employee Retirement Fund which take effect Sept. 1, Bucko, a Democrat, decided it was time to resign.

He would lose an initial 4 percent out of his PERF and 11 percent annually if he were to remain in office until the end of his term. * * *

“I know with the changes in PERF it was very advantageous to retire,” said County Council President Dan Whitten, D-At-large. “He’s been knowledgeable and hard-working for the county. He’s given us some good years. I’m sorry to see him go.”

Posted by Marcia Oddi on Tuesday, July 15, 2014
Posted to Indiana Government

Monday, July 14, 2014

Ind. Courts - Does this mean the 7th Circuit is not accepting AG Zoeller's petition to skip the 3-judge panel in Baskin?

It sure does to the ILB.

Friday the State of Indiana, via the AG, filed a motion seeking to skip the three-judge panel and instead hold the initial hearing before the 7th Circuit en banc. Wisconsin on Monday moved to consolidate the cases and agreed re going directly to en banc.

Today the 7th Circuit set oral agument in Baskin, et al and it looks to me like it isn't buying the en banc move. Here is the notice of oral argument issued this afternoon by the 7th Circuit. The notice speaks throughout of "the panel" and the "panel of three judges."

Chris Geidner today in BuzzFeed does not mention the 3-judge panel issue, but does report on the upcoming oral arguments in four circuits: Indiana/Wisconsin before the 7th Circuit on Aug. 13th; Kentucky/Michigan/Ohio/Tennessee before the 6th Circuit on Aug. 6th; the 10th Circuit (Utah) has already ruled; the 4th Circuit (Virginia) has heard argument but not yet ruled. In addition:

The 9th Circuit Court of Appeals is slated to hear appeals of challenges from Hawaii, Idaho, and Nevada in September. The 5th Circuit Court of Appeals also has a challenge to Texas’s marriage ban pending, but no arguments are scheduled.

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Still more on "Judges call for an end to Marion County’s small claims court system"

Updating earlier posts from today, the ILB asked some questions of an individual who is very well-attuned to Marion County politics:

ILB Q: Marion county legislators of both parties appear to be totally against reforming our small claims court system. That does not bode well for any change. Can you tell me why there is such total resistance to legislative change, including merging the 9 small claims courts into the county court system?

Answer:

Most state legislators from Marion County are from a particular area of Marion Co, i.e. just Perry Township, or just Lawrence Township. The judges of those small claims courts are politically, or their family members are politically, very active. Thus, the small claim court judges (and their families or friends or staff who are precinct committeemen or ward chairman) are joined at the hip politically with the legislators (and their family or friends who are precinct committeeman or ward chairman in that same township that elects the small claims court judge). They see each other at club meetings and fundraisers, support the others’ campaigns, and usually are friends politically if not socially.

To suggest that the small claims courts and their judge and their staffs and their families all lose their jobs and those very same people are the ones who are supporting, endorsing, and in rare cases financially supporting your campaign for legislature is not the ideal position for a state legislator from Marion Co to take. So most don’t.

That also explains why township reform fails, why the Shepard Kernan report failed, etc. You are asking a legislator to financially and personally hurt not just one, but MANY of his supporters, and not just supporters but KEY supporters.

Good government always meets tough opposition at personal interest.

ILB Q: Yes, and there doesn't seem any way around it in either case.

Answer:

Well, you can chip at it.

The implemented reforms, as I understand them, have nearly choked out Decatur Township Small Claims Court. If this happens, then others could follow suit. If enough follow suit, it becomes easier to do this county wide.

Of course, looking at the ‘solution’ becomes interesting as well. Per weighted caseload and the like, do we add 4 Superior Courts, 4 more magistrates, 4 more court staffs and court spaces? If so, where and how?

Do you make a slight change re: authority of magistrates and commissioners to handle these courts without the sign-off of presiding judges (like traffic court used to be and some counties still have?).

Are you bringing all those cases downtown?

Is it a special "small claims court” like drug court or juvenile court or traffic court or is it spread among the (now 12, then 16) civil court judges?

How do you have a court, much less the resources, still out in the townships? Don’t they all have to come downtown then? Is that really better for plaintiffs OR defendants?

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Indiana Courts

Law - "Kentucky licenses may not comply with US rules"

James Bruggers and James R. Carroll report today in the Louisville Courier Journal that "Tighter security requirements for driver's licenses could keep Kentucky residents from federal facilities." The story begins:

When Alex DeSha was making arrangements for about 50 Kentuckians to attend an Environmental Protection Agency public hearing in Atlanta later this month, he found out their driver's licenses wouldn't be accepted as identification.

New security provisions that take effect July 21 will require that people with driver's licenses from Kentucky and nine other states show a passport or some other kind of federal identification, such as a military ID, the EPA said.

And by 2016 the implications could spread well beyond EPA hearings as Kentucky driver's licenses risk falling out of compliance for boarding airplanes.

Kentucky officials have been working to tighten 39 procedures to satisfy the REAL ID Act of 2005, signed by President George W. Bush as a way to make it difficult for terrorists to obtain state-issued identification. Implementation of the act has been delayed several times and Kentucky is seeking an extension from the U.S. Department of Homeland Security until 2016 to comply.

One big issue, said Kentucky Transportation Cabinet spokeswoman Lisa Tolliver, is that unlike many states where driver's licenses are issued by a single state agency, Kentucky's licenses are handled by local Circuit Court clerk's offices at 145 locations, making it more difficult to standardize procedures.

Indiana's driver's license was cleared in 2012 by Homeland Security. Indiana started work complying with the law in 2009, adopting its own efforts, including implementing a centralized system for issuing permanent driver's licenses and identification. * * *

Besides Kentucky, the other states that the federal government says have not adequately changed their licenses are Alaska, Arizona, Louisiana, Maine, Massachusetts, Missouri, New York, Oklahoma and Washington.

Max Bluestein, director of research at Keeping IDentities Safe, a Washington-based non-profit advocating for more secure licenses and IDs, said his group has been warning the states that unless they complied with the new rules, their residents would be facing problems.

"The regulations set forth in the REAL ID Act are all quite achievable and the federal government has made funds available to do so," he said in an e-mail. "It's largely been misconceptions and misinformation that has kept states behind, via their legislatures."

Interesting story. The ILB remembers the "Real ID" controversy in Indiana and didn't know it had been resolved here. Here are the most recent ILB posts, none more recent than 2009:

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to General Law Related

Ind. Courts - More on "Judges call for an end to Marion County’s small claims court system"

Updating this ILB post from this morning, the ILB has now had a chance to talk with Indiana Court of Appeals Judge John Baker.

Judge Baker and Senior Judge Betty Barteau chaired the task force which over two years ago released this report.

Last week, in light of the 7th Circuit decision in Suesz, and a draft report from the National Center for State Courts on the Marion County small claims courts, Judges Baker and Barteau sent a memo to Chief Justice Dickson proposing legislative action to: (1) abolish the current Marion County township small claims courts; and (2) grant the Marion Superior Court jurisdiction over small claims cases, ensuring that Marion County's small claims litigants have the same access to justice as they would have in other counties.

The memo, according to Judge Baker, is quite specific in detailing the legislative changes that need to be made to accomplish this end. It concludes by pointing out that if small claims cases are moved to Marion Superior Court, creditors can file suit in one court, just as they now do in other Indiana counties, eliminating the problems discussed in Suesz.

Judge Baker told the ILB that the National Center for State Courts has produced a draft report on its study of Marion County, but that it is not yet finalized. However, that draft recommends that the small claims courts be transformed into a division of the Marion Civil Courts. The report will conclude that only such legislative change likely will provide a long-term solution to all the issues with the current small claims court system.

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Indiana Courts

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

In Center for Inquiry v. Marion County Clerk (SD Ind., Barker), an 11-page opinion, Judge Easterbrook writes:

Indiana Code §31-­‐‑11-­‐‑6-­‐‑1 specifies who may solemnize a marriage—that is, perform the final steps that unite persons who hold marriage licens es. The list includes religious officials designated by reli gious groups but omits equivalent officials of secular groups such as humanist societies. Although three states (Florida, Maine, and South Carolina) authorize humanists to solem nize marriages by becoming notaries public, Indiana does not (notaries cannot perform marriages in Indiana)—nor does it provide any other way for private secular groups to exercise this authority. Four states (Alaska, Massachusetts, Vermont, and Virginia) allow anyone to solemnize a mar riage, and another six (Colorado, Kansas, Montana, Penn sylvania, New York, and Wisconsin) allow the couple to sol emnize their own marriage, but neither option is available in Indiana. * * *

The current statute discriminates arbitrarily among reli gious and ethical beliefs. Plaintiffs say that they would be satisfied if notaries were added to the list; nothing in hu manism makes it inappropriate for a leader (or any other member) to be a notary public. Since Indiana has never giv en a reason for excluding notaries, while including every mayor (subsection (3)) and clerk of court (subsection (5)), that hardly seems an excessive request.

The judgment is reversed, and the case is remanded with instructions to issue an injunction allowing certified secular humanist celebrants to solemnize marriages in Indiana—to do this with legal effect, and without risk of criminal penal ties. That is the relief plaintiffs request, and defendants have not made a counterproposal. If Indiana amends its statute to allow notaries to solemnize marriages, the district court should be receptive to a motion to modify the injunction un der Fed. R. Civ. P. 60(b)(5) to minimize the extent to which a federal decree supersedes the state’s own solution to the problems we have identified.

The ILB was particularly taken by the last sentence, and added the emphasis.

The ACLU has sent out a news release, whic h reads in part:

Indianapolis - Today the U.S. Court of Appeals for the Seventh Circuit found that the exclusion of certified secular humanist celebrants from the list of people who can solemnize marriages in Indiana was unconstitutional and ordered the State to allow these celebrants to conduct weddings.

"As the Court noted, the First Amendment demands neutrality," said American Civil Liberties Union of Indiana Legal Director Ken Falk. "This prevents the State of Indiana from doing what it attempted to do in this case-favor religion over a non-religious-based system of belief and morality that is equivalent to religion, except for a belief in God."

Indiana Code § 31-11-6-1 allows certain civic leaders, such as mayors and clerks, as well as clergy and designates of certain religions to solemnize marriages. Excluded are certified secular celebrants from the Center for Inquiry, a humanist organization that provides a belief structure comparable to religion.

CFI's Secular Celebrant program trains participants to conduct marriage ceremonies in accordance with the center's essential beliefs, so that its members can have meaningful weddings featuring an assertion of their philosophical and ethical views. CFI believes in fostering a secular society based on science, reason, freedom of inquiry and humanist values in which the dignity and fundamental rights of all individuals are respected. CFI does not oppose the free exercise of religion.

"This is a big step forward in recognizing the rights of nonreligious persons," said Center for Inquiry Executive Director Reba Boyd Wooden. "Now couples may have a Secular Celebrant who shares their world view solemnize their marriage."

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Terry Banks v. Denny Jamison, d/b/a, Automotive Hammerart, a 31-page, 2-1 opinion, Judge Mathias writes:

Terry Banks (“Banks”) appeals the trial court’s order granting partial summary judgment to Denny Jamison d/b/a Automotive HammerArt (“Jamison”) on Banks’s claims of theft, conversion, and commission of a deceptive act, which he alleged following Jamison’s foreclosure of a possessory mechanic’s lien against Banks for unpaid work done to Banks’s car. On appeal, Banks presents one issue, which we restate as whether the trial court erred by granting partial summary judgment to Jamison on Banks’s claims of theft and conversion and on one of two alleged violations of the Indiana Deceptive Consumers Sales Act based on its conclusion that Banks was collaterally estopped from challenging the validity of the mechanic’s lien. * * *

The trial court erred in concluding that Banks’s claims were barred by issue preclusion. Summary judgment in Jamison’s favor on Banks’s civil claims of theft and conversion was proper because Banks failed to demonstrate any evidence that Jamison acted with the requisite mens rea. However, Banks may proceed on his claims under the DCSA. Lastly, the underlying mechanic’s lien asserted by Jamison was not valid due to the lack of service on Banks. Affirmed in part, reversed in part, and remanded for further proceedings.

BRADFORD, J., concurs.
PYLE, J., concurs in part and dissents in part. [in a dissent beginning on p. 30 that concludes] This case is ripe for trial. The facts are so highly disputed that a jury is required to observe the facial expressions of the parties, listen to the tenor of their voices, and make a decision regarding their credibility. I believe Banks is being denied his day in court. As a result, because there is a genuine issue of material fact regarding Banks’s theft and conversion claims, I would reverse the trial court’s grant of summary judgment.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Henry L. Shell, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Complainant asks why campaign reports not online "

This interesting story, reported by Amy Lavalley, appeared in the July 12th Gary Post-Tribune:

VALPARAISO — The attorney for the Porter County Election Board said Friday that he doubts that the anonymous person who filed a complaint over not finding campaign finance reports online for Judge William Alexa has standing in the matter.

Calvin Chubb, of Chesterton, submitted a written request last month for Alexa’s campaign finance reports from his 2012 bid for re-election. The request was made to Kathy Kozuszek, the Democratic representative in the Voter Registration Office.

Board attorney Ethan Lowe said that information was provided, though the complaint filed last month with the state’s public access counselor by someone known only as “Publius Valerius Publicola” alleged that Kozuszek had not posted the reports on the county’s website.

“This is an anonymous person who is filing a complaint with the public access counselor, and it’s not the same person who asked for the documents. There’s a question of whether this anonymous person even has standing to file this complaint,” Lowe said, adding that state law does not require that the reports be online.

A representative with the public access counselor has said an opinion on the anonymous complaint will be issued July 30.

If members of the media or candidates ask for the finance reports, they are provided directly, but if it comes from someone they don’t know, it’s forwarded to Lowe, said Sundae Schoon, the Republican representative in the Voter Registration Office.

“We take these requests on a case-by-case basis, and I want to be copied on requests, as I was here,” Lowe said.

The election board determined that proper procedure is being followed in the Voter Registration Office when someone asks for the reports and voted to keep that process in place.

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending July 11, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the June 20, 2014 list.]

Here is the Clerk's transfer list for the week ending Friday, July 11, 2014. It is three pages (and 27 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Indiana Transfer Lists

Environment - "Swampbuster battle enters sixth year: Conversion of wetland to crop land at center of dispute"

Seth Slabaugh, Muncie Star-Press, reported July 11th in a long, detailed story that begins:

YORKTOWN — A wetlands dispute between the Indiana Department of Environmental Management and an alleged swampbuster is entering its sixth year.

IDEM recently issued a notice of violation to Larry Yeley, from McCordsville, that accuses him of clearing 15.8 acres of forested wetlands, including mechanical clearing of stumps, to convert the site to agriculture, in 2008.

IDEM says it asked Yeley in 2008 to either restore the wetlands along Delaware County Road 600-W south of Yorktown or apply for an “after-the-fact” permit, which could have been denied or resulted in an order for the wetland to be restored.

Yeley hired a consultant to analyze the property but never submitted a restoration plan or permit application.

In 2010, an IDEM inspection showed that the site appeared to be restoring itself. But in response to an anonymous complaint in February of 2013, the agency conducted a re-inspection, which found “you have continued to clear the site ... for row cropping.” IDEM inspectors say they found soybean stubble and unharvested soybeans within the previously forested wetland.

After issuing four informal violation letters in 2008 and 2013 that didn’t convince Yeley he had committed any violations, IDEM recently issued him a formal notice of violation, offering him an opportunity to enter into an agreed order to correct the violations, pay a civil penalty and avoid litigation.

ILB: Here is a copy of the Notice of Violation, signed May 2, 2014.

Posted by Marcia Oddi on Monday, July 14, 2014
Posted to Environment

Ind. Courts - "Judges call for an end to Marion County’s small claims court system"

The heading is from a story by Marisa Kwiatkowski in the Sunday Indianapolis Star. She writes that a:

... long-standing perception of bias resulted in numerous lawsuits and caused the Indiana Supreme Court to step in in January to ban some common practices allowed in the tiny township courts.

“Some creditors have an unhealthy close relationship in the courts where they could file without restriction,” said Marion Circuit Court Judge Louis Rosenberg, who supervises the county’s nine township-based small claims courts. “They no longer enjoy that cozy relationship.”

Now, a task force appointed by the Supreme Court has recommended Marion County’s township courts be abolished, which would be a financial hit to township government.

Defenders of township government in Marion County consider the idea “preposterous.” And the small claims judges vehemently deny special treatment for debt collectors, saying companies chose to file in their courts because they are efficient and fair. * * *

Over one three-year period, Driver Solutions accounted for nearly 19 percent of the cases filed in Franklin and Warren townships’ small-claims courts, a Star review found. The number of claims filed in Warren Township had been so high that Judge Garland Graves had dedicated Mondays to hearing only the company’s cases.

A Star investigation published last year examined whether defendants, some of whom lived thousands of miles from Marion County, were properly notified they were being sued before judgments were ordered against them.

But Driver Solutions is not the only company to file large numbers of cases in particular courts. Debt collectors for hospitals also have been high-volume filers, raising questions about “cozy relationships” with the courts.

At least one township judge bristles at such allegations. “Cozy relationships? I am so sick and tired of those words being thrown around,” said John Kitley Jr., the Franklin Township small claims court judge. “That would violate every oath I’ve ever taken.”

But recent attempts to reform the system only added to the notion that companies might be shopping for friendly courts.

On Jan. 1, the Supreme Court began requiring debt collectors in Marion County to file their cases in the township where the person accused of owing money lives, works or signed the contract.

The result was dramatic. The number of new cases filed in Franklin Township Small Claims Court between Jan. 1 and April 30 dropped 83.7 percent from the same time period the year before. In Decatur Township, the number of new cases declined 70.7 percent. * * *

a recent federal appellate court opinion exposes debt collectors that operated under the old rules to potential liability.

The appellate court opinion relates to the federal case filed by Hancock County resident Mark Suesz.

Suesz sued debt collector Med-1 Solutions in 2012, claiming the company violated the Fair Debt Collection Practices Act by filing a small-claims suit against him in a place where he didn’t live and hadn’t signed the contract. The case was filed in Pike Township, while the hospital where Suesz allegedly owed money is in Lawrence Township.

U.S. District Court Judge William Lawrence dismissed Suesz’s lawsuit based on a federal appellate court opinion from 1996, which said township courts were part of the Marion County judicial district and were not districts of their own. That distinction matters because, under the Fair Debt Collection Practices Act, consumers must be sued in the judicial district in which they live or signed the contract.

Suesz appealed and, on July 2, the Seventh Circuit Court of Appeals agreed with him, ruling that each township is its own judicial district. Now his case against Med-1 Solutions can move forward, and his lawyer is seeking class-action status. If Suesz’s suit succeeds, that could add up to millions of dollars in damages.

The [7th Circuit] also made its decision retroactive, meaning debt collectors that had relied on the older opinion could be challenged.

Re Suesz, see this July 2nd post from the ILB, headed "Ind. Decisions - 7th Circuit holds Marion County Small Claims Courts are judicial districts for the purposes of the FDCPA - this is big." See also this July 9th ILB post and the questions it asks.

More from the Star story:

Indiana Appellate Court Judge John Baker said he hopes the federal opinion may be the final push needed to reform Marion County’s small-claims system.

The Marion County Small Claims Task Force, which was set up to study issues in the courts, said it is time to abolish Marion County’s township courts.

“The evidence is becoming pretty overwhelming that reform is required,” said Baker, who serves on the task force with Senior Judge Betty Barteau.

On Wednesday, Baker and Barteau sent a letter to Supreme Court Chief Justice Brent Dickson that proposes the General Assembly shift jurisdiction of small-claims cases to the Marion Superior Courts. Such a plan would require additional judges, clerks and hearing officers, they said.

A preliminary report by the Court Consulting Division of the National Center for State Courts makes a similar recommendation.

[The ILB is attempting to obtain copies of the letter and the report.]

The Star story ends with the township judges and the attorneys who practice before it defending the present system. In addition, Marion County legislators from both parties are quoted defending it:

Sen. Brent Waltz, R-Greenwood, said he isn’t convinced the courts need reform that would require legislative action.

“This is classic case of chopping off an arm because you have a hangnail,” Waltz said. “It’s become very clear to me that the township courts provide a tremendous value to the taxpayer. If we abolish small claims courts and add additional superior courts in Marion County, the additional expense taxpayers would have to incur would be significant. And I’m not convinced they would receive any better justice in the superior court than they would in the small claims court.”

State Rep. Ed DeLaney, D-Indianapolis, said the problem with reforming the system is figuring out how to do it without losing the benefit of multiple locations and low expenses in those courts.

“The bottom line is if the public and the courts themselves and the supervising courts, if they all want change, there’s going to have to be discussion of that in the (House Judiciary) committee,” DeLaney said. “I’d welcome discussion of how we improve these things.”

ILB: Finally, recall that in the 2014 session, the only bill considered concerning the Marion County small claims court, SB 366, would have, as I wrote then:
... attempt[ed] to address the myriad problems reported with the small claims courts over the past several years simply by eliminating any supervision of these courts, other than from the small claims judges themselves."

Posted by Marcia Oddi on Monday, July 14, 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 7/14/14):

Next week's oral arguments before the Supreme Court (week of 7/21/14):

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, July 15

Next week's oral arguments before the Court of Appeals (week of 7/21/14):

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, July 14, 2014
Posted to Upcoming Oral Arguments

Friday, July 11, 2014

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

In Kip Yurt v. Carolyn Colvin, Acting Comm Social Security (ND Ind., Cosbey), a 21-page opinion, Judge Rovner writes:

Kip Yurt suffers from a psychotic disorder which causes him to experience, among other things, auditory hallucinations and bouts of uncontrollable rage. He also struggles with obsessive compulsive disorder, moderately severe chronic obstructive pulmonary disease (“COPD”), and chronic bifrontal tension headaches. As a result, he applied for Disability Insurance Benefits from the Social Security Administration, but an Administrative Law Judge (“ALJ”) denied his application. After the Appeals Council declined to review the ALJ’s decision, Yurt sought review in the district court pursuant to 42 U.S.C. § 405(g). A magistrate judge affirmed the decision of the ALJ, and Yurt appeals, arguing principally that the ALJ erred by failing to include many of his medical limitations in the hypothetical that she posed to the vocational expert (“VE”). Yurt contends that the flawed hypothetical led the VE and the ALJ to erroneously conclude that he could be gainfully employed. For the reasons discussed below, we reverse the judgment of the district court and remand to the agency for further proceedings. * * *

For the foregoing reasons, the judgment affirming the denial of benefits is REVERSED and the case is REMANDED with instructions that it be returned to the SSA for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Moves today in 7th Circuit same-sex marriage appeals

Two moves today in the 7th Circuit same-sex marriage appeals.

This ILB post earlier today headed "Wisconsin appeals ruling allowing gay marriages" sets the stage for the Wisconsin motion asking the 7th Circuit to expedite its appeal and consolidate it for oral argument with Indiana's appeal in Baskin v. Bogan. Although the Wisconsin district court ruled nearly three weeks before the Indiana court, Wisconsin's appeal to the 7th Circuit got a very late start, and was filed only yesterday.

More interesting to me is the motion filed today by Indiana AG Zoeller, seeking to skip the three-judge panel and instead hold the initial hearing before the 7th Circuit en banc. As I asked earlier today of the attorney who tipped me to expect the motion and said he thought the reasoning behind the move was that AG wanted to get to the SCOTUS first:

ILB - "What's the point? Assuming he loses to a 3-judge panel, can't he just skip en banc anyway. That is what Utah did, I believe."

Att. - "He could skip en banc but he must feel his chances are better en banc. A similar request made by Ohio in the 6th Cir., but was denied. He'll need 6 to reverse, won't he?"

ILB - "Yes, from WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and HAMILTON. I think he is being unrealistic ... Which six of these judges want to go down in history as voting against same-sex marriage?"

And this just in as I'm writing this post:"7th circuit just granted Wisconsin plaintiffs' motion to consolidate with Indiana cases."

[More] I've now reviewed Ind.'s en banc motion. The stated reason given for going directly to en banc is the "extreme importance" of the case. There is also an appeal to the egos of the judges:

Regardless how this case comes out, the Court’s decision and the views of its members, whether communicated in majority, concurring, or dissenting opinions, will impact not only national discussion of the issue but also ultimate Supreme Court resolution. If all members of the Court wish to bring their views to bear on ultimate resolution of this critical issue, this may be the only realistic opportunity. Accordingly, en banc consideration of this appeal in the first instance is fully justified.
In addition, Zoeller's petition does take into account the pending Wisconsin motion to consolidate, stating:
The Wolf appeal underscores the need for the entire Court to review the traditional marriage issue at the outset. If a separate panel considers that case, it might reach a conclusion different from the panel in this case. And depending on which case is decided first, one panel would need to grapple with the circuit precedent created by the other. On the other hand, if the same panel considers both cases, that circumstance would only reinforce concerns that circuit precedent on one of the most fundamental and monumental constitutional issues of our time has been made by but one-third of the Court’s members. The most equitable resolution for all concerned is for the en banc Court to consider these matters.

While three-judge panels rather than all Court members must of necessity decide even the highest-stakes, most nationally important issues in the vast, vast majority of cases, the same-sex marriage issue is different. Marriage, the basic unit of society, carries untold influence across the legal spectrum. This case asks the Court not simply to decide an important matter of constitutional law, but to adjudge whether an institution integral to all of Western Civilization for millennia must now undergo fundamental transformation in its legal dimension in the face of changing social mores.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "ACLU asks for federal recognition of Indiana same-sex marriages"

Here is a statement regarding Michigan issued on March 28th of this year by U.S. AG Holder, quoted in a June 29th ILB post:

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.”

The ACLU of Indiana today asked U.S. AG Eric Holder for a similar statement of federal recognition re Indiana. The Indianapolis Star has a story here.

Here is a copy of the ACLU letter.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Indiana Decisions

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

For publication opinions today (4):

In A.H. v. C.E.G., on behalf of G.S., a 12-page opinion, Judge Crone writes:

C.E.G. employed A.H. and G.S. C.E.G. petitioned for an injunction against A.H. on behalf of G.S. pursuant to the Workforce Violence Restraining Orders Act (“WVROA”), which the trial court granted.[1] A.H. appeals, arguing that because this case involves or grows out of a labor dispute, it is governed by the Anti-Injunction Act (“AIA”), and therefore the trial court was without jurisdiction to issue the injunction pursuant to the WVROA. We agree. Therefore, we reverse and remand with instructions to dismiss C.E.G.’s petition without prejudice.
___________
[1] A.H. filed a verified request to prohibit public access to all filings in this appeal, which our motions panel granted. Therefore, we have used initials for all parties to protect their privacy.

ILB: Neither the opinion or the docket identifies whether this prohibition of public access to all filings was accomplished by the COA under the authority of Adm.Rule 9, and if so, what portion applied, whether a public hearing was required, etc.

In In the Matter of the Termination of the Parent-Child Relationship of: Z.C., Minor Child, S.C., Mother v. The Indiana Department of Child Services, a 10-page opinion, Judge May writes:
S.C. (“Mother”) appeals a termination of her parental rights to her son, Z.C. (“Child”). She asserts the trial court proceedings denied her due process and the evidence is insufficient to support termination of her rights. * * *

Mother’s arguments are an invitation for us to reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge credibility of witnesses). DCS presented sufficient evidence that the conditions under which Child was removed from Mother’s care would not be remedied and that termination was in Child’s best interests. Accordingly, we affirm.

In Drakkar R. Willis v. State of Indiana , a 9-page, 2-1 opinion, Judge Crone writes:
Drakkar R. Willis challenges the sufficiency of the evidence supporting his conviction for class A misdemeanor criminal trespass. We affirm. * * *

BAKER, J., concurs.
BARNES, J., dissents with opinion. [which begins, at p. 9] I respectfully dissent. I am familiar with and have read the decision in Meehan v. State, 7 N.E.3d 255 (Ind. 2014). I do not believe that case demands or commands that the basic and longstanding tenets of the definition of “proof beyond a reasonable doubt” be altered. Others may disagree. * * *

We are not in the business of horseshoes and hand grenades, where “close” is good enough. I am convinced the State has failed in its burden of proof and vote to reverse.

In Scott A. Wright v. State of Indiana , a 13-page opinion, Judge May writes:
Scott A. Wright was found guilty of Class A felony child molesting after the trial court, during jury deliberations, replaced the sole juror who would have voted to find Wright not guilty. Replacement of the juror was error under the facts before us, and the jury was not properly instructed that removal did not reflect approval or disapproval of the juror’s views. We accordingly vacate Wright’s conviction and remand for a new trial. * * *

As Juror 356 voted to acquit Wright based on his belief the victim was not credible, he should not have been replaced for refusal to deliberate. Even if dismissal had been permissible, the newly-constituted jury should have been instructed that the removal of Juror 356 did not reflect the court’s approval or disapproval of the views the juror expressed. We vacate Wright’s conviction and remand for a new trial.

NFP civil opinions today (2):

Andrea M. Fears and Edwin G. Fears v. Charles W. Asxom and Peggy L. Axsom as Trustees of the Charles W. Axsom and Peggy L. Axsom Revocable Trust (NFP)

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

NFP criminal opinions today (2):

Racxon Cruze McDowell v. State of Indiana (NFP)

Damon Quarles v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Nominating Commission to Select Next Chief Justice of Indiana"

This news release was issued today by the Court's public information office:

On Wednesday, August 6, the Judicial Nominating Commission will vote to select Indiana’s next Chief Justice. In June, Chief Justice Brent Dickson announced his intention to step down as Chief Justice and remain on the Supreme Court as an Associate Justice. The Commission will make its selection for Chief Justice from among the other current Justices: Robert Rucker, Steven David, Mark Massa and Loretta Rush. The Commission will interview each Justice in a meeting that is open to the public and press. It will be held in room 319 of the State House from 1:00 p.m. - 2:30 p.m. EDT.

The Commission recruits candidates for appellate level judicial positions and also appoints Indiana’s Chief Justice. Detailed information on the 7-member Commission and the selection process for Indiana’s Chief Justice can be found online.

As in the past, all current Supreme Court Justices have been invited to share their thoughts with the Commission during the meeting. The Commission has asked the Justices to speak about the qualities and attributes important in a Chief Justice. The schedule for interviews is as follows:

  • 1:00 p.m. - 1:20 p.m. – Justice Loretta Rush

  • 1:20 p.m. - 1:40 p.m. – Justice Mark Massa

  • Break

  • 1:50 p.m. - 2:10 p.m. – Justice Steven David

  • 2:10 p.m. - 2:30 p.m. – Justice Robert Rucker
At approximately 2:30 p.m. the Commission will go into an executive session for discussion. Following the executive session, the Commission will convene in a public session to vote on its selection of Indiana’s next Chief Justice.

Media interested in attending should contact Chief Public Information Officer Kathryn Dolan to coordinate set-up and logistics in advance so that the interview process is free of distractions.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Indiana Courts

Ind. Decisions - "Wisconsin appeals ruling allowing gay marriages"

In this June 29th entry, the ILB pointed out that Wisconsin is on a somewhat parallel track to Indiana with respect to same-sex marriage. Both states are in the 7th Circuit. Wisconsin federal Judge Crabb struck down that state's prohibition on June 6th, Indiana's Judge Young did the same on June 25th.

Judge Young did not stay his order, and it was June 27th that the 7th Circuit issued a stay, in response to a motion from AG Zoeller. The 7th Circuit also expedited the appeal of Young's decision.

Judge Crabb did not issue a final order, so a motion to stay was not in order, until she agreed to a stay on June 13th. Yesterday Scott Bauer of the AP reported:

MADISON, Wis. (AP) — Wisconsin's attorney general on Thursday appealed a federal judge's ruling from last month striking down the state's ban on same-sex marriages as unconstitutional.

U.S. District Judge Barbara Crabb ruled on June 6 that the ban, approved by voters in 2006, was a violation of gay couples' equal protection and due process rights. More than 500 same-sex couples got married in the state before Crabb put her ruling on hold a week later, pending the expected appeal from Republican Attorney General J.B. Van Hollen.

The case now heads to the 7th U.S. Circuit Court of Appeals in Chicago. * * *

The 7th Circuit last month ordered an expedited schedule in Indiana's case, requiring parties to file all of their briefs on motions no later than Aug. 5, with oral arguments to be scheduled a short time later.

Van Hollen had until July 21 to file an appeal, but he said in a statement that the appeals court's decision to speed up the Indiana case led him to do it sooner.

"The goal of our timing is simple: to ensure that Wisconsin is placed on equal footing with Indiana, and that our constitution and laws are given timely consideration by the appellate judges," Van Hollen said in an email. * * *

The Supreme Court is expected to take up the issue when it returns to work in October. On Wednesday, Utah's attorney general decided to bypass a full appeals court and take its case straight to the Supreme Court.

The high court is under no obligation to the take the case, and it could wait for rulings from one or more of the five other appellate courts with gay marriage cases pending.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Motorola to 7th Circuit: Make Judge Posner follow the rules"

Alison Frankel writes at Reuters in a column that begins:

I didn’t think Motorola’s antitrust appeal at the 7th U.S. Court of Appeals could get any stranger. This, after all, is the billion-dollar case that prompted a bizarre showdown over international antitrust policy between the U.S. solicitor general and a three-judge appellate panel led by Richard Posner.

Earlier this month, the panel backed down and vacated a highly controversial ruling that had effectively erased U.S. antitrust liability for foreign price-fixing cartels that sell component parts to foreign subsidiaries of U.S. companies. Posner and the other judges ordered Motorola and the liquid crystal display screen manufacturers it has accused of price-fixing to submit new briefs on the merits of their arguments, and I thought the case would return to something resembling normalcy.

Boy, was I wrong.

Motorola submitted a brief yesterday, meeting the incredibly tight deadline the Posner panel set. But instead of laying out for the panel the reasons why precedent and policy favor Motorola’s right to sue the alleged LCD cartel, Motorola’s lawyers at Goldstein & Russell asked the entire 7th Circuit to take the case en banc – not to hear the merits, but to reverse the “terrible judicial policy” that has divided the 7th Circuit from every other federal appeals court.

Unless the 7th Circuit assures that its judges cannot violate several of the Federal Rules of Appellate Procedure, the brief said, “it will lead parties and outside observers to conclude that this circuit’s rules have been intentionally designed to allow the court to do whatever it wants, and to arbitrarily criticize or penalize litigants who try in earnest to follow its advice.”

Motorola argued that the Posner panel overstepped its authority from the beginning of the appeal. In the ordinary course, the panel would only have decided whether to grant Motorola’s motion for permission to appeal an intermediate lower court ruling that dismissed almost its entire price-fixing case against the alleged LCD price-fixing cartel. That was the only question Motorola and the defendants briefed.

But the Posner motions panel — without the benefit of briefing on the merits, oral argument, or any indication of the views of the U.S. government — issued a ruling that simultaneously granted the appeal and decided it, dismissing Motorola’s claims.

And there is much more to Frankel's story ...

Also, Orin Kerr tweeted last evening: "Devastating 'petition for hearing en banc' filed by Tom Goldstein in the CA7 Motorola case," linking to the brief posted by Frankel.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Slippery government ethics rules raise calls for reform"

Some quotes from a long, must-read article by Tony Cook, Ryan Sabalow, and Eric Weddle of the Indianapolis Star today:

Want to slam your political opponents using state computers? Just write yourself a policy.

Want to get a lucrative job with a firm whose public contracts you approved? Just ask your boss for the OK.

Want to hide a business interest that could benefit you as you pass laws? Just make sure its a subsidiary.

Public officials in Indiana can do all these things thanks to what critics say are glaring loopholes in the state’s ethics laws. The three above scenarios — and the exceptions to Indiana’s rules that allow them — were on full display in recent cases involving former Superintendent of Schools Tony Bennett, top transportation official Troy Woodruff, and powerful state Rep. Eric Turner.

The decisions in those cases, two of which came Thursday, prompted outcry from government watchdog groups and a pledge from some lawmakers — including House Speaker Brian Bosma — to prioritize ethics reform in the upcoming legislative session.

“I’m going to have to examine more closely some of these exemptions,” Bosma said Thursday. “We’re already working on fairly comprehensive legislative ethics reform for the upcoming session. It’s appropriate for us to take a look at the laws for some of these other occurrences to see if they need to be tightened up as well.”

Like many states, Indiana has laws intended to prevent long-recognized ethical problems. State officials are restricted from using government resources for political purposes, must disclose certain financial interests, and are supposed to wait at least a year before taking a job with a company they regulate or whose contracts they administer.

But in Indiana, there are lots of exceptions to those rules.

Two of those exceptions surfaced during Thursday’s State Ethics Commission meeting.

In one case, the commission agreed to fine ex-schools chief Bennett $5,000 after he used state resources for political purposes, but absolved him of allegations that he changed school grades to benefit a top political donor.

An investigation by Inspector General David Thomas found that Bennett or his staff used state computer accounts to track his political calendar, respond to political emails, and store lists of political donors.

But the investigation also noted that Bennett would have been safely within the law if he had simply penned a policy allowing such behavior.

“Dr. Bennett, as the Superintendent, had the authority to enact written policies that permitted these limited uses of state property for non-official purposes,” the IG report says. * * *

At the same meeting, the ethics commission expressed concerns about a revolving door at the state highway department, where two high-ranking officials are seeking jobs with companies that often bid on state work. A one-year cooling-off period is required in such cases to discourage companies from dangling jobs before public officials in order to win lucrative government contracts.

Woodruff, the chief of staff at the Indiana Department of Transportation, is seeking employment with engineering consulting firm RQAW Corp. During the past 18 months, Woodruff personally signed more than $500,000 worth of contracts with the company. He also sat on the selection committee that reviewed the company’s bids.

A reluctant ethics commission approved safeguards that would allow him and the other INDOT official, Deputy Commissioner Sam Sarvis, to discuss possible employment with engineering firms, but warned they were unlikely to waive the cooling-off period.

They said it was an obvious conflict of interest.

Chairman James Clevenger said he “can’t imagine I’d given an opinion OKing” Woodruff’s new job.

“Just telling you, that I think the next step is going to be a difficult one for me to do anything with,” Clevenger said.

But officials also acknowledged that the ethics commission may not have a say in the matter. That’s because Indiana law allows certain supervisors to waive the cooling-off period, bypassing the ethics commission. * * *

Those ethics cases come after a House ethics committee in May cleared Turner, that chamber’s speaker pro tem, of any wrongdoing. Turner secretly lobbied to kill a measure that would have scuttled projects worth millions of dollars to his family’s nursing home development business.

The ethics committee found that Turner had not acted in the “highest spirit of transparency,” but technically broke no rules. That’s because House ethics rules only prevent lawmakers from voting on issues in which they have a financial interest, not from advocating on them.

Lawmakers are required to disclose their financial interests annually, but Turner did not list some companies in which he had a financial interest. The reason: They were technically owned by another companies rather than him, personally. The other company, however, was owned by him.

Although that doesn’t remove his financial interest, it does absolve him of the requirement to disclose the interest under current Indiana law.

The case prompted the ethics committee to commend reviewing House ethics rules. * * *

Democrats, the minority in both chambers of the legislature, also said something needs to change.

House Minority Leader Scott Pelath said the inspector general and the ethics commission don’t operate with enough transparency.

“In too many instances, once a complaint or a request for an investigation is made, it disappears down the rat hole at the ethics commission,” he said. “Ask for an update and you get told that the Inspector General cannot comment on pending cases. Then all is decided and you’re left wondering what happened.”

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Indiana Government

Ind. Gov't. - "Prison can't hold these Lake pols" (Ain't no bars ...)

Earlier this week, Bill Dolan of the NWI Times reported:

Two icons of Lake County's ethically challenged political scene are moving closer to freedom.

Robert J. Cantrell, 72, a sports hero and veteran political figure, is scheduled to be released Wednesday from the Federal Correctional Institution in Ashland, Ky., to a halfway house, attorney John Cantrell, his son, said.

This comes six months short of the end of his 78-month sentence. John Cantrell said he doesn't know which facility the U.S. Bureau of Prison will transfer his father.

Wednesday also marks the official release of former Lake County official Thomas R. Philpot from the PACT-Bradley Center in Michigan City, a halfway house run by the Chicago Residential Re-entry Management program, where he became a resident in January.

Philpot served an 18-month sentence, which started at the Federal Correctional Institute in Milan, Mich.

Cantrell was a member of East Chicago Washington High School's 1960 state champion basketball team, a Trester Award winner and was captain and starting guard on the University of Michigan's 1964 Final Four team.

He was a teacher and school administrator and active with the East Chicago Republican Party, although he was accused by some in the GOP of working harder for the Democrats. Nevertheless he served many years as that city's party chairman.

He also became known as a political power broker who could make a candidate's life difficult by inserting on the ballot any number of spoilers, including so-called same-name candidates, to confuse careless voters.

His downfall came from being a consultant for Addiction and Family Care, a Hammond counseling firm that had contracts with local government including the North Township trustee's office.

Federal prosecutors convinced a jury he was guilty of illegally taking secret cash kickbacks from a contract between the North Township trustee's office, where Cantrell was an employee and the counseling service, hiding the profits from the Internal Revenue Service.

Philpot's release comes nearly two years after a U.S. District Court jury convicted the 56-year-old on felony theft and mail fraud charges for pocketing thousands in federal dollars earmarked to improve the collection of court-ordered child support payments.

Philpot won elections in 1992, 1996 and 2008 for coroner, and in 2002 and 2006 for county clerk. His felony conviction bars him from future elective office.

His troubles date to his time as county clerk, when he diverted money meant to pay employees for full-time work in child support collections as bonuses to his official salary without the approval of the Lake County Council.

The ILB has had a number of past posts on each of these individuals.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Indiana Government

Ind. Gov't. - "Does preserving documents serve a public benefit?"

The HTO GovTracker reported yesterday in a story that begins:

[Bloomington, IN] City Clerk Regina Moore says yes.

That’s why she’s trying to hire a records archivist in her office to tackle the daunting task of digitizing city records dating back to 1845. Some of these documents are contained in bound books that can’t be torn apart or scanned, which requires someone to either transcribe or take photos and turn the image into an editable format.

Moore held up a book from the 1800s to show the Bloomington City Council Wednesday night what types of records her office is dealing with.

She said one Indianapolis company gave her a quote of $46,000 for the work she’s looking to have done. An employee of that company also suggested — to her horror — slicing the pages apart and scanning them.

“This book is a history record just as it is,” Moore said.

Most of the council agreed with Moore. But council member Marty Spechler wasn’t convinced there is a public benefit to paying to digitize these documents.

Moore explained that people often visit her office to search through these books, and while no one has complained about access, it’d certainly be easier to obtain the records if they were available online. Plus, continuing to handle the books will only speed up deterioration.

“There’s a lot more use of these records than you’d possibly think,” Moore said.

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Indiana Government

Environment - "3 cases could set key precedents for environmental lawsuits for injuries that have long latency periods"

This article yesterday by Jeremy P. Jacobs, E&E, which discusses three cases the SCOTUS will hear next term, begins:

A trend has emerged at the Supreme Court that could establish important precedents for environmental litigation: a concern among the justices about lawsuits filed beyond legal deadlines.

Last term, the court struck down claims from North Carolina landowners seeking damages for groundwater contamination because their lawsuit was filed outside the state's 10-year limit for legal action.

And next term, the court has agreed to hear at least three cases centering on various deadlines for litigation: a financial class-action case, a wrongful-death suit, and a challenge to the U.S. incarceration and deportation of a Hong Kong national.

While the facts of those cases are not environmental, court watchers said the precedents they may set could make it harder for plaintiffs to seek damages for environmental injuries that have long latency periods -- such as diseases like cancer.

"These concepts are classic and systemic of environmental tort cases," Vermont Law School professor Pat Parenteau said. "How long did it take to find out that Hooker [Chemical] buried chemicals in Love Canal and then they built a housing development on it?"

Posted by Marcia Oddi on Friday, July 11, 2014
Posted to Environment

Thursday, July 10, 2014

Ind. Decisions - Supreme Court decides one today, involving termination of parental rights

In In re the Involuntary Termination of the Parent-Child Relationship of K.W., a Minor Child, and His Mother, C.C. K.W. v. Indiana Department of Child Services and Child Advocates, Inc., a 12-page, 5-0 opinion, Justice David writes:

Court proceedings in which the State seeks to regulate or terminate a parent’s relationship with his or her children are among the most delicate and difficult that judicial officers and attorneys must face. And we have repeatedly emphasized the importance of caution and care in these sorts of cases—from all involved—as the repercussions that flow from them can be devastating to every member of a family.

Here, the State sought to terminate the parental rights of a father and mother whose young child had been removed from their care. On the day of the termination hearing, the mother was incarcerated in a local jail and her attorney sought a continuance until after the mother might be released. The trial court denied this request and held the hearing in the mother’s absence—the end result was the termination of her parental rights with respect to her son. Under the facts and circumstances of this case, we conclude that the denial of the motion for a continuance was an abuse of discretion.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides a second Indiana case today, a reversal

In Stephanie Sue Carlson v. CSX Transportation (SD Ind., Young), a 26-page opinion, Judge Hamilton writes:

This appeal requires us to revis-it the pleading requirements for discrimination and retalia-tion claims under Title VII of the Civil Rights Act of 1964, including claims for retaliation where the employee alleges an ongoing pattern of retaliation. We must also clarify the scope and effect of the Railway Labor Act’s mandatory arbitration provision when an employee alleges discrimination or retaliation in violation of federal statutes.

Plaintiff Stephanie Carlson brought several sex discrimi-nation and retaliation claims under Title VII against her em-ployer, defendant CSX Transportation, Inc., a railway com-pany. She also brought a related contract claim based on the settlement she had reached with CSX of an earlier discrimi-nation lawsuit. CSX moved to dismiss, arguing that Carl-son’s claims were implausible and that some were precluded by the Railway Labor Act (RLA) because they were based on company decisions justified by the terms of a collective bar-gaining agreement.

For the most part, the district court agreed with CSX, dismissing the majority of Carlson’s claims for failure to state a claim upon which relief could be granted and finding that the RLA precluded the remaining claims. Carlson has ap-pealed. We conclude that none of her claims should have been dismissed. The allegations in her complaint are easily sufficient to state claims for sex discrimination and retalia-tion. And the RLA, which requires that claims arising under collective bargaining agreements in the railway and airline industries be decided in arbitration, does not preclude Carl-son’s claims, which arise under Title VII and a private con-tract between Carlson and CSX.

Upon granting CSX’s motion to dismiss, the district court also denied as moot a motion for summary judgment that CSX had filed while its motion to dismiss was pending. CSX has cross-appealed and asked us to grant summary judg-ment in its favor if we conclude (as we do) that the district court erred by dismissing Carlson’s claims on the pleadings. We decline to rule on the summary judgment motion that the district court did not consider. We remand the case for further proceedings. * * *

The district court’s dismissal of Carlson’s claims is REVERSED and the case is REMANDED for further pro-ceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Ind. (7th Cir.) Decisions

Environment - Indiana Court of Appeals issues opinion providing guidance on seeking coverage for environmental liabilities

A long article in Lexology by Indianapolis attorney David L. Guevara begins:

In a recent opinion, the Indiana Court of Appeals examined and provided significant analyses of a number of fundamental concepts in insurance law, including the definition of “property damage,” the concept of “occurrence,” the expected-or-intended exclusion, the contractual-liability exclusion and the common-law known-loss doctrine. Indiana Insurance v. Kopetsky, No. 49A02-1304-PL-340 (June 4, 2014). The opinion affords policyholders considerable guidance on, and assistance with regard to, seeking coverage under commercial general liability insurance for environmental liabilities.
See the brief ILB summary of the Kopetsky opinion here.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Ethics, ethics, ethics

In advance of this morning's state ethics board meeting, the Fort Wayne Journal Gazette had a long editorial headed "Clearing the air: State ethics board has chance for strong action." Between the ethics charges against the former superintendent of public instruction and references to "the legislation spiked by a powerful lawmaker with direct financial ties to the bill," the editorial discusses:

[Troy Woodruff, chief of staff for the Indiana Department of Transportation, who] is asking the ethics commission to declare no conflict exists with a position he seeks with an INDOT contractor. Woodruff wants to become vice president of an engineering firm, RQAW, with which he personally signed contracts totaling more than $500,000.
That's right, he is still at the agency, negotiating for a job with one of the agency's contractors, with whom he has personally signed state contracts.

In an ILB post on May 9th, where an attorney with the Indiana Utility Regulatory Commission sought relaxed ethics rules to allow him to take a job he had negotiated with a water company the IURC regulates, the ILB asked:

Perhaps the policy should prohibit IURC decision-making employees from interviewing with companies the agency regulates while employed at the IURC, rather than simply prohibiting them from taking jobs with such agencies within a year after leaving?" It would seem to me that IURC employees never should be seeking or negotiating employment, while employed by the IURC, with entities their agency regulates.
I think the same should hold true in this case. But today, however, Ryan Sabalow of the Indianapolis Star reports:
A reluctant Indiana Ethics Commission gave formal approval today for two top highway officials to continue to seek employment with firms who do business with the agency.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Indiana Government

Courts - "The Supreme Court term wrapped up nice and neat last week. Unless you are a woman."

That is the subhead to Dahlia Lithwick's column posted last evening on Slate. It begins:

For the first time in my memory as a reporter, there was a men’s term and a women’s term at the U.S. Supreme Court. The men’s term ended last Monday, with a pair of split decisions in Burwell v. Hobby Lobby and Harris v. Quinn, and a lot of mumbling on both sides of the political spectrum about the fact that—as Supreme Court terms go—this was a fairly uncontroversial one, marked by high degrees of agreement and consensus-seeking by the justices, and minimalist, incremental changes where there might have been tectonic shifts.

Not so, for women, who—almost a week later—are still reeling over the implications of the Hobby Lobby decision for contraceptive care in America; still parsing the emergency injunction granted in the Wheaton College case only three days after the Hobby Lobby ruling came down; still mulling whether the Hobby Lobby decision may prove a boon for women in the long run; and generally trying to understand how a term that was characterized as minimalist and undramatic by many male commenters, even liberal male commenters, represented a tectonic shift not just for America’s women, but for the three women who actually sit up there and do their jobs at the high court.

And today Linda Greenhouse, now a contributing op-ed writer for the NY Times, has a long column headed "Reading Hobby Lobby in Context." It begins:
To grasp the full implications of the Supreme Court’s Hobby Lobby decision, it helps to read it not in isolation but alongside the court’s other major religion case of the term, Town of Greece v. Galloway. Issued eight weeks before Hobby Lobby and decided by the same 5 to 4 division, Town of Greece rejected a challenge to a town board’s practice of beginning its public sessions with a Christian prayer. A federal appeals court found the practice unconstitutional, concluding that it violated the First Amendment’s Establishment Clause by conveying an official endorsement of one particular religion.

In his controlling opinion overturning that ruling, Justice Anthony M. Kennedy brushed past the complaint raised by the two non-Christian plaintiffs who said that having to endure a Christian religious observance whenever they showed up to conduct business with the town board made them feel excluded from the community and diminished as citizens. “Adults often encounter speech they find disagreeable,” Justice Kennedy wrote, adding that after all, there was no attempt at coercion or intimidation. “Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate,” he said.

Compare this breezy dismissal of a complaint by two actual people to the extreme solicitude five members of the court displayed two months later toward Hobby Lobby Stores, Inc., a multibillion-dollar corporation with 13,000 employees in some 500 locations. Given the undisputed sincerity of the religious beliefs of Hobby Lobby’s Evangelical Christian owners, the company couldn’t be required to comply with the mandate to include contraception coverage in its employee health plan, according to the majority opinion by Justice Samuel A. Alito Jr.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Courts in general

Law - "Do Residency Bans Drive Sex Offenders Underground?"

That is the heading of this long post in The Crime Report, written by Steven Yoder. (h/t Sentencing Law blog)

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to General Law Related

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

Below is the ILB's December plea for supporters, reposted in March of this year. The results? Discouraging. No additional annual supporters. Thanks, however, to several of you who have sent anonymous one-time gifts. And luckily for all readers, the ILB still has the stalwarts listed below. Without their support, there would be no ILB.

I believe the ILB has made a significant impact in its nearly 11 years of existence. The ILB operates on a shoestring, and needs more supporters, including major (front page) supporters (who would likely be organizations, bar sections, law firms, or those who do business with law firms).

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

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

Plus me. As is obvious if you are a reader, I contribute the major part of each day to the ILB. As I am semi-retired and far from independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to About the Indiana Law Blog

Ind. Gov't. - "America’s Shifting Statehouse Press: Can New Players Compensate for Lost Legacy Reporters?"

Important, lengthy article today from Pew Research, by Jodi Enda, Katerina Eva Matsa and Jan Lauren Boyles, summarizing the 41-page full report.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Indiana Government

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

In Hartman v. EBSCO Industries (ND Ind., Springmann), a 15-page opinion, Judge Flaum writes:

Adam Hartman’s father gave him a muzzleloading rifle in 1994. Like many older muzzleloaders, the gun was designed to use black powder as a propellant. As such, the muzzleloader ignited newer, pelletized propel-lants erratically. In 2008, Hartman installed a kit on his gun—sold by KR Warranty, the maker of the rifle—that modified the muzzleloader and enabled it to ignite new propellants more reliably. The next day, Hartman was sighting in his “upgraded” muzzleloader when the gun unexpectedly discharged as he was trying to load it. The surprise firing of the weapon caused the ramrod and a patched round ball to pass through Hartman’s hands and arm, inflicting serious injury. Hartman sued KR Warranty on theories of negligence and strict liability. However, Indiana has a ten-year statute of repose for products-liability actions, and his gun was then fourteen years old. There are two exceptions to the statute, but we agree with the district court that Hartman cannot sat-isfy either of them. We affirm.

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Gregory Benson v. State of Indiana (NFP)


William C. Hoffman, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 10, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, July 09, 2014

Courts - More on: What if there had been no stay of federal Judge Young's order in Indiana?

This ILB post from Monday reported that there had been no efforts to appeal or stay the ruling of a federal trial court judge in Pennsylvania that the ban against same-sex marriage was unconstitutional, except for one county clerk - quoting Lyle Denniston of SCOTUSblog:

A federal judge in Harrisburg in May ruled that the Pennsylvania ban is unconstitutional, and refused last month to allow the Schuylkill County clerk to intervene so that she could appeal that decision. The judge sharply lectured the clerk about her continuation of the fight. On Thursday, the Third Circuit, acting summarily, barred her from the case and dismissed her appeal, saying it was doing so “for essentially the reasons” given by the district court judge. (A summary decision is made without written or oral arguments.)

Her challenge can go forward only if Justice Alito or a Supreme Court majority allows her to intervene, and postpones the decision nullifying the ban. Justice Alito has the option of seeking a response from challengers of the Pennsylvania ban before acting on the clerk’s application.

Last this afternoon Greg Stohr reported for Bloomberg News:
A U.S. Supreme Court justice let same-sex marriages continue in Pennsylvania, rejecting a request from a county clerk who sought to reinstate the state’s ban.

The rebuff by Justice Samuel Alito leaves Pennsylvania as one of 19 states where gay marriages can take place. The District of Columbia also allows same-sex weddings, and court rulings permitting them in nine other states are on hold. Alito, who handles emergency matters from Pennsylvania, acted without comment.

[More] Here now in bold is Lyle Denniston's updated report.

Posted by Marcia Oddi on Wednesday, July 09, 2014
Posted to Courts in general

Ind. Decisions - Supreme Court clarifies earlier Veolia opinion

Veolia Water Indianapolis, LLC, City of Indianapolis, Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc., et al., is a one paragraph opinion by Justice David on a petition for rehearing:

Veolia seeks rehearing and asks this Court to determine whether the Insurers are third-party beneficiaries to the Management Agreement between Veolia and the City of Indianapolis. We now grant rehearing. As to all issues not expressly addressed in our principal opinion, the Court of Appeals is summarily affirmed pursuant to Ind. Appellate Rule 58(A)(2).
Here is the Supreme Court's Feb. 6th opinion. And here is the Aug. 3, 2012 Court of Appeals opinion reversing the trial court, concluding:
We conclude that both the City and Veolia are entitled to common law immunity [ILB emphasis, see p. 10 of opinion], because the common law rule turns on the purpose for which the water is being used, not the underlying cause of the lack of water. We further conclude that the explicit language of the City's contract with Veolia disavows any intent to create third-party beneficiaries. Therefore, we reverse. * * *

Pursuant to long-standing precedent, common law immunity bars claims for fire damages stemming from an inadequate supply of water or inoperable fire hydrants. This immunity applies both to the City and to Veolia. We also conclude that Veolia did not waive its immunity, and even if it had, the explicit terms of the contract indicate that the Insurers are not third-party beneficiaries of the Management Agreement. We therefore reverse the judgment of the trial court.

Posted by Marcia Oddi on Wednesday, July 09, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't - Governor Pence elects not to recognize same-sex marriages performed before the stay [Updated]

Apparently Governor Pence has issued a memo saying Indiana will not recognize same-sex marriages conducted after Judge Young's order and before the Zoeller stay. The ILB has not yet seen the order, and hopes to post it.

[Updated (quickly)] Here it is, as before (on June 26th, at a time when the ILB commended the governor), the memo is from Mark G. Ahearn, General Counsel to Governor Mike Pence.

[More] Here is the IndyStar's brief report, headed "Indiana won't recognize same-sex marriages performed last month."

Posted by Marcia Oddi on Wednesday, July 09, 2014
Posted to Indiana Government

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

For publication opinions today (5):

In John Lane-El v. Michael Spears, in his official capacity of Chief of Police, and the Indianapolis Police Department, a 22-page opinion, Judge Pyle writes:

John Lane-El, pro se, appeals the trial court’s grant of summary judgment in favor of the Indianapolis Police Department and Michael Spears in his official capacity as Chief of Police, as well as the trial court’s denial of his motion for in camera review. We affirm in part and reverse in part. * * *

[In 2006 Lae-El filed a public records request with the IPD, requesting 13 specific items or categories of items. ]

The IPD did not respond to Lane-El’s request, and on May 1, 2006, he sent an additional request. Again, the IPD did not respond. On May 31, 2006, Lane-El filed a formal complaint with the State of Indiana’s Public Access Counselor, Karen Davis (“Davis”). Davis sent a letter to the IPD requesting its response to the complaint by June 21, 2006. On July 5, 2006, after not hearing from the IPD, Davis found that the IPD had violated the APRA by failing to respond to Lane-El. * * *

[The opinion continues on...]

In David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative under the Last Will and Testament of Frances S. Markey, Deceased; Stephen L. Routson, et al., a 13-page opinion, Judge Baker writes:
In this case we are asked to clarify the time limit within which an action for a breach of contract to make a will must be filed. Here, appellant-plaintiff David Markey appeals the trial court’s grant of summary judgment in favor of appellee-defendant the Estate of Frances Markey regarding his claim that Frances had violated a contract with Markey’s Father to make mutual wills. Markey argues that summary judgment was inappropriate because he timely filed his action within nine months of Frances’s death. Markey also contends that applying the three-month limitation period for will contest actions would violate his due process rights and maintains that the trial court improperly determined a disputed issue of fact. Conversely, the Estate argues that Markey’s action to enforce a contract to make a will is not a “claim” as defined in Indiana Code section 29-1-14-1 of the Probate Code and that his action is governed by a three-month time limitation. We find that a three-month period of limitation applies to Markey’s action and that there is no genuine issue of material fact. Therefore, we affirm the judgment of the trial court.
Salvino Verta, et al. v. Salvino Pucci, a 9-page opinion, Judge Pyle concludes:
Because the CCS does not contain any notation to indicate that the clerk had served the April 2013 Scheduling Order or the January 2013 Order on Verta, the trial court abused its discretion by denying Verta’s motion seeking relief from the June 2013 Order. * * * Accordingly, we reverse the trial court’s denial of Verta’s motion to correct error and remand to the trial court for a hearing to further determine what, if any, monetary damages should be awarded given the CCS’s lack of an entry to indicate that the clerk had sent notice to Verta of the January 2013 Order.
In William M. Belcher v. Catherine Kroczek, D.D.S., an 8-page opinion, Chief Judge Vaidik writes:
Indiana Trial Rule 75(A) allows a case to be filed in any county in Indiana. In this case, Catherine Kroczek, a Lake County dentist, filed suit against William W. Belcher in Lake County under Trial Rule 75(A)(2). Belcher later filed a motion to transfer venue, and a dispute arose over whether Dr. Kroczek had properly established preferred venue in Lake County.

We conclude that preferred venue does not lie in Lake County. In relevant part, Trial Rule 75(A)(2) provides that preferred venue may lie in the county where the chattels at issue are located. When identifying chattels, our Courts have emphasized their transferrable nature. At issue here is Dr. Kroczek’s reputation, privacy, and identity, none of which may be transferred. We therefore conclude that they are not chattels, and Dr. Kroczek may not invoke Trial Rule 75(A)(2). We reverse.

In George Moss v. State of Indiana , a 14-page opinion, Chief Judge Vaidik writes:
In April 2013 George Moss and accomplice Todd Ruffin forced their way into Philip Potenza and Randall Peterman’s home. The men robbed the roommates at gunpoint and shot Peterman in the leg. Moss was convicted of burglary, two counts of robbery, criminal confinement, and carrying a handgun without a license. The trial court sentenced Moss to an aggregate term of forty years. Moss now appeals arguing that the trial court erred when it refused to reopen the case to admit a transcript of a statement Moss intended to use to prove his duress defense. He also seeks review of his forty-year sentence. We find that the trial court did not err in refusing to reopen the case and that his sentence is not inappropriate. We therefore affirm the trial court.
NFP civil opinions today (3):

Marion County Health Department v. Edward Hill (NFP)

Louis Timothy Whyde v. Black Diamond Construction, LLC (NFP)

Keith R. Chaney v. Laura C. Chaney (NFP)

NFP criminal opinions today (5):

Darwin Wilson v. State of Indiana (NFP)

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

Richard Burrington v. State of Indiana (NFP)

Derrek T. Berryhill v. State of Indiana (NFP)

Victor Glenn v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 09, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - More on: Changes to Title 35 Felony Offenses with New levels and Sentencing Ranges

Updating this ILB post from July 3rd (which I have also just updated), Vicki Davis of the Indiana Judicial Center sent me this note yesterday:

Good afternoon. One of my colleagues mentioned that you had posted a copy of the Title 35 felony offense table dated April 16 on the Law Blog. I thought you might be interested in having the current table as amended following the General Assembly’s technical correction legislation. The table was prepared by staff at the Indiana Judicial Center with input from the Indiana Prosecuting Attorneys Council and the Public Defenders Council.
Indeed, thank you very much!

Here is the most current table.

Posted by Marcia Oddi on Wednesday, July 09, 2014
Posted to Indiana Law

Ind. Courts - "Improved but not perfect: Marion County Small Claims Courts two years later"

The publication of the Indiana Courts, Court Times, has posted a useful article dated June 26th with that heading, by Elizabeth Dalton (Staff Attorney & Mortgage Foreclosure Task Force Project Manager, Indiana Supreme Court, Division of State Court Admin.) Some quotes:

Today, two years after the Task Force published its report, under the leadership of Marion County Circuit Court Judge Louis Rosenberg and in collaboration with the Advisory Committee and the township judges, a total of 33 new local rules have been enacted to help institute these recommended reforms in all Marion County Small Claims Courts. The Circuit Court has also recently contracted with the National Center for State Courts (“NCSC”) to perform an analysis of the nine small claims courts and recommend further reforms.

“It’s very possible to have reform within the constraints of the township system,” Judge Rosenberg said. “It’s tough but it can be done—and we’ve made a lot of progress.” One of these improvements is in the atmosphere of the small claims courts. According to Judge Rosenberg, the judges are now focused more on the need to emphasize and protect litigants’ rights, particularly defendants’ rights, and have taken steps to do so. “These are not the same small claims courts we had before.”

A key difference between small claims courts and Circuit and Superior courts is the fact that most small claims litigants are pro se, or unrepresented. They may not be aware of the various procedures required by the small claims system—such as serving the defendant with the summons and notice of claim. Judge Rosenberg explained that one of the primary purposes of the small claims system is to provide a forum where litigants can act without attorneys. Likewise, he said one of the primary roles of the small claims judge is to ensure that one party isn’t benefiting simply because he or she has an attorney.

This caught my eye:
Judge Rosenberg cites the establishment of more uniformity among the small claims courts as another success. Rather than seeing each township as its own island, the judges are beginning to visualize these courts as divisions of a countywide system. Because so many cases (excluding landlord/tenant cases) are transferred between townships, it is important for each to have similar standards and procedures. The nine township judges are moving closer to a unified system, and in March 2014, elected Lawrence Township Judge Clark Rehme as their Chief Judge. Judge Rehme will take over the Circuit Court’s role of setting the agenda and presiding over the regular meetings of the township judges.
Some issues not addressed. The article was written before the 7th Circuit's en banc ruling July 2nd in Suesz, and does not discuss venue (see the end of the ILB Suesz post). It mentions 33 new local rules, but does not link to them. They are available at pp. 200-213 of this document. No mention is made of Chief Justice Dickson's call earlier this year where he said: "... changes in court rules, however, can only scratch the surface. Systemic change is imperative, and this requires legislative action."

[More] The was legislation on the Marion County Small Claims courts in the 2014 session, in the form of SB 366, which did not become law. See this post from Feb. 2nd, which includes a summary of the bill from the Indiana Judicial Center. (This proposal may reappear this summer in an interim committee.)

Posted by Marcia Oddi on Wednesday, July 09, 2014
Posted to Indiana Courts

Environment - "Ordinance to stop Americus quarry approved"

Updating Monday's ILB post, Chris Morisse Vizza reports today in the Lafayette Journal Courier:

A standing ovation greeted Tippecanoe County Commissioners John Knochel and Tom Murtaugh on Monday after they enacted an ordinance that effectively bans development of a stone quarry near Americus.

"I am elated," said Janie Szczepanski, who lives near the proposed quarry site and is a member of the Americus Area Community Coalition.

Nearby homeowners for one year have fought to kill Rogers Group Inc.'s plan to develop a 524-acre limestone quarry on land owned by Larry and Henry Bosma at 8032 Old Indiana 25 N.

The land is bounded by Old Indiana 25 on the east and the Wabash River on the west. The Indiana Department of Natural Resources in January issued Rogers Group a certificate of approval for construction in the flood plain.

Knochel and Murtaugh on Monday took a second and final vote authorizing the ordinance that prohibits new quarry operations when 100 residences are located within a 2-mile radius. * * *

The fight is not over

Rogers Group on Thursday refiled a modified application for the quarry operation with the Tippecanoe County Board of Zoning Appeals. The modifications were based on community comments, the company said.

Proposed operating hours were reduced, neighbors would be compensated for substantial impairment to a ground water well, all trucks would be tarped to reduce dust and fencing would be added around the processing area, Rogers Group said.

The new request could be heard at the Aug. 27 BZA meeting, according to the APC website.

Nate Hofmann, a spokesman for quarry opponents, said residents will continue to research the facts about quarry operations, and refine their presentation to the specific topics the board of zoning appeals is allowed to consider.

BZA members can evaluate only requests for special exception based on criteria such as whether the use is authorized under county law, and whether the property use will injure other property because of traffic generation, placement of outdoor lighting, noise production or hours of operation, according to the APC website.

Criteria for a variance include whether adjacent property will be affected in a substantially adverse manner, and whether the variance will be injurious to public health, safety and general welfare of the community.

If approved by the BZA, the quarry operation could be headed for a court battle to resolve whether the ordinance enacted by the commissioners or the zoning approval would take priority.

"It depends on how far Rogers Group wants to take it," Knochel said.

Posted by Marcia Oddi on Wednesday, July 09, 2014
Posted to Environment

Tuesday, July 08, 2014

Environment - "Court rejects Indiana company's attempt to avoid EPA cleanup"

From Jeremy P. Jacobs, E&E reporter, a story today that begins:

Federal judges today rejected an electronic component maker's effort to remove its controversial former North Carolina manufacturing facility from U.S. EPA's Superfund cleanup program.

In a sharply worded 23-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit deconstructed CTS Corp.'s challenges to EPA's 2011 decision to add the company's former Asheville property to the National Priorities List.

Judge Patricia Millett, a recent Obama appointee to the court, said each of the Elkhart, Ind.-based company's objections to EPA's inclusion of contamination at three wells near the property is "without merit."

"The handful of challenges that CTS did timely make to the EPA's testing processes amount to little more than methodological nitpicking," Millett said.

Here is the opinion.

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Environment

Ind. Courts - "Candidate for Warrick Circuit Court Judge withdraws from race"

Supplementing this post from this morning on Harrison County, WFIE Evansville's Sean Edmondson is reporting in a brief story:

WARRICK CO., IN (WFIE) - Republican Candidate Todd Corne is withdrawing from the Warrick Co. Circuit Court Judge race.

Corne defeated Greg Granger in the primary election by just over 300 votes.

Corne tells us he is concerned he may not be able to meet the residency requirement. His wife, Kelly Corne, is the prosecutor in Spencer Co.

Corne says for personal reasons, he may be moving his residency to Spencer County. * * *

Warrick Co. Prosecutor JoAnn Krantz tells 14 News she has received a number of calls encouraging her to seek the vacancy for circuit judge.

Krantz tells us she has contacted the Republican Chairman and is seeking the appointment.

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Indiana Courts

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

On May 20th the ILB had a long post with a nice chart about the four jurists, two justices of the Supreme Court, one Court of Appeals judge, and the Tax Court judge, who have served at least two years and are eligible to run for a 10-year term on the November ballot, where the voters would have the choice, "yes" or "no", to retain each of them. To appear on the ballot, an eligible jurist must file with the Secretary of State by July 15th.

Who has filed so far, and when? As it turns out, according to the Elections Division, all four of those who are eligible to run for retention have filed:

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Indiana Courts

Ind. Gov't. - "INDOT officials seek new jobs with state contractors"

Ryan Sabalow and Tony Cook of the Indianapolis Star report this afternoon in a story that begins:

Two top Indiana transportation officials — one of them at the center of an ethics probe over his family’s land deals on the I-69 project — are seeking jobs with contractors that do business with the state.

And at least one of those officials — Indiana Department of Transportation Chief of Staff Troy Woodruff — played a key role in awarding contracts worth more than half a million dollars to the engineering firm for which he now wants to work.

Woodruff and Sam Sarvis, a deputy commissioner at INDOT, are seeking permission from the State Ethics Commission to work for companies that regularly bid on state highway work.

Woodruff is seeking a job as vice president of transportation for engineering firm RQAW, according to his ethics opinion request.

Since 2013, Woodruff has personally signed three contracts with RQAW worth up to $562,000, a Star review of state contracts found. In each of those cases, Woodruff also sat on the five-person Selection Review Committee that ranked the company’s proposal.

And in one of those cases — a $294,000 contract for roadwork on State Route 14 in the town of Parr — the selection committee awarded the job to RQAW even though the company’s bid did not receive the highest score from department staff.

Of related interest are two ILB post from 2013:

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case, yesterday

In Julia Hutt v. AbbVie Products (ND Ind., Van Bokkelen), a 16-page opinion, Judge Tinder writes:

Julia Hutt appeals the district court’s grant of summary judgment for Defendant‐ Appellee Solvay Pharmaceuticals[1] on her Age Discrimination in Employment Act (“ADEA”) retaliation and discrimination claims, and her state law claim asserting a violation of the Indiana Wage Payment Statute. We affirm the judgment of the district court.
_______
[1] Solvay Pharmaceuticals, Inc. and its successor in interest, Abbott Products, Inc., are now known as AbbVie Products, LLC.

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Jubilee Investment Corp. v. BJ Thompson Associates, Inc. and BJ Thompson (NFP)

John R. Edwards v. Maryann Edwards (NFP)

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

NFP criminal opinions today (3):

Jasmine Davis v. State of Indiana (NFP)

William Robert Tyler v. State of Indiana (NFP)

Billie Jo Moore v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Out-of-touch lawmakers restrain state"

From Sunday, July 6th, an editorial in the Fort Wayne Journal Gazette. Hitting on a number of issues, including gun control, immigration, regulation of child care, the editorial concludes:

The gay marriage supporters who packed the Statehouse last winter abandoned them in May; reinforcing the far-right’s electoral clout and reminding elected officials that same-sex marriage supporters can hold boisterous demonstrations but don’t bother to vote. Attorney General Greg Zoeller clearly acknowledged that when he rushed to request a stay on the federal court’s decision to overturn Indiana’s ban on gay marriage.

If Indiana is ever to escape the quagmire of divisive and backward cultural issues, moderate and progressive voices need to spend less time changing hearts and minds and more time registering voters and getting them to the polls.

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Indiana Government

Ind. Courts - More on: A Day in Lake County for Judicial Nominating Commission Interviews

Updating this Prof. Schumm post from from July 2nd, the NWI Times had a story posted late on July 2nd by Elvia Malagon reporting:

CROWN POINT | The Lake County Judicial Nominating Committee selected three candidates Wednesday to fill the position of Lake Superior Court Civil Division judge.

Kathleen Belzeski, Deidre Monroe and Bruce Parent were chosen out of 21 candidates to fill the vacancy of the late Judge Gerald Svetanoff. The nominations will be sent to Gov. Mike Pence, who will appoint the new judge.

One of the things the committee tried to assess during the interviews was how comfortable candidates were with technology. Parent and Belzeski said they felt strongly about pushing the court into electronic filing.

Defense attorney Parent had been selected by the Lake County Bar Association as the second best pick to fill the vacancy. He was given the highest score when it came to his temperament.

During deliberations, many committee members said they were impressed Parent had a detailed plan about what changes needed to be made in the Lake Superior Court Civil Division courtroom. He also interviewed court staff about their opinions before interviewing before the committee.

Belzeski is a magistrate in Lake County Superior Court County Division 2. The committee noted her 15 years of experience as a magistrate. They also liked her enthusiasm for the law.

A committee member did voice concern that Belzeski's writing submissions were outdated and none were from her time as a magistrate.

Gary City Court Judge Monroe is also one of the finalists. The committee was impressed by her innovations in creating special courts to deal with drug and truancy issues in Gary.

Some committee members were concerned that Monroe didn't have as much experience with trials as other candidates.

Here is a copy of the interview schedule from the 2-day meeting of the Lake County Judicial Nominating Commission.

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Courts - "Harrison Democrat Roger Davis out of judge race"

Grace Schneider reports for the Louisville Courier Journal:

Harrison Superior Judge Roger Davis is dropping his bid for a fourth term, a decision that immediately raised doubts about whether the Democratic Party can hold the seat in the Nov. 4 general election.

Davis confirmed in a brief phone interview Monday morning that he intends to officially withdraw within a week, and had informed a few potential candidates and Jim Kincaid, Harrison County’s Democratic central committee chairman, on July 2. He told his court staff July 3, before the holiday weekend.

Davis declined to discuss the reason, saying he’d release a statement after he files documents to officially withdraw. Phone messages left for Kincaid were not returned.

Davis, 58, who is completing his third six-year term, would have faced Republican Joseph L. Claypool, a first-time candidate who works as an agent for the Indiana Gaming Commission at the Horseshoe Southern Indiana riverboat casino.

Claypool, 64, said his plan is to run a campaign that focuses on his experience and qualifications, not an opponent, so he expects Davis’ withdrawal won’t change much for him. * * *

Several political observers predicted Davis would face a tough re-election battle. Republicans took to Facebook and other social media to rage about Davis’ 64-year sentence in March for a Kentucky man convicted of 20 counts of child molesting.

The prosecution had asked for 214 years, but Davis said in court that since new state laws take effect this summer that significantly reduce prison terms for sex crimes, consecutive terms of 32 years for the crimes against each female victim were more appropriate. * * *

[I]n Floyd County, three key ballot spots went unfilled for judicial positions and prosecuting attorney. Superior Court 1 Judge Susan Orth and Superior Court 3 Judge Maria Granger, as well as prosecutor Keith Henderson, face no opposition this fall.

Posted by Marcia Oddi on Tuesday, July 08, 2014
Posted to Indiana Courts

Monday, July 07, 2014

Courts - "Polarized Reaction to Wheaton College Injunction"

The WSJ Law Blog, which I believe is now freely accessible, has a long post today by Jacob Gershman, linking to a number of reactions to the injunction.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Courts in general

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

For publication opinions today (2):

In Z.A. v. State of Indiana, a 5-page opinion, Judge Najam writes:

Z.A. appeals the juvenile court’s adjudication that he committed the delinquent act of theft, as a Class D felony if committed by an adult. Z.A. presents a single issue for our review, namely, whether the State presented sufficient evidence to support the delinquency adjudication. We reverse. * * *

In sum, the undisputed evidence shows that, while M.A. paid more for the television than Z.A., they considered themselves co-owners of the property. There is no evidence that M.A. owned the property to the exclusion of Z.A., or that M.A. and Z.A. had agreed that M.A. would have a greater right to possession of the property than Z.A. Thus, the State did not present sufficient evidence that Z.A. exerted unauthorized control over the television when he took it from M.A.’s house. We reverse Z.A.’s adjudication for theft.

In Freddie Patterson v. State of Indiana , an 11-page opinion, Judge Pyle concludes that there was sufficient evidence to support Patterson's conviction, and rejects the following:
Patterson claims that the trial court abused its discretion in redacting his proposed final instruction and committed fundamental error in adding, at the request of the State, a sentence to another instruction he tendered.
NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: J.S. (minor child); N.W. (Mother) v. The Indiana Department of Child Services (NFP)

Anthony Neumeister v. City of Greenfield, Indiana (NFP)

NFP criminal opinions today (2):

James Toy v. State of Indiana (NFP)

Maurice V. Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Threats v. satire in social media age"

A very long and important story today by Dave Bangert of the Lafayette Journal Courier. The nutshell subhead: "Did Samuel Bradbury write threats or satire when he threatened judges and cops and vowed to blow up the Tippecanoe County Courthouse? Similar free speech questions headed to Supreme Court. Some quotes:

Here's a pro tip: When posting explosives-making/courthouse-bombing/judge-threatening "satire" on Facebook, don't have bomb materials on hand when federal agents come to check your business.

The attorneys for Samuel Bradbury are pinning their defense on the First Amendment and four words their client stuck at the end of a June 19 social media post: "FREE SPEECH EXERCISE FOOLS."

Was the 22-year-old Pine Village man just blowing smoke in a creative writing exercise about his links to Lafayette natives Jerad and Amanda Miller, who killed three before dying in a June shootout in Las Vegas, or making a series of specific threats? Either way, the timing of his posts lines up with a case heading to the U.S. Supreme Court — one that First Amendment scholars say could go a long way toward clarifying what constitutes a true threat in the age of social media.

For now, U.S. Magistrate Judge Andrew Rodovich wasn't taking chances. Last week, Rodovich issued a no-bond order, ruling that Bradbury constituted "a danger to the community" because of his criminal history and what he wrote ahead of that disclaimer — threats to blow the Tippecanoe County Courthouse to pieces and naming the Tippecanoe County sheriff, a West Lafayette police officer, a Tippecanoe County judge and an Indiana Supreme Court justice as specific targets.

That, and the stockpiled aluminum powder and black iron oxide — precursors for the thermite Bradbury said he and his band of "765 Anarchists" were going to use to take out the courthouse — found in his home during a June 21 search.

"The court," Rodovich wrote, "does not have to accept his disclaimer, particularly in light of the magnitude of his (threats)."

Bangert then expands the story to look at a case pending before the SCOTUS, involving:
Anthony Elonis, a Pennsylvania man who used his Facebook page to post rap lyrics that contained references to killing his former wife, who had left him and taken their kids in 2010.

In one, Elonis, under the pseudonym Tone Dougie, suggested a Halloween costume for his son that included his wife's head on a stick. His wife took his posts as real threats. Elonis, who used emoticons and other disclaimers with his posts, said they were First Amendment exercises. One disclaimer read: "Art is about pushing limits. … I'm willing to go to jail for my constitutional rights."

Elonis did. He eventually was sentenced to 44 months in federal prison. The trial judge ruled that a "reasonable person" could take his posts "as a serious expression of an intention to inflict bodily injury or take the life of an individual," regardless of whether Elonis planned to turn words into action. That, the judge ruled, was not protected speech.

In June, Elonis' lawyers petitioned for — and were granted — an upcoming Supreme Court review, saying the digital age needs clarification on what amounts to a true threat.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Indiana Courts

Courts - More about the SCOTUS term, and the spawn of Hobby Lobby

Nina Totenberg of NPR had a nearly 8-minute report this morning on Morning Edition. In a section about "campaign finance regulations, union power and mandated contraceptive coverage for corporations under the Affordable Care Act" Totenberg writes:

In each of these decisions, the conservative majority reversed decades of previous rulings, or came close. * * *

In each of these cases, the conservative majority based its ruling on the First Amendment right of free speech or free exercise of religion. And some scholars on both the right and left see that as something of a new twist on an old story.

Today, legal historians speak disparagingly of the so-called Lochner era from the 1880s to the mid-1930s. During that time, the Supreme Court, in the name of property rights, consistently struck down legislation barring onerous working conditions or seeking to increase the bargaining power of employees in dealings with employers.

Almost all of the precedents from the Lochner era are now gone, viewed as wrongly decided. But some scholars suggest those decisions are being reborn in a new guise: the First Amendment.

"It's the new Lochner," laments Yale Law School's Akhil Amar, who comes from the moderate left of the legal spectrum. "The First Amendment is increasingly becoming everyone's first resort for all kinds of claims that historically were not thought of as First Amendment claims."

By that, Amar means voiding a century of campaign finance understandings, 80 years of precedent on government mandates for profit-making corporations, and nearly overruling 40 years of precedent on fair-share union fees. * * *

The court is deeply split, and for the first time in its history, its ideological alignment reflects partisan splits, too. The decisions made today are for the most part the product of choices made by past presidents with their appointments.

Jess Bravin reported July 3rd in the $$$ WSJ in a story headed "High Court Female Justices Dissent From Wheaton Contraception Order: Justices Sotomayor, Ginsburg and Kagan File 17-Page Dissent to Majority's Order":
WASHINGTON—The Supreme Court's divisions over contraception tore open again Thursday, when the three female justices accused an all-male court majority of going beyond the Hobby Lobby decision to interfere with insurance coverage under the Affordable Care Act.

Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, filed a 17-page dissent to a court order allowing Wheaton College, a Christian institution in Illinois, to stop covering birth control without filing a form with its insurer asserting religious objections to emergency contraception.

The majority's order, which was unsigned, "risks depriving hundreds of Wheaton's employees and students of their legal entitlement to contraceptive coverage," she wrote. And because many other religious nonprofits have raised similar objections to birth control, the ruling "will presumably entitle hundreds or thousands of other objectors to the same remedy." * * *

"Those who are bound by our decisions usually believe they can take us at our word. Not so today," Justice Sotomayor wrote. "After expressly relying on the availability of the religious-nonprofit accommodation" to justify expanding exemptions from contraceptive coverage to closely held commercial businesses, "the court now, as the dissent in Hobby Lobby feared it might, retreats from that position."

Dahlia Lithwick and Sonja West wrote a stinging column Slate on July 4th, headed "Quick Change Justice: While you were sleeping, Hobby Lobby just got so much worse." A sample:
In Burwell v. Hobby Lobby, the Supreme Court ruled that it was a “substantial burden” on the religious freedoms of closely-held corporations for the government to require them to provide contraception as part of their employee health care plans. The court didn’t say that the government could never require a company to do something that violated its religious beliefs, but rather that the government had to use the “least restrictive alternative.” That means that if there is a slightly less burdensome way to implement the law, it needs to be used. To prove that the Affordable Care Act’s contraceptive mandate was not the “least restrictive alternative,” the court pointed to a workaround in the law for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees.

Yet in an unsigned emergency order granted Thursday evening, the very same court said that this very same workaround it had just praised was also unconstitutional, that this workaround also burdened the religious freedom of religious employers. Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Courts in general

Environment - "Showdown looms over proposed Americus quarry"

Updating a long list of earlier ILB entries on the proposed Americus quarry in Tippecanoe County, Ron Wilkins has a long story today in the Lafayette Journal Courier that begins:

There’s a showdown brewing over the proposed limestone quarry near Americus, and it comes to a head at 10 a.m. Monday at the Tippecanoe County commissioners’ meeting in the County Building.

Rogers Group proposed the quarry last year, and residents in the area quickly formed the Americus Area Community Coalition to block the mining on a flat, north of Old Indiana 25, just east of Americus.

On June 16, the commissioners gave the coalition a boost. The three-member board approved the first of two readings of an ordinance that would ban new quarry operations if 100 residences are within a two-mile radius of a proposed quarry.

But the first approval of the ordinance came in under the radar, since it was not on the agenda. Monday morning, both sides are prepared with presentations, Commissioner Tom Murtaugh said.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Environment

Ind. Decisions - Supreme Court takes certified question re Patient’s Compensation Fund

In an order filed a week ago and now available online, the Supreme Court accepts a certified question from the federal district court for the ND Indiana, in the case of Robertson v. Medical Assurance Co., Inc. n/k/a Proassurance Indemnity Co., Inc. The question:

Does Indiana law allow the Patient’s Compensation Fund to pursue a claim against an insurer for the insurer’s breach of its duty of good faith to its insured, through the doctrine of equitable subrogation?

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending July 4, 2014

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current and UPDATED through the June 20th, 2014 list.]

Here is the Clerk's transfer list for the week ending Friday, July 4, 2014. It is one page (and 1 case) long.

No transfers were granted last week.

The April 24th grant of transfer in Edward Lee Matthys v. State of Indiana, was vacated 3-2 on July 1st. The order is not (yet?) available. Here is the (presumably) now reinstated NFP Court of Appeals opinion from Jan. 30, 2013.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Indiana Transfer Lists

Ind. Gov't. - "'0INK' vanity plate fight could go to Legislature"

Updating the ILB's most recent post on this topic, from May 8th, Charles D. Wilson of the AP reports today in a long story that begins:

INDIANAPOLIS (AP) — A fuss over a police officer's vanity plate has blown up into a constitutional debate that could lead to the Indiana General Assembly deciding whether to rewrite the law or stop selling personalized license plates altogether.

The Indiana Bureau of Motor Vehicles said it would file a notice of appeal Monday, asking the state Supreme Court to overrule a local judge who said the agency violated the officer's freedom of speech when it revoked his license plate that read "0INK."

Drivers haven't been able to buy vanity plates in Indiana since July 2013, when Greenfield Police Officer Rodney Vawter sued the BMV, with the help of the American Civil Liberties Union of Indiana. The agency's website offers guidance on how to apply for personalized license plates but warns that it is not currently accepting applications.

BMV Commissioner Donald M. Snemis told The Associated Press in an exclusive interview that if the Indiana Supreme Court agrees to take up the issue, it may direct lawmakers to rewrite the law. This could lead to the removal of the right to have vanity plates for all Indiana drivers.

"At that point, the Legislature is going to have to have a discussion about whether we want to have a personalized license plate system," Snemis said.

More from the story:
In his ruling, Judge James Osborn also took on the BMV, saying it has no formal regulations in place for evaluating the content of vanity plates and ordering it to create standards that meet constitutional requirements within six months.

Osborn said the agency was inconsistent when approving plates based on content. For example, the agency revoked an "UNHOLY" vanity plate but allowed vanity plates such as "B HOLY" and "HOLYONE."

Osborn ordered the agency to restore the program under strict guidelines until it could write new rules that don't violate freedom of speech.

The BMV argues that the ruling rewrote the rules and would force it to allow offensive plates that might insult ethnic groups. But the ACLU contends in legal documents that the BMV is still allowed to deny plates that are defamatory, vulgar or could incite violence.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Indiana Government

Courts - What if there had been no stay of federal Judge Young's order in Indiana?

That is what is happening in Pennsylvania right now ...

Lyle Denniston of SCOTUSblog has a fascinating post this morning on the Pennsylvania situation (emphasis by ILB):

Arguing that the Supreme Court has made clear that it does not want any same-sex marriages to go forward until it gets a chance to rule on the constitutionality of state bans, a county clerk in Pennsylvania has asked the Court to put a stop to those marriages in her state. The plea by Theresa Santai-Gaffney, the Schuylkill County clerk, also seeks the right to pursue her challenge even though lower courts excluded her.

The same-sex marriage situation in Pennsylvania at this stage is similar to that in other states where a ban has been struck down in court, but state officials declined to appeal to get it reinstated. The [SCOTUS] has once moved in to temporarily ban such marriages, in Utah, and the Schuylkill County clerk asked it to do so in Pennsylvania.

The clerk’s application (not yet assigned a docket number) was filed on Friday with Justice Samuel A. Alito, Jr., who handles requests for temporary legal action in the geographic area of the U.S. Court of Appeals for the Third Circuit, which includes Pennsylvania. Alito has the authority to act on his own or to share action with his colleagues.

The clerk argued that the Supreme Court had “signaled to all lower federal courts” that they must act “to preserve the enforcement of man-woman marriage laws” until the Court itself takes on the issue. That, her application contended, is the meaning of the Court’s January order putting on hold temporarily a federal judge’s decision striking down the ban in Utah.

The Court, however, acted in that case only on the Utah situation, and even then did not explain its reasoning for the postponement. It issued that order at the request of Utah state officials. The Court in early June refused to issue a similar postponement of a ruling against Oregon’s ban, but that application was filed by a private organization opposed to same-sex marriage, not by Oregon state officials, who have refused to defend the ban there.

A federal judge in Harrisburg in May ruled that the Pennsylvania ban is unconstitutional, and refused last month to allow the Schuylkill County clerk to intervene so that she could appeal that decision. The judge sharply lectured the clerk about her continuation of the fight. On Thursday, the Third Circuit, acting summarily, barred her from the case and dismissed her appeal, saying it was doing so “for essentially the reasons” given by the district court judge. (A summary decision is made without written or oral arguments.)

Her challenge can go forward only if Justice Alito or a Supreme Court majority allows her to intervene, and postpones the decision nullifying the ban. Justice Alito has the option of seeking a response from challengers of the Pennsylvania ban before acting on the clerk’s application.

Some county clerks in Pennsylvania have been issuing marriage licenses on the basis of the lower court rulings on the challenge. If the Supreme Court does not step in, Pennsylvania would then become the nineteenth state in which same-sex couples may legally wed.

Bans in other states have been struck down in federal or state courts, but those decisions are on hold while appeals go forward.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Courts in general

Ind. Courts - Isn't it time to get serious about prosecutor misconduct?

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

As highlighted by a couple of recent opinions that reversed convictions, prosecutorial misconduct is unfortunately an all-too-common issue in Indiana criminal appeals. Beyond the relatively rare reversals, though, many appellate opinions have frequently found that prosecutors engaged in misconduct — sometimes even by citing specific Rules of Professional Conduct. Yet disciplinary opinions on the subject seem non-existent. This post considers the roles of the Indiana appellate courts, the Marion County Prosecutor’s Office, the Indiana Disciplinary Commission, criminal defense lawyers, and the media in a woefully inadequate response to this troubling issue. It ends with a discussion of the ethical woes of Keith Henderson, the former Camm prosecutor who vividly highlights these concerns.

The Ryan Case and the Indiana Supreme Court

The Indiana Supreme Court’s opinion last month in Bruce Ryan v. State was in some ways surprising and in other ways not. Reversal of a conviction is a longshot anytime a defendant raises a claim on appeal that was not preserved in the trial court; the fundamental error doctrine requires “an undeniable and substantial effect on the jury’s decision [such] that a fair trial was impossible.” Citing a 2011 case, the Indiana Supreme Court reiterated that defendants are “‘highly unlikely’ to prevail on a claim of fundamental error relating to prosecutorial misconduct.”

Reticence to reverse a conviction for any reason, much less one that counsel did not preserve by an objection, is certainly understandable. But what is lost in the Ryan opinion — and most other opinions involving prosecutorial misconduct — is whether the reviewing court is even concerned or troubled by the prosecutor’s conduct or if prosecutors can safely continue the same conduct with impunity.

In Ryan the supreme court noted the impropriety of inviting the jury to convict for reasons other than the defendant’s own guilt when the prosecutor alluded to the “bigger picture,” to “hearing about this happening” without a chance “to stop it,” and to other perpetrators such as “a teacher, or a coach, or a pastor;” and then imploring the jury to "send the message that we're not going to allow people to do this."

It also expressed disapproval of the prosecutor’s “characterization of defense counsel’s line of argumentation as ‘how guilty people walk’ and a ‘trick,'” which violates the requirement that lawyers “demonstrate respect for the legal system and for those who serve it, including . . . other lawyers,” see Preamble [5], Ind. Professional Conduct Rules.

Nevertheless, the supreme court’s response was quite mild, simply noting in the conclusion that it did not “endorse the prosecutor’s trial tactics in this case.” Compare this tepid language to the indignation expressed in other recent opinions about the conduct of non-lawyers. Remember the detective, who is constitutionally permitted to tell all sorts of lies to suspects but told an African-American defendant he would face a jury of Caucasians and Hispanics in Lake County? The supreme court justices were beside themselves: “this was an intentional misrepresentation of rights ensconced in the very fabric of our nation’s justice system—the rights to a fair trial and an impartial jury, and the right not to be judged by or for the color of your skin—carried out as leverage to convince a suspect in a criminal case that his only recourse was to forego his claim of innocence and confess. And like Judge Kirsch, we condemn it.” Or a family case manager at the Department of Child Services who claimed she had simply completed a form that automatically “populated” with certain information? “We find it extremely troubling that a representative from DCS would make a misrepresentation on such an important document.”

Shouldn’t the court expect at least as much of lawyers in the justice systems as it does of detectives and case managers?

But in the Ryan case the court never suggested it was troubled, much less extremely troubled, and offered no condemnation of lawyer conduct. Rather, the court surprised and confused many by including the prosecutor’s name on the opinion. She did not file an appearance on appeal but did, as prosecutors sometimes do, sit at the State’s table at oral argument. Sitting at counsel table and not speaking at argument has never before warranted inclusion of a prosecutor’s name on an opinion. Was this some form of vindication (the Indiana Supreme Court found only two problems with the prosecutor’s conduct instead of the several found by the Court of Appeals) or was it a mild form of public shaming (albeit for conduct that was simply “not endorsed”)?

The Indiana Supreme Court leads the State’s judicial system. If it shows little or no concern about prosecutor misconduct, one cannot expect the Court of Appeals, the Disciplinary Commission, and others to care much either.

Marion County Prosecutorial Misconduct Cases

Prosecutorial misconduct is far too common in Marion County. The day before the Indiana Supreme Court issued its opinion in Ryan, the court of appeals reversed a conviction for prosecutorial misconduct in a case involving the same (unnamed) Marion deputy prosecutor. The court of appeals found that the prosecutor had improperly distinguished between the role of the defense and the prosecution, improperly vouched for the State’s witnesses, and asked argumentative and inflammatory questions.

What about other cases? The linked document ("Prosecutor Misconduct Discussed in Appeals from Marion County, January 2012-June 2014") includes 22 cases in which an Indiana appellate court has found, or assumed without deciding, one or more instances of improper conduct by prosecutors in Marion County since 2012. Sometimes the court explicitly cites a Rule of Professional Conduct; other times the court simply describes the conduct.

Marion County Prosecutor Terry Curry, who was elected in 2010, is either oblivious to or unfazed by these opinions. His June email newsletter boasts that his office is “holding criminals accountable for their actions, preserving the rights of victims and continually seeking justice, all while maintaining the highest of ethical standards.” (emphasis added) Ethics was a big part of the 2010 campaign to replace Carl Brizzi, but Mr. Curry’s self-congratulations seem unwarranted in light of the 22 cases out of a fairly small universe of only a few hundred cases appealed since 2012 involving his lawyers. Some may question whether Curry has appropriate policies in place and has been taking "reasonable efforts to ensure that his subordinates conform to the Rules of Professional Conduct” as required by Professional Conduct Rule 5.1(a) & (b).*

The Court of Appeals

Some of the 22 opinions include a fairly detailed and specific explanation of exactly what the prosecutor did wrong, at times even citing applicable Rules of Professional Conduct. For example, citing Rule 3.4(e):

A concurring opinion from Judge Friedlander in a third case suggests concern about prosecutor misconduct but apparent resignation to stopping it: “we do not go so far as to explicitly ‘condemn’ the prosecuting attorney’s actions, although we could, and perhaps should. Be that as it may, there is cause to doubt the efficacy of even an official condemnation of such behavior. Our appellate courts have on occasion issued condemnations of prosecutorial misconduct. [citations omitted] Yet, instances of condemnable prosecutorial behavior continue to come before us on appeal.” (Link to opinion.)

It is disappointing that none of these 22 opinions include language such as this: “We also direct the clerk of this court to transmit a copy of this opinion to the Indiana Supreme Court Disciplinary Commission for any action it deems appropriate.”**

Finally, although the desire to resolve cases without discussion of unnecessary issues is understandable in many appeals, prosecutorial misconduct cases should be treated differently. Opinions that assume without deciding that comments were misconduct but nevertheless affirm the convictions because the error was harmless or did not make a fair trial impossible leave defense lawyers, prosecutors, and trial judges wondering if the statement or other conduct was permissible or not. Can the prosecutor say the same thing in a future trial? Should the defense lawyer object? Should a trial judge sustain an objection to it?

Disciplinary Commission

Discipline of prosecutors is uncommon in Indiana. A search for “Witte” (the head of the Disciplinary Commission for the past four years) and “prosecutor!” yielded the following three opinions:

The most recent report of the Disciplinary Commission available on its website is for 2011-12. It does not include a separate category for allegations prosecutor misconduct, so it is impossible to know how many grievances are filed — or if any were filed in the cases in which the appellate court explicitly found misconduct under the Rules of Professional Conduct.***

The Commission is certainly busy, but investigating claims of ethical violations against prosecutors — whom the Rules of Professional Conduct term “minister[s] of justice” with the obligation “to see that the defendant is accorded procedural justice” — seems at least as important as prosecuting a lawyer with 41 years of practice experience for participating in “Law Tigers,” a website that helped the public find a motorcycle attorney or expending enormous resources against a lawyer who criticized a judge in a private email.

Some of the instances of misconduct from the 22 Marion County cases discussed above seem at least as troubling as the conduct for which Ms. Flatt-Moore and Mr. Brizzi received a public reprimand.

Finally, the standard for prosecutors is surely no different than it is for other lawyers. For example, one of June’s disciplinary opinions included violations for the following against a lawyer in civil practice:

Charges relating to closing argument: Respondent made a number of inappropriate remarks during closing argument, including telling the jury that this would be “a perfect case for punitive damages,” even though his clients’ claim for punitive damages had been withdrawn in exchange for the restaurant not pursuing any comparative fault, alluding to facts that were not supported by admissible evidence, asserting personal knowledge of facts in issue, and stating his personal opinion as to the justness of his clients’ cause and the credibility of a witness.
This sounds remarkably similar to some of the statements by prosecutors in the cases mentioned above.

Defense counsel

In most of the 22 cases discussed above, defense counsel lodged no objection to the prosecutor’s statements and in the remaining ones counsel failed one of the other requirements for preserving a claim of prosecutorial misconduct: a motion to strike and a motion for mistrial. Perhaps all three of these should not be required, but until the law is changed defense counsel who fail to request all three will not preserve a claim for appeal and their clients will face a nearly impossible road to reversal under the fundamental error standard.

That said, reversible error is wholly separate from ethical misconduct. The failure of defense counsel to lodge the proper objection should in no way insulate prosecutors from ethical sanctions when their comments violate the Rules of Professional Conduct.

The Media

Appellate opinions finding misconduct, especially when a reversal occurs, would seem to be of great interest to the public, worthy of media attention but seldom garnering it. Questions for the offending deputy prosecutor or elected prosecutor would be appropriate, including mentioning the offending prosecutor by name. But that rarely happens.

Prosecutors are elected officials, and the public should be apprised of the significant activities of their office, especially those implicating ethics. Last month, the Indiana Lawyer posted a story online summarizing the Brummett opinion, which reversed a conviction because of several instances of prosecutorial misconduct. The final paragraph of the story included the prosecutor’s name and noted that she had previously resigned from the office and been disciplined after pleading guilty to reckless driving (as part of a plea agreement that dismissed a charge of operating a vehicle while intoxicated). That paragraph was inexplicably gone by the following morning and has not reappeared.

A Final Example: Floyd County Prosecutor Keith Henderson

More than two and a half years ago, the Indiana Court of Appeals ordered Floyd County Prosecutor Keith Henderson off of the high-profile David Camm prosecution because “[a]s prosecutor, Henderson should not have a personal interest in this case separate from his professional role as prosecutor. In other words, Henderson cannot be both committed to writing a book about the Camm case and serve as prosecutor. Such a personal interest creates an actual conflict of interest with his duties as prosecutor.” Months after denying transfer, the Indiana Supreme Court reappointed Mr. Henderson to a five-year term on its prestigious and powerful Rules Committee. With approximately 90 other prosecutors without ethical blemishes to choose from, Henderson is a surprising choice for this honor.

Although the filing of disciplinary grievances against lawyers is generally confidential, it’s no secret that one was filed against Mr. Henderson, who retained counsel at county expense to represent him in 2011. Many grievances, however, do not result in formal charges (a complaint). As explained on the Disciplinary Commission’s website: “If we believe there is probable lawyer misconduct, the full Disciplinary Commission will review the matter. If the Commission believes that the lawyer has engaged in misconduct for which he or she should be disciplined, we file a complaint with the Clerk of the Supreme Court formally charging the lawyer with misconduct.”

Because the clerk’s docket shows no filing of a complaint, one of two troubling things is true, either (1) the Disciplinary Commission is still investigating three years later (while instead devoting its resources to the Law Tiger and private email cases discussed above) or (2) the matter was resolved with no complaint being filed by the Commission. (The docket does show a private administrative admonition against Mr. Henderson in 2001.)

If all of that is not enough, the Indiana Prosecuting Attorney’s Council website lists Mr. Henderson as chair of its Ethics Committee.

Conclusion

Prosecutors are the most powerful player in the criminal justice system. They determine what, if any, charges will be filed and can dismiss charges or offer harsh or lenient plea agreements for any — or no — reason. Most try cases as “minister[s] of justice” who fulfill their ethical obligation “to see that the defendant is accorded procedural justice.” But a few prosecutors bend or break the rules in a quest to attain convictions at any cost. Without intervention, their numbers may well grow.
________________
*Then again, a lack of leadership may be better than leading in the wrong direction, such as the incredibly wasteful, misguided prosecution of Bei Bei Shuai or dismissing a high-profile case and returning confiscated money while announcing a $300,000 donation to law enforcement (including 20% to Curry’s office).

**This language was included in a 2011 opinion in a civil case from the Indiana Court of Appeals, which quoted a recent Seventh Circuit opinion. Oddly, similar language is nearly impossible to find in opinions written by Indiana judges.

***Four pages of the Indiana Supreme Court’s 2013 annual report discuss the activities of the Disciplinary Commission and similarly provide no specific information about the categories of grievances filed or complaints filed.

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Schumm - Commentary

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

From Sunday, July 6, 2014:

From Saturday, July 5, 2014:

From Friday, July 4, 2014:

Posted by Marcia Oddi on Monday, July 07, 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 7/7/14):

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

Webcasts of Supreme Court oral arguments are available here.


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

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

Tuesday, July 15

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

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


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

Posted by Marcia Oddi on Monday, July 07, 2014
Posted to Upcoming Oral Arguments

Sunday, July 06, 2014

Ind. Gov't. - "The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex"

That is the title of an article by Patrice A. Fulcher now available via SSRN. Sentencing Law Blog highlights the article here.

On Nov. 13, 2013 the ILB had this long post, headed "Ind. Gov't. - 'LaPorte County jail now offers video visitation' - some complaints."

Posted by Marcia Oddi on Sunday, July 06, 2014
Posted to Indiana Government

Ind. Gov't. - "The curious case of the oddly silent attorney general"

This item by Niki Kelly of the Fort Wayne Journal Gazette was originally posted in the paper's "Political Notebook" blog on July 2:

Attorney General Greg Zoeller has never been shy.

He regularly comments on cases, files briefs in cases around the nation and issues a ton of press releases about office activities.

But since a federal judge struck down Indiana’s marriage ban last Wednesday he has been unusually quiet. His office issued several press releases explaining the process but they lacked any quotes from Zoeller.

Instead, they directed media to quote a spokesman instead.

Compare that to March 2013 when Zoeller distributed an op-ed piece to newspapers on his obligation to defend the state’s authority to define marriage.

Then on March 7, 2014 – when the gay marriage suit was filed – Zoeller promised to defend the statute.

“People of goodwill have sincere differences of opinion on the marriage definition, but I hope Hoosiers can remain civil to each other as this legal question is litigated in the federal court,” Zoeller said.

Then on March 13, Zoeller had another quote saying, “when plaintiffs who disagree with an Indiana statute file a challenge in court, I have a duty as Indiana’s Attorney General to defend our state and the statute the Legislature passed to the best of my skill and ability – and will do so here, both now and on any appeal.”

But in April when a temporary restraining order was issued, a news release was sent but included nothing from Zoeller.

Again on May 2 after a hearing on the suit, nothing from Zoeller.

When the TRO was extended, nothing from Zoeller.

When the ruling came down, no quote from Zoeller.

When the stay was announced, nothing from Zoeller.

This week when issuing guidance to clerks, no quotes from Zoeller.

In the meantime, he had spoken in press releases about a tobacco settlement and winning a cold beer lawsuit.

It was so perplexing, the Journal Gazette tweeted about the missing-in-action Attorney General on Monday.

Within two hours, a two-paragraph response to an emergency appeal for a dying woman in a same-sex marriage was released from the attorney general’s office.

In it, bold lettering announced that Zoeller made the following statement.

“The State has extensively researched this matter and sincerely wishes it found a provision within our State’s statutes that would allow for some extraordinary relief, or humanitarian exception to the rule of law that would grant what petitioners request. If this Court can find an exception that would apply, this circumstance surely warrants its use.”

Posted by Marcia Oddi on Sunday, July 06, 2014
Posted to Indiana Government

Ind. Courts - "Judge in Indiana grants same-sex divorce"

Tim Evans reported last Friday in the Indianapolis Star:

BLOOMINGTON – The mood was festive as Monroe Circuit Judge Valeri Haughton spent the morning of June 26 presiding over marriage ceremonies for gay couples who rushed to the courthouse here after a federal judge struck down Indiana's ban on same-sex marriage.

That afternoon, the judge took on a more somber task — and one likely in the cards for at least some of the couples who she had just married.

Haughton granted the state's first sanctioned same-sex divorce.

The ruling — which came during a three-day window last week when same-sex marriage was legal in Indiana — brought an official end to the broken personal and legal relationship of former Indianapolis residents Melanie Davis and Angela Summers.

While the timing of the divorce ruling amid the gay-marriage window was coincidental, the couple's long, tangled journey through the Indiana court system reveals the challenges ahead for other married same-sex couples should they seek a divorce in Indiana.

In fact, legal experts say, it may be years before another same-sex couple is able to secure a divorce in the state.

Indiana law makes no provision for legally ending same-sex marriages. The rationale is simple and circular: Since same-sex marriage is not permitted or recognized in Indiana, there is no marriage to dissolve.

But that law does not jibe with the realities of lives in Indiana, where Hoosier couples for a decade have married in other states that allow same-sex marriage and hundreds more wed in the state last week after U.S. District Judge Richard Young ruled that Indiana's ban on gay marriage is unconstitutional. * * *

Judge Haughton did not break state law, nor did she violate any ethical rules, when she granted the divorce.

Haughton was, in fact, acting at the direction of the Indiana Court of Appeals — after she had initially refused to grant the couple a divorce because of Indiana's ban on same-sex marriage. [ILB: See this Dec. 20, 2013 post.]

It was the unique, individual circumstance in the marriage of Davis and Summers that allowed them to divorce. There were plenty of complications along the way.

The biggest: When the couple married, Davis was a man — David Paul Summers

There is much more to read in the long story.

Posted by Marcia Oddi on Sunday, July 06, 2014
Posted to Indiana Courts

Ind. Courts - "Wayne County public defender lands state honor"

The Richmond Palladium-Item has a story this weekend that reports:

Kaarin Lueck has almost literally written the book on juvenile law in Indiana.

Lueck, a Wayne County public defender since 2003, is the 2014 Gault Award winner for the state of Indiana, an award given by the Indiana Public Defender Council (IPDC).

Lueck works primarily in Wayne Superior Court 3 and is defense attorney assigned to all the county’s juvenile delinquency cases.

Those who work with her were not surprised by the honor.

“Her contributions to this community and to juvenile offenders have been hugely important,” said Superior Court 3 Judge Darin Dolehanty. “She is providing important representation and knows that area of the law better than anyone I know in this region.”

“We are very proud of Kaarin. She is a remarkable lady,” said Denny Burns, president of the Wayne County Board of Commissioners. “We know how blessed we are to have her. She is one of those people who routinely go above or beyond.”

Dolehanty said he has also been impressed with Lueck’s work at the state and national level.

Since 2008, Lueck has authored recent editions of the IPDC’s Juvenile Delinquency Manual along with its Children in Need of Services and Termination of Parental Rights manuals. She also authored the first edition of the IPDC’s Juvenile Delinquency Practice Standards.

Lueck also wrote and regularly updates the Indiana Chapter of the American Bar Association’s Collateral Consequences of Juvenile Adjudications project, which documents and analyzes the significant hardships experienced by youth who have come into contact with the juvenile justice system.

“She has been such a consistent and strong voice for juveniles and juvenile law at the state and national level,” Dolehanty said.

Ms. Lueck is also author of the Indiana Juvenile Justice Blog. The award was announced on June 13th.

Posted by Marcia Oddi on Sunday, July 06, 2014
Posted to Indiana Courts

Thursday, July 03, 2014

Ind. Law - Not one of the IndyStar's best efforts

The Indianapolis Star has a long story today by Justin L. Mack, reporting on the new sentencing changes. It is accompanied by a stock photo of a blue handbag. IU McKinney law prof Joel Schumm has these comments on the story:

The story is so confusing that even the Star’s headline writers were perplexed. The headline now (correctly) reads “Penalties for stealing in Indiana get pinched”; an earlier headline referred to penalties being stiffer. Elsewhere on the website a headline reads, “Stealing a purse worth $750 is now a felony.”

To be clear, stealing a purse worth $750 has always been a felony. Before July 1 of this year, stealing anything (a pack of gum, a pickle, a quarter) from any person, store, or home could be charged as a theft, which was a class D felony carrying a sentencing range of six months to three years. (And if a defendant had two prior, unrelated felony convictions, the defendant could receive an additional 1.5 to 4.5 years for being a habitual offender.) A prosecutor could also charge the crime as criminal conversion, a class A misdemeanor with a maximum sentence of one year and without the collateral consequences and greatly reduced job prospects that come with the “convicted felon” label.

David Powell, head of the Indiana Prosecuting Attorney’s Council , told the Star: "You should put the trust in your law enforcement officers and the prosecution. We've made that argument all during 2013, and we continue to in 2014."

That message has not resonated — and with good reason. Although some prosecutors previously exercised discretion appropriately to give petty thieves a break by charging them with criminal conversion, too many others did not — charging felonies for those who take items worth a few dollars or less and leaving taxpayers holding the bag for the cost of the much longer sentences. The new threshold of $750 or a prior conviction for criminal conversion strikes the right balance—and forces all prosecutors to be reasonable.

Posted by Marcia Oddi on Thursday, July 03, 2014
Posted to Schumm - Commentary

Courts - Did SCOTUS allow corporations to have it both ways?

A quote from an opinion piece by E.J. Dionne in the Washington Post:

But above all, there is the very troubling desire of the court’s conservatives — made manifest in its Citizens United decision four years ago — to let individuals use the corporate form to escape “personal responsibility for the entity’s obligations,” as Justice Ruth Bader Ginsburg put it in her dissent, but then exercise the rights of individuals when doing so is convenient. They want corporations to have it both ways. “One might ask,” Ginsburg wrote, “why the separation should hold only when it serves the interest of those who control the corporation.”

Posted by Marcia Oddi on Thursday, July 03, 2014
Posted to Courts in general

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

For publication opinions today (1):

In G. Kevin Powell v. Estate of Gary Powell, a 14-page opinion, Judge Friedlander writes:

G. Kevin Powell (Kevin) appeals a grant of summary judgment in favor of the Estate of Gary Powell (the Estate), which determined that Kevin and the Estate were tenants in common and thus one-half owners of real estate (the Real Estate) conveyed to them by their father, Lawrence Powell. Kevin presents the following restated issues for review: Does a deed conveying property to brothers as tenants by the entireties create a joint tenancy with rights of survivorship, or instead a tenancy in common?

We reverse and remand with instructions. * * *

We agree with the holdings and overarching rationale set out in Pennsylvania Bank & Trust Co. v. Thompson, Coleman, Sams, Mitchell, Morris, Wood, and McManus. In Indiana, as in those jurisdictions, “survivorship is the most important incident of a tenancy by the entireties[.]” Baker v. Cailor, 206 Ind. 440, 186 N.E. 769, 770 (1933). Therefore, when property is conveyed to individuals by the entirety or entireties, regardless of whether those individuals are husband and wife, a presumption arises that the grantor intended to convey the property with the right of survivorship. This, in turn, is sufficient to establish the intent to create an estate in joint tenancy with right of survivorship within the meaning of I.C. § 32-17-2-1(c)(2).

This is precisely what occurred in the present case. Lawrence conveyed the Real Property to his Sons as “tenants by the entireties.” Appellant’s Appendix at 22. Therefore, his intent to convey the right of survivorship is manifestly apparent from the tenor of the instrument. See I.C. § 32-17-2-1(c)(2). Accordingly, we reverse the grant of summary judgment in favor of the Estate and remand with instructions to grant the summary judgment motion submitted by Kevin.

NFP civil opinions today (0):

NFP criminal opinions today (1):

William H. Royal, II v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, July 03, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - Changes to Title 35 Felony Offenses with New levels and Sentencing Ranges [Updated]

A reader has sent this useful 26-page chart for the new criminal code; I have OCRed it so that it is now searchable.

No source is listed on the document, but I'm told it was used by one of the judges in a seminar offered to the members of the Hendricks County Bar, was was put together by the Judicial Center and someone from Montgomery County.

[Updated 7/9/14]
The chart has been updated to include changes made in the Technical Corrections Session. Use this revised chart.]

Posted by Marcia Oddi on Thursday, July 03, 2014
Posted to Indiana Law

Wednesday, July 02, 2014

Ind. Decisions - 7th Circuit holds Marion County Small Claims Courts are judicial districts for the purposes of the FDCPA - this is big [Updated]

On Oct. 31, 2013, a panel of the 7th Circuit, with Judge Posner dissenting, upheld the Indiana district Court ruling finding Marion County Small Claims Courts were not judicial districts for the purposes of the FDCPA. The FDCPA contains a venue provision requiring debt collectors to bring suit in the “judicial district” where the contract was signed or where the consumer resides. Suesz asserted that Med‐1 violated this provision because he lives in a neighboring county and the debt was incurred in a township other than Pike.

Today, meeting en banc, the 7th Circuit reversed the distrct court ruling, with Judge Posner co-authoring the opinion.

In Mark Suesz v. Med-1 Solutions, LLC, a 58-page in total opinion, before Before WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges, Judges Hamilton and Posner write:

The federal Fair Debt Collection Practices Act (“FDCPA”) requires a collector of consumer debts to file its debt-collection suit in the “judicial district or similar legal entity” where the contract was signed or where the debtor resides. 15 U.S.C. § 1692i. This appeal requires us to apply this statutory language to the nine small claims courts in Marion County, Indiana, which together hear some 70,000 civil cases each year. This interpretive issue has significant consequences not only for consumer debtors and debt collectors in Marion County but also for parties to debt-collection suits in other court systems that, depending on the answer to the interpretive question, may be vulnerable to abusive forum-shopping by debt collectors.

Defendant Med-1 Solutions, LLC filed suit in the Pike Township of Marion County Small Claims Court to collect a consumer debt from plaintiff Mark Suesz. The plaintiff alleges that the defendant violated § 1692i by filing in that court because the contract was not signed in Pike Township and the plaintiff does not live there.

In Newsom v. Friedman, 76 F.3d 813 (7th Cir. 1996), a panel of this court held that the intra-county districts used to delineate the venue of small claims cases in Illinois’s Cook County Circuit Court were not separate judicial districts for purposes of § 1692i. In this case, the district court and a split panel of this court followed the reasoning of Newsom to hold that the township small claims courts in Marion County are likewise not separate judicial districts; rather, the entire county is the relevant district, giving the debt collector a wide choice of venue. Suesz v. Med-1 Solutions, LLC, 734 F.3d 684 (7th Cir. 2013). We granted the plaintiff’s petition for rehearing en banc.

We conclude that the correct interpretation of “judicial district or similar legal entity” in § 1692i is the smallest geographic area that is relevant for determining venue in the court system in which the case is filed. See Hess v. Cohen & Slamowitz LLP, 637 F.3d 117, 123–24 (2d Cir. 2011). For the small claims courts in Marion County, that smallest area is a township. We therefore reverse the judgment of the district court. We also overrule Newsom, which adopted a test based on details of court administration rather than on the applicable venue rules. * * *

An investigation of the township courts by a task force of two Indiana Court of Appeals judges identified serious venue problems in those courts. Small Claims Task Force, Report on the Marion County Small Claims Courts, pp. 13–14 www.in.gov/judiciary/files/pubs-smclaims-rept-2012.pdf (visited July 2, 2014). Many defendants are unaware of their right to ask the courts to transfer a case to the townships where they live. Id. at 13. And paradoxically, although township courts were intended to be more convenient for parties, they could be less convenient than if the venue were countywide. The combination of the size of the county, the nine court locations, limited public transportation other than to and from the center of the county, and the debt collectors’ ability to file in any township made it harder for many small claims defendants in Marion County to get to court than it was for defendants in counties in which the courts were centrally located. Id. at 14.

The task force also acknowledged concerns that “largevolume filers appear to file their cases in township courts that appear to provide outcomes favorable to them or provide less oversight for settlement negotiations and settlement agreements,” and that townships have an incentive to pressure judges to “favor large-volume filers in order to generate revenue for the township from filing fees.” Id. Without specifically endorsing those concerns, the task force found that judges who “have made efforts to review settlement terms, as opposed to judges who allegedly rubberstamp settlement agreements, have seen dramatic declines in new filings in their township courts,” as shown by state judicial statistics. Id. * * *

V. Retroavtivity. Our interpretation of § 1692i requires us to reverse the judgment of the district court and to remand for further proceedings on class certification and the merits of plaintiff’s claim. But Med-1 Solutions, perhaps seeing the handwriting on the wall, asks that if we overrule Newsom, as we do today, we should do so only on a prospective basis. It argues that debt collectors have relied on Newsom to allow them to choose venue anywhere in the appropriate county. * * *

The judgment of the district court dismissing this action is REVERSED and the case is REMANDED to the district court for further proceedings consistent with this opinion.

J. Sykes concurs, beginning at p. 29

J. Flaum and J. Kanne dissent, beginning at p. 39 and p. 46, respectively.

ILB: The study referenced in today's opinion was issued on May 1, 2012, and little has happened since, as discussed in this Jan. 19, 2014 ILB post. See also this Jan. 30th update.

[Updated at 7:45 AM, 7/3/14] Although I write above that little has happened since, and that certainly is true with respect to needed legislative fixes, I received this note last evening from Fran Quigley, Clinical Professor, Health and Human Rights Clinic, IU McKinney Law:

[A former student] alerted me to your post relaying the good news about the 7th Circuit decision in Suesz.

We want to point out that, since the Task Force report you reference, the Indiana Supreme Court has taken action on this Marion County small claims forum-shopping problem. The Court amended Small Claims Rule 12 to limit venue to the townships where the defendant lives or is employed, or where the transaction took place.

As you can see from the Proposal and Memorandum our Clinic filed, which was part of a broad range of advocacy on small claims due process issues by ... students, the prior rule contained no such limitations. You mentioned in a 2013 post that the rule change had been proposed. It appears that the proposed change is now law, and should be curbing the “frequent filer” problem.

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - A Day in Lake County for Judicial Nominating Commission Interviews

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

After observing scores of interviews for Indiana Supreme Court justices before the Indiana Judicial Nominating Commission (JNC) in 2010 and 2012 and co-teaching a seminar on judicial selection with Judge Tim Oakes, I was interested in seeing the commission process for a superior court vacancy. Fortunately, the Lake County Judicial Nominating Commission met yesterday and is meeting again today to fill the vacancy in Civil Room 4, so I headed to Crown Point for the day.*

Some Key Differences

Although there are many similarities in the Lake County and Indiana JNC processes, a few differences stood out.

Questions Posted

The questions covered a wide range of topics. The lay members, however, seemed to ask far fewer questions than the lawyer members. Lay members asked roughly the same number of questions as lawyer members in most Indiana JNC interviews, while the percentage in Lake County seemed more like 75/25 or even 80/20. Tom Dabertin was the most active lay member questioner and frequently asked about the importance of management skills for a trial judges while noting that some have no employee handbook and one thought the Federal Medical Leave Act (FMLA) did not apply to employees. Other common questions touched on:

Most of the interviews ran on or slightly ahead of schedule with Justice Rucker as a strict enforcer of time. There was no red light in the room, but every applicant was given an opportunity with 30 or 60 seconds to wrap up before the interview concluded. Most were respectful of the time limit; those who were not received a polite “thank you,” sometimes mid-sentence, from Justice Rucker when they had exceeded the limit.

High Points, Low Points, and a Few Recommendations

The quality of the interview responses ranged widely, but I thought the applicants with judicial experience were generally the best at answering questions directly and succinctly while demonstrating a nuanced and thoughtful understanding of the functioning of Room 4 and the proper role for the new judge. Magistrates Raduenz and Pagano were especially strong.

Some of the other interviews were disappointing, especially when applicants showed little thought in answering the very predictable opening question from Justice Rucker about why they would like to be a judge in Room 4.

A few (unsolicited) recommendations for applicants:Interviews continue until about 2:00 today following by public deliberations and voting of the Commission.
___________
*Judge Oakes made the trek with me. The views expressed in this post are mine alone.

Members of the Lake County Judicial Nominating Commission interviewing Andrew Kraemer on July 1, 2014

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Indiana Courts | Schumm - Commentary

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

For publication opinions today (1):

In Somerville Auto Transport Service, Inc. and Robert Souza v. Automotive Finance Corporation, a 25-page opinion, Judge Brown concludes:

For the foregoing reasons, we affirm the trial court’s orders placing the cause of action on the active docket [sua sponte, after it has earlier dismissed the action on its own motion] and granting summary judgment in favor of AFC. Affirmed.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Charlotte Wiggins v. State of Indiana (NFP)

Robin Shannon v. State of Indiana (NFP)

David Wickizer v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court posts three additional disciplinary orders

In addition to the two disciplinary opinions issued today, the Court has today posted three disciplinary orders, two issued June 30th, and one issued June 26th:

In the Matter of Jeffrey D. Heck - For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, beginning August 8, 2014.

In the Matter of Kevin W. Marshall - For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning August 8, 2014. Automatic reinstatement.

In the Matter of Dean E. McConnell - For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 180 days, beginning on the date of this order, all stayed subject to completion of at least two years of probation with monitoring by the Indiana Judges and Lawyers Assistance Program ("JLAP").

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues two disciplinary rulings today

In In the Matter of: Steve L. Brejensky, a per curiam, a 4-page, 5-0 opinion, the Court writes:

We find that Respondent, Steve L. Brejensky, engaged in attorney misconduct by committing a crime reflecting adversely on Respondent’s honesty and failing to report his conviction to the Commission. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least one year without automatic reinstatement. * * *

Following a bench trial on October 21, 2011, Respondent was convicted of Conversion, a class A misdemeanor. Respondent has never appealed or otherwise challenged his conviction. He did not send a copy of the finding of guilt to the Commission. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than one year, without automatic reinstatement, effective immediately.

In In the Matter of: Patrick H. Stern, a 7-page, 4-1 opinion, the Court writes:
We find that Respondent, Patrick H. Stern, engaged in attorney misconduct by failing to provide competent representation, representing clients with conflicting interests, asserting frivolous legal positions, and engaging in deceptive practices with a court and the Commission. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least 18 months without automatic reinstatement. * * *

In this case, we find the following substantial facts in aggravation: (1) Respondent has previously been disciplined for incompetence and bringing frivolous lawsuits, see Matter of Stern, 776 N.E.2d 1208 (Ind. 2002); (2) Respondent's conduct was part of a pattern of misconduct that included failing to attain minimum competence in representing clients, filing multiple frivolous lawsuits, and misleading the court in the First Lawsuit and the Commission in its investigation; (3) instead of accepting responsibility for his actions, Respondent blames the judges in the lawsuits, the Commission, and others; and (4) Respondent has shown no insight into his misconduct.

We also observe that Respondent has shown a lack of basic competence in representing himself in this disciplinary proceeding. For instance, he has filed documents that are riddled with typographical and grammatical errors and that are very difficult to understand. In response to the Commission's verified complaint, Respondent asserted a number of frivolous affirmative defenses. In responding to the Commission's discovery requests, Respondent repeatedly deleted, renumbered, and added paragraphs to the requests. Despite several opportunities to correct deficiencies in discovery responses, he still failed to respond to some discovery requests, and he gave incomplete, inaccurate or incomprehensible responses to others. In his answer to the amended complaint, Respondent failed to respond to some allegations, responded falsely to some, and responded "denied admitted" to others. Respondent himself could not explain what "denied admitted" meant. Even after several attempts and, according to his own testimony, answering the allegations to the best of his ability, Respondent was unable to draft a legally sufficient responsive pleading.

In light of his serious deficiencies in representing clients and himself and his refusal to acknowledge any misconduct on his part, the Court has grave concerns about Respondent's current fitness to represent clients in the practice of law. We therefore conclude that Respondent should be suspended from practice and undergo a reinstatement proceeding before resuming practice. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 18 months, without automatic reinstatement, beginning August 13, 2014. * * *

Dickson, C.J., and Rucker, Massa, and Rush JJ., concur.
David, J., concurs in part but dissents regarding the discipline imposed, believing it to be insufficient.

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on: Most 2014 laws now in effect, but not online

The ILB reported yesterday:

It is July 1st, 2014. Most laws passed in the 2014 session of the General Assembly went into effect today. However, it does not appear that the copy of the Indiana Code available on the General Assembly website has been updated. * * *

This is the only source of the Indiana Code for most people.

Later yesterday:
The Indiana Code is now updated with the 2014 legislation, but inexplicably it is labeled as the 2015 Code!
Today it appears that the 2015 problem has been taken care of. Here it is, with the helpful heading: "Current Indiana Code as of the 2014 Regular Session and Technical Session."

Through the drop-down box to the upper right, you can also access the 2013 Indiana Code. The heading in this case warns the reader: "You are currently browsing an archived version of the Indiana Code. Use the drop-down in the bar above to switch to the current Indiana Code." This warning appears at the top of every title, article and chapter.

That addition of the warning is very useful. One suggestion would be also to post what year of the Code you have accessed. (Otherwise the only way I know to find out is to do as I did yesterday, when I found the Cite Table from, in that case, 2014, and checked history lines against the cite table.)

The archived earlier versions of the Indiana Code, going back to 2009, are located here, as before.

The online Indiana Code is, as stated earlier, the only source of the Indiana Code for most people. In addition, it is the source of many private compilations of the Indiana Code. But it is not the official version of the law. My understanding is that the official version of the laws of each session is that year's edition of the Acts of Indiana, which are certified to contain the exact text of the Enrolled Acts of that year.

The official version of the Indiana Code is the published, paper version, available in various libraries. It contains a certification page that its contents have been compared against the Enrolled Acts. In cases of discrepancy, the latter prevail.

In the past, when the LSA produced an online HTML version of the Indiana Code, there was opportunity for errors to creep in during the conversion. Currently, LSA is only posting a PDF version, which presumably is taken directly from the printed version, but there are still additional steps involved.

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Indiana Law

Law - "Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"

A new paper on SSRN by Samuel Weiss (h/t to Sentencing Law Blog). A quote from the abstract:

This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions.

Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court.

Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws.

State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors.

Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty.

Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems.

Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness.

The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to General Law Related

Ind. Courts - "How many same-sex couples got married in East Central Indiana?"

Robin Gibson has this story today in the Muncie Star-Press. Some quotes:

MUNCIE — Thirty same-sex couples officially got married in East Central Indiana last week before a stay issued Friday night slammed shut the briefly opened window for such weddings.

What happens next for these newly married couples and their legal status, however, remained unclear as of early this week.

U.S. District Judge Richard Young on Wednesday struck down Indiana’s ban on same-sex marriage, and ordered Indiana to begin issuing licenses to gay couples. Clerks’ offices in all but seven counties eventually did so, according to The Indianapolis Star — until the 7th U.S. Circuit Court of Appeals in Chicago issued an emergency order to stay further marriages at the request of Indiana Attorney General Greg Zoeller.

In Delaware County, where the clerk’s office began issuing marriage licenses to same-sex couples mid-morning last Thursday, a total of 24 licenses were issued and 21 of those were returned post-wedding to be recorded.

Henry County had 12 licenses issued and five recorded. Jay County issued four licenses and recorded two before the stay was announced on Friday. Randolph County issued two licenses and had one returned. The single license issued in Blackford County was recorded.

In Marion County, where the clerk began issuing licenses shortly after the ruling was announced Wednesday and kept the office open late to meet demand, more than 500 licenses were issued to same-sex couples, The Indianapolis Star reported.

East Central Indiana clerks’ offices differed this week in their answers to the question of whether licenses could still be returned to them and/or recorded after the stay.

East Central Indiana clerks’ offices differed this week in their answers to the question of whether licenses could still be returned to them and/or recorded after the stay. While many reported that they weren’t accepting licenses from same-sex couples after Friday’s announcement — at least until further word from state officials — the Delaware County clerk’s office reported Tuesday that, as long as a wedding had been held before the stay was announced (7:57 p.m. Friday, according to arrival time for notice received from the attorney general’s office), and the paperwork was turned in within the same 60-day window for opposite-sex marriage licenses, the office would still accept returned licenses.

How the office might know what time the marriage was performed, however, was uncertain. Unitarian Universalist Church of Muncie’s community minister Julia Corbett-Hemeyer, who performed five quickly scheduled weddings for same-sex couples last week, noted Tuesday that the license forms didn’t include a place to list time for the wedding.

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Indiana Government

Ind. Decisions - "Appeals court orders state to recognize one same-sex marriage"

Tim Evans of the Indianapolis Star has a good story in this morning's paper on yesterday's decision by the 7th Circuit on an emergency motions to lift the stay of district Judge Young's order for Indiana's recognition of same-sex marriages, with respect to one couple. A few quotes:

A three-judge panel from the federal appeals court in Chicago ordered the unique recognition for the Munster couple a day after it announced plans to expedite the appeal of U.S. District Judge Richard Young's ruling last week that found Indiana's ban unconstitutional.

Carl Tobias, a University of Richmond School of Law professor who has been tracking same-sex marriage legal cases across the country, said this is the first case he is aware of in which a federal appeals court has ordered a state to recognize the marriage of a gay couple while an appeal is pending. * * *

"It is time for the state of Indiana to leave Niki and Amy in peace and not subject them and their marriage to any more stress and uncertainty as this case proceeds," said Paul D. Castillo, staff attorney for Lambda Legal, a national gay-rights legal firm that represented the couple in its lawsuit against the state. * * *

Attorneys from Lambda Legal had filed a request Monday seeking an emergency order granting the couple recognition. A spokeswoman criticized Attorney General Greg Zoeller, who is leading Indiana's push to overturn Young's ruling.

"Attorney General Zoeller's callous disregard for this family's circumstances is heartless, cruel, and unbecoming of a public official charged with representing the interests of all Hoosiers," Camilla Taylor said. "He is taking steps that no other attorney general anywhere in the country has in fighting to deny respect to the marriage of only one couple facing very significant health issues."

Zoeller's office issued a statement Tuesday indicating he sympathized with the couple and wished there was some wiggle room under the law to help them.

"The state has extensively researched this matter and sincerely wishes it found a provision within our state's statutes that would allow for some extraordinary relief or humanitarian exception to the rule of law that would grant what petitioners request," Zoeller said. "If this court can find an exception that would apply, this circumstance surely warrants its use."

Spokeswoman Staci Schneider said the attorney general's office respects the court's ruling in this matter and would have no further comment at this time.

More from the story:
The decision to expedite the appeal issued late Monday will speed up the process by about six weeks, with the final deadline for filing documents moved from Sept. 19 to Aug. 5. * * *

[Carl Tobias, a University of Richmond School of Law professor who has been tracking same-sex marriage legal cases across the country] said the 7th Circuit will probably be the fourth appeals court to rule on the issue. That could put it in the mix with others for Supreme Court review.

"If the 7th Circuit were to issue (its opinion) after too many others or after too much time had passed, the opinion may miss out on being the one reviewed," he said.

Posted by Marcia Oddi on Wednesday, July 02, 2014
Posted to Ind. (7th Cir.) Decisions

Tuesday, July 01, 2014

Ind. Decisions - Will AG Zoeller appeal the 7th Circuit's grant of an emergency stay, given his earlier statement?

Will AG Zoeller appeal the 7th Circuit's grant of an emergency stay with respect to the Sandler-Quasney plaintiffs to the SCOTUS, given his statement of regret earlier today in the State's response to the plaintiff's emergency stay request:

[T]he State has extensively researched this matter but can find no provision within our legal system that would allow for some extraordinary relief, or humanitarian exception to the rule of law that would grant what petitioners request. If this Court can find such an exception that would apply, this circumstance surely warrants its use.

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Ind. (7th Cir.) Decisions

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

Updating this post from earlier today, the 7th Circuit has ordered the State of Indiana "to recognize the validity of the 2013 marriage between appellees Amy Sandler and Nikole Quasney on an emergency basis pending further order of the court."

Here is the very brief order, thanks to Equality Case Files.

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - Generate your own SSM ruling; an opinion generator

Slate's Outward, by Mark Joseph Stern:

is offering a chance to create the ultimate gay marriage opinion. We’ve taken the most notable portions from a number of these opinions; just choose the style and substance of your ruling, and we’ll give you an opinion to match. Every sentence is taken from a real gay marriage opinion, though some are lightly edited.

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Courts in general

Ind. Law - "How much time will a criminal serve now that Indiana’s new criminal code is in effect?"

The Herald Times GovTracker today has a brief article on the new criminal code, including:

If you’re curious about how much time an offender will serve, you can use the department’s [ILB: actually it looks to be the Court's] handy calculator to figure out how much credit time an offender will get for days served.
The story also reports:
The state also updated the online code, including both the old code and the new code in the updated version, a useful tool for those that want to compare the changes.

The Monroe County Prosecutor’s Office uploaded the new code in its entirety online as well.

The ILB can't recommend either the link or description in the first paragraph, as it leads to the outdated 2013 version of Title 35 (!!!). [Read this warning carefully]

However, the link in the second paragraph to the Monroe County Prosecutor's copy of all the HEA 1006 amendments is very useful.

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Indiana Law

Ind. Gov't. - "What now for those in same-sex marriage limbo?"

Tim Evans and Tony Cook have posted this Indianapolis Star story this afternoon, looking at some of the issues.

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Indiana Government

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

Updating yesterday's ILB post, here, via Equality Case Files, is the timely filed response of the State of Indiana to the "Emergency Motion to Lift the Court's Stay in Part" with respect to the Sandler-Quasney plaintiffs. The response states that:

Indiana marriage law, which both the Supreme Court and this Court have indicated should remain in force during the pendency of same-sex marriage appeals, permits no hardship exceptions for recognition of same-sex marriages. Indeed, mindful that this request involves just one couple in very narrow and sympathetic circumstances, and that it is not merely the Court and parties but the general public that is watching this case, the State has extensively researched this matter but can find no provision within our legal system that would allow for some extraordinary relief, or humanitarian exception to the rule of law that would grant what petitioners request. If this Court can find such an exception that would apply, this circumstance surely warrants its use.
After that statement, the State's response stands on its prior arguments, which it appends in full (166 pages total) to the response.

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - Kentucky federal district court invalidates Kentucky constitutional ban against SSM

Andrew Wolfson of the Louisville Courier Journal posted this story a few minutes ago. Some quotes:

A federal judge today ruled that same-sex couples have a right to marry in Kentucky.

"In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted," U.S. District Judge John G. Heyburn II wrote, invalidating Kentucky's constitutional amendment banning gay marriage.

Heyburn held in February that Kentucky must recognize gay marriages performed in other states.

Heyburn put his ruling today on hold, staying it pending the outcome of several gay marriage cases at the U.S. 6th Circuit Court of Appeals. * * *

The decision "forcefully lays to rest that Kentucky's anti-gay marriage laws were based on anything but invidious discrimination against homosexuals," said Dan Canon, one of their lawyers.

Attorney Leigh Latherow, whose Ashland firm was hired by Gov. Steve Beshear to defend the ban after Attorney General Jack Conway refused to do so, referred questions to a spokesman for the governor, Terry Sebastian, who said only that state would appeal.

Heyburn rejected the only justification offered by lawyers for Beshear — that traditional marriages contribute to a stable birth rate and the state's long-term economic stability.

"These arguments are not those of serious people," he said.

Heyburn held that the ban on gay marriage within Kentucky violates the constitutional guarantee of equal protection under the law and that there is "no conceivable legitimate purpose for it."

He held that the state's 2004 constitutional amendment and a similar statute enacted in 1998 deny gay couples lower income and estate taxes; leave from work under the Family and Medical Leave Act, family insurance coverage; and the ability to adopt children as a couple.

"Perhaps most importantly," he added, the Kentucky law denies same-sex couples the "intangible and and emotional benefits of civil marriage."

Heyburn stayed the ruling until the Cincinnati-based appeals court gay-marriage cases from Kentucky and three other states. Oral arguments are scheduled for Aug. 6.

Here, thanks to Equality Case Files, is a copy of the opinion.

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Courts in general

Ind. Courts - Whither the new probation standards?

A long-time ILB attorney/reader from a rural county writes today:

I just printed the Probation Standards from the Indiana Judicial Center page. It is still the old standards from 2001. Is this not the effective date of the new standards?? Embarrassing lack of publication??
I asked where specifically he had looked and learned that from this Indiana Judicial Center page, he had clicked "Probation Standards" in the right column. The result: the March 9, 2001 standards.

So I looked and found this article from Court Times, dated June 26, 2014, titled "Indiana Probation Standards revised effective July 1st." The article states:

The Revised Standards are located on the Indiana Judicial Center’s website.

I followed the link to a page with a lot of documents, including one titled "Indiana Probation Standards," with this link. But it leads to the same 2001 standards!

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Courts in general

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

For publication opinions today (1):

In James Brown v. State of Indiana, a 7-page opinion, Judge Baker writes:

At approximately 2:30 AM on September 2, 2013, James Brown ran into a woman on the street because he was drunk and seemingly unaware of his surroundings. In this case, we are asked to determine whether or not his actions violated the Indiana public intoxication statute.

James Brown appeals his conviction for Class B misdemeanor public intoxication.1 He contends that the evidence is insufficient to prove public intoxication because the State cannot demonstrate that he meets one of the four necessary conduct elements set forth in the statute. More specifically, he argues that he did not breach the peace and was not in imminent danger of breaching the peace. Notwithstanding his contention, the evidence demonstrates that Brown showed signs of intoxication, such as glassy and bloodshot eyes, a staggered walk, and the odor of alcohol. Moreover, he walked directly into a woman after exiting the combined entrance to Sky Bar/Caps and Dolls/Crackers Comedy Club in Indianapolis. As a result, the woman began to yell at him and attracted the attention of a nearby officer. This evidence is sufficient to prove public intoxication because Brown demonstrated signs of intoxication while he was in a public place, and he harassed, annoyed, or alarmed another person. Therefore, we affirm the judgment of the trial court.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Pence must decide whether to recognize gay marriages"

Jim Shella of WISHTV8 has this story yesterday:

INDIANAPOLIS (WISH) — What happens to the hundreds of gay marriages that took place in Indiana last week?

Because a federal appeals court has placed a judicial stay on legalized gay marriage there is confusion.

The federal government will recognize the same-sex marriages conducted in Indiana, but it’s up to the governor to decide if state government will also recognize them. It’s a decision that can affect tax filing, job benefits, hospital visitation and more.

Gov. Mike Pence is researching what to do.

“We’re obtaining counsel from our general counsel’s office as well as the attorney general,” he said, “to determine the right way forward for the state of Indiana and the programs in the state of Indiana. So I’ll be making that decision and making that public in the days ahead.”

Pence’s support of traditional marriage is well known but he said that’s not part of his calculation.

“How I feel about the issue is really secondary to what the law requires,” he said.

See also this June 26th ILB post headed: "Executive branch gets commendably clear direction from Gov. Pence on complying with the same-sex marriage order."

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Indiana Government

Ind. Gov't. - AG Zoeller issues guidance to clerks

Niki Kelly of the Fort Wayne Journal Gazette has tweeted that AG Zoeller has offered guidance to the county clerks:

Here is Kelly's just posted story in the FWJG.

Readers will recall that the AG' office issued guidance to the Clerks on June 25th, including:

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.
ILB: Many county clerks last week found the second sentence ambiguous ...

Today the AG's office has sent out additional guidance. Here are some quotes from the cover letter (ILB emphasis):

During the litigation, the Attorney General’s Office as state government’s lawyer has kept in regular communication with county clerks offices in the 92 Indiana counties. County clerks have asked how they should address situations involving a number of same-sex marriage licenses they granted and/or marriages performed between mid-day June 25, when the district court invalidated the marriage definition limitation, and late afternoon June 27, when the 7th Circuit stayed the district court’s order.

With the caveat that the Attorney General’s Office does not represent county clerks and cannot provide private legal advice, the AG’s Office conducted legal research and offered guidance to county clerks today:

1. We have not concluded, nor suggested that clerks conclude, that any same-sex marriage licenses issued or same-sex marriages solemnized between June 25 and June 27 are void or invalid, regardless of whether they have been solemnized or recorded. The validity is undetermined and such issues might have to be determined by a court later.

2. For situations where a marriage license was obtained from the county clerk before the stay order was issued but the signed marriage license is returned to the clerk after the stay, then the guidance is that clerks should respect the 7th Circuit’s stay order and refrain from further processing or recording solemnized duplicate same-sex marriage certificates.

3. Likewise, the guidance is that county clerks, judges and other officials who solemnize marriages should refrain from performing any additional marriages of same-sex couples – even if a license were issued during the two-and-a-half-day window before the stay – until there is a conclusive ruling in the appeal.

4. County clerks have the discretion to issue refunds of the marriage license fees that applicants paid, on request. Applicants may wish to have Clerks hold the licenses and solemnized certificates pending resolution of the appeal. The guidance is that clerks follow their normal refund practice if a refund is requested.

The AG’s Office also recommended each clerk consult with their county attorney who provides legal representation for the clerk. Although not an official legal opinion of the Attorney General’s Office, this guidance is intended to help clerks navigate unfamiliar legal terrain. Guidance is subject to change based on future rulings of the court or future legislative action. * * *

You can attribute this statement to:.

Bryan Corbin
Public Information Officer
Office of the Indiana Attorney General

Notice that the Attorney General himself is not quoted in the release, although he generally is.

Attached is the actual June 30th document providing "additional guidance."

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Indiana Government

Ind. Law - "State criminal code changes first in 35 years " [Updated]

James D. Wolf Jr. reported yesterday in the Gary Post Tribune on the changes that go into effect today. The useful long story begins:

VALPARAISO — The Porter County Prosecutor’s Office spent the last full week of June training the county’s more than 300 police officers in the state’s new criminal code.

Officers need to know how to charge crimes under House Bill 1006, which changes Tuesday the classifications of felonies from Class A, D, C, and D to Levels 1-6.

“We had to train so late in the month because we didn’t have time,” Porter County Prosecutor Brian Gensel said.

His deputies spent June 18-20 downstate learning the latest tweaks to the first major changes in Indiana criminal code since 1979.

Charging on the new system is based on when the crime happened, so a crime that happens June 30 will still be charged under the old system, even if it’s charged after July 1.

“The intent of the revision was to reduce the number of nonviolent and drug-addicted inmates in the Department of Corrections while establishing provisions to increase the sentences of the ‘worst of the worst’ murderers, violent felons and predators,” Gensel said by email last week.

The legislature left penalties for 250 felonies unchanged, including murder, which stands as its own felony category, while 90 drug and property felonies have decreased penalties.

The lawmakers believed that “drug defendants that were more drug addicts than drug dealers would be better served through community corrections programs,” Gensel said.

That includes therapy, house arrest and other alternatives.

“We have one of the best and most extensive community corrections programs in the state,” Porter Superior Judge Roger Bradford said. “So we don’t send nonviolent felons to the Department of Corrections as often as others.”

[Updated at 9:39 AM] See also this lengthy story from last week by Madeline Buckley of the South Bend Tribune, headed "New sentencing law's local impact unclear."

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Indiana Law

Ind. Law - Most 2014 laws now in effect, but not online [Updated]

It is July 1st, 2014. Most laws passed in the 2014 session of the General Assembly went into effect today. However, it does not appear that the copy of the Indiana Code available on the General Assembly website has been updated as of this posting at 9 AM.

For instance, I looked for IC 2-5-1.1-6.3, added in 2014, and could not locate it, although the index page says 2014.

This is the only source of the Indiana Code for most people.

[Updated at 12:07 PM] The Indiana Code is now updated with the 2014 legislation, but inexplicably it is labeled as the 2015 Code!

Posted by Marcia Oddi on Tuesday, July 01, 2014
Posted to Indiana Law