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Friday, August 29, 2014

Ind. Decisions - Supreme Court stays 2nd Lake right-to-work ruling, will hear 1st on Thursday

The Supreme Court has issued a stay in the second Lake County right-to-work case, according to a brief AP story late this afternoon:

INDIANAPOLIS — The Indiana Supreme Court has ordered a northwest Indiana judge's ruling striking down the state's right-to-work law be stayed.

The ruling signed Friday by new Chief Justice Loretta Rush stays an order by Lake County Judge George Paras in July that determined the law violates the state constitution by forcing unions to provide services to workers without payment. The order stays that ruling until the conclusion of the state's appeal of the ruling or until the high court issues a different ruling.

The Supreme Court also declined to consolidate that case with a similar case involving Indiana's right to work law because oral arguments are scheduled for Thursday in one case and briefs haven't been filed in the other.

For background, see this post on the Zoeller, et al. v. James Sweeney, et al. oral argument scheduled for Thursday, Sept. 4th, and its links.

From a release from AG Zoeller's office:
Today the Indiana Supreme Court granted the State’s unopposed motion to stay Judge Paras’ judgment in the United Steel case. The stay means Judge Paras’ ruling will not be in force until the appeal of the United Steel case is concluded or until further order of the Supreme Court. In September of last year, the separate judgment in the Sweeney case also was stayed. With both Lake County court rulings now stayed for the time being pending appeal, the State is not legally prevented from enforcing the Indiana right-to-work law’s provisions.

Meanwhile, the Indiana Supreme Court today also denied the Sweeney plaintiffs’ motion to consolidate their case with the United Steel case. The Supreme Court noted the Sweeney appeal already is fully briefed and scheduled for oral argument this Thursday, Sept. 4, whereas briefs have not yet been filed in the United Steel appeal.

Since the legal issues in the two lawsuits are similar and interrelated, the State of Indiana had consented to the Sweeney plaintiffs’ request to consolidate two cases as long as the State’s stay request also was granted. But in light of Court’s order today denying consolidation, the State will proceed with the original date for oral argument on Sweeney next Thursday in the Indiana Supreme Court. The appeal in United Steel will occur on a different timetable.

All five Supreme Court justices concurred in both of today’s rulings – granting the stay and denying consolidation -- that were signed by Indiana Chief Justice Loretta H. Rush.

ILB: As of this writing, neither of today’s rulings – granting the stay and denying consolidation - are available on the Supreme Court website.

Posted by Marcia Oddi on Friday, August 29, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Former Indiana law blogger under disciplinary commission scrutiny

"Indiana high court warns Richmond attorney" is the headline to this story today by Bill Engle in the Richmond Palladium Item. The long story begins:

The Indiana Supreme Court has threatened sanctions against Richmond attorney E. Thomas Kemp for his refusal to cooperate with an apparent investigation being conducted by the court's Disciplinary Commission.

The court this week gave Kemp 10 days to explain why he has failed to cooperate with the commission's investigation into grievances filed against him.

Kemp, who formerly worked in private practice with an office at 134 S. Eighth St. in Richmond, worked in the Wayne County Public Defender's office from July 2013 until he resigned July 15 of this year.

The supreme court order threatens to suspend Kemp's license to practice law in Indiana. Kemp's license was suspended in June for his failure to meet ongoing educational requirements.

It was not clear Thursday what other sanctions the court could take against Kemp if he fails to respond to its latest order. Records of disciplinary investigations are not open to the public.

Kara Kenney of WRTV 6 broke this story on Wednesday evening. Here is the story, plus video.

ILB: E.Thomas Kemp, Doug Masson, and I all started blogging at about the same time, over ten years ago. A link to Kemp's blog, KEMPlog, used to appear in the right-hand column of the ILB, as an Indiana resource, but I removed it a number of years ago because it appeared to be moribund. (The ILB still links to Masson's blog.) Here is an ILB reference to Kemp's blog, from 2006.

Posted by Marcia Oddi on Friday, August 29, 2014
Posted to Indiana Law

Thursday, August 28, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In Nightingale Home Healthcare, Inc. v. Carey Helmuth and Physiocare Home Healthcare, LLC, a 10-page opinion, Judge Riley writes:

Issue: Whether the trial court properly found, as a matter of law, that a ten-day break in employment more than two years ago marked the commencement of Helmuth’s Non-Compete Agreement.

Nightingale is an Indiana corporation engaged in the business of providing in-home healthcare, hospice care, and private duty care to Indiana residents. On January 24, 2008, Helmuth commenced his employment with Nightingale as a patient advocate, promoting Nightingale’s home healthcare services in the community and to facilities and physicians who were in a position to refer patients. As a condition of his employment, Helmuth was required to enter into a Non-Compete Agreement, which protects Nightingale’s proprietary and confidential information and geographically restricts Helmuth’s ability to unfairly compete with Nightingale for a period of two years after separation from the company. Every Nightingale employee signs a Non-Compete Agreement, and it is known and understood by all employees that such agreements are an essential term and condition of their employment.

On October 16, 2009, Nightingale terminated Helmuth’s employment for “substandard work” and “violation of company policies.” (Appellant’s App. p. 250). After his termination from Nightingale, Helmuth ceased to receive compensation, benefits, or perform tasks for the company. He began the process to collect unemployment compensation benefits. However, based on conversations between Nightingale and Helmuth following his termination, Nightingale offered “to revoke his termination” and have him “return to work in his prior position subject to the [Non-Compete Agreement] and the prior terms and conditions of his employment.” (Appellant’s App. p. 186). On October 26, 2009, Nightingale re-hired Helmuth. Helmuth was never asked to, nor did he sign a new Non-Compete Agreement.

Helmuth’s employment with Nightingale ended on March 5, 2012. Almost immediately thereafter, Helmuth accepted employment with Physiocare as a patient advocate, a similar position to the one he held during his employment with Nightingale and in the similar geographical market he previously worked in. * * *

Mindful that non-compete agreements are disfavored by law and strictly construed against the employer, we conclude that there is no issue of material fact that Helmuth was indeed separated from Nightingale on October 16, 2009, which marked the starting point of the two-year restrictive period of the Non-Compete Agreement. Absent the execution of a new non-compete agreement on October 26, 2009 or a written extension of the prior Non-Compete Agreement, Helmuth’s restrictive period ended on or about October 16, 2011. Therefore, at the time of entering into an employment relationship with Physiocare in May of 2012, Helmuth was no longer bound by the provisions of the Non-Compete Agreement.

NFP civil opinions today (3):

In Roger Long v. Advanced Pain Management (NFP), a 9-page, 2-1 opinion, Judge Riley concludes:

Thus, finding no basis on which to affirm the trial court’s decision, we conclude that the trial court erred in denying Long’s motion. Therefore, we reverse and remand this case for further proceedings.

ROBB, J. concurs
BRADFORD, J. dissents with separate opinion [which reads in full] I respectfully dissent. Given our preference to decide cases on the merits, the discretion afforded to a trial court in managing its docket, and the fact that I believe that the trial court was in the best position to gauge whether Long’s request for dismissal of the underlying action pursuant to Indiana Trial Rule 41(E) should have been granted, I would affirm the judgment of the trial court.

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

In re the Involuntary Termination of the Parent-Child Relationship of: A.K. & H.K. (minor children) and A.K. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Ryan Worline v. State of Indiana (NFP)

David K. Asiedu v. State of Indiana (NFP)

Mitchell Mulnix v. State of Indiana (NFP)

Monisha Rhodes v. State of Indiana (NFP)

Daryl Gilbert v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 28, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Legal smackdown: Judge offers sharp rebuke to gay marriage ban" Plus more.

That is the headline to this editorial today in the Fort Wayne Journal Gazette:

Indiana's effort to reverse an order that overturned the state's ban on gay marriage has squandered public time and resources. But under relentless questioning from Judge Richard Posner and two of his colleagues, the state's presentation before a 7th Circuit Court of Appeals panel Tuesday went from wasteful to embarrassing.

Posner is a jurist and legal scholar of the first order. Appointed to the court in 1981 by President Ronald Reagan, he has written almost 40 books and is a senior lecturer at the University of Chicago Law School. He is generally regarded as a moderate conservative.

But there was nothing moderate about Posner's grilling of Indiana Solicitor General Thomas Fisher and attorney Timothy Samuelson, who represented the state of Wisconsin, which has joined with Indiana in attempting to maintain their bans.

As The Journal Gazette's Niki Kelly reported, Fisher argued that Indiana needs to limit marriage to heterosexuals so that unintended children would be raised in durable relationships.

But Posner pointed out that Indiana allows sterile heterosexual couples to marry, and that it allows first cousins older than 65 to marry precisely because they're unable to procreate at that age. Pointing out that gay couples are allowed to adopt children, he asked Fisher what benefit to the state could outweigh the harm done to children when their adopting parents are not allowed to marry. At various points, Posner called Fisher's arguments “pathetic” “ridiculous” and “absurd.”

But possibly the most devastating exchange occurred when Samuelson attempted to make what Posner called “the tradition argument.”

Referring to a 1967 decision by the Supreme Court, Posner said, “There was a tradition of not allowing black and white, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?”

The three-judge appeals panel may take several weeks to deliver its ruling, and the issue is likely to be taken up by the Supreme Court during the coming year.

But it's unlikely that anyone, at any level, will do a better job of shredding the arguments for banning gay marriage better than the judges in Chicago did Tuesday.

From this column last Sunday (before the Tuesday oral argument) by Lesley Weidenbener in the Louisville Courier Journal:
INDIANAPOLIS – Does it even matter?

That’s the question I’ve been mulling as attorneys prepare to argue the constitutionality of Indiana’s law banning same sex marriage before a three-judge panel of the 7th Circuit Court of Appeals on Tuesday.

After all, two other federal appeals courts have already ruled on the matter — both deciding that such bans violate the U.S. Constitution’s equal protection clause. And a third appeals court is expected to rule anytime.

Obviously, those decisions only apply to the states in their regions — not Indiana. But the U.S. Supreme Court is expected to take up one or more of those cases as soon as this fall and its decisions become the law of the land.

So does what the Chicago-based 7th Circuit decide even make a difference? Indiana Attorney General Greg Zoeller says yes. He called the 7th Circuit — which covers Indiana, Illinois and Wisconsin — a “very strong court” with a number of influential judges.

“Quite frankly, a number of my colleagues would like to hear from the 7th Circuit,” he said.

And finally, Mark Joseph Stern of Slate yesterday put together a number of clips from Tuesday, in this not-to-be-missed article headed: "Listen to a Conservative Judge Brutally Destroy Arguments Against Gay Marriage."

Posted by Marcia Oddi on Thursday, August 28, 2014
Posted to Indiana Courts

Environment - 2014 Edition of Indiana Environmental Statutes now available!

This is the new, 2014 edition of the annual publication, the Indiana Environmental Statutes, that I edit and publish each year. The publication is sponsored by the Environmental Law Section of the Indiana State Bar Association.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 566 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online
(a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Thursday, August 28, 2014
Posted to Environment

Wednesday, August 27, 2014

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Marquise Lee v. State of Indiana , a 12-page opinion on rehearing, Judge Najam writes:

Marquise Lee petitions for rehearing after we affirmed his conviction for attempted aggravated battery, a Class B felony, in a not-for-publication memorandum decision. See Marquise Lee v. State, No. 49A02-1310-CR-869, 2014 WL 2187702 (Ind. Ct. App. May 27, 2014) (“Marquise Lee I”). Marquise and two of his confederates, Latoya Lee and Billy Young, were each charged with the murder of Ramon Gude, they were tried jointly to the bench, and, on their joint motion, the trial court entered an involuntary dismissal of the State’s murder charges. However, in doing so the court “kept the case open for consideration of lesser included battery charges.” Id. at *1. The court then found each of the three defendants guilty of attempted aggravated battery, and the defendants separately appealed. Following this panel’s decision, another panel of this court unanimously reversed Young’s conviction. Young v. State, ___ N.E.3d ___, 2014 WL 2616189 (Ind. Ct. App. June 12, 2014), reh’g denied (July 22, 2014). A third panel of this court unanimously affirmed Latoya’s conviction and sentence. Latoya Lee v. State [NFP], No. 49A02-1310-CR-867, 2014 WL 2587313 (Ind. Ct. App. June 10, 2014), reh’g granted and decision aff’d (August 27, 2014) (“We grant rehearing to acknowledge our awareness of the decision in Young but decline to reverse our earlier decision . . . as [Latoya] did not raise any issue concerning the charging information on appeal.”). Marquise now petitions for rehearing and asks that this panel follow the Young panel’s reasoning. We decline to do so and affirm our prior decision. * * *

In sum, we decline Marquise’s request to follow the reasoning of the Young panel. We hold that Marquise did not preserve this issue for appellate review and that the trial court did not commit fundamental error when it entered judgment against Marquise for attempted aggravated battery as an inherently lesser included offense to the State’s charge of murder. As such, we grant Marquise’s petition for rehearing and we affirm our prior decision.

Some ILB observations: The panels are:Today's opinion on rehearing is For Publication, while the original May 27, 2014 opinion is Not for Publication. Today's opinion cites Latoya Lee v. State, which is NFP. A week ago we saw Brandon Brummett v. State of Indiana (NFP), a one-paragraph opinion on rehearing, while the original June 2nd opinion is For Publication.

NFP civil opinions today (4):

In Cohen & Malad, LLP v. John P. Daly, Jr., Golitko & Daly, P.C. and Golitko Legal Group, P.C. (NFP), a 15-page, 2-1 opinion, Judge Baker writes:

In this case, faced with a situation in which appellant-defendant John Daly took twenty-four cases with him when he left the firm of appellant-plaintiff Cohen & Malad LLP (C&M), we are asked to examine the correct apportionment of attorney fees. C&M appeals the trial court’s determination that it was not due quantum meruit compensation from appellee-defendants John Daly Jr., Golitko & Daly, P.C. (Golitko & Daly), and Golitko Legal Group P.C. More particularly, C&M argues that the trial court failed to apply the quantum meruit recovery rule established by Galanis v. Lyons & Truitt and contends that the trial court erred in holding that C&M failed to establish any right of recovery against Golitko & Daly. We find that C&M failed to prove that Daly was unjustly enriched to its detriment and conclude that C&M failed to establish any right of recovery against Golitko & Daly. Therefore, we affirm the judgment of the trial court. * * *

BARNES, J., concurs, and CRONE, J., dissents with opinion. [ which begins, at p. 14] I respectfully dissent. While it may be true that C&M was “very well compensated” for Daly’s time while he was a salaried associate at the firm, that compensation is simply irrelevant to C&M’s quantum meruit claim for the 1000-plus hours that C&M’s attorneys contributed to the twenty-four cases that Daly took with him to Golitko & Daly. Pursuant to Galanis, C&M should be compensated for the useful work that its attorneys performed on those cases, and it should be able to recover that compensation from Golitko & Daly, which possesses the disputed fees and otherwise would be unjustly enriched by C&M’s efforts.

Jaro Mayda II v. Melinda D. Barnette (NFP)

Layne L. Dellamuth and Anita M. Dellamuth v. Ken's Carpets Unlimited, Inc. d/b/a Carpets Unlimited (NFP)

Evanston Insurance Company and Markel Corporation v. Samantha Meeks Family Practice, Inc., Samantha Meeks, and George Edwin Grant, et al. (NFP)

NFP criminal opinions today (3):

Frank Blythe v. State of Indiana (NFP)

Thomas Walter Gorski v. State of Indiana (NFP)

Latoya C. Lee v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 27, 2014
Posted to Ind. App.Ct. Decisions

Tuesday, August 26, 2014

About this Blog - ILB gone fishing

Expect little ILB activity the rest of the week.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to About the Indiana Law Blog

Ind. Decisions - Supreme Court decides one today

In Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louise Cochran, Deceased, a 7-page, 5-0 opinion, Justice Dickson writes:

This case presents a question of first impression: whether Indiana's Medical Malpractice Act's cap on attorney fees from a Patient Compensation Fund award also applies to reduce the Fund's liability. In this adult wrongful death medical malpractice case, the trial court ordered payment by the Fund to the Estate, without any reduction to reflect the limitation on attorney fees. In a divided opinion, the Court of Appeals reversed and remanded. Ind. Patient's Comp. Fund v. Holcomb, 998 N.E.2d 989 (Ind. Ct. App. Nov. 27, 2013). We granted transfer and now affirm the trial court. * * *

In conclusion, we decline to construe the Fee Cap Provision of the Indiana Medical Malpractice Act, Ind. Code § 34-18-18-1, to reduce the Patient's Compensation Fund's liability to a plaintiff AWDS claimant. The Fee Cap Provision applies only to cap the fees that the plaintiff's lawyer may charge his or her client as to the award the client receives from the Fund, but it does not lessen the Fund's liability to a claimant. We affirm the judgment of the trial court.

Oral argument was held 6/12/14.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Indiana, Wisconsin Lawyers Get Tough Questions Over States’ Marriage Bans"

Award-winnning reporter Chris Geidner of Buzzfeed, who just tweeted "Y'all. I've seen 10 federal appellate arguments over marriage, and I ain't seen nothing like today," has this story about today's arguments. Some quotes:

CHICAGO — Lawyers for Indiana and Wisconsin on Tuesday tried, with little success, to explain to three judges why their laws banning same-sex couples from marrying were constitutional.

In the most lopsided arguments over marriage bans at a federal appeals court this year, the 7th Circuit Court of Appeals judges clearly were ready to strike down the bans — with the only real question being what reasoning they will use to do so.

From the start of the arguments over Indiana’s ban at a little past 9:30 a.m. until the end of the arguments over Wisconsin’s ban at 11:11 a.m., 7th Circuit Judges Richard Posner, Ann Claire Williams, and David Hamilton pounded the two lawyers defending the bans with dismissive, incredulous questions about the basis and purpose for their respective states’ bans.

For the lawyers representing the same-sex couples, the judges almost assumed that the bans violate the constitutional guarantee of equal protection of the laws. The only question in the hearing Tuesday was whether the bans also violated due-process guarantees because marriage is a fundamental right.

Within minutes of Indiana Solicitor General Thomas Fisher taking to the podium to start his arguments, the tone was set.

“Why do you prefer heterosexual adoption to homosexual adoption?” Judge Posner, appointed to the bench by President Reagan, asked. When Fisher began responding that the marriage laws were unrelated to adoption, Posner was almost vitriolic in his response, saying of the state’s treatment of the children of same-sex couples, “You want them to be worse off.”

The reason for Posner’s unbending focus on the impact of the marriage ban became clear later in the arguments, when he talked about the “harrowing” stories of the discrimination faced by the children of same-sex couples that were detailed in the Family Equality Council’s amicus curiae, or friend-of-the-court, brief submitted in the Wisconsin case.

During Fisher’s rebuttal time, generally used to respond to arguments made by opposing counsel, Posner returned to the issue of the children, describing the amicus brief and asking Fisher, “It didn’t make an impression?”

At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”

Remarkably, Wisconsin’s counsel fared worse.

There is much more in the story.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Judges quiz state about gay marriage ban's impact on kids"

Here is the story posted by Jill Disis and Tim Evans of the IndyStar.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Same sex marriage bans come under tough questioning"

Here is the story posted by the NWI Times staff. A few quotes:

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to 'tradition' as the underlying justification for barring gay marriage.

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination."

Posner frequently cut off Indiana Solicitor General Fischer, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

The answer has to do with "procreation," Fisher answered.

"All this is a reflection of biology," Fisher said. "Men and women make babies, same-sex couples do not... we have to have a mechanism to regulate that, and marriage is that mechanism."

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Indiana, Wisconsin defend gay-marriage bans: Judge asks for reason behind state laws"

Here is the preliminary version of Niki Kelly's coverage today for the Fort Wayne Journal Gazette of the State's appeal of district Judge Young's ruling in favor a same-sex marriage. Some quotes:

The questioning by the 7th Circuit Court of Appeals judges was hard-hitting – using terms such as “ridiculous,” “absurd,” and saying the state’s attorneys were talking in circles.

“Don’t you have to have some empirical or common-sense reason to ban marriage?” asked Judge Richard Posner, who most actively questioned the lawyers.

“What is the benefit of the law? Who is being helped by this law if anyone? What is the harm of allowing these people to marry? Does it hurt heterosexual marriage?”

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - 7th Circuit decides one today

In Roy Smith v. Richard Brown (ND Ind., Moody), a 17-page opinion, Judge Tinder writes:

Roy A. Smith appeals the district court’s denial of his habeas petition, through which he seeks to set aside his Indiana criminal conviction due to allegedly ineffective assistance of counsel. Although we agree that it appears Smith’s counsel was particularly deficient, Smith has failed to demonstrate how his lawyer’s substandard effort prejudiced his case in light of the overwhelming evidence against him. We therefore affirm the district court’s judgment.

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

Ind. Courts - Here is the 7th Circuit oral argument in the Indiana cases

Here is the oral argument in the Indiana cases. The first voice you hear is Judge Posner.

And here is the Wisconsin oral argument.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 8 today (and 7 NFP)

For publication opinions today (8):

In In re the Marriage of: Wade R. Meisberger v. Margaret Bishop f/k/a Margaret Meisberger, a 13-page opinion, Judge Brown writes:

Wade Meisberger (“Father”), pro se, appeals, the trial court’s Order on All Pending Issues denying his Motion to Modify Parenting Time, as well as his motion to correct error. Father raises one issue which we revise and restate as whether the court erred in denying his Motion to Modify Parenting Time and motion to correct error. We remand.
In Daryl Schweitzer and Lynn Schweitzer v. American Family Mutual Insurance Company and Jennifer Gholson Insurance Agency, a 20-page opinion, Judge Brown writes:
Based upon the record, we find the circumstances do not constitute a special relationship between Gholson and the Schweitzers and no special circumstances exist which would give rise to a duty to advise. Accordingly, Gholson was under no duty to advise the Schweitzers about the adequacy of the coverage or any alternative coverage which may have been available, and Gholson did not breach her general duty. See Myers, 921 N.E.2d at 882-890. Further, Gholson was under no duty to provide a replacement cost estimate, and an expectation of full replacement coverage does not in itself impose a duty on an agent to provide advice to an insured regarding the amount of coverage that should be purchased. Id. at 889. The trial court did not err in granting summary judgment in favor of Gholson. * * *

Based upon the designated evidence set forth above and in the record, we find the Schweitzers are not entitled to additional payments under their homeowners insurance policy and that the trial court did not err in granting summary judgment in favor of American Family.

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Appellees.

In Jeffrey Crider v. Christina Crider, a 57-page opinion, Judge Barnes writes:
Jeff Crider appeals various parts of the trial court’s decree dissolving his marriage to Christina Crider, as well as several post-judgment orders. Several business entities in which Jeff has an interest also have intervened in this case. We affirm in part, reverse in part, and remand. * * *

We cannot say the trial court erred in ordering Jeff to pay to Christina an equalization judgment of $4,752,066, plus interest accruing after ninety days, and to pay any attorney fees Christina incurs in collecting the judgment. We also find no clear error in the trial court’s valuations of CCI, North Park, and Logan, and in its decisions to exclude purported loans made by Robert to Jeff from liabilities of the marital estate; to conclude otherwise would constitute reweighing the evidence. We also affirm the trial court’s decision to delay reduction of Jeff’s child support obligation for ninety days. However, the trial court’s decision to modify the obligation after the first appeal was initiated is void, and Jeff’s support obligation remains at $308 per week. We also hold that upon Jeff’s payment of the equalization judgment, the trial court should recalculate Christina’s income and Jeff’s child support obligation accordingly. Although the trial court did not err in granting Christina security interests in Jeff’s CCI stock and his LLC membership interests, we find error in its decision to automatically vest “ownership and control” in those stock and membership interests upon Jeff’s failure to pay the equalization judgment within 180 days. We reverse the dissolution decree to that extent and remand for further proceedings consistent with this opinion. Finally, although the garnishment and attachment orders did not erroneously garnish or attach future-acquired property by Jeff, and it was proper to extend garnishment or attachment to future loan proceeds he may receive from the Crider Entities, we remand for the trial court to enter amended garnishment, attachment, and child support income withholding orders that comply with Indiana Code Section 24-4.5-5-105.

In State of Indiana v. Brandon Scott Schulze, a 6-page opinion, Judge May writes:
The State of Indiana appeals the reinstatement of Brandon Scott Schulze’s driving privileges, which had been suspended because he refused to take a chemical test for alcohol intoxication in violation of the Indiana Implied Consent law. See Ind. Code § 9-30-6-7. The trial court reinstated Schulze’s privileges because the deputy who offered the test to Schulze was not certified to administer the test. The State argues the court’s decision was erroneous because Schulze’s refusal to take the test obviated any need for a deputy trained to administer the test. We reverse.
In Louise Frontz, Guardian of the Person and Estate of Brian O'Neal Frontz, and Brian Frontz v. Middletown Enterprises, Inc., d/b/a Sinclair GlassIn Steven Anderson v. State of Indiana , a 6-page opinion, Judge May writes:
Steven Anderson appeals his conviction of Class D felony escape. He asserts the trial court committed fundamental error by allowing the State to introduce evidence of the events leading up to his escape. We affirm. * * *

Anderson’s actions on June 4 were not evidence of a prior bad acts which would prejudice him, but merely part of the “single transaction” of escape, and therefore the evidence from June 4 was properly admitted to prove an escape that continued into June 5.

In Ann Withers v. State of Indiana , a 10-page opinion, Judge Crone writes:
Ann Withers appeals the termination of her placement in the Madison County Drug Court program and reinstatement of her sentences in causes 48C04-1207-FB-1287 (“Cause 1287”) and 48C04-1208-FD-1440 (“Cause 1440”). She argues that the trial court committed fundamental error in taking judicial notice of attendance reports in her Drug Court file and abused its discretion in terminating her placement and reinstating her sentences. We conclude that the trial court was authorized to take judicial notice of the attendance reports pursuant to Indiana Evidence Rule 201(b)(5) and did not abuse its discretion in terminating her placement and reinstating her sentences. Therefore, we affirm.
In Lamont Carpenter v. State of Indiana , a 9-page opinion, Judge May concludes:
As the jury was not aware Carpenter was an SVF [seriously violent felon], he was not prejudiced by the partial bifurcation of his trial. Additionally, the trial court did not abuse its discretion in admitting Exhibit 17 as it was not hearsay, and Carpenter was not subjected to double jeopardy when he was convicted of possession of a firearm by an SVF and possession of a handgun with altered identifying marks. Accordingly, we affirm.
NFP civil opinions today (4):

In re the Marriage of: Robin D. (Hanson) Blankenship and James E. Hanson, James E. Hanson v. Robin D. (Hanson) Blankenship (NFP)

Leroy Shoaff v. Denisa Dekker (NFP)

Orange County v. Review Board of the Indiana Department of Workforce Development and Daniel Harris (NFP)

Destiny Skeen v. Review Board of the Indiana Department of Workforce Development and Hub Restaurant LLP (NFP)

NFP criminal opinions today (3):

Lawrence Mulry v. State of Indiana (NFP)

Jose B. Rodriguez v. State of Indiana (NFP)

Fernando Miranda v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Who will be arguing for the Indiana same-sex marriage plaintiffs? [Updated]

There was some dispute the end of last month as to who would argue the consolidated plaintiffs' position before the 7th Circuit today, as there were three sets of plaintiffs, with three sets of attorneys. The Baskin counsel petitioned the court to be permitted to represent all three sets of plaintiffs, as detailed in this July 31st ILB post. The 7th Circuit summarily denied the Lambda Legal motion, as posted here, August 1st:

IT IS ORDERED that the motion is DENIED. In the absence of an agreement, plaintiffs' counsel in appeal nos. 14-2386, 14-2387, and 14-2388 will each be given five minutes to present an oral argument.
The attorneys subsequently worked it out. Lambda Legal attorney, Camilla B. Taylor, is to argue on behalf its Baskin plaintiffs, Ken Falk of the ACLU is to represent the plaintiffs in the two other combined cases, Fuji and Lee. I believe the agreed time split is 8 minutes and 12 minutes.

[More] Tim Evans of the Indianapolis Star has this post, headed "Same-sex marriage case: A look at the dueling attorneys," with interviews of Falk and Fisher, but not Taylor.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Indiana Decisions

Ind. Courts - 7th Circuit Judge David Hamilton is based in Bloomington, at IU Maurer Law

Here is a story yesterday reported by David Leonard for Bloom Magazine, "Celebrating Life in Bloomington, Indiana." It begins:

The chambers of United States Court of Appeals Judge David F. Hamilton are like no other.

The Court of Appeals ranks only below the Supreme Court as the highest court in the U.S. judiciary, and Hamilton’s suite in the Maurer School of Law at Indiana University is the only federal appeals court office in the country located on a college campus.

The arrangement has multiple benefits for the 7th Circuit Court judge, his staff, and the university. It spares Hamilton, who was President Barack Obama’s first judicial appointment in March 2009, the commute from his Bloomington-area home to Indianapolis, where he typically would establish his office, and where from 1994 to 2009 he served as a judge in the U.S. District Court for the Southern District of Indiana.

“The clerks and I participate a great deal in the life of the law school,” Hamilton says. “Conferences, lectures, various events. My law clerks get involved with things like helping out with moot court. And I make some guest appearances in classes.” Hamilton also has discussions almost daily with the law school faculty, not about specific cases, but about various areas of law in which the professors are experts.

It’s a rich intellectual environment for Hamilton and his law clerks, who typically would be secluded doing research and writing opinions in a federal courthouse or commercial office tower. “Inherently, this job is isolating,” says Hamilton. “This setting is a great antidote to that.”

More from the story:
Hamilton travels to the court headquarters in Chicago every couple of weeks for business he can’t complete in Bloomington. Most cases are resolved by teams of three judges. It’s rare that the court meets with all judges present.

Hamilton is a Bloomington native whose father, Richard, was the first minister at St. Mark’s United Methodist Church when it was founded in 1954. Hamilton grew up in Elm Heights, learned to play tennis at Bryan Park, and went on to earn degrees at Haverford College and Yale Law School. Hamilton also is the nephew of Lee Hamilton, the 17-term Indiana congressman.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Indiana Courts

Ind. Decisions - 7th Circuit SSM panel is Judges Posner, Hamilton and Williams [Watch for Updates]

Watch for more.

Jill Disis ‏@jdisis IndyStar
The 3-judge panel: Posner, Hamilton and Williams, same panel that vacated the stay for plaintiffs Amy Sandler and Niki Quasney. #7thCircuit

It was a one-sentence order, issued July 1st.

Here is today's 7th Circuit calendar.

The 7th Circuit makes audios (MP3s) of its oral arguments available after the conclusion of the arguments. They will be accessible here. It should be easy to distinguish the judges' voices -- J. Richard Posner's voice is distinctive, and it should be easy to tell J. David Hamilton's voice from J. Ann Claire Williams.

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Indiana Decisions

Ind. Courts - Still more on "Indiana doctor accused of road rage shooting arraigned in Madison County Ky"

Remember this story from Oct. 10, 2013, where the former Indiana prison's doctor's act was caught on video? Here is the follow-up today, from Bill Robinson of the Richmond Kentucky Register, headed "Indiana doctor’s sentence likely to be diverted." Some quotes:

A former Indiana prison doctor charged with wanton endangerment in a September road-rage incident on Interstate 75 in Madison County entered a guilty plea Monday.

Perrin T. Dobyns told Madison Circuit Judge Jean C. Logue he pointed and fired a BB pistol at another motorist who pulled alongside him.

The other motorist recorded the incident with a smart phone and posted it to an online video site.

At one point in the proceedings leading up to Monday’s plea, Dobyns claimed he felt threatened by the other motorist and pointed the pistol to keep him at bay.

Assistant Commonwealth’s Attorney Jennifer Smith recommended Dobyns be given a three-year diverted sentence with supervision. The Kentucky penalty for wanton endangerment ranges from one to five years. Logue scheduled sentencing for Oct. 2. * * *

Dobyns is unlikely to resume practice as a physician anytime soon, because the Indiana Board of Medical Licensing on March 31 indefinitely suspended his medical license and fined him $500. * * *

According to a findings of fact document posted on the medical licensing board’s website, Dobyns has a history of drug abuse, dating back to 2001 when he practiced medicine in Oklahoma.

The next year, he relocated to Indiana where he continued to abuse alcohol and drugs and then spent 10 weeks in a Chicago in-patient treatment program.

In 2007, Dobyns relocated to North Carolina where he relapsed, according to the findings, resulting in his medical license being suspended there.

He moved back to Indiana where his medical license was given probationary renewal in 2008. In 2011, an administrative law judge recommended he be granted conditional federal Drug Enforcement Administration registration.

However, the Indiana licensing board found the Kentucky road-rage incident reflected “a continuing pattern of conduct demonstrating (Dobyns’) inability to exercise reasonable care.” It also stated he is “unfit to practice due to professional incompetence as he continues to engage in a pattern of conduct which demonstrates an inability to exercise reasonable care and diligence.”

Posted by Marcia Oddi on Tuesday, August 26, 2014
Posted to Indiana Courts

Monday, August 25, 2014

Ind. Decisions - Transfer list for week ending August 22, 2014 [Updated]

No word yet on whether the Supreme Court considered transfer petitions last Friday.

[Updated at 5:44 PM]
The ILB has now learned that there were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court decides one today, a reversal by the new Chief Justice

In Indiana Department of State Revenue v. Caterpillar, Inc., an 11-page, 5-0 opinion, Chief Justice Rush writes:

Indiana’s tax statutes expressly authorize corporate taxpayers to deduct some foreign source dividend income when calculating Indiana adjusted gross income. But Caterpillar attempted to use that same deduction to increase its Indiana net operating losses available for carryover to other tax years. We hold that the plain meaning of the Indiana tax statutes disallows Caterpillar’s use of the foreign source dividend deduction outside of its legislatively authorized context. We also hold that Caterpillar has not met its burden to show that disallowing the deduction discriminates against foreign commerce under the Foreign Commerce Clause of the Federal Constitution. Accordingly, we reverse the Tax Court’s decision and grant summary judgment for the Indiana Department of State Revenue. * * *

At its core, the resolution of this case is straightforward: The Indiana NOL statute does not reference or incorporate the foreign source dividend deduction, and the Tax Court clearly erred in holding that it did. The Department correctly recognized that the Indiana tax statutes did not authorize Caterpillar to include foreign source dividend income in its Indiana NOL calculation. We also conclude that Caterpillar has not met its burden to show the Indiana tax statutes unconstitutionally discriminate against foreign commerce. * * *

In most cases, we exercise “cautious deference” to the Tax Court’s opinion because we recognize its unique expertise in Indiana tax law. Miller Brewing Co., 975 N.E.2d at 803. But when the plain meaning of the statute is unambiguous, we are in no worse position than the Tax Court to apply the statute as written, especially when the Tax Court’s conclusion interpolates “extraneous evidence of legislative intent,” id., as it did here. Thus, we hold that the Tax Court clearly erred when it adopted a false symmetry between Indiana AGI and Indiana NOLs, and we decline Caterpillar’s effort to apply the foreign source dividend deduction to its NOL caclulations. * * *

Caterpillar may not deduct foreign source dividends when calculating Indiana NOLs—a conclusion compelled by the plain meaning of the Indiana tax statutes. And Caterpillar has not carried its burden of proving that this conclusion violates the Foreign Commerce Clause. Therefore, we reverse the Tax Court’s judgment and remand with instructions to grant summary judgment to the Department and deny summary judgment to Caterpillar.

Here is the March 28, 2013 Tax Court opinion. Review was granted by the Supreme court on Feb. 7, 2014, following oral argument on Feb. 6th.

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "New Supreme Court chief is children’s fiercest advocate"

Great column this weekend, here in the New Albany News & Tribune, written by CNHI's Maureen Hayden:

INDIANAPOLIS — Loretta Rush was already well known around the Statehouse — especially among tour guides — before she was sworn in as the first female chief justice of Indiana’s Supreme Court.

Rush, who was first appointed to the court in late 2012, is a walker and a talker. It’s common to see her taking laps around the third-floor atrium outside her chambers while reading a legal brief, or popping into the courtroom to greet visiting schoolchildren.

The longtime juvenile court judge has an affinity for children. She suspects what they’re thinking as they look around the somber courtroom with its heavy, dark-paneled walls and portraits of 107 almost all-male justices who came before her.

“It’s important for kids to see that we’re real,” Rush said. “You walk into that courtroom and what you see are those pictures of old, frowning guys.”

One day, as she greeted a class of fourth-graders, she heard two small voices ring out: “You were our judge!”

The voices belonged to two boys whom Rush knew. She was the juvenile court judge who oversaw their rescue from an abusive home and who later approved their adoption to loving parents.

Delighted to see them again, Rush invited them into her chambers. There, above her desk, were their pictures — part of a collage of photos of children who’d come before her, under the worst of circumstances, when she presided over cases involving abused, neglected and unwanted children.

The collage is still there. When asked about it, Rush remembers what she told those boys: “You’re famous now. You’re in the Statehouse. You are really important, and when you get through school, we’ll need good leaders like you. Part of you is already here.”

When the Judicial Nominating Commission vetted Rush for the chief’s role, she was asked if she could handle the demands of family and the job. The committee screened four sitting justices. She was the only one asked that question.

Rush diplomatically answered that work-life balance is a challenge for all of her colleagues.

It’s not that she shies from the topic. Rush, 56, is a mother of four — three grown and one at home — and a fierce advocate for children.

As an associate justice, she played a key role in creating the Commission on Improving the Status of Children in Indiana. One of her first tasks as chief was to appoint her predecessor, Justice Brent Dickson, to lead a committee to look into pre-trial decisions made by courts and their impact on families.

She worries, for example, that routinely arresting someone for failing to appear after they’ve been summoned to court, then ordering them to pay a $500 bond to get out of jail, has unintended consequences on people who can least afford it.

“We’ve got a lot of families in Indiana holding it together by a thread,” she said. It doesn’t take much, she added, “before that thread is gone.”

She knows courts can adjust. While on the bench back in Tippecanoe County, she held a weekly night court so defendants wouldn’t lose a day’s pay. She held truancy court at 7:30 a.m. so errant students wouldn’t miss another school day.

Rush longs for a day when it’s not news for a woman to head the state’s high court.

But for now, she embraces the role.

In greeting children in that historic courtroom, she’ll often point out the portrait of Justice Leonard Hackney. In 1893, he wrote the opinion that said women could practice law in Indiana, even though they weren’t allowed to vote.

“See him,” she’ll say. “He was brave. He started the process that got me here.”

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Indiana Courts

Ind. Courts - Papers editoralize on modernizing Indiana's trial courts

The South Bend Tribune today carries an editorial that initially appeared in the NWI Times, headed "Continue the work of modernizing Indiana's courts":

Indiana's new chief justice, Loretta Rush, has a lot on her plate. She not only has to preside over the Indiana Supreme Court, but also to modernize the state's other courts as well.

Indiana is well on its way toward bringing courtsinto the 21st century, with its expansion of what promises to become a state-wide computerized case management system.

That system lets lawyers file legal documents in electronic form, without having to leave their office. It also opens those documents to easier public access as a result.

That helps attorneys withsmall research staffs -- or none at all -- get information they need to better represent their clients.

It also gives the public a better understanding ofhow the legal process works.

That's the same rationale for our belief that Rush and her colleagues in the judicial system must now grapple with the issue of cameras in the courtroom, an area where Indiana has lagged.

Indiana has considered this issue from time to time, but it remains trapped in the past.

The Indiana Supreme Court and Indiana Court of Appeals allow cameras to re-cord and broadcast their proceedings, but not trials in local courts. And the chief justice allowed The Times to partner with the Lake Superior Court to webcast routine proceedings in a single court-room.

There's also the example of when former Lake Juvenile Court Judge Mary Beth Bonaventura allowed MTV to film "Juvies," a reality show aimed at scaring teens into behaving better.

But the process of gaining judicial approval -- or, more likely, rejection -- to film proceedings in lower courts is too long and cumbersome a process.

We understand and share concerns about not disrupting judicial proceedings. The courts' primary mission should be to dispense justice.

But technology has changed significantly in re-cent years, and cameras are less obtrusive now. They are also pervasive throughout society -- except in Indiana's lower courts.

Allowing use of cameras in lower courts would greatly enhance the public's under-standing of howcourts operate. Operating in the public's eye also builds faith in the judicial process, showing judges have no hidden agenda, just the pursuit of justice.

Rush's agenda for her term as chief justice should include re-examining the court's longstanding reluctance to allow cameras in Indiana courtrooms.

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Indiana Courts

Environment - "Indiana continues to take on EPA over power plant rules"

Maureen Groppe, Star Washington Bureau, writes today in a lengthy analysis that begins:

WASHINGTON — Four times in recent years, the federal government has proposed controls for power plants that spew pollution and contribute to global warming.

Four times, the state of Indiana has gone to court to fight them.

The state has been part of legal challenges to Environmental Protection Agency rules that would:

• Reduce cross-state air pollution that makes it difficult for some states to meet clean air requirements.

• Limit emissions of mercury and other toxic pollutants.

• Regulate carbon dioxide emissions from power plants and other large stationary sources of greenhouse gas emissions.

And even before a much more significant rule on greenhouse gas emissions is finished next year, Indiana this month joined 11 other states in trying to block the EPA from completing the regulation.

"Indiana I would not put in the group of states that particularly have a high environmental consciousness," said Jim Barnes, a former EPA administrator in the Nixon and Reagan administrations who teaches at the Indiana University Maurer School of Law in Bloomington.

What Indiana does have, Barnes said, is some coal mining, an electrical utility industry that relies heavily on coal and a history of relatively low electricity rates because of that. Add to that conservative leaders leery of the federal government meddling in state affairs.

"So what they're looking to do is to try to keep the use of coal as available to the state as they can," Barnes said.

Indiana Attorney General Greg Zoeller has another take on what the state is trying to do: Keep the EPA in line.

Zoeller said it's not his role to weigh the costs of complying with a federal regulation against the benefits to public health and the environment when deciding whether to challenge a rule.

"The governor and others have policy views," Zoeller said. "Ours is a legal question about administrative authority."

The EPA, Zoeller argues, has been overstepping its authority by issuing regulations that go beyond what it has been empowered by Congress to do through the Clean Air Act passed in 1970.

"In each case, it's not that we necessarily win or lose, but I think it's appropriate that we challenge because EPA has been fairly aggressive in pressing beyond what at least a lot of members of Congress thought they were passing," Zoeller said.

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Environment

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

For publication opinions today (1):

In John Barnhart v. State of Indiana , a 15-page opinion, Judge Brown writes:

John Barnhart appeals his convictions and sentence for two counts of child molesting as class A felonies and one count of possession of marijuana as a class A misdemeanor. Barnhart raises two issues which we revise and restate as follows: I. Whether the trial court abused its discretion by excluding evidence that the victim submitted to a urine drug screen and that the results were negative; and II. Whether the trial court abused its discretion in sentencing him. We affirm.
NFP civil opinions today (4):

Amanda Kay (Albin) Brasseur v. Gregory Joseph Brasseur (NFP)

In the Matter of the Involuntary Commitment of G.M. v. Columbus Regional Hospital Mental Health Facility and Dr. Michael Stark (NFP)

Karla Hart v. Douglas Kaderabek, M.D. (NFP)

Holly Richardson v. Med-1 Solutions, LLC, as Agent for Deaconess Hospital (NFP)

NFP criminal opinions today (1):

Tiandre Harris v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "In Indiana, state government tries using big data project to reduce infant mortality"

That is the headline to this story today by Mohana Ravindranath of the Washington Post. Some quotes:

Over the past year, Indiana’s governor, Republican Mike Pence, has spoken frequently about a persistent public health issue: a higher-than-average infant mortality rate. * * *

Pence’s staff suspected that the solution to Indiana’s infant mortality problem lay hidden in the state’s records, stored in disparate data sets throughout various government agencies. Analyzing these data sets — pairing causes of death from the Department of Health with socioeconomic data from the Family and Social Services Administration, for instance — could help the state determine which preventative programs to fund, they surmised.

In July, the Indiana state government signed a contract with European software company SAP to use its data management system HANA, which stands for High-Performance Analytic Appliance, to crunch data about infant mortality. This is the first major public-health big data application in Indiana, according to state officials, and if successful, the state plans to use the approach to solve other problems, such as recidivism. Indiana is investing about $9.1 million in the overall big data project. * * *

The state selected SAP — whose main customers are large commercial businesses — out of several other software vendors, according to Indiana’s chief financial officer and management and budget director Chris Atkins.

About a month into the project, the state government is still establishing links between the mortality rate of infants and other factors such as the parents’ level of education. Atkins declined to share the pilot’s findings until after they have been subjected to more tests.

“Maybe it’s education, [but] maybe it’s something else we need to look into,” Atkins said, adding that once the state identifies factors tied strongly to mortality, it plans to invest more heavily in programs addressing those factors.

If a low maternal education level is found to be a strong predictor of infant mortality in Indiana, the state may invest more heavily in education programs or in outreach for expectant mothers. Other factors, such as environmental pollutants or crime, could also be linked to mortality.

“The government gives us the ability to shift resources — whether they be personnel, or dollars — into programs or areas that demonstrate better results, and away from programs that don’t demonstrate results,” Atkins said.

Atkins declined to share how much the state was paying SAP. He noted that the majority of fees were paid upfront, with a small annual maintenance fee. The state also has had to hire a handful of ad hoc technology consultants to set up the effort.

“The state of Indiana didn’t have a lot of data scientists on the payroll before we started this project, but by and large we’ve been able to do it within existing [staff],” he said.

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Indiana Government

Ind. Courts - Some stories about the 7th Circuit oral argument tomorrow on Indiana same sex marriage

From August 22nd, this story by Jill Disis of the Indianapolis Star, headed "8 things to know about Indiana's same-sex marriage appeals case." A sample:

8. Only three judges from the 7th Circuit Court of Appeals will hear the case — but which three are still unclear.

The three-judge panel hearing the Indiana and Wisconsin cases will likely be revealed Tuesday morning. The full appellate court features a mix of judges appointed by presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama.

"Same-sex marriage case: Opposing sides weigh in," a story by Jill Disis and Tim Evans of the Indianapolis Star looking at some of the many amicus briefs filing in tomorrow's case. A sample:
The amici curiae, or "friends of the court" briefs, reflect the interests of a diverse group of impassioned spectators who are eager to share information the judges otherwise might not consider. Among those who filed briefs: individuals and corporations, theologians and scholars, Christians and atheists, as well as activists, psychologists and law enforcement.

The Indianapolis Star's review of case files shows at least 18 briefs side with the plaintiffs, who say the Indiana law should be struck down. Those petitions run 787 pages. On the other side, 14 briefs align with the state, arguing that Indiana's law is constitutional and should be upheld. Those petitions span 636 pages.

The story continues with quotes from a number of the amicus briefs.

Rick Callahan of the AP has a story headed "Health-Care Fears Loom Large in Gay Marriage Cases."

Posted by Marcia Oddi on Monday, August 25, 2014
Posted to Ind Fed D.Ct. Decisions

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

Actually, several stories were too important to hold until today. Don't miss reading them.

From Sunday, August 24, 2014:

Posted by Marcia Oddi on Monday, August 25, 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 8/25/14):

Next week's oral arguments before the Supreme Court (week of 9/1/14):

Thursday, Sept. 4

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 8/25/14):

Tuesday, August 26

Next week's oral arguments before the Court of Appeals (week of 9/1/14):

Thursday, Sept. 4

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]

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, August 25, 2014
Posted to Upcoming Oral Arguments

Sunday, August 24, 2014

Ind. Gov't. - "Ticketing students in South Bend schools: Poorer schools see majority of citations, some given to kids as young as 10"

Kim Kilbride reports today in the South Bend Tribune about citations issued to students by school resource officers. Some quotes from the long story:

SOUTH BEND — A South Bend police officer ticketed Brandon Worsham in his school last September, saying the teen engaged in fighting and disorderly conduct. * * *

But neither Brandon nor his mom recall receiving or even being notified of the ticket, written by a resource officer who is assigned to the school.

The citation carries fines and court costs of about $140, plus the potential to remain on Brandon’s record indefinitely if he ignores it.

A check of a state database turns up Brandon’s citation, though his first name is misspelled. It says he failed to appear for his court date. And a request to the Indiana Bureau of Motor Vehicles to suspend his driving privileges was submitted by the court.

His mom still questions why a citation was issued in the first place, why no one followed up and why she was never notified -- of both the ticket and the move to suspend her son’s driving privileges.

“That’s crazy,” she said.

Brandon’s ticket was one of 278 issued in South Bend schools from August 2010 through June 2014, in a longstanding practice by resource officers.

The tickets, given primarily for fighting or the threat of fighting, are not criminal citations, though they carry fines and other consequences, similar to traffic citations.

A Tribune review of all of the tickets issued during the past four school years found errors and inconsistencies:

The story then details issues with many of the tickets it examines. The Tribune also has created a database of tickets. There is much more in the lengthy sotry, including:
South Bend police Lt. Eric Crittendon, who is the safety and security coordinator for South Bend schools, said the practice of issuing tickets has been an effective one since the 1990s, when the school resource officer program began.

Crittendon said he researched the issuance of tickets in other school districts in the state and consulted with the local prosecutor and other officials at the time.

They all agreed that the state code for provocation is a “ticketable offense” in schools, he said.

“The majority of fighting — then and now — is ‘we’re going to meet and fight,’ “ Crittendon said. “Kids don’t turn and walk away. We’ve got this jaw-jacking back and forth and next thing you know, it leads to a punch.”

Critics, however, question whether tickets are the best way to control student behavior, especially in the light of the flaws uncovered by The Tribune.

Oletha Jones, the education chair with the local branch of the NAACP, is especially troubled by tickets being issued to students in intermediate centers.

“These are 10-year-olds receiving a ticket, just as if they are an adult,” she said. “These are children.”

She also pointed out that the fines and court costs often put pressure on low-income families “when they have to choose between paying a bill, buying food,” she said, “or paying for a $125 citation their child received.”

[Updated on Aug. 25] See this post this morning, "SRO’s and Provocation Infraction Tickets," in the Indiana Juvenile Justice Blog.

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Indiana Government

Courts - Kentucky Supreme Court "to hear case involving iconic Louisville eatery"

Jason Riley reports for WDRB Louisville in a long story that begins:

By the time she was nine years old, Melissa Pennington weighed 200 pounds.

She had reached 425 pounds by 2007 -- on a five-foot-four frame -- when she claims she was fired from the iconic Wagner's Pharmacy near Churchill Downs because of her weight.

In a lawsuit filed that year, Pennington claimed it is unlawful to discriminate against an employee due to a disability. Her disability? Morbid obesity.

Seven years later, the Kentucky Supreme Court has agreed to hear Pennington's case, which attorneys say is the first of its kind in the state.

"This issue has not been decided in Kentucky," said Jacqueline Schroering, an attorney for Pennington. The question, Schroering said, is "if her condition is protected."

A Jefferson Circuit Court judge did not believe so and dismissed the case in 2011, ruling that obesity was not a state-protected disability because it is not caused by a "physiological condition" and that Pennington presented no proof of an "underlying physiological order."

Last year, however, the state Appeals Court overruled the lower court, pointing out that Pennington has suffered from morbid obesity most of her life and highlighted a deposition in the case in which a doctor testified that "morbid obesity" like Pennington's is caused by "unknown physiological abnormalities."

Wagner's appealed and, on Thursday, the Supreme Court agreed to hear the case and presumably decide if obesity should be considered a disability in Kentucky. * * *

Wagner's has claimed that Pennington was fired for failing to generate sales as their food truck operator on the backside of Churchill Downs. But her supervisor testified she was told to dismiss Pennington because of her "personal appearance," according to court records. Two employees claimed they were told by the supervisor that Pennington was fired because she was "overweight and dirty."

While it is easy to fire employees in Kentucky – for their clothes, personal hygiene or piercings, for example – a person cannot be terminated because of a disability.

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Courts in general

Ind. Gov't. - "Allen County altering attorney terms to save cash"

Vivian Sade reported August 23rd in the Fort Wayne Journal Gazette:

A change in the way Allen County government hires attorneys is expected to save the county thousands of dollars, a lawyer who is leaving his post says.

After 28 years serving the Allen County commissioners and the Allen County Sheriff’s Department, John Feighner is stepping down as assistant county attorney.

The commissioners approved a new contract with Feighner’s firm, Haller & Colvin PC, on Friday and approved Feighner’s son, Spencer Feighner, to fill the post. The county employs one main attorney and three assistants at this time.

“Historically, county attorneys have been treated as employees with salaries and retirement and insurance benefits,” Feighner said. Under the new arrangement, county attorneys will be paid contracted rates and will not receive benefits, he said.

The commissioners also approved a similar contract that will take effect Jan. 1 with Beers, Mallers, Backs and Salin LLP, the law firm of County Attorney Bill Fishering.

Fishering has also worked for the county for 28 years and will continue in his position under the new terms.

Feighner’s benefits and salary cost the county $53,000 a year, said Chris Cloud, executive assistant to the commissioners.

Under the new contract, assistant county attorneys will receive a flat rate of $2,916 a month or $35,000 a year.

Next year, Fishering will be paid $65,000 annually with no benefits, a savings to the county of about $8,000, Cloud said.

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Indiana Government

Ind. Decisions - County judge declares state staute unconstitutional and the State complies

Updating this ILB post from Aug. 20th, Dan Carden reported this weekend in the NWI Times:

INDIANAPOLIS | The Indiana Department of Labor no longer is enforcing the state's right-to-work law that two Lake County judges ruled unconstitutional, but Gov. Mike Pence believes it's only a matter of time before the labor law is back on the books.

"We really do believe, given other court decisions, that Indiana's right-to-work law is on a solid constitutional and legal foundation," Pence said. "We continue to support efforts to defend that law."

The Republican said Friday similar laws in other states have survived court challenges and he expects the Indiana Supreme Court will overrule the Lake County judges and conclude the Hoosier law also is valid.

However, Pence dodged when pressed to explain why other states' right-to-work rulings are relevant when Lake Superior Judge John Sedia and Lake Circuit Judge George Paras both found Indiana's right-to-work law violates the Indiana Constitution.

"That's a really good question for the attorney general and for the lawyers," Pence said. "What I can tell you is that we're very confident that the right-to-work law that was passed in Indiana just a few years back is on a solid legal and constitutional foundation."

The Supreme Court is set to hear oral arguments Sept. 4 in the state's appeal of Sedia's 2013 ruling that found the right-to-work law -- which requires unions provide bargaining and grievance services free to nonmembers employed at a unionized workplace -- violates the state constitution's guarantee of compensation for services.

That hearing could be postponed if the high court decides to consolidate the right-to-work challenges brought by the International Union of Operating Engineers, Local 150, and United Steelworkers, which represents more than 5,000 steel mill employees in Northwest Indiana.

Either way, the Indiana Department of Labor halted enforcement of the right-to-work law July 17 after Paras ruled it unconstitutional. Unlike Sedia, last week Paras refused to stay his ruling pending appeal.

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Smaller serves Chief Justice Rush well"

Dave Bangert writes this weekend in his Lafayette Journal Courier column:

Making history affords a person the right for some ceremony, some pageantry.

That should apply, too, for Loretta Rush, sworn in last week as chief justice of the Indiana Supreme Court, right?

“Oh, come on, please,” Rush said late last week.

It spoke volumes that Rush, only the second woman on the state Supreme Court, took a pass at a bigger ceremony when she was sworn in as the first female chief justice, opting for a more intimate setting in the court’s library. And that she ended her formal remarks with this: “Let’s get back to work.” And that she then did, as if the ceremony was more of a calendar item than a historic moment.

Not that it would have surprised anyone who saw, up close, how she ran juvenile court on the fourth floor of the Tippecanoe County Courthouse for 14 years.

“When I was sworn in two years ago, there were all these hundreds of people who came and filled the chambers,” Rush said. “That was wonderful, but I just had that a year ago in December.”

This time would be different for Rush, who found out she got the chief justice position on Aug. 6 while cranking “Under Pressure” by David Bowie and Queen. (“That song came on the speaker I have down here, so I turned it up,” Rush said. “All of a sudden I heard ‘Hail to the Chief’ from my off-chambers, and my staff came in and said I got it.”)

“I thought it was important that the court reconvene right away,” Rush said. “If you go and look on the docket, the first case set for us with me as chief justice is (the constitutionality of Indiana’s) right-to-work (law). So there you go. I thought a small, quiet ceremony soon — that was important.”

As for all of the pioneer talk?

“When media asks me questions, the first one always is about being the first woman,” Rush said. “But going back to the ceremony, and why it was important to me, the institution is about so much more than the individual people. If you focus on that, if you focus on an individual, if you focus on, ‘Oh, the gal got it,’ it takes away from the fact that you have to trust your Supreme Court.

“I meant it. Let’s get back to work.”

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Indiana Courts

Ind. Courts - "David Camm in-laws drop wrongful death suit"

But only to devote efforts to the other pending lawsuits, according to this story this weekend by Baylee Pulliam of the Louisville Courier Journal:

Camm's in-laws, Frank and Janice Renn, are "not giving up" on efforts to keep Camm from profiting from his family's deaths, said Amy Wheatley, an attorney for the couple. Rather, it's "all about streamlining and focusing" on the remaining pending cases to prevent Camm from gaining control of his family's estates or Kim Camm's Nationwide insurance policy, she said.

At issue is how to distribute $167,403 held in certificates of deposit in the three estates, and $458,672 from three life insurance policies, The Courier-Journal previously reported.

[Camm's attorney David Mosley] said that's money Kim Camm wanted her husband to have. He said it would otherwise go to the Renns, who "need to stop scrabbling for money."

Camm, a former Indiana State trooper, was accused of fatally shooting his wife and the couple's children at their home near Georgetown in 2000. After two convictions were overturned, a jury in Boone County acquitted Camm last October and he was freed.

But "acquittal is not the same as innocence," Wheatley said. "We're just as firmly convinced (of Camm's guilt) now as we ever were."

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Indiana Courts

Ind. Courts - "Public access counselor OKs closed hearings on expungement"

That is the headline to a long, very important and thorough front-page story in the Sunday Martinsville Reporter-Times, reported by Brian Culp. (The story can also be accessed at the Ind. Econ. Digest). It should be read in full. Here are some quotes:

Indiana’s public access counselor released an opinion last week agreeing with two Morgan County judges who have closed the entire expungement process to the public.

The expungement law went into effect July 1, 2013. It gives a person convicted of a low-level crime a way to clear his or her record and shield the crimes from the view of the public and possible employers. Those proceedings were open to the public until changes were made to the law during the 2014 legislative session, and now the law includes a line stating: “A petition for expungement and an order for expungement are confidential.”

Morgan Superior Court I Judge G. Thomas Gray interprets that to mean expungement hearings, and what happens during them, are closed to the public.

The Reporter-Times filed a complaint in July with Luke Britt, Indiana’s public access counselor, challenging the interpretation by Gray and Morgan County Circuit Court Judge Matthew Hanson. The complaint challenged the judges’ decision to close the hearings, as well as their policy of omitting names on the court filings announcing expungement petition hearings — a practice that completely shields the public from the entire process.

Britt returned an opinion on Wednesday agreeing with the judges’ interpretation.

“A petition to expunge criminal records is a civil proceeding and not a criminal court filing,” Britt wrote in the opinion in reference to closing the hearings. “As such, it is not governed by the Open Door Law. … A civil proceeding may only be closed when the denial of access ‘is essential to preserve higher values and is narrowly tailored to that interest’ … .

“It is not the place of the public access counselor to weigh whether the courts are justified in making that subjective determination. Any challenge to the courts’ authority would be made through other legal channels. …”

Initially, Britt released an opinion that the petitions for expungement would be open until a judge granted them. However, after hearing the opinion on Monday, Gray objected and Britt issued a correction.

“A new statute effective July, 2014 … states that petitions and order for expungement are confidential,” Britt wrote in the correction. * * *

Hoosier State Press Association Director Steve Key said he understands the judges’ interpretation and the access counselor’s opinion based on the language of the statute as it was signed into law. However, he doesn’t believe the Legislature’s intent was to completely close the process from the public’s view. Key, an advocate for Indiana newspapers and media, attends legislative hearings that have potential impact on the media and public access.

“I don’t believe the intent of the legislature was to close the expungement hearing,” Key said Friday during a phone interview. “I think they were trying to clarify that once the expungement was done, it was closed.

“I think the interpretation by the courts is going further than the intent of the legislature. But I’m not surprised at the interpretation that was made, just looking at the language.”

To this point, expungement proceedings and processes weren’t being handled the same in every county, Key said. However, judges in other counties are likely to look at this opinion and begin closing their processes.

“With this ruling, other judges might rely on this and say, ‘Our best bet is to be closing expungement hearings,’” Key said. “This is going to require either the Legislature to say, ‘No we didn’t intend that,’ or the (Indiana) Supreme Court will have to step in and say it wasn’t what is intended.

“Otherwise, we have an expungement process that is secret.” * * *

Rep. Jud McMillin, the Brookville Republican and former deputy prosecutor who was lead author on the bill, confirmed that closing the entire proceeding was not the original intent. He isn’t upset, however, that judges are taking things in that direction.

“From the perspective of the person who drafted the legislation, my goal was that once a court ordered expungement, it should be gone, not that the entire proceeding should be closed,” McMillin said Friday during a phone interview. “I’m not upset they are taking that position, though.”

ILB: Here is the Public Access Counselor's August 18th opinion, including the correction noted in the story.

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Indiana Courts

Ind. Gov't. - "State has paid millions to health-care expert who also works for vendor"

That is the headline to a major story, reported by Tony Cook, topping the front-page of today's Sunday Indianapolis Star. A few quotes from the long story, which is not yet available online [Updated on 8/25 - now available here; for whatever reason the reporter kept it offline until Monday morning]:

Meet the architect of Gov. Mike Pence’s signature health-care plan, Seema Verma.

For more than a decade, the littleknown private consultant has quietly shaped much of Indiana’s public healthcare policy. The state has paid her millions of dollars for her work — amid a potential conflict of interest that ethics experts say should concern taxpayers.

Largely invisible to the public, Verma’s work has included the design of the Healthy Indiana Plan, a consumerdriven insurance program for low-income Hoosiers now being touted nationally as an alternative to Obamacare. In all, Verma and her small consulting firm, SVC Inc., have received more than $3.5 million in state contracts.

At the same time, Verma has worked for one of the state’s largest Medicaid vendors — a division of Silicon Valley tech giant Hewlett-Packard. That company agreed to pay Verma more than $1 million and has landed more than $500 million in state contracts during her tenure as Indiana’s go-to health-care consultant, according to documents obtained by The Indianapolis Star.

Verma’s dual roles raise an important question: Who is she working for when she advises the state on how to spend billions of dollars in Medicaid funds — Hoosier taxpayers or one of the state’s largest contractors?

In a written statement, Verma said unequivocally that she played no role in HP’s contracts with the state. “SVC has disclosed to both HP and the state the relationship with the other to be transparent,” Verma said. “If any issue between HP and the state presented a conflict between the two, I recused myself from the process.”

But the recently ousted head of the state agency administering Verma’s contract told The Star that Verma once attempted to negotiate with state officials on behalf of Hewlett-Packard, while also being paid by the state. HP said it can find no one in its company with any recollection of such a meeting. Verma declined to answer further questions about her work with the state or HP. Verma’s dual roles have surprised some leading Republican lawmakers and expose one of many loopholes in Indiana’s government ethics laws. Ethics experts consulted by The Star called the arrangement a conflict of interest that potentially puts Indiana taxpayers at risk. If Verma were working for the federal government, they point out, she would have to show how the government was protected, or step aside.

Here is the website for SVC: Strategic Health Policy Solutions. Here is the page describing the backgrounds of the "the team."

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Indiana Government

Ind. Law - Plews Shadley Racher & Braun takes the ALS Ice Bucket Challenge

From the PSRB website, dated August 22, 2014:

Plews Shadley Racher and Braun LLP attorneys and staff accepted the ALS Ice Bucket challenge in honor of our friend, colleague, and founder, Sue Shadley, and all the others affected by this devastating disease.

PSRB is also donating individually and as a firm to strikeout ALS by helping to fund research and provide much needed services and support to the ALS community.

Watch the PSRB ALS Ice Bucket Challenge.

Posted by Marcia Oddi on Sunday, August 24, 2014
Posted to Environment | Indiana Law

Friday, August 22, 2014

Ind. Gov't. - Native American Indian Affairs, the State’s Healthy Indiana Plan, and NE Indiana gaming

Indiana Gaming Insight, a sister publication of Indiana Legislative Insight, leads its August 25th subscription-only newsletter with a story reporting that "The Governor makes his eight appointments to the 15-member Indiana Native American Indian Affairs Commission, suggesting that the moribund panel may meet for the first time since 2008 ... when mass resignations over Daniels Administration treatment of the Commission, 'broken promises,' and the lack of a staff director left it in limbo." More from the long story:

The timing of reconstitution of the Native American Commission is, however, fascinating. Just earlier this month, Tom LoBianco of the Associated Press revealed that the State’s Healthy Indiana Plan (HIP 2.0) Medicaid waiver was rejected by the feds because it failed to include input from the Pokagon Band of Potawatomi Indians, an oversight the Family and Social Services Administration quickly scrambled to correct. That federal action was not revealed by FSSA this Summer when media inquiries were made about federal action

Of course, your favorite gaming newsletter reminded you recently that many in northern Indiana are expecting to learn yet this Summer whether the U.S. Department of the Interior’s Bureau of Indian Affairs will approve a request filed two years ago this month by the same Pokagon Band of Potawatomi Indians to take some 165 acres of land in trust near downtown South Bend for housing and a tribal government facility . . . along with a possible casino replete with a hotel and restaurants and ancillary facilities – that would not be subject to state taxes.

This prospect has the five Indiana commercial casinos along Lake Michigan running scared, and state officials and analysts who understand the tax implications of a tax-free Native American casino in North Central Indiana just outside DTSB petrified. [AP link inserted by ILB]

This long August 9th IndyStar "Behind Closed Doors" item by Barb Berggoetz includes:
State officials have now met a federal requirement to seek feedback from a 525-member Native American tribe about Indiana's proposed expansion of its low-income health insurance program. * * *

This week, the new secretary of the Indiana Family and Social Services Administration, John Wernert, a governor's representative and other FSSA officials even traveled to Dowagiac, Mich., the base of the Pokagon band, to discuss the proposal with tribal leadership and answer questions.

While the Pokagon Band supports expanding Medicaid access to more adults, it expressed concerns with the plan in an Aug. 4 letter to the state. The tribe's medical director proposed the Native Americans be carved out of the plan, as other states have done, because it would "unnecessarily complicate administration of the Medicaid program for both the tribe and the state." * * *

The Department of Health and Human Services hasn't yet posted the proposal for the required 30-day public comment period. The agency will not act on the request until at least 15 days after the comment period ends. State officials have said they want to roll out the program at the beginning of the year, but the specific time depends on the outcome of the waiver review.

Posted by Marcia Oddi on Friday, August 22, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 10 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Erik A. Lenning v. Wendy K. Short (NFP)

Elias Terrazas v. Alfonso Menchaca (NFP)

In Re the Termination of the Parent-Child Relationship of Jac.B., Je.B., Jam.B., M.H., and A.B. (Minor Children) and B.B. (Mother) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (7):

Michael W. Cash v. State of Indiana (NFP)

Cleveland Walker v. State of Indiana (NFP)

Corey A. Craig v. State of Indiana (NFP)

Tiese Smith v. State of Indiana (NFP)

Jihand Johnson v. State of Indiana (NFP)

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

Eddie T. Crider v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 22, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court decides one today

In Indianapolis Racquet Club, Inc. v. Marion County Assessor, a 12-page opinion, Sr. Judge Fisher writes:

In this case, the Court must examine whether the Indiana Board of Tax Review erred when it found that the Indianapolis Racquet Club, Inc. failed to establish a prima facie case that its land assessments were excessive or that they were not uniform and equal. The Court finds that it did not.

CONCLUSION. The final determination shows that the Indiana Board did not ignore the Racquet Club’s evidence. Instead, it shows that the Indiana Board weighed that evidence and concluded that it was not probative in demonstrating that the Racquet Club’s land was over-valued or that its land assessments were not uniform and equal with other properties. Because the Racquet Club did not make a prima facie case, the burden to rebut its evidence never shifted to the Assessor. See Am. United Life Ins. Co. v. Maley, 803 N.E.2d 276, 281 (Ind. Tax Ct. 2004), review denied. Accordingly, the final determination of the Indiana Board is AFFIRMED.

Nevertheless, the Court notes that during the Indiana Board hearing the Racquet Club claimed that the property record card for Parcel #8048124 overstated the parcel’s dimensions by 19,063 square feet. (See Cert. Admin. R. #1 at 5, 117 (explaining that the record card correctly indicated that the parcel was 4.371 acres, but calculated a value for a total of 209,463 square feet).) The Indiana Board erred in denying relief as to this claim because there is a copy of this parcel’s record card in the administrative record that displays this error. (Compare Cert. Admin. R. #1 at 28 ¶ 19(I) with 83.) Accordingly, the Court REMANDS this issue to the Indiana Board so that it can instruct the Assessor to correct the record card so that the parcel’s square footage and acreage are consistent.

Posted by Marcia Oddi on Friday, August 22, 2014
Posted to Ind. Tax Ct. Decisions

Courts - "Lessons from Tennessee Supreme Court retention election"

The ILB had a post on August 12th, quoting several reports of Tennessee's Aug. 7th retention election, where three Supreme Court justices, all Democrats, faced a serious opposition campaign led by conservatives, who claimed the justices were "liberal" and "soft on crime." All three were retained, by a vote of about 57%.

Today, Brian T. Fitzpatrick, a professor of law at Vanderbilt Law School, has a commentary in The Tennessean, that begins:

Earlier this month, voters decided to retain three of the current justices on the Tennessee Supreme Court by the narrowest margins in our history of retention referendums for Supreme Court justices.

The vote followed a well-financed campaign against them by the lieutenant governor and conservative political groups. The justices prevailed only after they and their supporters spent more than $1 million to explain why they should keep their seats even though they are liberal Democrats in a state full of conservative Republicans: They will follow the Tennessee Constitution, support gun rights and support the death penalty.

I was not surprised by the result — as I explain, judges almost never lose these races — but I have been surprised that so many people seem to think that it was a shame the justices had to fight so hard for their jobs. Although I am sure the justices did not enjoy going through a tough vote, it was good for them — and for our system of justice.

Tennessee is one of a number of states that use yes-no referendums to decide whether to retain judges. Other states use contested elections or leave it to the governor to reappoint judges. For most of the history of retention referendums in Tennessee and elsewhere, these were sleepy affairs. Judges have no opponents in these races, and they usually win by wide margins. In the 40-year history of retention referendums in Tennessee, only one justice has ever lost. The record nationwide is not much different: Judges almost always win these races with 70 percent to 80 percent of the vote.

This is a problem if you believe that judges — like all other public officials — should be accountable to the public. If good judges and bad judges, mainstream judges and extreme judges, honest judges and corrupt judges are all retained in equal numbers, the system cannot hold judges accountable for misdeeds and bad decisions. For this reason, many legal scholars have criticized retention referendums and urged them to be replaced with better ways to keep judges accountable. * * *

Retention referendums actually might have some potential to become real tools to hold judges accountable. For those of us who enjoy living in a democracy, this is an unqualified good.

Posted by Marcia Oddi on Friday, August 22, 2014
Posted to Courts in general

Courts - "Reading the Court’s signals on same-sex marriage"

In a long commentary today, Lyle Denniston of SCOTUSblog observes:

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times. While it has done little to explain those actions, it has sent some signals about its thinking. Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review. And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing. The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so. * * *

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29. That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready.

The last scheduled day for distributing a case for consideration by the Justices at the September 29 meeting is September 10 — now, just three weeks away. The pending Utah case has a fair prospect of being ready then, but there is reason to doubt at this point that the pending Oklahoma and Virginia cases will be complete. The lawyers involved have said they were working diligently to push matters along, but the clock is against them for action by the Justices at the outset of the new Term.

There will be plenty of time, though, to get a case before the Court for decision during the new Term. If a case is accepted for review by sometime next January, it is almost certain to be decided before the end of the Term, late next June.

Posted by Marcia Oddi on Friday, August 22, 2014
Posted to Courts in general

Ind. Gov't. - "Purdue releases surveillance video of confrontation"

Updating Aug. 12 and Aug. 13th posts, this story today by Chris Morisse Vizza in the Lafayette Journal Courier links to, and reports on, the video at issue, which the Purdue administration has now uploaded to YouTube. Some quotes from the story:

Purdue University released on its website the surveillance video at the center of a lawsuit filed by the Purdue Exponent.

The newspaper, operated by Purdue Student Publishing Foundation Inc., last week filed suit to compel the university to provide a copy of the video of a confrontation between police officers and photojournalist Michael Takeda. * * *

Purdue showed the video clip to Takeda, Kuhnle and the newspaper's attorney earlier this year, but the university declined to release a copy of the video until today.

The Indiana Public Access Counselor in April supported Purdue's claim that the video should not be released because it is part of an ongoing police investigation.

The American Civil Liberties Union of Indiana then filed suit on behalf of the Exponent.

Purdue legal council Steven R. Schultz on Wednesday submitted a copy of the video to Tippecanoe Superior Court 2 Judge Thomas Busch, and proposed that the university would post the video online after receiving permission from the judge, and county prosecutor Pat Harrington.

The university issued a press release Thursday that stated the prosecutor approved the video release and provided a link to the video posted on YouTube.

Releasing the video to the public does not necessarily resolve the lawsuit, said Kelly Eskew, ACLU of Indiana staff attorney.

"Purdue University has not provided us with a copy of the video, so we have not been able to confirm that it is the complete video of the encounter between the Exponent's photographer and law enforcement," Eskew said.

"If it is the video we asked Purdue to release, we are pleased that it is now publicly available since it is a public record as defined under the Access to Public Records Act."

Posted by Marcia Oddi on Friday, August 22, 2014
Posted to Indiana Government

Thursday, August 21, 2014

Courts - "Today’s Tech: A Federal Judge And His iPad (Part 1)"

Nicole Black of Above the Law interviews Judge Richard Wesley of the U.S. Court of Appeals for the Second Circuit. She writes:

In this two-part series, I’m going to share with you how he uses his iPad to increase his efficiency on the bench and what he thinks about the effects of technology on the legal profession.
A sample:
Judge Wesley uses his iPad in a number ways, all of which provide him with increased flexibility, convenience, and efficiency. “I use it to prepare for an upcoming sitting. My secretary downloads all briefs and records. I review the files, add bookmarks, highlight sections, and add comments on them and highlight aspects of them. I also add comment boxes in which I list questions I want to ask about a particular section. Then I synchronize the changes with my hard drive in my chambers so the document no longer resides on my iPad,” he explains. “Also, my clerks produce bench memos for me, which I mark up, and they also include hyperlinks to the cases referred to so that clicking on the link takes me right into Westlaw.”

According to Judge Wesley, one of the greatest benefits of using an iPad is that it allows him to better prepare for oral arguments: “I pride myself on my preparation. When I’m on the bench with my iPad and an attorney refers to a document, I often see some of my colleagues grab their volumes and flip through the pages, looking for the correct page. But not me. Oftentimes, I’ve already bookmarked and highlighted the section referred to and can start to read it out loud even before the attorney does,” he laughs. “I find it often shocks them when I do that!”

Posted by Marcia Oddi on Thursday, August 21, 2014
Posted to Courts in general

Ind. Gov't - An example of why who is on the IURC (and who is the UCC) is so important! [Updated]

A story today in the IBJ, reported by Kathleen McLaughlin, begins with a paragraph putting the settlemment the Indiana Office of Utility Consumer Counselor (OUCC) reached on behalf of customers of Indianapolis Power & Light Co (IPL) in the best possible light [emphasis supplied]:

Indianapolis Power & Light Co. customers would see less of a rate hike [than IPL initially requested] for an electric car-sharing program under a settlement agreement negotiated [on their behalf] by the Indiana Office of Utility Consumer Counselor.

The cost per month for a typical residence would be 28 cents, rather than 44 cents, the OUCC said in a press release about the settlement agreement, filed Thursday with the Indiana Utility Regulatory Commission.

IPL is seeking regulators’ permission to bill ratepayers for $16 million in costs associated with extending lines and installing charging stations for a proposed car-sharing service by BlueIndy, a subsidiary of France-based Bollore Group.

BlueIndy has an exclusive agreement with the city of Indianapolis to provide the car-sharing service, utilizing on-street parking spaces. Indiana Utility Consumer Counselor David Stippler opposed the rate hike, saying it fell outside the scope of costs that state law allows IPL to charge to ratepayers.

Really. So before the request even goes to the Indiana Utility Regulatory Commission (IURC), the Utility Consumer Counselor (UCC) has agreed that Indianapolis ratepayers indeed will be billed for the service. More from the story:
Kerwin Olson, executive director of the Citizens Action Coalition, said his group continues to oppose allowing IPL to bill its customers for a service that will be used by a relative few.

“This settlement does not change the fact that the captive ratepayers of IPL are being forced to subsidize a French multibillion-dollar corporation for a project that has nothing to do with providing electric service,” Olson said.

ILB: See also this ILB post from Aug. 14th, headed "Ind. Gov't. - Names of three finalists for IURC vacancy sent to Govenor."

[Updated at 6:39 PM] The ILB has now received a copy of the news release of our Utility Consumer Counselor in the IPL electric vehicle case. It ends:

“We have taken into account the risks of litigation and the concessions the OUCC was able to obtain for the benefit of IPL ratepayers from the city and IPL following intensive negotiations,” said Indiana Utility Consumer Counselor David Stippler. “IPL customers will also benefit from a creative and innovative street lighting plan, along with the real potential for the establishment of other meaningful energy savings initiatives. Accordingly, we believe this agreement is in the public interest and should be approved by the IURC.”
ILB thoughts: There will still be litigation. It will be over the question of whether the utility law allows charging the ratepayer for this type of unrelated business-development project. Otherwise, the URC's settlement will establish that precedent for the future, not only in this case, but with respect to any of the state's utilities.

See also this new post from the blog, Advance Indiana.

Posted by Marcia Oddi on Thursday, August 21, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor, et al. , a 20-page opinion, Judge Bailey writes:

Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, Inc., and Valley Watch, Inc. (collectively, “Interveners”) appeal an order of the Indiana Utility Regulatory Commission (“the Commission”) approving a request from Duke Energy, Indiana, Inc. (“Duke”) to include power plant construction costs incurred April 1, 2012 to September 30, 2012 in a rate adjustment rider (“ICGG-10”), in implementation of a settlement agreement between Duke, the Indiana Office of Utility Consumer Counselor (“the OUCC”), and other entities. We affirm. * * *

The Interveners have not demonstrated that the Commission acted contrary to law by approving the order in ICGG-10.

In James S. Littrell v. State of Indiana , a 12-page opinion, Judge Baker writes:
James Littrell appeals his conviction for possession of cocaine as a class B felony, claiming that the trial court violated his right to a fast and speedy trial when his trial was scheduled 112 days after the State’s petition for an extension under Criminal Rule 4(D) was granted. Littrell also contends that the State’s evidence is insufficient to show possession because the cocaine was found inside the shorts of another passenger. Finally, Littrell argues that his aggregate sentence of twenty-five years is inappropriate in light of the nature of the offense and his character. Finding that his right to a fast and speedy trial was not violated, that the evidence is sufficient to support his conviction for possession of cocaine, and that his sentence is not inappropriate, we affirm the judgment of the trial court; however, we remand to the trial court for the sole purpose of correcting a typographical error in the guilty plea and sentencing orders. * * *

Finally, Littrell requests that the sentencing order be amended to show that Littrell’s conviction on Count VII, operating a vehicle while having a schedule I or schedule II controlled substance in the body, was a Class C misdemeanor, not a felony as indicated in the guilty plea and sentencing orders. The State acknowledges that the offense was indeed a misdemeanor, not a felony. Therefore, we remand this matter to the trial court with instructions to correct this error in the guilty plea and sentencing orders.

Based on the foregoing, the judgment of the trial court is affirmed and remanded for the sole purpose of correcting a typographical error in the guilty plea and sentencing orders, which mistakenly lists one of Littrell’s misdemeanors as a felony.

NFP civil opinions today (0):

NFP criminal opinions today (10):

Darryll Beamon v. State of Indiana (NFP)

Latorrea D. Ware v. State of Indiana (NFP)

John Naylor v. State of Indiana (NFP)

Antonio D. Rose v. State of Indiana (NFP)

Kurnie Nickson v. State of Indiana (NFP)

Darryl J. Goodwin v. State of Indiana (NFP)

Leonard Abshier, III v. State of Indiana (NFP)

Megan Renea Mecum v. State of Indiana (NFP)

David Jones v. State of Indiana (NFP)

John Watson v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Posner opinion takes aim at denial of disability benefits; is it a 7th Circuit trend?"

Debra Cassens Weiss writes for the ABA Journal today in a post that begins:

In a published opinion issued two weeks after oral argument, the Chicago-based 7th U.S. Circuit Court of Appeals has overturned the denial of disability benefits to a woman who claimed severe pain because of a herniated disc.

The two-week turnaround by the author of the opinion (PDF), Judge Richard Posner, is quick even by his speedy standards, according to Illinois lawyer Barry Schultz, who represented the claimant. The 7th Circuit has been reversing a lot of adverse determinations in disability cases, particularly in the last year, he tells the ABA Journal.

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

Ind. Courts - "Allen Superior Court judge apologizes for ‘extremely tasteless’ remarks"

Rebecca S. Green of the Fort Wayne Journal Gazette reports this morning; here are some quotes:

Allen Superior Court Judge Stanley Levine finds himself in hot water with his colleagues and staff after a string of sexually charged comments at a public retirement reception Friday.

Levine, a 15-year veteran of the court’s civil division, took the microphone in the middle of a retirement and award reception for longtime court executive Jerry Noble and two members of his staff.

During Levine’s remarks in front of a packed courtroom filled with family, friends, co-workers and some children, he suggested that one of the women retiring would have a lucrative potential second career as a phone-sex operator.

Levine mentioned the woman’s husband might be OK with such a job once he saw how much money she could make.

Other than a few head shakes and dropped jaws, no one said anything or noticeably reacted to Levine’s comments, which were followed by an a capella rendition of “I’ll Be Seeing You.” * * *

But by Monday morning, Allen Superior Court Judge Wendy Davis, serving as the county’s chief judge, was fielding questions and complaints from people throughout the expansive building downtown.

And since the event, Levine has appeared contrite.

“First of all, I wanted to state that I have made a sincere and heartfelt apology to the woman about whom I made inappropriate remarks by talking to her personally, and she has accepted my apology,” he said Wednesday. “I have also apologized to the judges that I have talked with, and I apologize … anyone else who heard what I said; and also to the public.”

In an email circulated Wednesday afternoon to courthouse staff, the Allen County Board of Judges – comprising the court’s nine judges – said they, too, found Levine’s comments to be inappropriate and that a number of people present during the reception found his comments offensive.

The email reminded all courthouse staff that anyone who feels he or she has been harassed has the option to report the conduct to a supervisor, the court executive or any Allen Superior Court judge.

Levine, appointed to the bench by then-Gov. Frank O’Bannon in December 1998, is up for re-election this year and faces challengers James Posey and Dan Borgmann. * * *

“The Code of Judicial Conduct requires judges to uphold the integrity of the judiciary,” said Kathryn Dolan, state Supreme Court spokeswoman, in an email. “Certainly sexual harassment of an employee is not appropriate conduct. However, I cannot state whether a specific situation violates the code of conduct.

“Only the five members of the Supreme Court have the authority to determine what (if any) judicial misconduct has occurred in a specific situation. A litigant, member of the press or public or a judicial officer can report alleged misconduct to the Indiana Judicial Qualifications Commission.”

Posted by Marcia Oddi on Thursday, August 21, 2014
Posted to Indiana Courts

Wednesday, August 20, 2014

Ind. Gov't. - "GOP lawmaker at core of $1.7M complaint, raises revolving door questions"

That is the headline to Tom LoBianco's AP exclusive this evening. The story begins:

INDIANAPOLIS — A former top Indiana education official's role in the sale of $1.7 million worth of videoconferencing equipment to the state by Cisco Systems Inc., where he worked before and after holding that state position, has added to calls to strengthen Indiana's ethics laws amid a recent spate of boundary-pushing incidents.

Todd Huston left his Department of Education job as chief of staff to former Indiana Schools Superintendent Tony Bennett in 2010 for a position with Cisco, where he had previously worked. He was involved in the 2012 sale of a new TelePresence videoconferencing system to the DOE that officials later determined was a waste of taxpayer money.

The story ends with links to a number of emails and calendar entries. But before you look at those, see this post on the IndyStar website this evening. It is the same LoBianco story, but ends with a timeline, which gives a good picture of the events at issue and links to the same emails and the like. Of particular interest is this Jan. 18, 2011 email from Huston to then-Louisiana School Superintendent Paul Pastorek to discuss both Cisco sales and Indiana education policy. You might call it the "two-hats" email.

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Indiana Government

Ind. Decisions - "Lake judge denies stay in right-to-work case, law is unconstitutional"

Updating this ILB post from July 24th, Dan Carden of the NWI Times reports this afternoon:

INDIANAPOLIS | Lake Circuit Judge George Paras has rejected Attorney General Greg Zoeller's request that Paras postpone his decision finding Indiana's right-to-work law unconstitutional until the Supreme Court rules in a similar case.

In a brief order issued Aug. 13, but only listed on the court's docket Wednesday, Paras denied Zoeller's motion for a stay pending appeal.

That outcome is not surprising since Paras, in his July 17 order, specifically declared his ruling — that the labor law is "null and void in its entirety" and the state is "permanently enjoined" from enforcing it — takes effect immediately. * * *

Bryan Corbin, spokesman for the Republican attorney general, said Zoeller *** will ask the Indiana Supreme Court to issue a stay. * * *

Paras' right-to-work ruling hinges on the "particular services clause" of the Indiana Constitution that declares, "No person's particular services shall be demanded, without just compensation." * * *

In his strongly worded decision, the judge said by denying Steelworkers the ability to collect fair-share fees from nonunion members, it is clear the right-to-work law deprives the union of compensation for services it is required by federal law to provide to all employees in a bargaining unit.

"But for the RTW (right-to-work) statute, plaintiffs would still be able to be compensated for such services," Paras said.

"Moreover, the state of Indiana has taken a central role in the denial of just compensation to plaintiffs, as any violation of the RTW statute by them would bring about their criminal prosecution by the state of Indiana or administrative proceedings against them by the Indiana Department of Labor."

Paras continued, "The RTW statute eviscerates the basic right that a person be compensated for the good and valuable services that a person provides in commercial endeavors and is the type of law that the particular-services clause was intended to bar."

Lake Superior Judge John Sedia reached an identical conclusion last year in a challenge to the right-to-work law brought by the International Union of Operating Engineers, Local 150.

The Indiana Supreme Court is set to hear oral arguments in that case Sept. 4.

The Operating Engineers last week requested the Supreme Court consolidate the two cases. Steelworkers' attorney Jim Wieser, of Schererville, said he and his co-counsels are studying whether that is the best way to move forward.

"We're willing to explore all of the logical options here as to what can be done," Wieser said.

A key difference in the two cases is that Sedia's ruling came in response to Zoeller's motion to dismiss, and no evidence or trial record was established.

Paras' decision followed a request for summary judgment by the Steelworkers after written and oral arguments were made by both the union and the state, as well as outside groups interested in the case.

While it is generally uncommon for a judge to rule in a similar case to one that is pending before the Supreme Court, Paras said he suspects the high court will focus on procedural issues, and not constitutional questions, when it reviews Sedia's order striking down the right-to-work law.

As a result, Paras said it was appropriate to issue his decision, which is based on a complete trial record, that the right-to-work law is unconstitutional.

The NWI Times story links to all three documents:

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Ind. Trial Ct. Decisions

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

In Robin Allman v. Kevin Smith (SD Ind., Pratt), a 7-page opinion, Judge Posner writes:

The plaintiffs, former employees of a city in Indiana, sued the mayor, and the city itself, under 42 U.S.C. § 1983. They claimed that the mayor had fired them because of their political affiliations and thus in violation of their First Amendment rights. The mayor riposted that political affiliation was a permissible qualification for their jobs. The district judge granted summary judgment in favor of the mayor with respect to nine of the eleven plaintiffs, on the ground that his argument concerning political qualification for their jobs was sufficiently arguable to entitle him to qualified immunity. But the judge denied summary judgment with respect to the two other plaintiffs because she didn’t think the mayor’s claim of immunity from their suit arguable, given the differences between their jobs and those of the other nine plaintiffs.

The judge refused to certify for interlocutory appeal her denial of the mayor’s claim of qualified immunity with respect to those two plaintiffs, on the ground that the issue of his qualified immunity involves a question of fact—namely whether he should have known that his conduct was unlawful (if it was). The judge also refused to stay the district court proceedings pending his appeal. The mayor asks us to grant the stay. * * *

The mayor is entitled to a stay because he’s claiming qualified immunity. But is the city entitled to a stay? Or even to ask us for a stay? Can it be considered a party to this appeal? These are the interesting questions, and the answers depend on the applicability of the doctrine of pendent appellate jurisdiction, for it is the only possible ground for the city’s claim to be a party to this appeal. * * *

[much interesting discussion]

It will be the business of the merits panel to decide the mayor’s appeal from the denial of summary judgment regarding the two plaintiffs whom the district judge declined to dismiss. We hereby stay the district court proceedings both against the mayor and against the city.

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

Ind. Gov't. - Governor's office objects to ILB post; the ILB's response [Updated with ILB apology]

The ILB has just received this message from the Governor's office:

Hello Marcia,

Please find attached the second memo sent from the Governor’s General Counsel in regard to agency compliance instructions. This memo was sent to members of the media who asked for it, as was the first memo.

The Indianapolis Star, in their story found here: http://www.indystar.com/story/news/2014/08/19/latest-ruling-overturning-sex-marriage-ban-makes-indiana-governor-party-suit/14318877/, link to this memo within their article.

We respectfully ask that you correct the information referenced at the end of your blog post titled “Ind. Decisions – How does today’s ruling by Judge Young impact his dismissal of Love v. Pence? (Or, Governor scolded by Judge)” as it is inaccurate.

Thank you,

Bridget Cleveland
Deputy Press Secretary
Office of Governor Mike Pence

My response:
Dear Bridget

Thank you for the note. I'm am very pleased to learn that you read the Indiana Law Blog.

However, I must disagree with you. Members of the press who I communicated with at the time of the first memo told me they were unable to obtain a copy.

I directly asked your chief counsel for a copy of his second memo shortly after I became aware of it, but he was not able to make it available to me, although he did try.

No press stories linking to either memo had appeared when I did a post on July 28th on the Love v. Pence plaintiffs' motion for reconsideration. Their federal court filings included copies of the two memos, which I immediately downloaded from PACER and made available in that ILB post.

I believe the Star story you quote today, which was published today, is the first time the July memo has appeared in the traditional media.

Thank you again for your interest in the ILB.

Marcia J. Oddi

[Updated at 12:50 PM]

The ILB has now received a second note from Ms. Cleveland and it appears apologies are in order:

Hello Marcia,

Thank you for your response.

If we failed to provide the second memo to you, we sincerely apologize as it was not intentional. We did provide the memo to a number of members of the media around that time, including the Indianapolis Star, which linked to the memo in this article published on July 9: http://www.indystar.com/story/news/politics/2014/07/09/state-recognize-june-marriages-sex-couples/12410207/.

At the time of the first memo, we received one request from Charlie Wilson with the Associated Press, and we provided the memo to him. As we aim to serve the media, we are troubled that some media members say they were unable to obtain the document. Are you able to provide the list of those who told you they requested the first memo from us and did not receive it so we may follow up with them?

Thank you,

Bridget Cleveland

Dear Bridget
It does appear some apologies are in order. I was unaware the AP ultimately obtained a copy of the first memo from the Governor's office, as I received several requests from the AP at the time for the document from which I had quoted.

Re the second memo, yes I was unable to obtain it from your office when I tried, but it appears I did ultimately obtain a copy from another source, as attested by this July 9th ILB post. I also link to what I referred to as a "brief" Indianapolis Star story, which I believe was greatly expanded later that day, as the version now available is time-stamped: "11:08 p.m. EDT July 9, 2014."

In sum, my last paragraph in the August 19th ILB post indeed is in error and I have removed it. I take accuracy very seriously and appreciate your bringing this matter to my attention.

Marcia J. Oddi

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Indiana Government

Ind. Law - Norman Metzger, Indiana Legal Services head, announces retirement

This brief AP story in the Fort Wayne Journal Gazette begins:

INDIANAPOLIS – One of the nation’s longest serving directors of a legal aid organization has announced he’s retiring from Indiana Legal Services next March 31.

Norman Metzger has been the executive director of the not-for-profit law firm for 44 years.

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Indiana Law

Ind. Gov't. - State's response to the Love plaintiffs' motion for reconsideration

Federal Judge Richard Young has not yet ruled on the motion for reconsideration of the order of dismissal filed by plaintiffs in Love v. Pence, which the ILB discussed in detail here on July 28th.

However, the defendant in the lawsuit, Governor Pence, though his counsel, the Indiana Attorney General's office, did on August 8th file a memorandum in opposition to the motion for reconsideration. Here are some quotes, which have added interest in light of Judge Young's ruling yesterday in Bowling v. Pence:

Defendant Michael Pence, in his official capacity as Governor of the State of Indiana, submits this memorandum in opposition to the Plaintiffs’ Motion for Reconsideration of Order Dismissing. Plaintiffs allege that the Governor “made misrepresentations” about his authority to enforce Indiana’s traditional marriage definition based on two memoranda sent by the Governor’s general counsel in the wake of this Court’s ruling in Baskin v. Bogan, No. 1:14-cv- 355-RLY-TAB, Fujii v. Commissioner, No. 1:14-cv-404-RLY-TAB, and Lee v. Abbott, 1:14-cv- 406-RLY-MJD. These memoranda, however, do not demonstrate any additional authority of the Governor to enforce Indiana Code § 31-11-1-1.

As this Court recognized in its order of dismissal, the Governor’s authority is welldefined “in the Constitution, statutes, and regulations of the State of Indiana[,]” and Plaintiffs’ asserted injuries are not fairly traceable to the Governor’s actions and cannot be redressed by the Governor. Entry on Defs.’ Mot. to Dismiss at 7 [Doc. No. 32] (hereafter, “MTD Entry”). Accordingly, Article III does not grant this Court subject matter jurisdiction over this case, and e-mails from the Governor’s general counsel do not prove otherwise. * * *

The memoranda represent precisely the sort of statements that federal courts should expect Governors to make to agencies under their purview when any state law is declared invalid: respect the court’s decision, do not thwart the rule of law, and do not take actions rendering you susceptible to charges of contempt. Providing such basic advice is not the same as enforcing the statute at issue. See MTD Entry at 6 (citing Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770 (7th Cir. 1999) (“[T]he governor has no role to play in the enforcement of the challenged statutes, nor does the governor have the power to nullify the legislation once it has entered into force.”). Declaring that statements such as this can render a governor susceptible to federal lawsuits would likely chill similar guidance in the future.

Because the Governor’s inability to enforce Indiana Code Section 31-11-1-1 or redress Plaintiffs’ injuries remains unchanged by the memoranda, the Court should deny Plaintiffs’ motion.

Plaintiffs have never established that the Governor has any “connection” with enforcement of the traditional marriage definition, and Mr. Ahearn’s e-mails do nothing to change that. Without any actual enforcement authority on the Governor’s part, this suit is merely an attempt to circumvent the Eleventh Amendment and sue the State of Indiana without its consent.

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., Johnson Carpet, Inc., d/b/a Johnson Commercial Interiors, a 25-page opinion, Judge Robb writes:

Goodrich Quality Theaters, Inc. (“Goodrich”) and Roncelli, Inc. (“Roncelli”) (collectively, “Roncelli”) appeal the trial court’s judgment in favor of Fostcorp Heating and Cooling, Inc. (“Fostcorp”), Wilson Iron Works, Inc. (“Wilson Iron”), and Johnson Carpet, Inc. d/b/a Johnson Commercial Interiors (“Johnson Carpet”) (collectively, “the appellees”) on various breach of contract claims, foreclosure of mechanics’ liens, and the award of attorney fees that all stem from construction of the Portage 16 IMAX movie theater (“the theater”). Roncelli raises the following issues, which we consolidate and restate as: (1) whether the trial court’s retroactive decree that its May 1, 2012 order was a final judgment renders Roncelli’s appeal untimely; (2) whether the trial court erred in interpreting Roncelli’s contract with Wilson Iron; (3) whether the trial court erred in interpreting Roncelli’s contract with Johnson Carpet; and (4) whether the trial court erred in awarding attorney fees to the appellees. Concluding the appeal was timely filed and the judgments are supported by the findings, but it was an abuse of discretion for the trial court to award attorney fees, we affirm in part and reverse in part.
In Kindred Nursing Centers, d/b/a Royal Oaks Health Care and Rehabilitation Center v. The Estate of Carrie Etta McGoffney, a 9-page opinion, Judge Bradford writes:
Carrie Etta McGoffney was a resident of the Royal Oaks Health Care and Rehabilitation Center, a facility operated by Appellant-Petitioner Kindred Nursing Centers (“Royal Oaks”), from September 30, 2008, until June 30, 2009. Carrie, who is now deceased, had two daughters, Ivy and Kelly McGoffney, and a granddaughter, Kelly’s daughter Keeli Mayes. In December of 2010, at a time when Ivy was Carrie’s sole guardian and attorney-in-fact, Kelly filed a proposed complaint in superior court alleging medical malpractice against Royal Oaks on behalf of Carrie. Around that time, the Vigo Probate Court, which had established Ivy’s guardianship, issued an order providing Kelly with the authority to pursue a medical malpractice action on Carrie’s behalf. Royal Oaks challenged the Probate Court’s order and also filed a motion to dismiss the proposed complaint in superior court on the basis that Kelly did not have standing. The Probate Court declined to rescind its order, but the superior court dismissed the complaint filed by Kelly in late December of 2011.

In early January of 2012, the Probate Court removed Ivy as Carrie’s guardian and appointed Keeli in her place. The next month, Keeli filed what she styled an amended proposed medical malpractice complaint against Royal Oaks. In May of 2012, Royal Oaks filed for summary judgment on the basis that the filing by Keeli was untimely. In November of 2012, Carrie died. Kelly was appointed personal representative of Appellee-Respondent Carrie’s estate (“the Estate”), and the Estate was substituted as plaintiff in the proposed complaint against Royal Oaks. The trial court eventually denied Royal Oaks’ summary
judgment motion, and we accepted jurisdiction over Royal Oaks’ interlocutory appeal. Royal Oaks argues that because neither Indiana Trial Rule 15(C), the tolling the provisions of the Medical Malpractice Act, nor the Journey’s Account Statute (“the JAS”) apply, the trial court erred in allowing the Estate’s proposed complaint to proceed. Concluding that the JAS applies to revive Keeli’s complaint, we affirm.

NFP civil opinions today (4):

Westport Homes, Inc. v. Greg Penley and Pam Penley (NFP)

David Johnson and Ieva S. Johnson and Eva G. Sanders and Joseph K. and Michelle Yeary v. Indiana Department of Environmental Management and Town of Whitestown (NFP)

Citi Capital Financial LLC v. Huntington National Bank (NFP)

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

NFP criminal opinions today (6):

In Brandon Brummett v. State of Indiana (NFP), a one-paragraph opinion on rehearing the panel writes:

The State seeks rehearing following our opinion, Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), arguing that this Court failed to apply an appropriately high standard for fundamental error when reversing appellant-defendant Brandon Brummett’s convictions for child molesting due to prosecutorial misconduct. The State argues that this Court should apply the fundamental error standard as recently articulated by our Supreme Court in Ryan v. State, 9 N.E.3d 663 (Ind. 2014), handed down June 3, 2014. We issue this opinion on rehearing but re-affirm our original decision in all respects, finding that the prosecutorial misconduct present in this case was much more egregious than that in Ryan and concluding that the prosecutor’s misconduct did amount to fundamental error under the standard now to be used. Although we have granted rehearing, we reverse and remand for further proceedings.
The ILB last wrote about this case July 30th, in a post headed "Petition for rehearing filed by State in recent COA prosecutorial misconduct decision." The June 2nd Brummett opinion was For Publication. Oddly, this denial of a petition for rehearing has been designated Not for Publication by the panel, meaning this denial "shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case." This may present a dilemma to an attorney citing the original Brummett opinion, but denied the ability to cite it subsequent history ...

Larry Love v. State of Indiana (NFP)

Simone Smith v. State of Indiana (NFP)

Jason G. Squier v. State of Indiana (NFP)

Eric J. Smith v. State of Indiana (NFP)

Rayshawn Winbush v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Latest ruling overturning same-sex marriage ban makes Indiana governor a party to suit"

Here is Jill Disis' Indianapolis Star story on yesterday's ruling by federal Judge Richard Young in Bowling v. Pence.

See also yesterday's ILB posts, here and here.

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on: Do waivers make the state ethics rules meaningless, or unfair?

Following up on Sunday's stories, the Fort Wayne Journal Gazette editorialized yesterday:

There may be another leak to plug when the legislature re-evaluates Indiana's ethics code.

The Journal Gazette's Niki Kelly reported this weekend on a peculiar feature of the part of Indiana's code dealing with executive-branch employees who leave public service and go to work for companies that do business with the state.

Since 2005, Indiana has mandated a cooling-off period of one year. That rule is designed to prevent the revolving door effect of a government employee giving special treatment to a potential employer in the private sector or a former public servant getting hired to use his or her inside knowledge and connections to give a new employer an edge with officials.

In writing, the rule is pretty straightforward. Under “post-employment restrictions – summary of the rule,” the inspector general's ethics page has this sentence: “Don't go to work for a company that did work for you as a state employee.”

If there's a question of whether an employee might be compromised, the Indiana inspector general is ready to resolve it.

But as Kelly reported, there's a way to get around all that.

A waiver.

That's right – the head of a state agency can write a former employee a waiver that excuses him or her from the wait-a-year rule, or even, apparently, from worrying about what the state calls “particular matters” – conflicts in which a former official can never represent a private employer.

The inspector general, David Thomas, generally defended the concept. Thomas told Kelly the head of an employee's department is in the best position to know how involved that person was in a potentially conflicting matter and thus whether a waiver is appropriate. And he noted that all of the more than 100 waivers that have been granted in the nine years since the law went into effect are a part of public record. Thomas also contends that the waiver provision might protect the Indiana law from being declared unconstitutionally limiting.

But some of the waiver cases recounted in Kelly's article and a story on the same subject in The Indianapolis Star Sunday certainly give one pause. * * *

No cases of wrongdoing were unearthed. But the process undercuts the sense of trust and fair play that an ethics code is supposed to promote.

The legislature should look hard at the waiver provision as part of the ethical overhaul that we hope is coming at the Statehouse early next year.

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Indiana Government

Courts - SCOTUSblog: "Rapid action on same-sex marriage urged"

Lyle Denniston of SCOTUSblog has a much-updated post on cases in Circuit Courts that are likely to be eligible for review by the SCOTUS, should it so choose. A quote:

State officials in Virginia urged the Supreme Court on Monday to put on hold a federal appeals court decision striking down the state’s ban on same-sex marriage, but they also asked the Justices to move to decide that constitutional issue “as quickly as possible.” Lawyers for two groups of same-sex couples in Virginia opposed delay, but they also asked the Court — if it does order a postponement of that lower court decision — to move ahead swiftly to rule on the core question.

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Courts in general

Ind. Decisions - "ILB on Bowling v. Pence & Judge Young’s Scolding of the Governor"

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - More on: "Indiana DNR calls scientific heavy hitters to captive-deer hearing"

Updating yesterday's pre-meeting story, both Ryan Sabalow of the Indianapolis Star and Niki Kelly of the Fort Wayne Journal Gazette report on yesterday's meeting. Just a few quotes from the long Star story:

Federal agricultural officials say they will not restrict the interstate shipment of captive deer — despite disease concerns raised by scientists and six members of Congress.

That decision, outlined in a letter from U.S. Secretary of Agriculture Tom Vilsack, comes as a summer study committee made up of Indiana lawmakers met Tuesday to consider — among other things — a possible ban on deer imports.

So far, 21 states have issued such bans, fearing the spread of the always-fatal deer ailment, chronic wasting disease.

Vilsack said new rules for the nation's deer farms do enough to prevent the spread of chronic wasting disease and bovine tuberculosis, while promoting the burgeoning deer industry, which primarily breeds deer with enormous antlers to be shot on fenced hunting preserved.

In a letter to U.S. Rep. Jim Moran, D-Virginia, Vilsack said the federal agency believes it has struck the right balance in "improving the domestic and international marketability" of the nation's deer farms while also keeping "strong safeguards" in place to prevent the spread of disease.

"This is consistent with our successful approaches to addressing a number of other livestock diseases in the United States," Vilsack wrote. Moran and five other Democrats had requested a ban.

The decision leaves the matter to states like Indiana, where consensus is not easy to obtain. In Missouri the governor recently vetoed its legislature after it tried to block the state's wildlife agency which had called for ban on imports.

In Indiana, lawmakers heard four hours of testimony Tuesday, but the panel appeared no closer to making a decision on that front.

Both the study session and Moran's concerns were in response to an Indianapolis Star investigation that uncovered case after case linking the industry to the spread of chronic wasting disease.

Lawmakers heard from four wildlife disease experts called to testify by the Indiana Department of Natural Resources. They cited documented cases in which the interstate captive-deer industry was linked to the spread of diseases. They also testified that CWD is spreading rapidly among wild herds in some states and states have spent millions of dollars trying to contain the disease. * * *

But the panel also heard testimony from four in-state veterinarians who said current disease testing requirements from the Indiana Board of Animal Health are more than adequate.

"We have probably one of the most robust regulatory structures in the country as far as keeping CWD out," said Darryl Ragland, a Purdue University veterinarian who works for deer farmers. "We have a program in place that is working."

From the FWJG, where the story is headed "Deadly deer disease adds layer to canned-hunt debate::
Lawmakers received an education Tuesday on chronic wasting disease, a deadly infection that is the new epicenter of a debate about deer farms and captive hunts in Indiana.

The Agriculture and Natural Resources Study Committee heard nearly five hours of testimony from both sides. The panel could give recommendations for action to the legislature this year.

It’s the latest chapter in the complicated history of high-fenced hunting in Indiana.

Opponents are focusing on preventing or delaying the potential spread of chronic wasting disease by banning importing deer into the state and continuing a prohibition on captive hunts.

“The disease is moving across the landscape,” said Dr. Bryan Richards, of the U.S. Geological Survey’s National Wildlife Health Center. “Will it get here over time? It’s certainly a possibility. Do you want it sooner or later? You can have an impact on the time of arrival.”

But supporters have pushed the General Assembly for years to legalize high-fenced hunting and say Indiana regulators are on top of the chronic wasting disease threat.

High-fenced hunting preserves place deer with big racks in large confined spaces, and hunters can shoot them for high prices. * * *

Chronic wasting disease is a progressive, neurological disorder that always kills the deer it is found in. It is transmitted freely from animal to animal. Soil can also be contaminated by the deer.

Richards pointed out that Indiana bans importing from states – about 20 – with chronic wasting disease, but said just because deer farms import from a currently CWD-free state doesn’t mean the animals don’t have the disease.

That’s because there’s no live test, and the deer can have it for two years before showing symptoms.

Other experts testified that the movement of deer in and out of the state – and between deer farms and hunting facilities within Indiana – increases the risk for the disease.

It can also be spread from a captive herd to the wild through nose-to-nose transmission on a fence line or escapes.

States have spent millions trying to eradicate the disease and hunting has dropped sharply.

Supporters of deer farming say an infected deer can easily walk into the state now.

Posted by Marcia Oddi on Wednesday, August 20, 2014
Posted to Indiana Government

Tuesday, August 19, 2014

Ind. Decisions - How does today's ruling by Judge Young impact his dismissal of Love v. Pence? (Or, Governor scolded by Judge) [Corrected]

How does today's ruling by Judge Young impact his dismissal of Love v. Pence?

On July 28th the ILB wrote at length about the plaintiffs in Love v. Pence' motion for reconsideration of the order of dismissal with the federal district court. In his June 25th ruling in Baskin, J. Young wrote:

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).
In Love, Governor Pence was the only defendant, so the lawsuit was dismissed.

As the July 28th ILB post details, in their motion for reconsideration the plaintiffs quote at length from two memos from Governor Pence, the first ordering the state agencies to comply with the Baskin ruling, and then, when it was stayed, a second memo ordering the agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” The Love plaintiffs' argument that the Governor therefore does have authority to enforce the marriage law is quite convincing.

It appears that Judge Young thinks so too
, although he has not yet (as far as I am aware) issued a ruling in the Love plaintiffs' motion to reconsider. Here is some of what he wrote today in Bowling re Governor Pence as a proper party defendant, sometimes echoing the Love motion for reconsideration [ILB emphasis]:

The Governor has repeatedly represented to this court that he does not have “any authority to enforce, or other role respecting, Indiana Code Section 31-11-11-1.” (Defendants’ Memorandum in Support of Their Motion for Summary Judgment, Filing No. 26, at ECF p. 17). Based on this representation and an absence of statutory authority allowing the governor to issue executive decrees telling other elected officials how to do their jobs, the court previously granted summary judgment in favor of the Governor. See Baskin, 2014 WL 2884868 at * 4; see also Love v. Pence, No. 4:14-cv-15-RLY-TAB, 2014 WL 2884569. The court found that the general authority to enforce the laws was insufficient to show the governor was a proper party defendant. See Love, 2014 WL 2884569. Additionally, the court concluded that because the governor could not enforce Indiana’s marriage laws, he could not redress the Plaintiffs’ injuries. See id. Since that time, the Governor issued memoranda, through his attorney, and did what he claimed he could not do by directing executive agencies on how to proceed in enforcing the law. (See Memorandum from General Counsel to Governor Mike Pence, July 7, 2014 (hereinafter “July 7 Memorandum”), Plaintiffs’ Exhibit 10). In light of this bold misrepresentation, the court must now revisit the issue.

In the July 7 Memorandum sent to “all executive branch agencies,” the general counsel to the Governor expresses that he sent a memorandum on June 25, 2014 (“June 25 Memorandum”), the day of the court’s order, directing all executive branch agencies to comply with the decision. (July 7 Memorandum). The memorandum also notes that after the Seventh Circuit issued a stay of the court’s order, “the Governor’s general counsel instructed all executive branch agencies to stop any processes they had commenced in complying with the District Court order of June 25.” (Id. at ¶ 3). On July 7, 2014, the Governor sent a memo stating that “Indiana Code § 31-11-1-1 is in full force and effect and executive branch agencies are to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” (Id.).

The memoranda issued by the Governor clearly contradict his prior representations to the court. The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014, and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it is not based on the governor’s general duty to enforce the laws. It is based on his specific ability to command the executive branch regarding the law. Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized. * * *

IX. Conclusion

* * * [T]he court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits. The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.

ILB: The final paragraph, re the availability of the two memos at issue, has been deleted, as of 1:17 PM, 8/20/14.

Posted by Marcia Oddi on Tuesday, August 19, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Federal Judge Young rules in remaining same sex marriage case before him

See this July 20th ILB entry for background on Bowling v. Pence. Of the five same-sex marriage cases filed in Indiana federal court in March, only Bowling had not been decided by Judge Richard Young. Until now. This one dealt with recognition of same-sex marriages performed in other jurisdictions.

Today Judge Young ordered, in a 12-page opinion, consistent with his earlier rulings:

1. The Governor, his officers, agents, servants, employees and attorneys, and all those acting in concert with him, are PERMANENTLY ENJOINED to recognize same-sex marriages that, but for their sex, satisfy all the requirements to marry under Indiana law. This includes directing all executive agencies to take actions to comply with this court’s order to afford same-sex marriages the same rights, responsibilities, and benefits as opposite-sex marriages.

2. The Attorney General, Greg Zoeller, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from prosecuting or assisting in the prosecution, using his authority from Indiana Code § 4-6-1-6, of Indiana Code § 35-44.1-2-1 (perjury) as applied to same-sex couples who use and sign under the penalty of perjury government forms that require the individuals to fill out information based on gender, such as marriage license applications.

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

4. The Executive Director of the Indiana Department of State Personnel, her officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to offer employee benefits and all other human resource services to same-sex married couples as they do for opposite-sex married couples.

However, the ruling concludes:
This Order is stayed until the Seventh Circuit rules on the merits of this case or one of the related cases of Baskin v. Bogan, Lee v. Pence, and Fujii v. Pence. Should the Seventh Circuit stay its decision in the related cases, this order shall remain stayed.

SO ORDERED this 19th day of August 2014.

Posted by Marcia Oddi on Tuesday, August 19, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Controversy about Indiana public employee salary databases [Updated with comments]

Earlier this month, perhaps on Aug. 7th, I read an online Indianapolis Star story about the 20 highest paid public employees in Indiana. There wasn't much there, other than the names and salaries, so I expected it to become part of an expanded Sunday story on the topic. What struck me as I read the list was that, other than the usual university football and basketball coaches, the rest of the top-twenty highest-paid public employees list consisted of folk from Citizens Energy and two county hospitals, in Daviess and Dearborn counties! I looked forward to the Star story explaining this.

But there was no story that weekend of August 10th. There was a little-noticed story on August 14th, by Haoyun Su and Michael Auslen, headed "20 highest-paid public employees in Indiana." Some quotes:

When it comes to Indiana's highest-paid public employees overall, we see a slight overlap from our list of the highest-paid coaches — five of them made this list, too.

However, broadening the 2013 list to include all public, state, county and municipal workers adds several well-paid Citizens Energy Group executives and county hospital doctors, knocking some Indiana coaches out of the overall top 20.

Once again, men dominate the list, with only a couple women represented, including Margaret Richcreek, Senior Vice President and Chief at Citizens Energy Group and Sharon Versyp, head coach of women's basketball at Purdue University.

Citizens Energy executives are considered public employees because they work for a nonprofit public trust. * * *

Six doctors made the top 20, all working for either Dearborn County Hospital or Daviess Community Hospital. However, just 41 percent of the state's county hospitals filed forms detailing employee compensation with the state, as is required by law.

The State Board of Accounts hasn't taken any action against these hospitals, said Paul Lottes, general counsel for the board. But, he said, finding a way to ensure all public entities in Indiana follow the law is a priority.

Some doctors have become public employees in recent years as an increasing number of community hospitals have bought local physicians' practices.

See the end of the Star story for the complete list of 20 and their salaries.

But it doesn't end there. The next day the Washington Times Herald had a story (here via Indiana Economic Digest) by Nate Smith headed "Daviess, Dearborn County hospitals question state requirement on reporting salary." Some quotes from the long story:

The fallout from media reports about salaries at county hospitals throughout the state has raised questions about requiring their disclosure.

Daviess Community Hospital and Dearborn County Hospital physicians were named in an Indianapolis Star article naming them to a list of the 20 highest-paid public employees in Indiana. Daviess Community surgeon Marcus Thorne and former surgeon John Clayton were Nos. 10 and 19 on the list. The Times Herald published the state list of all hospital employees following The Star's report.

While the two hospitals were featured on The Star list, many of Indiana's hospitals did not file or did not have to file at all. According to state data, out of the 29 required to file salary data with the state, only 11, or 38 percent, did.

Daviess CEO David Bixler, along with others involved with county hospitals, said the state should either enforce the law or change it for county hospitals.

"If there are rules that we have to follow, it should be for all of us or none of us," Bixler said.

According to Indiana Code 5-11-13-1, the State Board of Accounts requires county hospitals to file annual personnel reports, known as 100R. This is the same report that counties, cities, townships, schools, libraries and other units of government are required to file by law and are publically available. If not, hospitals are subject to a penalty. In a letter dated Feb. 10 provided by Bixler, the state agency said they had to fill out the 100R or risk penalties. Bixler said it was then that he and the hospital's Chief Financial Officer complied.

"We're going to keep the hospital in compliance with state laws, state regulations or things that we receive of an official nature," Bixler said.

But according to Paul Lottes, general counsel for the State Board of Accounts, there has not been a penalty issued to a hospital for not complying. He also said State Examiner Paul Joyce does not intend to take any action against other county hospitals for not following the law.

"There should be penalties that are put in place, or we retrieve our data," Bixler said. "Everybody should be all in or everybody should be all out."

Dearborn County Hospital, which had four physicians on the list, also complied and submitted its salaries. The hospital also falls under the state law, requiring disclosure. A spokesperson declined comment for this story, other than to say the hospital does not receive county funds. Daviess Community Hospital also does not receive funding from the county, but county government does back up the hospital's bonds.

Many hospitals did not choose to file with the state. One of those hospitals was Good Samaritan Hospital in Vincennes. A spokesperson with the hospital said they did not file the 100R form based on the advice of the Indiana Hospital Association. The association, as does Good Samaritan, believes county hospitals should be exempt from filing the 100R form.

Bixler said the policy leaves county hospitals at a disadvantage in terms of recruiting and keeping quality personnel. The salary criteria listed for physicians like Thorne and Clayton, Bixler said, comes from data supplied by the Medical Group Management Association, a group that supplies salary data to hospitals and member health organizations. He went on to say those salaries are competitive with other hospitals but if competitors get hold of that data, they could try to take advantage.

"We have a lot of positions that in health care are in high demand and it's very competitive," Bixler said. "They may be able to see this and say 'Hey, we could steal that person for whatever that be.'"

The Indiana Hospital Association, which serves 164 hospitals in the state, is working with the state Attorney General's office to change salary disclosures for county hospitals. Lottes would not disclose what those changes might be, and Bryan Corbin, a spokesman for the Attorney General's office, also would not comment or confirm the changes. Douglas Leonard, president of the IHA, said in statement they are awaiting to hear what the decision is from the state.

"IHA believes publishing this data violates the privacy of hundreds of hard-working employees and puts county hospitals at a competitive disadvantage compared to privately owned hospitals," Leonard said. "We look forward to continuing this discussion with the Attorney General until a final ruling is issued."

But if the practice is not changed, Bixler said he would seek legal counsel before complying in 2015.

"I think a lot will be learned in the coming weeks and months," Bixler said.

Joyce said in an email the Attorney General's office did affirm county hospitals did have to keep filing the 100R forms, but said he could use some descretion as to what actually gets posted on the state's website as a public document.

"I did just receive this advisory opinion last week and I am in the process of considering any changes that may be made," Joyce said. "However at this time no decision has been made. I would rather not speculate as to changes as that doesn't help anyone."

And it doesn't end there. State employee salaries are available at the Indiana Transparency Portal. But what we are talking about is public employee salaries - a broader list including local government, universities, etc.

The Indianapolis Star database is based on the "Certified Report of Names, Addresses, Duties and Compensation of Public Employees (Form 100R) [which] provides taxpayers with compensation information for public employees of state government, state universities, state boards and commissions, and all local units of government." It is a product of the "Certified Report of Names, Addresses, Duties and Compensation of Public Employees (Form 100R) [,which] provides taxpayers with compensation information for public employees of state government, state universities, state boards and commissions, and all local units of government."

But the results of a Star database search today for the 20 highest-paid Indiana public employees show only university and Citizens Energy officials. Interestingly, the county hospital names no longer show up ...

Something else interesting: If you filter the Star database for "local government," and start with highest paid, it is not until the 6th screen of 10 names each that you find anyone other than Citizens Energy: #56 highest paid is Riggs, David T., Marion County Director of Public Safety. If you continue clicking, Citizens Energy names predominate screen after screen, until the 17th screen, where the annual salaries have fallen into the $105,000 range.

[Updated at 3:10 to add some comments]

Doug Masson tweeted:

Doug Masson ‏@DougMasson 2h
Via @indianalawblog http://indianalawblog.com/archives/2014/08/ind_govt_3.html … // Also, maybe I should try landing a gig with Citizen's Energy.
And a reader sent this note:
Let me see if I understand this: The Attorney General is now censoring the information going into the Public Employee Salary Database because competitors might see the salaries? First of all, that's just ridiculous. Hospitals know what other hospitals are paying. Secondly, doesn't that defeat the purpose of the database...letting the public know where they are spending their money? So if John Q. Taxpayer wants to know what a public hospital employee is making, he's just out of luck? Does Mr. Zoeller work for the citizens of the State of Indiana, or the Indiana Hospital Association?

Posted by Marcia Oddi on Tuesday, August 19, 2014
Posted to Indiana Government

Ind. Courts - More on: AP story on CJ swearing in today contains error

Updating this post from yesterday, the AP story in the Fort Wayne Journal Gazette has been updated from "Rush to be sworn in" to "Loretta Rush sworn in," but the same error pointed out by the ILB yesterday ("Indiana justices are appointed to five-year terms before facing a retention vote") continues.

Posted by Marcia Oddi on Tuesday, August 19, 2014
Posted to Indiana Courts

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

For publication opinions today (2):

In In the Matter of the Adoption of M.H., W.M. & S.K. v. N.B. & R.B. , a 24-page opinion, Judge Brown writes:

W.M. and S.K. (collectively, the “Appellants”) appeal the trial court’s order denying their petition for adoption of M.H. and granting the petition for adoption filed by R.B. and N.B. The Appellants raise two issues which we revise and restate as:
I. Whether the trial court erred by denying the Appellants’ Motion to Recuse after receiving an ex parte communication from the judge’s fraternity brother urging the judge to rule in a particular manner on the day of the adoption trial; and
II. Whether the trial court erred in finding that it was in the best interest of M.H. to be adopted by the Appellees.
We affirm.
In Lisa B. Gonzalez v. R. Stanton Evans , a 21-page opinion, Judge Barnes writes:
Lisa Gonzalez appeals the trial court’s order requiring her to pay $8289.33 in attorney fees to R. Stanton Evans and its failure to require Evans to pay any attorney fees to her. We affirm in part and reverse and remand in part.

The issues before us are:
I. whether the trial court properly ordered Gonzalez to pay $8289.33 in attorney fees to Evans in connection with his response to Gonzalez’s subpoena; and
II. whether the trial court erred in not holding a hearing on Gonzalez’s request to be awarded attorney fees in connection with her motion to compel discovery from Evans. * * *

We interpret Trial Rule 34(C)(3) as permitting non-parties to recover attorney fees associated with complying with a subpoena or other discovery request, but that refusing to comply with a discovery request solely on the basis that the parties cannot agree on an appropriate amount to pay does not constitute reasonable resistance to a discovery request. Evans did not reasonably resist Gonzalez’s subpoena, but he is entitled to some attorney fees associated with complying with the subpoena. Therefore, we reverse the award of $8229.33 in attorney fees to Evans and remand for determination of the amount of attorney fees he incurred in strict relation to complying with the subpoena. We affirm the trial court’s failure to award any attorney fees to Gonzalez upon her motion to compel, given her failure to present any evidence or make any argument to the trial court regarding any such fees despite having an opportunity to do so.

NFP civil opinions today (1):

In the Matter of the Parent Child Relationship of: M.G. (Minor Child), and S.B. (Father) v. Marion County Department of Child Services (NFP)

NFP criminal opinions today (2):

Eric T. Shamblin v. State of Indiana (NFP)

Sean D. Monroe v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 19, 2014
Posted to Ind. App.Ct. Decisions

Law - "As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime"

The subhead to the long, excellent (but paywalled) WSJ article today, reported by Gary Fields and John R. Emshwiller, is "Even if Charges Were Dropped, a Lingering Arrest Record Can Ruin Chances of a Job."

These are arrest records, not conviction records. The story reports the U.S. Census Bureau, for one, uses them for screening job applicants. More:

Exacerbating the situation are for-profit websites and other background-check businesses that assemble publicly available arrest records, often including mug shots and charges. Many sites charge fees to remove a record, even an outdated or erroneous one. In the past year Google Inc. has changed its search algorithm to de-emphasize many so called "mug-shot" websites, giving them less prominence when someone's name is searched.

On Friday, California Gov. Jerry Brown signed into law a bill making it illegal for websites to charge state residents to have their mug shot arrest photos removed.

In 2013, Indiana legislators approved one of the most extensive criminal record expungement laws in the country. The law was sponsored by a former prosecutor and had a range of conservative Republican backers. One had worked as a mining-company supervisor who frequently had to reject individuals after routine background checks found evidence of an old arrest.

Posted by Marcia Oddi on Tuesday, August 19, 2014
Posted to General Law Related

Ind. Gov't. - "Indiana DNR calls scientific heavy hitters to captive-deer hearing"

That is the headline to a long story this morning by Ryan Sabalow of the Indianapolis Star. It begins:

For years, the state agency with the most at stake in the ongoing legislative debate over what to do about the disease-prone captive-deer industry has been largely silent.

Instead, the loudest voices lawmakers heard were from hunting-preserve owners and deer farmers who have lobbied hard against any effort to strongly regulate the industry because they say it will hurt rural Hoosier economies.

That's going to change on Tuesday.

Officials at Indiana's Department of Natural Resources have asked four out-of-state wildlife disease experts to testify before the 14-member Agriculture and Natural Resources Interim Study Committee.

One of the experts is among the foremost federal authorities on chronic wasting disease, an infectious brain disease that's always fatal to deer and that's been found in 22 states. The disease — and the extent to which the captive deer industry is responsible for its spread — is a significant point of contention in the debate over how strongly the industry should be regulated.

The DNR's move is significant because in recent years its officials have not testified before lawmakers as they have debated legislation favorable to Indiana's hunting preserve and deer-farming industry.

Don't miss reading the entire story.

Here is the link to the 2-page agenda to today's meeting, which begins at 10 AM. You should be able to watch the meeting live at that time via the "Watch Live" link available here.

The ILB has had many earlier entries on captive-deer hunting.

Posted by Marcia Oddi on Tuesday, August 19, 2014
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday, re sentencing

In U.S. v. KENNETH JONES, RAMONE MOCKABEE,DEVON YOUNG and ELISHA DRAKE (SD Ind., Barker), a 64-page opinion, Judge Tinder writes:

Beginning in August of 2009, the Indianapolis Metropolitan Police Department (IMPD) and the FBI conducted a coordinated investigation of a suspected cocaine-distribution organization operating in the Indianap-olis area. The two law enforcement agencies employed a variety of investigative techniques, including interviews of confidential informants and suspects, surveillance, staged or controlled drug purchases, and consensual (on one side) re-cording of telephone conversations. In addition, the investigation utilized court-authorized pen registers of telephone traffic, wiretaps of telephone conversations, and interdiction stops of selected individuals, which were often initiated on the basis of information gleaned from those wiretaps.

This coordinated law enforcement operation continued until January 20, 2010, when a series of searches and arrests were effectuated. A federal grand jury in the Southern District of Indiana then issued an indictment (and subsequently, a superseding indictment) that leveled charges related to the distribution of drugs against twenty defendants, including the appellants in this case, Ramone Mockabee, Kenneth Jones, Elisha Drake, and Devon Young. Jones, Drake, and Young contested the charges against them at a jury trial, but were all convicted. Mockabee pleaded guilty.

We will discuss the particulars of the counts of conviction and the penalties imposed later. For now, we note that all appellants individually raise a variety of pretrial, trial, and sentencing issues, and we have consolidated their appeals. Ultimately, we affirm the convictions that Jones, Drake, and Young now appeal, but we vacate the sentences of Mocka-bee, Jones, and Drake, and remand their cases for resentenc-ing. Before we tackle the multitude of separate issues raised by each appellant, however, we will first discuss the evi-dence and procedures common to all of them, and then dis-cuss specific facts relating to each one in turn. * * *

V. Conclusion

For the foregoing reasons, Jones’s convictions on Count Eleven and Count Twelve are AFFIRMED, and his sentence is VACATED and REMANDED for resentencing consistent with Dorsey; Drake’s conviction is AFFIRMED and her sentence is VACATED and REMANDED for resentencing consistent with Alleyne; Young’s conviction is AFFIRMED; and Mockabee’s sentence is VACATED and REMANDED for resentencing consistent with Peugh.

In U.S. v. JUAN CARLOS ADAME-HERNANDEZ (SD Ind., Barker), a 26-page opinion, Judge Tinder writes:

This appeal arises from the same underlying criminal case that we address in another opinion issued today, United States v. Kenneth Jones, Ramone Mockabee, Devon Young, and Elisha Drake, Nos. 11-2267, 11-2288, 11-2535 & 11-2687. Defendant-Appellant Juan Carlos Adame-Hernandez (Adame) sold cocaine to Dominic Robinson and was thereby an upstream source for the cocaine distributed by the Mockabee organization discussed at length in that opinion. Adame’s appeal had been consolidated with the others but because his appeal arises from substantially dif-ferent circumstances that are unique to him, we have with-drawn the consolidation of his appeal to address it separate-ly in this opinion. Adame’s appeal focuses exclusively on a plea bargain gone awry, and we will therefore recite only the facts relevant to his plea.

CONCLUSION. For the foregoing reasons, we VACATE Adame’s convic-tions and REMAND with instructions to allow Adame to maintain his guilty plea and be sentenced under the terms of the parties’ written plea agreement executed on January 3, 2011. Circuit Rule 36 shall apply on remand.

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

Monday, August 18, 2014

Ind. Courts - "Loretta Rush becomes chief justice"

Tim Evans reports for the Indianapolis Star:

Gov. Mike Pence administered the oath of office to Rush, a former Tippecanoe County judge, during the brief public ceremony at 1 p.m. in the historic Supreme Court Law Library. But prior to that ceremony, she was formally — and officially — sworn in by Dickson.

The short public ceremony was attended by the other four Supreme Court justices, as well as former justices Randall Shepard, Theodore Boehm, Frank Sullivan and Myra Selby, who was the first female and African American to sit on the state's highest court. Rush is only the second female justice. * * *

Pence praised Dickson for his leadership and "decades of of exemplary service to the people and the laws of the state of Indiana." The governor said that, while Dickson's tenure was short, it was substantive, and the former chief justice provided the state independent, impartial, thoughtful and dedicated leadership.

Dickson, Pence said, led the court with "grace, dignity and sound judgment ... (that) contributed measurably to the reputation of the Supreme Court of the state of Indiana and the people of Indiana will always be in your debt."

Pence then turned his focus to Rush.

"This is not just a new and historic chapter in the story of Indiana's highest court, but more importantly it represents a strong continuation of what has been a long standing tradition of excellence for this court," he said.

"Much has been said and written about the historic nature of what will take place here today, and we do well to acknowledge that."

But, the governor added, "Loretta Rush has been selected among an extraordinarily talented group of candidates because, quite simply, she was the best choice to lead the best state supreme court in America as its chief justice."

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Courts

Ind. Courts - More on: Loretta Rush sworn in today as Chief Justice of Indiana [Updated]

Here, from the Court, are 8 photos of the swearing-in today.

The first photo shows the current 5-member Indiana Supreme Court, plus on the left former Justice Boehm and Justice Selby, and on the right former Chief Justice Shepard and former Justice Sullivan.

A video is also linked, but it is not from today, it is from when Rush joined the Court on Dec. 28, 2012.

[Update at 5:14] That has now been corrected. The same link is now to a video of today's events. Chief Justice Rush's remarks begin at about 17:00 into the 24:00 minute video.

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Courts

Ind. Courts - Loretta Rush sworn in today as Chief Justice of Indiana

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Courts

Ind. Gov't. - Do waivers make the state ethics rules meaningless, or unfair?

Two big stories this weekend on the state's ethics rules.

Ryan Sabalow of the Indianapolis Star has a long, front-page, Sunday Star story headed: "Officials defend exceptions to Indiana ethics rules that were meant to prevent conflicts of interest." Some quotes:

Eight months had passed since Paul Dubenetzky retired from his state job as head of Indiana’s air-quality permit program to work for a consulting firm representing some of the region’s largest polluters.

And he knew he had a problem.

The state’s ethics laws require that former state employees take at least a year off before working as a lobbyist or going to work for companies they once regulated. His former peers at IDEM knew the rules and they were unnerved by his new job.

Dubenetzky acknowledged as much in a letter he wrote in May 2007 to his former boss, IDEM Commissioner Thomas Easterly — a letter written on his new firm’s stationery: “Several current IDEM employees have expressed discomfort when discussing issues with me because they feel that they may be participating in activities that do not comply with the legal requirements regarding ethics and conflicts of interest.”

But Dubenetzky’s concern quickly went away, thanks to an exception in Indiana that allows public employees to circumvent the state’s cooling-off period. That exception: Ask your former boss, in this case Easterly, to grant you a waiver.

In Indiana, the waiver is binding and does not require the approval of the state’s ethics commission. It also didn’t matter that it was issued months after the fact.

Easterly placed a condition in the waiver — that Dubentizky was not to speak to IDEM staffers for a few months — but he was otherwise good to go.

Easterly defended the waiver in a statement to The Star:

“Paul is a very competent professional with extensive experience in environmental issues,” Easterly said in his statement. “And it is to Indiana’s benefit to have individuals like him out there helping regulated operations meet their responsibilities.”

Dubenetzky did not comment other than to say he didn’t think his case was on point with concerns some might have about a revolving door between state employees and industry.

The waiver — again, even the retroactive nature of it — was completely within the rules. But ethics and good government experts contacted by The Star were concerned with what they viewed as a loophole in a law intended to keep state employees from using insider knowledge to work against taxpayer interests. The rules also intend to prevent companies and special interest groups from dangling jobs before public officials in order to win lucrative government contracts, push through pet projects and ease regulations.

And while Dubenetzky’s retroactive waiver was unique, waivers, in general, are not.

An Indianapolis Star investigation reveals that waivers have been issued 102 times since 2005. By comparison, state employees, concerned about potential conflicts with job prospects, have only sought formal, binding advisory opinions from the ethics commission 73 times during those years. * * *

The state’s top ethics policeman, Inspector General David Thomas, who has announced he would be leaving office by December, largely defended the ethics laws, including the waiver exception.

Before 2005, the only restriction for state employees seeking a new job was a one-year ban on working on “particular matters” in which employees had gained insider knowledge. Thomas said the lifetime ban came in 2005. So did the one-year cooling-off period for lobbying and for employees who made more general regulatory decisions related to an organization or company.

The story continues with a number of examples of waivers granted.

"State’s revolving door turning ‘judiciously’"
is the headline to Niki Kelly's story in the Sunday Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS – Indiana ethics law seeks to stop the revolving door between state workers and companies that benefit from state contracts – unless you get a waiver.

Post-employment waivers can be granted by the head of an agency – or the governor himself – in order to avoid a one-year cooling-off period.

Twenty such waivers were granted in 2013 and eight so far this year.

“Post-employment waivers are being used judiciously – with about 100 given over the nearly 10 years since they were included in the state’s ethics law. That pace continues to be about the same in the Pence administration,” said Christy Denault, spokeswoman for Gov. Mike Pence. “Post-employment waivers allow agency heads to waive a one-year restriction for employees when it is in the public interest to do so.”

During that time, tens of thousands of state workers have left state employment.

Waivers must be filed with the Indiana Ethics Commission, though that board can’t block them.

Inspector General David Thomas – the state’s watchdog on ethics, waste and fraud – said he thinks the current law is good for two reasons.

“First, the agency is in the better position to know the detailed extent of their employee’s involvement and whether the ‘public interest’ is served with the waiver. Second, I think the law is sufficient in that the waiver must be in writing and remain a public document,” he said.

Thomas said having waivers helps defend against a future attack like in Ohio, when the entire post-employment rule was struck down as unconstitutionally strict.

Denault said there is no obligation in the law, but the governor’s office requires all waivers to come there for approval before being issued. Some agencies have not complied with the rule, according to a July 29 memo from the governor’s office to agency heads.

That same memo reminded agencies: “Appearance and public trust matter. If you, as an appointing authority, think reasonable people would view the new employment for a former employee as somehow having influenced the employee in job duties – Do not execute a waiver.”

The long story continues with a number of examples, and concludes:
[Christy] Denault, the governor’s spokeswoman, said another waiver allowed an employee of the Department of Natural Resources to work with the Nature Conservancy.

“These are the kinds of employment opportunities that the law envisioned in allowing for waivers: positions that employees of the state are well-qualified for and that are in the public interest,” she said.

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Linda D. McIntire, and those similarly situated v. Franklin Township Community School Corporation, an 11-page opinion, Judge Mathias writes:

Linda McIntire (“McIntire”) appeals the Marion Superior Court’s grant of summary judgment in favor of Franklin Township Community School Corporation (“the School Corporation”). On appeal, McIntire argues that the trial court erred in concluding: (1) that her claim was barred by her failure to provide the required notice under the Indiana Tort Claims Act (“ITCA”), and (2) that Article 8, Section 1 of the Indiana Constitution does not provide for a private cause of action for monetary damages. We conclude that the trial court erred in concluding that McIntire’s claim was subject to the notice requirements of the ITCA but nevertheless affirm the trial court’s grant of summary judgment because McIntire may not maintain a claim for monetary damages under Article 8, Section 1 of the Indiana Constitution. * * *

Unfortunately for McIntire, this court explicitly held in Hoagland that there can be no claim for monetary damages arising out of the Indiana Constitution. In fact, the holding in Hoagland could be no clearer: “There is no express or implied right of action for monetary damages under the Indiana Constitution.” [ILB: but see ftnote 5 on p. 9 for more]

In In re: The 2011 Marion County Tax Sale, Floor-Essence, LLC v. Marion County Auditor and Marion County Treasurer, a 15-page opinion, Judge Brown writes:
Floor-Essence, LLC, (“Floor-Essence”) appeals the trial court’s judgment in favor of the Marion County Auditor (the “Auditor”) and Marion County Treasurer (together, the “County”). Floor-Essence raises one issue, which we revise and restate as whether the court erred in entering an order on October 15, 2012, overruling Floor-Essence’s objections and ordering that tax sale deeds be issued from a tax sale. We affirm. * * *

Based on the evidence set forth above and in the record, we find the Auditor substantially complied with the statutes governing the notices and that the manner of service was reasonably calculated under all the circumstances to apprise Floor-Essence of the pendency of the action and afford it an opportunity to object.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: J.E., Minor Child, JY.E., Father v. Indiana Department of Child Services (NFP)

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

William Hess v. C.A.D., C.N.D., John Doe, Jane Doe (NFP) - "We decline to extend the doctrine of presumed judicial temperance to civil cases, and the applicability of that analysis is in any event obviated by our review in this case."

NFP criminal opinions today (5):

Efren Mendoza-Vargas v. State of Indiana (NFP)

Anthony D. Dunn v. State of Indiana (NFP)

Prince Santiago v. State of Indiana (NFP)

Craig Sampson v. State of Indiana (NFP)

Jim Edsall v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 15, 2014

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

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Transfer Lists

Ind. Courts - AP story on CJ swearing in today contains error

First, I dislike the headline to the unattributed AP story, which reads "Rush to be sworn in as 1st female chief justice," and would much prefer "Rush to be sworn in as Chief Justice of Indiana."

But the error is in the final paragraph to the brief story:

Indiana justices are appointed to five-year terms before facing a retention vote.
Here is the first paragraph of Art. 7, Sec. 11 of the Indiana Constitution:
Section 11. Tenure of Justices of Supreme Court and Judges of the Court of Appeals. A justice of the Supreme Court or Judge of the Court of Appeals shall serve until the next general election following the expiration of two years from the date of appointment, and subject to approval or rejection by the electorate, shall continue to serve for terms of ten years, so long as he retains his office. In the case of a justice of the Supreme Court, the electorate of the entire state shall vote on the question of approval or rejection. In the case of judges of the Court of Appeals the electorate of the geographic district in which he serves shall vote on the question of approval or rejection.

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Courts

Ind. Gov't. - "Kosciusko County Commissioners Mull Public Record Fee Changes"

From Stacey Page Online, some quotes from an August 12th story by Phoebe Muthart:

Kosciusko Clerk of the Circuit Court Ann Torpy proposed an ordinance amending charges for certain information from the clerk’s office. The ordinance deals with computer records, voter history and certain information, including the lists of voters. Also, it deals with any other information available to the public under Indiana law.

Any information generated by the clerk’s office is entitled to impose a charge for duplicating election records. Currently, is costs $10 per CD diskette for voter history for the entire county and 2 cents per page for a computer print-out of voters. Torpy’s proposal is to lower the cost of the CD, but raise the price for each page to 5 cents.

County commissioners did not make a decision. Kosciusko County Councilman James Moyer is currently looking into fees charged by each department in the county. The board decided to wait and do changes, if any, all at once.

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Government

Ind. Decisions - "Serial killer Gibson gets 2nd death sentence"

Updating this post from July 31st, Baylee Pulliam reported Friday in the Louisville Courier Journal in a story that begins:

Serial killer William Clyde Gibson was condemned Friday to die for the murder of Stephanie Kirk, whose body was buried in his New Albany backyard.

Gibson gave short, one-word answers to Floyd Superior Court Judge Susan Orth's questions, and swiveled in his chair as she detailed the brutal murder: How Kirk died after Gibson put his "hands in front of her throat" to strangle her, per his own confession.

Death was the "only appropriate sentence," Orth said in her nearly 30-page sentencing order.

It was the second death penalty for Gibson, who also was condemned last fall in the murder of family friend Christine Whitis.

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "Aged-out foster kids get safety net" though Indiana's new Collaborative Care program

According to this long AP story by Tom Coyle:

Indiana’s Collaborative Care program, ... was started two years ago to help fill the gaps when youths turn 18 and age out of traditional foster care. The program arose from the Fostering Connections Act passed by Congress in 2008 to encourage states to extend foster youths’ benefits to age 21.

Alishea Hawkins, assistant deputy director of services and outcomes for the Indiana Department of Child Services, said the program is designed to provide financial and emotional support to help participants become self-supporting adults. Its services include helping older teenagers live on their own and providing opportunities to become more independent through programs that teach household skills, including cooking and budgeting, and life skills, such as how to apply for and keep a job.

“Many of our young people grow up in foster care where they are told what to do, when to do it and how to do it,” she said. “So many of these young people get to late adolescence, and they really don’t have the skills and abilities to make those decisions.”

The program, she said, is intended “as a replacement for that family, that social network.”

The program gives older youths in foster care more options than the state offered previously, including the chance to live on their own in apartments. They also can work with service providers to receive training they need to become independent.

Those opportunities are critical to help foster youths overcome challenges such as abuse and being moved from home to home, which can make it hard to make friends, attain academic stability and feel a sense of control, experts say.

To be eligible, youths must be in school or be working at least 80 hours a month or enrolled in a program that will help them get a job by providing money for housing and life-skills training.

Participants can live in a host home – sometimes with a relative – or in a group home, a college dorm or in an apartment with or without roommates. Case workers will walk those who want to move into an apartment through the process.

“They’ll help them with all of those pieces it takes, moving from dependency into an independent living arrangement,” Hawkins said.

David Reed, senior director of client services at The Villages of Indiana Inc., an Indianapolis-based agency that works with aged-out foster children, said the program is critical to helping those youths develop basic life skills.

“They are not prepared at age 18 to be able to go maintain an apartment and have food in their refrigerators and their pantries,” Reed said. “They need support from the state to provide those very basic things to help keep them alive.”

Hawkins said each former foster child needs different skills, so it’s up to service providers such as The Villages to develop individual plans.

The primary goal, she said, is to provide a safety net and connections so that youths “have some folks around their table, on their team, in their social network that they can rely on lifelong.”

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Government

Ind. Courts - New Chief Justice Loretta Rush to be sworn in today at 1 PM

As posted here last week, Justice Loretta Rush will be sworn in as Chief Justice as the news release last week noted:

Media are invited to attend and take video/photographs. A pool feed will not be available. There is limited space.
ILB: This is a historic occasion. Until the Court was reorganized by the 1970 constitutional amendment, the title of chief justice as rotated among justices:
However, when the Indiana Constitution was amended in 1970 to change the system, Justice Norman Arterburn was selected as the court's first permanent chief justice, and served as chief justice until 1974. He served his last three years, 1974-1977, as a justice.*
Richard M. Givan was the next Chief Justice, serving in that role from 1974 until 1987, 13 years.

Randall T. Shepard was chosen to become the Chief Justice of Indiana in March 1987 and served until his retirement on March 23, 2012, 25 years.

Brent E. Dickson became Chief Justice of Indiana on May 15, 2012.

Loretta H. Rush will be sworn in this afternoon as Chief Justice of Indiana.

Posted by Marcia Oddi on Monday, August 18, 2014
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next [Updated]

This week's oral arguments before the Supreme Court (week of 8/18/14):

Next week's oral arguments before the Supreme Court (week of 8/25/14):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 8/18/14):

Wednesday, August 20

Next week's oral arguments before the Court of Appeals (week of 8/25/14):

Tuesday, August 26

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, August 18, 2014
Posted to Upcoming Oral Arguments

Friday, August 15, 2014

Law - Michigan law school faculty and staff cuts said to be 50% to 70%

Belinda Thurston reports today in the Lansing City Pulse - here are a few quotes from the long story:

THURSDAY, Aug. 14 – Western Michigan University Thomas M. Cooley Law School is delivering pink slips to faculty and staff in all of its Michigan campuses.

Sources in Lansing who are being laid off say the cuts are deep, upwards of 50 percent, according to one. Another said the impact could be as high as 70 percent. A Cooley spokesman disputed the amount, but said he did not have numbers. * * *

Last month WMU Cooley Law School announced its Ann Arbor campus would not be accepting entering freshmen. It stated at that time that faculty and staff layoffs were coming.

WMU Cooley Law School has seen more than a 40 percent drop in enrollment over the past few years. Cooley has raised tuition by 9 percent. S&P gave it a negative rating at the end of last year.

The cuts' “came about as a result of decreased enrollment which most if not all law schools have seen,” Robb said.

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to General Law Related

Courts - One Gov. charged with signing bill in exchange for a bribe; another indicted for vetoing a bill

An interesting, 22-page, non-Indiana opinion today out of the 7th Circuit, Empress Casino Joliet Corp. v. John Johnston, read the first paragraph by Chief Judge Wood and you will see why:

Deals are the stuff of legislating. Although logrolling may appear unseemly some of the time, it is not, by itself, illegal. Bribes are. This case requires us once again to decide whether some shenanigans in the Illinois General Assembly and governor’s office crossed the line from the merely unseemly to the unlawful. It involves a subject we have visited in the past: two industries that compete for gambling dollars. See Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011) (en banc). In 2006 and 2008, former Governor Rod Blagojevich signed into law two bills (to which we refer as the ’06 and ’08 Acts) that imposed a tax on certain in‐state casinos of 3% of their revenue and placed the funds into a trust for the benefit of the horseracing industry. Smelling a rat, the plaintiff casinos brought suit under the federal Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964, alleging that the defendants, all members of the horseracing industry, had bribed the governor to ensure that the bills were enacted. Viewing the evidence in the light most favorable to the plaintiffs (and of course not vouching for anything), we conclude that there was enough to survive summary judgment on the claim that the governor agreed to sign the ’08 Act in exchange for a bribe. We therefore reverse in part and remand for further proceedings on that part of the case.
Also this evening, the AP is reporting:
AUSTIN, Texas (AP) -- A grand jury indicted Texas Gov. Rick Perry on Friday for allegedly abusing the powers of his office by carrying out a threat to veto funding for state prosecutors investigating public corruption - making the possible 2016 presidential hopeful his state's first indicted governor in nearly a century.

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to Courts in general

Ind. Courts - "Davis resigns as Harrison County judge"

Grace Schneider of the Louisville Courier Journal reports this evening in a story that begins:

Roger Davis, the Harrison Superior Court judge who announced suddenly last month that he’s not seeking re-election, has resigned, effective Aug. 23, to accept another job.

The Indiana Supreme Court has appointed former Harrison Circuit Judge Curtis Eskew Jr. to serve as judge pro tempore, leaving Gov. Mike Pence the option to appoint someone — most likely a member of the Republican party — to finish the term through 2014.

Davis, a Democrat, made no public announcement about the latest move and didn’t offer additional comment when contacted by email and phone. He forwarded an email he’d sent to Chief Justice Brent Dickson on Tuesday notifying him he’d informed Pence of the resignation. He said, “It has been an honor of a lifetime to serve the people of my home, the people of Harrison County, as a judge.

“It has been a unique honor to be a member of the Indiana Judiciary,” he added. “I have resigned to accept another professional position.”

Court administrators contacted Eskew, a fellow Democrat, earlier this week to ask him if he would serve and he accepted.

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to Indiana Courts

Law - "Paper Boys: Inside the dark labyrinthine, and extremely lucrative world of consumer debt collection"

That is the title to the cover story, written by Jake Halpern, in Sunday's NYT Magazine.

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to General Law Related

Not law - "It's a true fact!!! People who edit things no longer neeeded"

Into the ILB "Not Law but Interesting" category goes this column from Will Bunch of the Philadelphia Daily News, sent to the ILB by a reader. Don't miss reading it in full! A few quotes:

One of the most powerful and strongest companies in the field of newspapering, Gannet, last week announced what it is calling euphamystically "the newsroom of the future." Just like like my Internet blog, they are getting rid of the centerman in order that which they may bring the news directly to you. I was going to do some analyzing of their announcement but since I also have other blog posts -- including my take on the constitutional crisis in Iraq as well as a cool break-dancing video -- circling the place where airplanes land, I'm going to speed up the process with a technique that I call (and I should copywrite this so its not plagerized) "cuttting and pasting." * * *

In other worlds, newspapering companies like Gannettt are finally getting what we do best at Attywood, which is to break all the old rules -- the anarchic constrictures of fairness, balance, and even gramacality. That way we are free at last, free at last to carry on the words that Martin Luthor King once uttered in his 1942 "I Have a Dream" speech, to affect the comfortable and comfort the affected. C'mon, people who practice journalism, we can do this. Win this one for the Gimper!

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to General News

Ind. Decisions - "Cherry-Picking: 7th Cir. J.Hamilton Criticizes Lawyers' Summary-Judgment Practice"

Re a 7th Circuit decision in an Illinois case, issued Aug. 7th (Malin v. Hospira), Thomas L. Shrinfer, Jr. has this post Aug. 11th in the Wisconsin Appellate Law blog. A few quotes:

At the end of the opinion, Circuit Judge David Hamilton took the time to point out the ways in which the employer’s lawyers had misstated the record on summary judgment by selectively quoting from deposition testimony, and thereby misled the district court.

The court’s primary concern was that “Hospira repeatedly cherry-picked isolated phrases from Malin’s deposition and claimed that these ‘admissions’ doomed her case.” Slip Op. 23. In fact, Malin had not made those “admissions,” and “Hospira’s presentation of the evidence amounted to nothing more than selectively quoting language it likes and ignoring deposition language it does not like.” Id.

Judge Hamilton explained that this cherry-picking was a poor strategy on Hospira’s part: “Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record. Litigants who take this approach often (and we hope almost always) find that they have misjudged the court.”

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

In Allison I. (Wagaman) Decloedt v. Shane C. Wagaman, a 13-page opinion, Judge Najam writes:

Allison (Wagaman) DeCloedt (“Mother”) appeals the dissolution court’s order denying her motion to relocate and granting Shane Wagaman’s (“Father”) petition to modify custody and parenting time. Mother presents a single issue for our review, namely, whether the dissolution court’s order is clearly erroneous. * * *

Here, the evidence supports the dissolution court’s findings, and the findings support the conclusions. Thus, the findings and conclusions are not clearly erroneous and the dissolution court did not abuse its discretion when it denied Mother’s motion to relocate and granted Father’s petition to modify custody. Affirmed.

In In the Matter of: S.A. (Minor Child), Child in Need of Services and M.H. (Father) v. The Indiana Department of Child Services , an 18-page opinion, Judge Riley writes:
Appellant-Respondent, M.H. (Father), appeals the trial court’s Order continuing the adjudication of his minor child, S.A. (the Child), as a Child in Need of Services (CHINS). We reverse.
In Dee Ward v. State of Indiana , a 15-page opinion, Judge Bradford writes:
During the early morning hours on April 10, 2013, Appellant-Defendant Dee Ward repeatedly struck J.M. with a leather belt, causing J.M. to suffer extreme pain and serious bruising from her waist to her ankles. J.M.’s mother and step-father called 911 upon discovering J.M.’s injuries immediately after Ward dropped J.M. off at their home. The medical personnel who treated J.M. observed the severity of J.M.’s injuries. In the course of receiving treatment, J.M. indicated to the treating paramedic and emergency room forensic nurse that her injuries were caused by Ward. Ward was subsequently charged with and convicted of Class C felony battery and Class A misdemeanor domestic battery.

On appeal, Ward contends that the trial court abused its discretion in admitting J.M.’s identification of him as the attacker through the testimony of the treating paramedic and forensic nurse. Ward also contends that the evidence is insufficient to sustain his conviction for Class C felony battery, i.e., battery committed by means of a deadly weapon. Concluding that the Confrontation Clause does not apply because J.M.’s statements to the treating paramedic and forensic nurse were not testimonial and that the evidence is sufficient to prove that Ward committed the underlying battery by means of a deadly weapon, we affirm.

In Michael Kevin Mallory v. State of Indiana , a 5-page opinion, Judge Bradford writes:
Appellant-Petitioner Michael Kevin Mallory appeals the trial court’s denial of his petition to expunge his Class D felony conviction records. Indiana Code section 35-38-9-3(e) provides that the trial court “shall order” expungement if all statutory requirements are met. It is undisputed that Mallory met the requirements of Indiana Code section 35-38-9-3(e). Because the word “shall” is ordinarily construed as mandatory language, we conclude that Indiana Code section 35-38-9-3(e) unambiguously requires expungement if all statutory requirements are met. We reverse the trial court’s judgment and remand with instructions. * * *

The State concedes to this relief, acknowledging our holding in Taylor and the General Assembly’s amendment of Indiana Code section 35-38-9-9(d).

The judgment of the trial court is reversed and remanded with instructions.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: D.D. (Minor Child) and B.T. (Mother) and D.D. (Father) v. Indiana Department of Child Services (NFP)

In Re: The Paternity of R.M.: Laura K. Chivers v. Jeffery L. Marquardt (NFP)

NFP criminal opinions today (9):

Thomas Yoder v. State of Indiana (NFP)

Terry A. Moore v. State of Indiana (NFP)

J.E. v. State of Indiana (NFP)

Dennis Wireman v. State of Indiana (NFP)

In the Matter of Q.F. v. State of Indiana (NFP)

Marshawn A. Moore v. State of Indiana (NFP)

Debb Durbin v. State of Indiana (NFP)

Stephen W. McIntyre v. State of Indiana (NFP)

Darnell M. Rias, Sr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Business panel proposes IU govern IPFW: Pushes realistic funding formula"

The Fort Wayne Journal Gazette has an interesting story today by Vivian Sade about IU-Purdue Fort Wayne (IPFW). Here are a few quotes [ILB emphasis]:

Indiana University, not Purdue University, should govern IPFW, and the state's performance funding formula should reflect the number of students who graduate in five or six years instead of four.

Those were a few of the recommendations from local business officials who met with the State Budget Committee at IPFW on Thursday.

John Stafford, retired director of IPFW's Community Research Institute, and Bill Sheldrake, president of Policy Analytics and a co-author of the study, presented its findings. * * *

IPFW needs to manage and adjust its graduate programs to meet the needs of students and maintain a direct, consistent and formal communication structure between its campus and its governing main campus, the study found.

In addition, IPFW is requesting a state funding metric that is more responsive to the challenges and realistic performance patterns of a regional campus, according to the study.

The state's performance funding is based on increasing the number of those receiving degrees based on two- or four-year programs. It does not apply to IPFW or other regional campuses because those universities deal with a different demographic, Sheldrake said.

Modifications to the funding formula should include an incentive for regional campuses that increases baccalaureate degree completions at the five-year and six-year intervals, Sheldrake said.

“The two- or four-year programs many times do not apply to IPFW or other regional campuses because those universities are dealing with a different demographic,” he said.

“Many students are working full time in addition to attending school.”

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to Indiana Government

Ind. Decisions - "Warner Bros. Wins Appeal Over Fictional Technology in 'Dark Knight Rises"

The 7th Circuit opinion yesterday in Fortres Grand Corporation v. Warner Brothers Entertainment (ILB summary here) is the subject of a story today in The Hollywood Reporter, written by Eriq Gardner. The subhead: "Catwoman's favorite piece of software won't confuse those who wish to purchase a 'clean slate.'"

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Annex Books, yet again ... Indy files petition with SCOTUS

The ILB has many, many entries on the long-fought case of Annex Books v. City of Indianapolis, dating back to 2004. This one from Jan. 29th of this year includes a quote from the IndyStar: "A federal court has struck down an Indianapolis ordinance limiting the hours of adult bookstores, the latest in a decades-long series of local regulatory and law enforcement maneuvers taking aim at adult businesses." This ILB post from Jan. 22, 2014 begins: "The ILB has lost track of the various manifestations of Annex Books ..."

Late last evening SCOTUSblog named as its "petition of the day":

City of Indianapolis, Indiana v. Annex Books, Inc.
Issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically-significant empirical evidence.

Posted by Marcia Oddi on Friday, August 15, 2014
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Government

Thursday, August 14, 2014

Ind. Decisions - 7th Circuit decides a third Indiana case today

In U.S. v. Fletcher (ND Ind., Van Bokkelen), a 14-page opinion, Judge Rovner writes:

Randall Ray Fletcher, Jr. pled guilty to a five-count indictment charging him with one count of producing, two counts of receiving, and two counts of possessing child pornography, all occurring over a seven-year period. The district court sentenced him to a thirty-year term of imprisonment, followed by a lifetime of supervised release. Because his crimes spanned a range of years during which the guidelines for child pornography offenses underwent significant changes, his sentencing posed complex calculations and raised potential constitutional problems. We conclude that any errors the court made in calculating the guidelines sentence for Fletcher were harmless and we therefore affirm.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Vanderburgh County Republican chairman tries to have councilwoman disbarred

The ILB has had a number of posts re Evansville City Councilwoman Stephanie Brinkerhoff-Riley, who recorded the State Board of Accounts auditors' exit interview about her city and then made it publicly available. The most recent ILB post was from August 5th and was headed: "Ind. Gov't. - More on 'Special prosecutor says Brinkerhoff-Riley did not violate law.'"

The City County Observer: "Evansville's True Watchdog!" asks today:

[Is it true that] Vanderburgh County Republican Party Chairman Wayne Parke quietly filed a complaint with the Indiana State Bar Association [sic.] with intention to have City Councilwoman Stephanie Brinkerhoff-Riley stripped of her license to practice law?…our “Statehouse Mole” tells us that Mr. Parke’s complaint has been summarily dismissed as being without merit?
Ordinarily to the ILB would have passed on this item...

The difference here is that the story includes a link to the complaint made to the Indianan Supreme Court Disciplinary Commission, along with many attachments. All of this information is of itself an attachment to a July 31st letter from the Disciplinary Commission to Ms. Brinkerhoff-Riley, advising her that the grievance had been filed and had been dismissed.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Indiana Government

Environment - 2014 Edition of Indiana Environmental Statutes now available!

This is the new, 2014 edition of the annual publication, the Indiana Environmental Statutes, that I edit and publish each year. The publication is sponsored by the Environmental Law Section of the Indiana State Bar Association.

It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Procedures Act (AOPA) and numerous other, related, Indiana statutes.

This year the soft-bound volume is 566 pp. and costs $30.00 plus shipping (note that shipping is less if you pool orders).

Order online (a preview of several pages also is provided at this link).

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Environment

Ind. Decisions - 7th Circuit issues two Indiana opinions today

In Elliott Levin v. William Miller (SD Ind., Barker), a 13-page opinion with a separate concurring opinion, Judge Easterbrook writes:

Irwin Financial Corporation, a holding company, entered bankruptcy when its subsidiar ies failed. Both subsidiaries were banks (Irwin Union Bank & Trust and Irwin Union Bank, FSB), which the Federal Deposit Insurance Corp. closed and took over in 2009. The banks’ asset portfolios had been dominated by mortgage loans, whose value plunged in 2007 and 2008. The FDIC is in the process of collecting the banks’ assets and paying their debts. * * *

Elliott Levin, Irwin Financial’s trustee in bankruptcy, filed this suit against three of its directors and officers. * * *

All of the litigants agree that the distinction between di rect and derivative claims depends on Indiana law, for Irwin was incorporated there. Indiana treats a stockholder’s claim as derivative if the corporation itself is the loser and the in vestor is worse off because the value of the firm’s stock declines.

[the ILB has hit only a high point or two]

The judgment of the district court is affirmed with re-­‐‑ spect to counts 1, 2, 4, and 5. It is vacated with respect to counts 3 and 7. The case is remanded for further proceedings consistent with this opinion.

[J.Hamilton's concurring opinion begins] HAMILTON, Circuit Judge. I join Judge Easterbrook’s opinion for the court. His opinion accurately applies the difference between a shareholder’s direct and derivative claims, which all parties agree is the decisive legal question. Counts three and seven are correctly categorized as direct claims and must be remanded, even though they do not have promising futures because of the Business Judgment Rule.

I have come to that conclusion reluctantly, however. Stepping back from the parties’ arguments, I believe this case raises some broader policy questions that deserve consideration by the FDIC and Congress, including why the direct/ derivative distinction should still matter, either under the current version of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, see 12 U.S.C. § 1821(d)(2)(A), or perhaps other statutory amendments that Congress may want to consider. * * *

Counsel for Irwin Financial’s trustee pointed out in oral argument that the FDIC is supported by insurance premiums collected by covered banks rather than by direct appropriations by Congress. The FDIC asserts, however, that its insurance is backed by the full faith and credit of the United States government, meaning all taxpayers. In light of that public interest and the banks’ ability to socialize the losses they cause, I hope the FDIC and/or the Congress will consider this issue.

In Fortres Grand Corporation v. Warner Brothers Entertainment (ND Ind., Simon), a 17-page opinion, Judge Manion writes:
Fortres Grand Corporation develops and sells a desktop management program called “Clean Slate.” When Warner Bros. Entertainment used the words “the clean slate” to describe a hacking program in the movie, The Dark Knight Rises, Fortres Grand noticed a precipitous drop in sales of its software. Believing Warner Bros.’ use of the words “clean slate” infringed its trademark and caused the decrease in sales, Fortres Grand brought this suit. Fortres Grand alleged that Warner Bros.’ use of the words “clean slate” could cause consumers to be confused about the source of Warner Bros.’ movie (“traditional confusion”) and to be confused about the source of Fortres Grand’s software (“reverse confusion”). The district court held that Fortres Grand failed to state a claim under either theory, and that Warner Bros.’ use of the words “clean slate” was protected by the First Amendment. Fortres Grand appeals, arguing only its reverse confusion theory, and we affirm without reaching the constitutional question. * * *

Because Fortres Grand has failed to plausibly allege confusion, it has failed to state a claim for trademark infringement under 15 U.S.C. §§ 1114, 1125 and Indiana unfair competition law. Accordingly, the district court did not err by granting Warner Bros.’ motion to dismiss the complaint.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - IBA Appellate Roundtable with Justice Rucker and Chief Judge Vaidik

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

IBA Appellate Roundtable with Justice Rucker and Chief Judge Vaidik

Justice Rucker and Chief Judge Vaidik were the featured guests at the annual Appellate Roundtable hosted by the Appellate Practice Section of the Indianapolis Bar Association yesterday afternoon. After playing this clip of a terrible (but short) Seventh Circuit oral argument, Justice Rucker briefly discussed brief writing and Chief Judge Vaidik discussed the importance of facts and storytelling (in briefs and oral argument). They then turned to audience questions on a wide variety of topics.

Brief Writing: Justice Rucker

Justice Rucker emphasized that brief writing is an art—not a science. What pleases one judge may not please another, although there are some inflexible rules, which include following the Appellate Rules. Those rules require when raising a claim about a jury instruction that counsel quote the jury instruction and the colloquy with the trial court.

Justice Rucker said underlining, bold, and CAPS should rarely be used for emphasis; rewrite the sentence if the point is not clear without it. He encouraged the use of headings and subheadings.

Finally, he stressed the importance of the Question Presented on transfer, providing some poor examples (which merely parrot the language of Appellate Rule 57(H)), then offered a good example that includes the substantive legal issue (paraphrased by me as follows): Is the decision of the Court of Appeals’ stating specific intent is not required for an attempted murder conviction in conflict with this Court’s opinion in Spradlin, which held specific intent is required.

Facts/Storytelling: Chief Judge Vaidik

Chief Judge Vaidik is a big fan of storytelling. She is currently reading Prof. Philip Meyer’s book. She encouraged the audience to present facts like a story; the best storyteller in a brief and oral argument is the most persuasive. Stories have universal themes of good and bad and include characters (they have names—personalize), characters have motives, and a story needs to be told from a point of view (creativity is encouraged here). Stories need to be consistent with the standard of review and include both good and bad facts—or the writer will lose credibility.

Some Questions and Answers

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Schumm - Commentary

Ind. Courts - New Chief Justice Loretta Rush to be sworn in Monday

From the Supreme Court news office:

The formal administration of the oath for Loretta H. Rush as Chief Justice of Indiana will take place on Monday, August 18. Chief Justice Brent E. Dickson announced the date when his colleague will officially become the leader of the high court and he will step down from his role as chief justice.

Monday, August 18
1:00 p.m. EDT
Supreme Court Law Library
State House, Room 316

The brief ceremony will include remarks from Chief Justice Dickson and newly sworn-in Chief Justice Rush. Governor Pence will administer the oath of office. The ceremony will be brief—with current and former justices and appellate court judges.

The Supreme Court Library is a small place, so this must be a simple affair without an audience. No videocast is mentioned.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Indiana Courts

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

For publication opinions today (3):

In Michael H. Kretschmer v. Bank of America, N.A., a 12-page opinion, Judge Brown writes:

Michael H. Kretschmer appeals the trial court’s denial of his Motion to Set Aside a Default Judgment in favor of Bank of America, N.A. (“BANA”). Kretschmer raises one issue which we revise and restate as whether the trial court abused its discretion in denying his motion. We reverse and remand. * * *

In this case, Kretschmer has alleged facts of “an agreement made with opposite party, or his attorney” and of “conduct of other persons causing party to be misled or deceived,” see Kmart, 719 N.E.2d at 1254, and we find that he established that his failure to timely file an answer to BANA’s complaint was the result of excusable neglect under Trial Rule 60(B)(1) due to the information provided by the office of BANA’s counsel. In addition, Trial Rule 60(B)(3) permits a court to set aside a default judgment for reasons of fraud, misrepresentation or other misconduct of an adverse party.

In Amy L. Falatovics v. Imre L. Falatovics, a 7-page opinion, Judge Crone writes:
Amy L. Falatovics (“Wife”) appeals the decree dissolving her marriage with Imre L. Falatovics (“Husband”). She argues that the trial court erred in excluding from the marital estate Husband’s interest in two parcels of real estate, which he owns as a joint tenant with his brother subject to a life estate in his mother. Wife asserts that Husband’s interest in the real estate was improperly excluded from the marital estate because Husband has a present pecuniary interest in the properties. We agree and therefore reverse and remand with instructions to include Husband’s interest in the properties in the marital estate and to redistribute the marital assets as appropriate.
In Stephanie Lucas v. State of Indiana, a 21-page opinion with a separate concurring opinion, Judge Riley writes:
Appellant-Defendant, Stephanie M. Lucas (Lucas), brings an interlocutory appeal of the trial court’s Order denying her motion to suppress evidence obtained in the course of a traffic stop. We reverse.

Issue. Whether the trial court erred by denying Lucas’ motion to suppress evidence that was obtained in violation of her Fourth Amendment rights. * * *

Here, the traffic stop was more intrusive than authorized for a permissible investigatory stop because Sergeant Weisner did not articulate a legitimate reason as to why he could not complete his investigation standing alongside Lucas’ vehicle. As a result, suppressing the evidence obtained after Sergeant Weisner unreasonably moved Lucas to his squad car is necessary as a means of deterring police officers from impinging the guarantees of the Fourth Amendment in the future. See Camp v. State, 751 N.E.2d 299, 302-03 (Ind. Ct. App. 2001), trans. denied. We therefore conclude that the trial court should have granted Lucas’ motion to suppress.

CONCLUSION. Based on the foregoing, we conclude that the evidence obtained as a result of Lucas’ unlawful investigatory stop should be suppressed. Reversed.

ROBB, J. concurs
BRADFORD, J. concurs in result with separate opinion [which begins, at p. 17] Although I do not believe that Sergeant Weisner’s request that Lucas sit in his patrol vehicle violated Lucas’s rights under the Fourth Amendment, I concur in result with the majority opinion because, under the circumstances, I believe that Lucas was subjected to an illegal custodial interrogation without first being advised of her rights. I would therefore conclude that the incriminating statements made to Sergeant Weisner and the physical evidence recovered from Lucas’s vehicle during the search incident to her arrest should have been suppressed.

NFP civil opinions today (3):

In the Matter of the Voluntary Termination of the Parent-Child Relationship of: M.C., Jr., M.C., Sr., Father v. Indiana Department of Child Services (NFP)

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

In the Matter of the Termination of the Parent-Child Relationship of: G.V. (Minor Child) and M.V. (Mother) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (6):

Trent A. Burnworth v. State of Indiana (NFP)

Arthur B. Greco, Jr. v. State of Indiana (NFP)

Charles J. Dean v. State of Indiana (NFP)

Kyle J. Eckstein v. State of Indiana (NFP)

Jason S. Aliff v. State of Indiana (NFP)

Tremayne Terry v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Rep. Turner nursing-home company sold in $2.3 billion deal"

Tom LoBianco of the AP reports today:

INDIANAPOLIS – A company that was part of an ethics investigation into a top Republican lawmaker is being sold to an Ohio company as part of a $2.3 billion deal.

The Indianapolis Business Journal reported HealthLease Properties is being sold for $950 million to Ohio’s Health Care REIT. HealthLease is part of a business model that House Speaker Pro Tem Eric Turner battled to protect during the 2014 legislative session.

The Ohio company also agreed to buy 45 nursing home projects from Turner’s family company for $1.4 billion when they are completed.

Indiana’s House Ethics Committee determined that Turner didn’t violate any ethics rules when he lobbied privately to kill a proposed ban on nursing home construction. But the panel also said Turner’s actions merited a review of those rules.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Indiana Government

Ind. Decisions - Federal Judge OKs Indiana fight against health insurance subsidies

Dan Carden of the NWI Times has a story, plus a copy of the complaint and the ruling, in SD Indiana Judge William Lawrence's Affordable Health Care Act ruling late Tuesday. The story begins:

INDIANAPOLIS | More than 110,000 Hoosiers are at risk of losing federal subsidies used to purchase private health insurance after a federal judge refused to dismiss a lawsuit brought by Republican Gov. Mike Pence and Attorney General Greg Zoeller seeking to prohibit that assistance.

Judge William Lawrence ruled late Tuesday the state can proceed to trial on its claim that Hoosiers are not entitled to insurance subsidies, because Indiana did not establish a state-run health marketplace, called an exchange.

Under the 2010 Affordable Care Act, also known as Obamacare, states like Indiana that did not create their own exchanges had their exchanges run for them by the federal government.

The state argued that a literal reading of the law limits subsidies to health insurance policies purchased only on state-run exchanges, not federally operated marketplaces. As a result, Hoosiers cannot receive the subsidies, Pence and Zoeller claimed.

Pence reaffirmed that stance in July telling reporters that not creating a state exchange was the right thing to do, even if it means Hoosiers lose their subsidies and likely their health insurance coverage as well.

ILB: A note from a reader. "I'm so angry my tax dollars are being spent on this effort by Zoeller to cripple the ACA by stripping the subsidies from people in states such as Indiana without state exchanges. Yet another example of Indiana politicians putting ideology before people."

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Pence does right by adoptive families"

That is the headline to an editorial today in the Fort Wayne Journal Gazette. Some quotes:

A long wait is over for 1,800 Hoosier families who adopted foster children and qualified for a state subsidy that had never been paid.

Tuesday, the state announced that Gov. Mike Pence had authorized payments to those families, some of whom have been on the Department of Child Service’s waiting list since 2009.

Pence, who said the subsidies this year would be paid from unspent funds that would have gone back into the state’s general fund, said he ordered the payments because it is “the right thing to do.”

The announcement came days after The Indianapolis Star revealed that the DCS, in answering a class-action lawsuit filed by some of the foster parents, had blamed the legislature for the long delay because money for the subsidies was not specifically appropriated. While he was returning unspent money to the state treasury, DCS Director at the time James Payne began having his department sign foster care agreements that promised parents the subsidies would be paid if the money ever became available.

But it was John Broden, a Democratic senator from South Bend, who waged the long battle to bring Indiana into step with the rest of the country. Broden, an attorney who specializes in adoptions, has long pointed out that Indiana is the only state in the union that hasn’t provided such subsidies to parents who take on the permanent care of foster children with special needs.

Broden said he will probably introduce his bill to specifically authorize subsidy payments in the legislature next January. But in truth, the battle seems to be over. Broden said he expects that the funds to pay for the subsidies going forward will be included in the governor’s general budget requests at the beginning of the session. “I applaud the governor for this long-overdue step,” Broden said.

Still unclear is whether parents who adopted in good faith but have been waiting for years while struggling to help their adopted children deal with chronic illnesses, inherited drug addictions, or physical or emotional abuse will get significant retroactive payments from the state.

This may be something for the legislative study committee that’s looking at the whole issue of adoptions to address.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Indiana Government

Ind. Gov't. - Names of three finalists for IURC vacancy sent to Govenor

The subscription-only Statehouse File had a story July 17th on the semifinalists for the Indiana Utility Regulatory Commission. Inside Indiana Business yesterday published a press release of the three finalists. The ILB has not seen anything else, and without news reports this story slipped below the ILB's radar until now. (Re the vacancy in Feb., the ILB has three posts, ending with this one on Feb. 21st.) My point, general media coverage of important government business is really slipping in Indianapolis and statewide. One blogger, however, has followed this story, see this post from yesterday in Advance Indiana. It has a point of view, but it is coverage.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Indiana Government

Ind. Courts - 30 S. Meridian Supreme Court Offices Open Thursday

Kathryn Dolan, Indiana Supreme Court Chief Public Information Officer, wrpte late last evening:

Appellate court staff housed at 30 South Meridian in Indianapolis are expected to report to work on their regular schedule on Thursday, August 14. Chief Justice Brent Dickson said, "We have been assured the building is safe, and court offices will resume normal work schedules after the unexpected closing Wednesday due to the evacuation."

The following Supreme Court agencies have offices at 30 S. Meridian: Board of Law Examiners, Continuing Legal Education, Disciplinary Commission, Division of State Court Administration and Indiana Judicial Center.

Servers in the appellate court data center were shut down on Wednesday. The following applications are unavailable until further notice: appellate courts online docket (case management system), Roll of Attorneys and Clerk of Courts Portal (which affects attorney registration) as well as internal agency systems and network drives. Services are expected to be enabled Thursday morning.

Posted by Marcia Oddi on Thursday, August 14, 2014
Posted to Indiana Courts

Wednesday, August 13, 2014

Ind. Courts - Appellate courts online docket impacted by transformer explosion

Kathryn Dolan, Indiana Supreme Court Chief Public Information Officer, writes late this afternoon:

Appellate Court staff housed at 30 South Meridian in Indianapolis are awaiting word on whether court offices will be open on Thursday, August 14. Chief Justice Brent Dickson said he will keep employees updated when information becomes available.

The following Supreme Court agencies have offices at 30 S. Meridian: Board of Law Examiners, Continuing Legal Education, Disciplinary Commission, Division of State Court Administration and Indiana Judicial Center.

Wednesday, employees of all listed agencies were safely evacuated due to smoke in the building and what appeared to be transformer explosions. The Indianapolis Fire Department was called to the building.

Eventually, security allowed for brief access to the building for retrieval of personal belongings and court employees were authorized to leave work early.

Servers in the appellate court data center had to be shut down. The following applications are unavailable until further notice: appellate courts online docket (case management system), Roll of Attorneys and Clerk of Courts Portal (which affects attorney registration) as well as internal agency systems and network drives.

Here is the link to the appellate online docket. I did try it out, searching for "Guilmette", whose appeal was decided today by the Supreme Court, and although the search form was available, the result of my query was:
We're sorry. Your search for "Guilmette,All Cases" did not return any results.
A few other attempts reached the same result.

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Indiana Courts

Ind. Courts - IPL transformer explosiion closes state court offices at 30 South Meridian

As the ILB has been reporting this afternoon on Twitter (@indianalawblog), the 30 South Meridan Court offices were evacuated earlier this afternoon becuase of an IPL underground transformer explosion. Reportedly, there were no injuries. Court employees were allowed into 30 S. building briefly to get personal items. The following court services may be shutdown: AS400, Roll of Attorneys, Clerk of Court Portal, Online Docket, and Mediator Registry.

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Douglas A. Guilmette v. State of Indiana, a 7-page, 5-0 opinion, Justice Massa writes:

This appeal presents us with a single question: must police have a warrant before subjecting lawfully seized evidence to laboratory testing if that evidence is unrelated to the crime for which the defendant is in custody? We think not, and thus we affirm the trial court. * * *

We hold that evidence properly seized by police may be examined and subjected to scientific testing without further warrant, and we therefore conclude the trial court did not err by admitting the DNA found on Guilmette’s shoe into evidence against him. As to the other issues Guilmette raises on appeal, we believe the panel below correctly decided them, and we therefore summarily affirm the portions of the opinion holding (1) the trial court did not abuse its discretion by giving the State’s tendered jury instruction on accomplice liability and (2) the evidence was sufficient to support Guilmette’s murder conviction. Guilmette, 986 N.E.2d at 342; Ind. Appellate Rule 58(A)(2).

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In SCI Propane, LLC; South Central Indiana Rural Electric Membership Corporation; et al v. Courtney Frederick, as Personal Representative of the Estate of Stephen Frederick, deceased, a 24-page opinion, Judge Pyle writes:

SCI Propane, LLC (“SCI”); South Central Indiana Rural Electric Membership Corporation (“SCI REMC”); and RushShelby Energy Rural Electric Cooperative, Inc. (“RushShelby Energy”) (collectively, “the SCI Defendants”) appeal the trial court’s order requiring them to pay the attorney fees and litigation expenses of Courtney Frederick (“Courtney”), as Personal Representative of the Estate of Stephan Frederick, deceased (“The Estate”), resulting from the Estate’s wrongful death claim.

The SCI Defendants argue that the General Wrongful Death Statute (“GWDS”) does not allow recovery of attorney fees for decedents who are survived by dependents. Alternatively, they argue that the trial court erred in calculating attorney fees because it should have awarded the Estate only the amount of fees the Estate agreed to pay its counsel pursuant to a contingency fee agreement. The Estate cross-appeals the trial court’s reduction of its recovery based on non-party fault and requests us to remand for a calculation and award of appellate attorney fees.

With regard to the SCI Defendants’ appeal, we conclude that the trial court did not err in awarding the Estate attorney fees because, although the GWDS does not explicitly provide for the recovery of attorney fees, it does specify that damages are not limited to those enumerated in the statute. However, we conclude that the trial court abused its discretion in calculating its award of attorney fees because it should have limited the award to the Estate’s actual losses, as governed by its contingency fee agreement with its counsel. We remand to the trial court to revise its award of attorney fees so that it is consistent with the contingency fee agreement. With regard to the Estate’s cross-appeal, we conclude that the trial court did not err when it reduced its award of attorney fees according to fault allocation because its award of attorney fees was compensatory in nature and subject to Indiana’s Comparative Fault Act. Finally, we decline to award the Estate appellate attorney fees.

We affirm in part, reverse in part, and remand.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Joshua Frierson v. State of Indiana (NFP)

Maurice Hamler v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Purdue Exponent sues Purdue for access to surveillance video"

Updating this ILB post from Tuesday, Dave Bangert of the Lafayette Journal Courier has a column today headed "Own up, Purdue, on photog's detention." You'll have to read the whole column, but here are some quotes:

On the surface of its case filed Tuesday in Tippecanoe Superior Court 2, the Purdue Exponent is pressing a fundamental First Amendment question about what is and what isn't a public record.

But you don't have to scratch too deeply to see what the American Civil Liberties Union of Indiana-backed lawsuit against Purdue University is really looking to find: Credibility.

In February, a Purdue-led inquiry cleared police officers who detained a photographer from the independent student newspaper in the aftermath of a Jan. 21 fatal shooting on campus. At the time, Exponent Publisher Pat Kuhnle expressed an abiding confidence that his publication and his students were typically treated as second-class citizens by campus police. This was just a high-profile moment.

"I'm sick of it," Kuhnle said then.

At that point, it was the word of police officers still dealing with the heat of a murder in the Electrical Engineering Building versus the story of Michael Takeda, an Exponent photographer who ventured a few floors above the crime scene. The Purdue investigation claimed Takeda's account wasn't quite accurate, that he didn't fully cooperate, and that officers who confronted him and hauled him to the police station "operated in a professional manner with the knowledge that a horrible crime had been committed."

Kuhnle stuck by Takeda, even after being told by Luke Britt, Indiana's public access counselor, in April that Purdue had some grounds to claim that the video of the encounter was part of the murder investigation.

It took until July for Kuhnle, Takeda and lawyers from both sides to get a supervised view of surveillance camera video from near the skywalk leading to the Electrical Engineering Building.

What Kuhnle said he saw was a photographer taken down by a police officer. What he said he saw was his photographer being helped up before being barked at by another officer and pushed into a wall by a third officer as he was being taken away, on his way to being held for several hours even after identifying himself — even after the shooter was in custody.

What Kuhnle saw was vindication.

But you'll have to take his word for it.

The video is back under wraps. On Tuesday, Purdue spokeswoman Liz Evans said Purdue was taking the word of the Indiana public access counselor's nonbinding opinion. There's probably good reason Purdue doesn't want that footage, far from the actual crime scene, out there.

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Indiana Courts

Ind. Courts - "Loretta Rush wins praise, makes history as new chief justice"

That is the headline to a long, good article today by Dave Stafford of the Indiana Lawyer. (Even former Chief Justice Shepard is quoted.)

And a Loretta Rush story the ILB missed earlier, Dave Bangert of the Lafaytee Journal Courier has this story on August 7.

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Indiana Courts

Ind. Gov't. - Current public access counselor grows into guardianship role

The Fort Wayne Journal Gazette editorializes today:

Mayflies seem to have longer tenures than most who hold the office of Indiana public access counselor. Luke Britt has been in office for about year and is the seventh PAC in 16  years.

The PAC was created when the state overhauled its open-government and open-records laws and procedures in 1998 and 1999. The idea was that citizens, officials and journalists could ask the PAC for advice and, over time, problems with public access to meetings and records would become a thing of the past.

Some of Britt’s predecessors were reluctant to take direct issue with the actions of public officials and agencies, blunting the effect of Indiana’s very clear laws.

Last week, Britt offered an advisory opinion that the Indiana Civil Rights Commission had violated the state’s open-door law by holding an executive session without notice. Britt found evidence that the commission commonly recessed to discuss cases before coming back into session to vote. Noting that the group’s work – “certainly public business” – met none of the few legal justifications for adjourning to a closed or executive meeting, the PAC advised the ICRC that it didn’t matter that the actual votes were held publicly.

“Virtually any discussion on matters of public business by a majority of a governing body’s members would fall under the purview of the Open Door Law,” he wrote.

Charged with enforcing the state’s laws against discrimination in employment, housing, education and public accommodations, the ICRC might be the last place you would expect to find efforts to deny the public the right to know. As is so often the case, it appears that commissioners weren’t aware that they were violating the law. ICRC Executive Director Jamal Smith said Tuesday the commission was working with Britt’s office to correct its procedures.

The case, though, illustrates why we need fair but tough-minded information advocacy. Britt can only warn officials that they are violating the law. But clear warnings get heeded. If a violation ends up in court, officials could be held liable for ignoring the PAC’s advice.

In recent weeks, Britt also ruled against the Connersville Police Department and IPFW for not responding to citizens’ requests for information. But he found that the Morgan County Coroner’s Office hadn’t violated the law when it failed to answer a request for information that was delayed in the mail because it carried the wrong address.

In the advisory opinion, though, Britt took the time to carefully lay out exactly what kind of information a coroner’s office is legally obligated to provide.

A few months ago, Britt missed an important call when he failed to clearly upbraid the State Board of Education for making a decision through a chain of emails. But more recent decisions are sharper and clearer in thought and tone.

Steve Key, executive director of the Hoosier State Press Association, says there’s always a learning curve when someone becomes the public access counselor. Britt has “embraced the intent of the law, that the public is to be fully informed,” Key said. Nurturing open government in Indiana is more about reminding and teaching than playing “gotcha.”Britt is becoming a good teacher.

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Indiana Government

Ind. Courts - "David Camm civil suits shift into gear"

Grace Schneider has the story today, in the Louisville Courier Journal. Some quotes:

Lawyers representing David Camm's in-laws say Camm shouldn't get all of $626,000 in insurance and estate proceeds even though he was cleared last fall in the murders of his wife and two children.

Lawyers for Camm and those representing Camm's in-laws, Frank and Janice Renn, met in chambers with Floyd Circuit Judge Terrence Cody Tuesday morning to discuss pending civil cases the Renns filed to prevent Camm from profiting from his family's deaths.

[Camm lawyer David Mosley] said the money should go to Camm and not toward legal fees [the Renns lawyer Nick Stein] has indicated he intends to recover for representing the Renns since the murders in September 2000. "We're wasting time. It's unfair and unfortunate," Mosley said. * * *

[Sam] Lockhart [Camm's uncle] and Camm waited in the courtroom Tuesday while Mosley and co-counsel Matt Jacobs met with Cody and Renn lawyers Nick Stein and Amy Wheatley. At issue now is how to distribute $167,403 held in certificates of deposit in the three estates, and $458,672 from three life insurance policies.

Two suits involving some benefits are pending in Floyd Circuit while a third lawsuit centered on proceeds from two policies related to Kim Camm's job at the former Aegon USA is pending in U.S. District Court in New Albany. During a recent status conference, Federal Magistrate Judge William G. Hussman Jr. indicated that settling all of the cases together may be best now, Stein said.

A settlement conference is scheduled for Nov. 14. On Tuesday, the lawyers brought Cody up to speed on the Floyd Circuit cases, and no date was set for another hearing, the lawyers said.

Even after the civil cases are resolved, it won't end all Camm litigation. Camm filed notice in April that he intends to sue a string of Floyd County officials, starting with former Prosecutor Stan Faith, for damages stemming from his wrongful convictions. He's seeking $30 million.

Stein and the Renns are still convinced Camm committed the killings and intend to fight for fair compensation for representing Kim Camm's parents "for the last 14 years," Stein said.

"We feel he's responsible for his family's deaths or there wouldn't be any more litigation," he said.

"David Camm returns to Floyd County court for civil lawsuit filed by Renn family" is the headline of a WDRB story by Stephan Johnson that begins:
NEW ALBANY, Ind. (WDRB) -- David Camm spent Tuesday morning in a place that does not hold good memories for him: a Floyd County courtroom.

Although David Camm has been cleared in a court of law, his former in-laws still want him to pay.

"For whatever reason they just can't allow themselves to get to the point where they recognize the truth," Camm said.

But this time, instead of facing a jury, Camm is facing his former in-laws.

“Frank and Janice just can't [or] don't get it and unfortunately, now it has come down to an issue concerning money," Camm said.

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Indiana Courts

Ind. Gov't. - "Indiana to pay adoption subsidies to about 1,800 families"

Updating this ILB post from Aug. 12, this one from Aug. 8, and this one from June 3rd, Marisa Kwiatkowski of the Indianapolis Star reports this morning in a story that begins [ILB emphasis]:

Families that have adopted special-needs children from Indiana's foster-care system since 2009 will finally receive state adoption subsidies, officials announced Tuesday.

Mary Beth Bonaventura, director of the Indiana Department of Child Services, said about 1,800 more families will receive such payments retroactive to July 1, which was the start of the state's fiscal year. The payments are meant to provide financial support to families that adopt foster children with more extensive needs.

Gov. Mike Pence on Tuesday authorized DCS to pay subsidies to every family on its wait list and every family that adopts a special-needs foster child in the current fiscal year, at a cost of about $10 million, Bonaventura said.

"I'm excited," she said. "This is a great day for children and families that adopt them."

Indiana hasn't paid state adoption subsidies to any new families since 2009, when the burden for funding the program shifted from counties to the state. Indiana was the only state in the country to place families on a wait list rather than paying subsidies, Josh Kroll, project coordinator for the Adoption Subsidy Resource Center for the North American Council on Adoptable Children, said in a court affidavit.

That situation is the target of a lawsuit filed in June by La Porte resident Debra Moss, who claims DCS failed to pay promised subsidies while returning roughly $240 million to state coffers since 2009.

DCS argued in a recent court filing that it hadn't had the money to make such payments. On Tuesday, Bonaventura said Pence instructed her agency to pay the subsidies using money it would otherwise have to revert to the state's general fund.

She said she couldn't say why that wasn't done under the prior administration, but she said the roughly $4 million that DCS returned to the state in the past fiscal year would not have been enough to fund the program.

Lynn Toops, of Cohen & Malad, the law firm representing Moss, said the timing of the announcement was telling.

"It is no coincidence that once we filed a lawsuit to force the state to keep its promises in their contracts, the state announces it will start paying to help these kids," Toops said in a written statement. "We could not be prouder for causing the state to do what's right."

Toops said Indiana still needs to pay retroactive subsidies to the families that have been waiting since 2009.

"The state broke its promise to these kids, and it needs to pay them — the sooner the better," she said.

Niki Kelly of the Fort Wayne Journal Gazette reports this morning:
INDIANAPOLIS – Hundreds of adoptive parents around the state will get long-promised adoption subsidies this year under a decision announced Tuesday by Gov. Mike Pence’s administration.

The move comes after a lawsuit was filed in June and after publicity about the fact that requests for subsidies have been denied while the state agency has left more than $240 million unspent in recent years.

“Although the State Adoption Subsidy is only a small piece of the assistance the state of Indiana offers to adoptive parents, it is my belief that funding the program this fiscal year is the right thing to do,” Pence said.

“At the same time, the Adoption Study Committee is now looking at this issue, and we appreciate their work to develop recommendations that address the needs of Hoosier families and effectively promote adoption.”

It will cost about $10 million a year and cover more than 1,800 kids on the waiting list for the aid.

The Indiana Department of Child Services has said the reason it wasn’t paying promised subsidies to parents who adopted children in foster care was that the legislature didn’t appropriate the money. * * *

Just a few days ago, the agency filed a response in court arguing that “DCS can make adoption subsidy payments only if DCS determines in its discretion that sufficient funds are available in the adoption assistance account and that sufficient funds can reasonably be anticipated to be available in the account during the term of the subsidy. … This is a condition precedent to payment that did not occur.”

But a statement Tuesday said the state will make the funds available through “reversion relief” – or excess money in its current budget. It is unclear exactly how the agency will legally spend money on a program that lawmakers did not include in the budget. * * * [ILB - see below]

A restrictive federal adoption subsidy exists and is slowly being widened. The state pays part of that subsidy. But those who are ineligible for that program rely on state subsidies.

Before the Indiana General Assembly reformed property taxes, a county adoption subsidy was paid at the local level. Then legislators took over child welfare costs and raised the sales tax to cover that program and all school operating costs.

Somewhere in the shuffle, though, the state stopped paying subsidies for new adoptions. Adoption subsidies handled under the old county system have been grandfathered.

Starting in 2009, new families sign a contract with the state that says a subsidy may be available when funding is provided. And they are placed on a waiting list for such payments. The children are also eligible for Medicaid while on the waiting list.

Broden introduced a bill this year to mandate that subsidies are paid, but it was not given a hearing. The cost would be between $8 million and $26 million annually. * * *

Former DCS Director Jim Payne said people adopt out of love, not money, and said the number of adoptions had risen despite the lack of the subsidy. But adoptions have dropped since then – from 1,282 in 2012 to 1,033 in 2013.

The 2013 total is down from a high of almost 1,800 adoptions in 2011 and is the lowest since 2005.

ILB: Re Niki Kelly's question, as someone who spend a number of years in the Budget Agency, I know that appropriated money is easy moved around within an agency budget so long as Budget (i.e. the administration) approves. Bigger moves may require Budget Committee (a mix of legislators and the administration) approval. So money in the DCS budget that has been "held back" or marked for reversion can be spent, with approval from the higher ups.

ILB comment: We have seen this before, several times, with the Bureau of Motor Vehicles overcharges, and now today with adoption subsidies, state government action to right wrongs only in the face of lawsuits...

Posted by Marcia Oddi on Wednesday, August 13, 2014
Posted to Indiana Government

Tuesday, August 12, 2014

Law - Part 2 of "Sex Offender Laws Have Gone Too Far"

Part 1 is here. Here is Part 2 of Slate's look at sex offender laws, headed "The Ridiculous Laws That Put People on the Sex Offender List: Three maps show states that register people as sex offenders for consensual teenage sex, peeing in public, and prostitution."

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to General Law Related

Ind. Courts - Purdue Exponent sues Purdue for access to surveillance video"

Chris Morisse Vizza reports for the Lafayette Journal Courier:

The Purdue Exponent has filed suit against Purdue University to obtain access to surveillance video of a confrontation between police and an Exponent photojournalist.

The confrontation occurred shortly after the January 21 fatal shooting of student Andrew Boldt in a basement classroom in the Electrical Engineering building.

Police detained the photographer, Michael Takeda, and confiscated and damaged his equipment, Pat Kuhnle, Exponent publisher and general manager told the Journal & Courier. * * *

The lawsuit filed by the American Civil Liberties Union of Indiana states the university erroneously labeled the surveillance video as evidence of the crime scene, and failed to release the recordings as required by Indiana's public records access laws.

"Purdue's arbitrary refusal to release the requested video stands in the way of those free press rights," said Kelly Eskew, ACLU of Indiana staff attorney.

The requested video shows Takeda being pushed to the ground, and shoved into a wall by campus police, according to the ACLU.

Takeda identified immediately identified himself as a member of the press after he gained access to the second floor of the Electrical Engineering building, which was not sealed off by police, the ACLU said.

The case, Purdue Student Publishing Foundation, Inc. d/b/a The Purdue Exponent v. Purdue University was filed in the Tippecanoe Superior Court.

Also, via a tweet:

The Public Access Counselor, however, concluded: "Purdue University has not violated the Access to Public Records Act."

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Indiana Courts

Courts - News from Tennessee about same-sex marriage and retention elections

"String of same-sex marriage rulings broken" was the heading to Lyle Denniston's SCOTUSblog post Monday. It begins [emphasis by ILB]:

For the first time in nearly fourteen months, a state’s ban on same-sex marriage has withstood a constitutional challenge in court. A state judge in Tennessee ruled last week that “neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility.” The decision, issued last Tuesday, has just become available in electronic format.

Roane County Circuit Judge Russell E. Simmons, Jr., of Kingston ruled in a case of two gay men who were married four years ago in Iowa and are now seeking a divorce in their home state of Tennessee. Unlike every other court ruling — federal or state — since the Supreme Court’s decision in United States v. Windsor in June 2013, the judge rejected the idea that the Windsor decision undercut state authority to ban same-sex marriages.

SCOTUSblog includes a link to the 7-page opinion. The county court decision is dated Aug. 5th.

Two days later, on August 7th, the voters of Tennessee would decide on whether or not to retain three Tennessee Supreme Court justices. From a lengthy Aug. 6th story in the LA Times by Maya Srikrishnan:

Most elections to retain Tennessee Supreme Court justices are bland affairs, but this year, Tennesseans have been inundated with mailings, vicious campaign ads and more than $1 million of in- and out-of-state money for the battle over three of the fives seats on the high court.

The three justices in question -- Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee -- have been put on the defensive, battling accusations that they are too soft on crime, especially on death penalty cases, and too liberal for Tennessee. * * *

The big push against them has come from Lt. Gov. Ron Ramsey, a Republican and head of the state Senate, who provided the blueprint for the campaign to replace the three justices. Ramsey’s political action committee gave the largest recorded campaign contribution — more than $400,000 -- to a conservative group called the Tennessee Forum. The forum sponsored a broadcast ad that says, “Break the monopoly. Replace this liberal court.”

From a long Aug. 5th story in the NY Times by Alan Binder:
Conservatives with ambitions to reshape courts across the country say the results in Tennessee could give their efforts a burst of confidence. The Republican State Leadership Committee, a national group, plans to spend at least $5 million on judicial races this year in places like North Carolina, where more than half of the state’s Supreme Court seats are on the ballot. Conservatives are also closely following races in Michigan, Montana, New Mexico, Ohio and Texas. * * *

In Tennessee, governors appoint Supreme Court justices with the assistance of a nominating commission. Those justices are subject to retention elections soon after they join the court, as well as public votes at the end of every eight-year term. * * *

In Tennessee, conservatives see an opportunity to shift the balance of power on Tennessee’s five-member court. By early September, two justices appointed by Gov. Bill Haslam, a Republican, will be on the Supreme Court. If the critics of the justices on the August ballot can remove just one, Mr. Haslam, who has not campaigned against the jurists, will have an opportunity to name a third person to the Supreme Court bench.

“Success on Election Day is winning one because that flips the complexion of the court,” Mr. Walter said.

An Aug. 7th story by Brian Haas in The Tennessean, however, is headlined "Tennesseans vote to retain Supreme Court justices." Some quotes:
In a major defeat for Lt. Gov. Ron Ramsey, voters on Thursday voted to keep all three Tennessee Supreme Court justices in retention elections.

Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee all survived to win new eight-year terms on the state's highest court, maintaining a margin of about 57 percent to 43 percent. While the justices were able to overcome a vigorous opposition campaign by Ramsey and others, who accused them of being "liberal," "soft on crime" and of helping Obamacare, their retention victories were by some of the smallest margins in recent history.

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)

For publication opinions today (1):

In In re the Termination of the Parent-Child Relationship of C.A., L.A., and M.A. (Minor Children) and B.A. (Mother) and J.A. (Father) v. The Indiana Department of Child Services , a 19-page opinion, Judge Crone writes:

B.A. (“Mother”) and J.A. (“Father”) appeal the trial court’s termination of their parental rights to their three children, C.A., L.A., and M.A. Both parents challenge the sufficiency of the evidence supporting the termination order. Mother also argues that her due process rights were violated because she neither was given nor signed a case plan. Finding the evidence sufficient as to both parents and no due process violation, we affirm.
NFP civil opinions today (3):

Todd Firkins v. Sheryl Firkins (NFP)

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

In the Matter of the Paternity of A.E.T., A Minor Child, C.W., Individually and as Next Friend of A.E.T., Minor Child v. L.T. (NFP)

NFP criminal opinions today (5):

Kramer Hill v. State of Indiana (NFP)

Sergio Poitan v. State of Indiana (NFP)

Dustin Scott Stevenson v. State of Indiana (NFP)

Eric William Stahl v. State of Indiana (NFP)

Billy Ray Young v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions -One today from the Supreme Court

In Joshua Gomillia v. State of Indiana, a 12-page, 5-0 opinion, Justice Rucker writes:

Under terms of a plea agreement defendant was convicted of robbery and criminal deviate conduct. Alleging the trial court abused its discretion in imposing the sentence defendant appealed. We affirm the judgment of the trial court. * * *

Gomillia appealed contending the trial court abused its discretion in imposing sentence. Specifically Gomillia argued: (1) The trial court improperly relied on evidence outside the record in imposing sentence, and (2) The trial court improperly found as an aggravating factor the “nature and circumstances” of the crime in that “the circumstances articulated by the trial court were essentially elements of the offenses.” Br. of Appellant at 4. The Court of Appeals rejected both arguments. On this latter point, the Court of Appeals cited this Court’s opinion in Pedraza v. State, 887 N.E.2d 77 (Ind. 2008) for the proposition that relying on an element of the offense as an aggravating factor is no longer prohibited. See Gomillia v. State, 993 N.E.2d 306, 310 (Ind. 2013). We grant Gomillia’s petition to transfer to address this proposition. In all other respects we summarily affirm the opinion of the Court of Appeals. * * *

Citing Pedraza in support several panels of the Court of Appeals have taken the position that trial courts are no longer prohibited from considering material elements of an offense when considering aggravating circumstances at sentencing. We believe this is too broad a reading of Pedraza. * * *

Where a trial court’s reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is “improper as a matter of law.” Anglemyer, 868 N.E.2d at 491. Nothing in Pedraza should be understood to alter this basic premise. * * *

Here the nature and circumstances of the crime included the trial court’s discussion of the leadership role Gomillia played in the commission of these offenses, as well as the terror the victim suffered. Both are appropriate reasons justifying a sentence greater than the advisory term. In sum, the trial court did not abuse its discretion in imposing Gomillia’s sentence.

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Ind. Sup.Ct. Decisions

Environment - Test groundwater at eight Indianapolis coal ash lagoons? Install more monitoring wells state-wide?

Stories from the Hoosier Environmental Council and the State Chamber of Commerce.

"Groups want Indianapolis utility to test water" is the headline to an AP story by Charles Wilson, reporting:

INDIANAPOLIS (AP) — Environmental, health and neighborhood groups on Monday called on Indianapolis Power & Light to test groundwater at eight coal ash lagoons they fear may be contaminating wells that supply water to residents on the city's south side.
Unfortunately the rest of the story is now behind a paywall. But you may read it here at ChemInfo; the story continues:
Representatives from the Hoosier Environmental Council, the Indiana Public Health Association, the Marion County Alliance of Neighborhood Associations and six other groups said coal ash from the lagoons, which are also near the White River, could be carrying toxic chemicals such as mercury and arsenic into wells in nearby subdivisions, but no one knows how bad the danger really is.

"We need to know what's underneath us," said Jodi Perras, the Indiana representative for Sierra Club's Beyond Coal Campaign. "And then IPL needs to take responsibility for it as the law requires it to do."

The last testing that was made public, in 1989, showed levels of mercury and arsenic that were beyond Environmental Protection Agency limits, according to an analysis performed in March by Russell Boulding of Boulding Soil-Water Consulting, a pollution consultant based in Bloomington. Coal ash, the byproduct left behind when coal is burned to generate electricity, can contain toxic substances including arsenic, selenium, chromium, thallium, mercury and lead. The lagoons are on site at the company's coal-fired power plant on the south side of Indianapolis.

IPL spokeswoman Brandi Davis-Handy said in an email that there is no evidence that the utility's coal ash lagoons were contaminating groundwater and that the aquifer near the plant "does not serve as a public drinking water source." It was not immediately clear whether Davis-Handy included private wells in the category of public drinking water.

She also said IPL meets all EPA requirements and is working to meet new mandates from the agency.

And here is the HEC website page focusing on coal ash.

"Indiana Chamber forecasts water shortages was the headline to a story last week by Barb Berggoetz and Bill McCleery of the Indianapolis Star. It begins:

Indiana isn't facing the dramatic water shortages hitting California, but a new report from the Indiana Chamber of Commerce warns the state's water supply won't be adequate to meet future needs unless government better manages and distributes the valuable resource.

A study released today by the chamber's foundation calls for the development of a statewide water resource plan to better conserve and manage the state's water supply.

Without it, the chamber warns, "a large portion of the state likely won't have the local water resources needed to meet growing needs."

In Southern Indiana, specifically, local water supplies are insufficient for meeting future public needs, the study said. The report noted that few aquifers or perennial streams exist immediately south of Bloomington — a prime area for business development with the expansion of I-69 and continued work at the Crane Naval Surface Warfare Center.

Kevin Brinegar, chamber president and CEO, said the state legislature needs to set aside least $10 million next year to make an initial investment to start collecting water resource data and begin work on a water resource plan.

Chamber officials and Bloomington-based Jack Wittman, geoscientist with INTERA Inc., which conducted the study this year for the chamber, released findings during a news conference this morning.

"This is definitely a jobs and economic development issue," said Brinegar. "Our state's economy is growing more diverse, but we always will make things. And it often takes large, reliable supplies of water to do so." * * *

Water resources and needs vary around the state, but chamber officials stressed the importance of cooperation of local governments and developing a new governance structure for managing water resources.

Northern Indiana has more water, but irrigation usage is fast increasing and more data needs to be collected on aquifers and streams.

Central Indiana could see an increase in demand of 50 million gallons used per day by 2050 due to continued population growth, the study finds. Although utilities have identified the need and taken initial steps, the report said "supplies are limited and, without new sources, economic growth is at risk." * * *

The full study and county-by-county data on water usage and resources are available at www.indianachamber.com/water.

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Environment

Ind. Courts - Still more on: "1,400 Indiana families sue Indiana DCS for unpaid subsidies"

Updating this ILB post from August 8th, some quotes from a long editorial in today's Fort Wayne Journal Gazette, including quotes from State Senator John Broden, South Bend:

It wasn't an issue in Indiana until six years ago. Local judges used to decide whether adopting families were eligible for assistance and the money was paid by the counties. But when the sales tax was raised in 2008, responsibility for the subsidy program was transferred to the DCS. The federal government provides subsidies to about half the families who need them.By 2017, virtually all the subsidies to foster-adoption families will be supplied federally.

But that will be too late for more than 1,400 families that have been ruled eligible for a subsidy by the DCS since 2009. Those families are grandfathered into the state system. * * *

It's possible, [Broden] said, that the DCS looked only at particular line items rather than shifting funds to where they were needed within the department. But, Broden said, the money that was reverted by DCS could have funded the subsidy program “many times over.” A study by the state's Legislative Services Agency put the effect of funding the program at$7 million to $13 million a year, and that was a high estimate, Broden believes.

Of course, those costs are ultimately offset by the savings to the state when a foster child is adopted. Right now, families who can't afford special services and care are discouraged from adopting those kids, and the rate of adoptions has gone down.

Broden said he plans to reintroduce his bill specifically to authorize DCS to pay the subsidies when the legislature reconvenes in January.“I'm proceeding on the track as if there wasn't a lawsuit,” he said. Like many legislators, he was told fiscally related measures couldn't be dealt with during this year's short session.

“This is not a ticking time bomb” of long-term expenditures, Broden points out. “This is actually going to be a declining subsidy.” The age of children who qualify for the federal subsidy is dropping every year; by 2017, foster children 2 years old or older who enter the system will be covered. But the 1,400 people now waiting for help can only get it from the state. And they need it now.

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Indiana Courts

Ind. Courts - Briefing now complete in Indiana/Wisconsin same-sex marriage appeals to 7th Circuit

Reply briefs were due and filed yesterday by the States of Indiana and Wisconsin in the States' appeals to the 7th Circuit of district court rulings relating to same-same marriage. All the documents relating to the appeals are available here, on a site maintained by one of the attorneys representing Indiana plaintiffs.

Oral argument is scheduled for Tuesday, August 26, 2014 at 9:30.

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Indiana Decisions

Ind. Decisions - Supreme Court to hear case involving admissibility of cellphone records

Last Thursday the Indiana Supreme Court granted transfer in the case of Dustin E. McCowan v. State of Indiana, an April 23, 2014 COA opinion regarding the admissibility of cell phone records including the text messages, and the location of the calls that were made.

Dan Carden of the NWI Times has a story about the grant, including:

McCowan's Supreme Court appeal likely will focus on the admissibility of cellphone records purportedly showing McCowan at sites near where Bach's car and body were dumped on the date of the murder.

He also is expected to challenge Porter Superior Judge William Alexa's alleged bias in the case and the judge's refusal to provide jurors with McCowan's preferred instruction on a criminal defendant's presumption of innocence.

The Court of Appeals was unpersuaded by those arguments. It ruled 3-0 that McCowan's cellphone records were properly admitted, the judge was under no obligation to recuse himself and the presumption of innocence notice was covered by other jury instructions.

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to Ind. App.Ct. Decisions

Law - "Sex Offender Laws Have Gone Too Far"

Slate is running a series this week under that heading, written by Matt Mellema, Chanakya Sethi, and Jane Shim, all associated with Yale Law School. In the introduction, tracing the history of the laws, they begin with:

... the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, signed by President Bill Clinton in 1994. Jacob’s Law used federal dollars to push every state to create a registry. It worked. Today, all 50 states and Washington, D.C., have them. Since then, Congress has also passed several related pieces of legislation, including two major statutes. Megan’s Law, enacted in 1996, required that the police give the public access to some sex offender registry data, such as an offender’s name, photograph, and address. In 2006, the Sex Offender Registration and Notification Act toughened the standards for who must register and for how long, and it upped the consequences of registration by requiring, for example, periodic in-person visits to police.

The upshot, experts say, is that the United States has the most draconian sex registration laws in the world. As a result, the number of registrants across the nation has swelled—doubling and then doubling again to 750,000—in the two decades since Jacob’s Law passed. * * *

The logic behind the past push for registries rested on what seem like common sense assumptions. Among the most prominent were, first, sex offenders were believed to be at a high risk for reoffending—once a sex offender, always a sex offender. Second, it was thought that sex offenses against children were commonly committed by strangers. Taken together, the point was that if the police had a list, and the public could access it, children would be safer.

The problem, however, is that a mass of empirical research conducted since the passage of Jacob’s Law has cast increasing doubt on all of those premises. For starters, “the assumption that sex offenders are at high risk of recidivism has always been false and continues to be false,” said Melissa Hamilton, an expert at the University of Houston Law Center, pointing to multiple studies over the years. “It’s a myth.” * * *

In a series for Slate, we’ll spotlight three areas in which the growth of registries has been unexpected—and, we suggest, unwise:

  • Outlier offences. These are crimes far removed from the violent felonies that Jacob’s Law focused on, but which now trigger registration in many states. (Even public urination now qualifies.)
  • The expanded duration of registration. States are keeping people on longer and erecting more barriers to getting removed from the list, even if one poses a low risk of reoffending.
  • Collateral consequences. The range of restrictions attached to being identified as a sex offender has also grown. (In one state, you can’t be a sport fishing guide.)
On Friday, we’ll wrap up with a look at what could be done—and what lawmakers in some states have tried to do—to make registries smarter and better.

Posted by Marcia Oddi on Tuesday, August 12, 2014
Posted to General Law Related

Monday, August 11, 2014

Ind. Decisions - "Purdue appeals Wartell decision"

The ILB has a list of posts on the lawsuits related to former IPFW Chancellor Michael Wartell's ouster. On Saturday Rebecca S. Green of the Fort Wayne Journal Gazette wrote:

Attorneys for Purdue University are appealing a recent decision in the federal case concerning the 2011 termination of former IPFW Chancellor Michael Wartell.

In July, a federal magistrate judge ruled in much the same way as Indiana’s Court of Appeals in a similar case related to Wartell’s ouster. In both cases, Purdue University lost its ability to claim that reports compiled by an attorney paid by the school were protected by attorney-client privilege.

At both the state and federal level now, courts have ruled that Wartell is entitled to the report compiled by attorney John C. Trimble.

After his removal, Wartell filed a complaint against the university in Tippecanoe County, challenging his retirement and claiming discrimination and harassment. Purdue hired Trimble as an independent investigator.

The investigation was completed in February 2013 and reported to a group of Purdue board members, which found that no discrimination had taken place.

Wartell also filed a federal lawsuit, alleging that the school had never enforced the policy on anyone who did not want to leave, including chancellors.

During the course of the state lawsuit, Purdue refused to disclose the Trimble report, a decision smacked down by the Indiana Court of Appeals, which ruled that the document was a public record.

In the federal lawsuit, a federal magistrate judge ruled in July that the document was subject to discovery and should be disclosed as part of the lawsuit process, according to court documents.

According to the federal lawsuit, in late 2010 or early 2011, then-Purdue President France Cordova announced in a meeting that, before her term as president was over, she wanted to increase the number of women in the administration.

Requests from IPFW that Wartell be allowed to stay were denied. Purdue replaced him with a 64-year-old woman, Vicky Carwein, and she assumed his duties in September 2012.

In the federal case, Magistrate Judge Andrew P. Rodovich ruled that it appears Trimble was acting as an independent investigator, having not offered any legal advice to the university. On July 24, Rodovich ordered Purdue’s attorneys to turn the report over to Wartell’s attorneys within 14 days, a deadline that expired Thursday.

Late Thursday, Purdue’s attorneys filed their objection to Rodovich’s decision and requested a stay of enforcement of that order.

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

In L.C. Westervelt, Margaret Fox, Joe Dan Trigg, Attorney-in-Fact and Trustee for Lillian Guild, Marilyn Guild, Ramah Lee Jones, Janice Trigg, et al. v. George Woodcock III, d/b/a West Drilling Company, a 14-page decision with two opinions, Judge May writes:

Carolyn Sue Stinson appeals a summary judgment that determined her mineral interest had lapsed. As she paid taxes on it, there was no lapse. Reversed and remanded.

KIRSCH, J., concurs.
BAILEY, J., concurs in result with separate opinion. [that begins, at p. 10] The majority in this case concludes that Stinson paid ad valorem taxes on royalties she received from her mineral interest in land, and the payment of these taxes had the effect of tolling the Dormant Mineral Act’s (“the Act”) twenty-year period requiring reversion of an unused mineral interest. The majority accordingly reverses the trial court’s decision finding that Stinson’s interest had reverted to Woodcock. While I agree with the majority’s result, I disagree with the majority’s construction and application of the Act. I write separately to explain my disagreement with the majority’s rationale.

In Marcus Richardson v. Wendy Knight , a 4-page opinion involving a pro se appellant, Judge May concludes:
As Richardson’s petition attacks the validity of his conviction and sentence, it falls within Indiana Post-Conviction Rule 1(1)(c) and must be transferred to the sentencing court. See Miller v. Lowrance, 629 N.E.2d 846, 847 (Ind. 1994), reh’. denied. The trial court did not err when it transferred Richardson’s petition to the sentencing court, and accordingly we affirm.
In Dwight Hayes v. State of Indiana is a 6-page opinion by Judge Barnes, affirming the trial court's denial of a proposed jury instruction.

In Colton Milam v. State of Indiana, a 7-page opinion, Judge Barnes concludes:

Prosecuting and convicting Milam for being intoxicated, in a pulled-over car, while arguing with Webb or Officer Esteb does not reach the level of disturbing the peace, harassment, annoyance, or alarm and therefore does not meet the requirements of the public intoxication statute.
NFP civil opinions today (3):

In the Matter of the Commitment of E.L., E.L. v. Indiana University Health Bloomington Hospital and Carey Mayer, M.D. (NFP)

Mike Meyer, Trustee v. Susan Orth, Allen County Treasurer, and Tera K. Klutz, Allen County Auditor, LRB Holdings, Inc. v. Mark Linker, Deborah Linker, America's Wholesale Lender, et al. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: T.D. and M.D. (minor children); A.D. (Father) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (14):

Micah T. Lminggio v. State of Indiana (NFP)

Kevin L. Curry v. State of Indiana (NFP)

James Mantz v. State of Indiana (NFP)

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

Lisa Ritchie v. State of Indiana (NFP)

Jimmie T. Bowen v. State of Indiana (NFP)

Bulent Colak v. State of Indiana (NFP)

John Anthony v. State of Indiana (NFP)

Christopher Woodburn v. State of Indiana (NFP)

Chanse T. Starr v. State of Indiana (NFP)

Gerardo Nino Romero v. State of Indiana (NFP)

Donald Woods v. State of Indiana (NFP)

Christopher Lawson v. State of Indiana (NFP)

Robert Hoffman v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 8, 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, August 8, 2014. It is two pages (and 25 cases) long.

Four transfers were granted last week:

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to Indiana Transfer Lists

Not law - Big media news in Indianapolis today

CBS moving to ch. 4, apparently leaving localnews team behind.

BIG cuts at Indianapolis Star, don't know more yet.

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to General News

Not law - "Print Is Down, and Now Out Media Companies Spin Off Newspapers, to Uncertain Futures"

Not law but interesting. David Carr writes today in his weekly NYT column, The Media Equation:

A year ago last week, it seemed as if print newspapers might be on the verge of a comeback, or at least on the brink of, well, survival. * * *

Turns out, not so much — quite the opposite, really. The Washington Post seems fine, but recently, in just over a week, three of the biggest players in American newspapers — Gannett, Tribune Company and E. W. Scripps, companies built on print franchises that expanded into television — dumped those properties like yesterday’s news in a series of spinoffs.

The recent flurry of divestitures scanned as one of those movies about global warming where icebergs calve huge chunks into churning waters. * * *

At Gannett newspapers, reader metrics will drive coverage and journalists will work with dashboards of data to guide reporting. After years of layoffs, many staff members were immediately told that they had to reapply for jobs when the split was announced. In an attempt to put some lipstick on an ugly pivot, Stefanie Murray, executive editor of The Tennessean, promised readers “an ambitious project to create the newsroom of the future, right here in Nashville. We are testing an exciting new structure that is geared toward building a dynamic, responsive newsroom.” (Jim Romenesko, who blogs about the media industry, pointed out that Gannett also announced “the newsroom of the future” in 2006.)

The Nashville Scene noted that readers had to wait only one day to find out what the news of the future looks like: a Page 1 article in The Tennessean about Kroger, a grocery store and a major advertiser, lowering its prices.

If this is the future — attention news shoppers, Hormel Chili is on sale in Aisle 5 — what is underway may be a kind of mercy killing.

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to General News

Law - "Baby Pictures at the Doctor’s? Cute, Sure, but Illegal"

That was the headline to a front-page story yesterday in the New York Times. The long story, reported by Anemona Hartocollis, begins:

Pictures of smiling babies crowd a bulletin board in a doctor’s office in Midtown Manhattan, in a collage familiar to anyone who has given birth. But the women coming in to have babies of their own cannot see them. They have been moved to a private part of the office, replaced in the corridors with abstract art.

“I’ve had patients ask me, ‘Where’s your baby board?’ ” said Dr. Mark V. Sauer, the director of the office, which is affiliated with Columbia University Medical Center. “We just tell them the truth, which is that we no longer post them because of concerns over privacy.”

For generations, obstetricians and midwives across America have proudly posted photographs of the babies they have delivered on their office walls. But this pre-digital form of social media is gradually going the way of cigars in the waiting room, because of the federal patient privacy law known as Hipaa.

Under the law, the Health Insurance Portability and Accountability Act, baby photos are a type of protected health information, no less than a medical chart, birth date or Social Security number, according to the Department of Health and Human Services. Even if a parent sends in the photo, it is considered private unless the parent also sends written authorization for its posting, which almost no one does.

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to General Law Related

Ind. Courts - Some stories about Indiana's new Chief Justice

"Chief justice with local ties a 'cool thing'" is the heading to Rachel E. Sheeley's Aug. 8th story in the Richmond Palladium-Item. Some quotes:

Members of the local legal community think it is good for Wayne County and for Indiana that Richmond High School graduate Loretta Hogan Rush has been elected chief justice of the Indiana Supreme Court.

The newest and only female member of the state Supreme Court will replace Brent Dickson, a 28-year Supreme Court veteran who has served as chief justice since 2012.

"I just think it's fabulous. That's such a cool thing for Richmond," said Superior Court No. 3 Judge Darrin Dolehanty. "She's a top-notch lady." * * *
[Superior Court No. 1 Judge Charles K. Todd Jr.], who serves on the Commission for Continuing Legal Education, said he has met with Rush through commission functions and other events. He said he thinks it is great for the area to have her as chief justice.

"She's a very upbeat individual. She's dedicated to task and work and passionate about what she does," Todd said. "You can tell she's cut her teeth as a trial court judge. ... I firmly believe she'll continue those same great qualities in the leadership of the court."

Rush worked in Tippecanoe County for 15 years as an attorney and 14 as a juvenile court judge, and was appointed to the Supreme Court by then-Gov. Mitch Daniels in September 2012.

From a Fort Wayne Journal Gazette editorial published Aug. 8th:
“Chief Justice Loretta Rush” has a nice ring to it. More important, the Indiana's highest court now has a nice contrast to the all-male institution it represented for 13 years. Its new leadership presents a more progressive, inclusive face for the state.

Rush, a former Tippecanoe County juvenile court judge, becomes the 20th female chief justice of a state supreme court. She was selected to succeed Chief Justice Brent Dickson after less than two years on the court – the first female justice since Myra Selby stepped down in 1999.

For those who believe gender or race is immaterial in the court's makeup, consider that Rush's area of expertise is cases involving children – certainly not the exclusive territory of female jurists, but an important part of the law in which the previous court did not have an experienced judge. Rush shows a heart and passion for the difficult work.

“I thought that (children) were the least represented, or had the least rights that were set forth in court,” she told the Purdue Exponent earlier this year. “So I saw the need. The need is just so pressing, and it's just as pressing now as it was when I started working with children in the legal system 25 years ago.”

The judge once had a collection of photos of children involved in her cases covering the bench in her Lafayette courtroom. When it outgrew the surface, she transferred them to a large canvas on display in her office as reminder of the “importance of the law in protecting children in the system.”

In addition to her duties on the Supreme Court, Rush has served as chair of the Commission on Improving the Status of Children in Indiana, a panel created after James Payne's troubled tenure as first director of the Department of Child Services. The commission includes the top administrators of the public agencies with oversight of the state's children.

The commission's work, at Rush's direction, is one step in correcting the disproportionate attention that economic considerations have commanded at the state level – at the expense of health, safety, education and family issues.

In her work for the Supreme Court, Rush's perspective enhances opinions that an all-male court could not produce for the very fact that it lacked a female perspective. Justice might be blind, but gender biases inevitably shape views in many cases. At the end of her first year on the court, one legal scholar remarked that the new justice had “wowed the legal community and beyond with her thoughtfully crafted and impactful opinions, incisive questions at oral argument and her many speaking engagements and administrative work.”

Rush's unanimous selection as chief justice should remind Hoosiers that, given the opportunity, women and minorities often prove to be the best suited for a job.

From Lesley Weidenbener's Sunday column in the Louisville Courier Journal:
INDIANAPOLIS – The state will have its first female chief justice later this month when Loretta Rush takes over for Brent Dickson, who is stepping down from the position.

A nominating panel picked Rush over three colleagues last week to serve as the state's top judge.

The panel's members were adamant that her gender had no bearing on their decision. Jean Northenor of Warsaw, the only woman on the seven-member nominating commission, said Rush was the best among a group of great candidates.

Even Rush dismissed the historic nature of her appointment. She said she looks "forward to the day that it's unremarkable that there is a woman on this court or a woman chief justice."

But the move is an important one. Rush is the only female on the state's highest court, even though women make up nearly 51 percent of the state's population. And the number of women in law schools has been increasing as well; nearly half are now women.

That matters because there are differences in the way men and women think and the issues they face in their lives. Female plaintiffs and defendants whose cases come before the Indiana Supreme Court should have representation on the court, just as men should have.

That's not to say that female judges will side with women or that male jurists side with men. Instead, it means that the state's highest courts — and its court system generally — should be at least somewhat representative of the population it judges. Women, men, minorities and Hoosiers of varying economic status should be represented in the judicial system.

And that's not been one of Indiana's strengths.

As of 2013, less than one quarter of all Indiana judges were women. That compares to about 29 percent nationally, according to the National Association of Women Judges.

Indiana falls behind the nation largely when it comes to local courts, where 27 percent of judges nationwide are women but roughly 21 percent of Circuit and Superior court judges are female in Indiana. In the appellate courts, Indiana matches the national average with women serving in about one-third of all positions.

Still, when it comes to the Indiana Supreme Court, women have had little representation. Rush was just the second woman ever to serve on the court when she was appointed nearly two years ago by then-Gov. Mitch Daniels. Before that, there hadn't been a female justice since Myra Selby left the bench in 1999 after serving four years.

Putting Rush into a position as the Indiana court system's most prominent— and most public — judge could start to change those statistics. Rush will serve as chair of the Judicial Nominating Commission, which chooses the finalists for all appellate court positions. And she's promised to put a face on the court, one that could encourage more women to seek judicial appointments.

That makes Rush's appointment important for Indiana — not only because she's a woman, but because she represents diversification and growth in the larger court system.

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to Indiana Courts

Ind. Courts - Allen County’s courts left to fill void as many retire

As the ILB has reported (most recently here, from Aug. 5th) about Lake County also holds true for Allen County, as Rebecca S. Green reported at length Sunday in the Fort Wayne Journal Gazette. Some quotes:

Among them, there is more than 100 years of knowledge walking out of the Allen County Courthouse door.

Knowledge about who said or did what to whom, where the files are kept, what judge ruled on what case in what year, and how to get people to the right room for the right case at the right time – all the stuff that keeps the Superior Court system humming along largely without incident.

Friday marked the last day on the job for Brenda O’Riordan and Deb King. Over the next two weeks, Jerry Noble, Gloria Perez and Rose Moya will also leave.

Circuit Court is losing a few as well, including Nancee Linn, the former Adams County clerk who has helped Judge Tom Felts keep his side of the building running smoothly.

Most of the retirements are the results of changes in Indiana’s Public Employee Retirement Fund, which reduced the interest rate on its annuities, both going forward and retroactively. That means around the state many public employees are putting in their papers earlier than they wanted in order to try to save retirement money in the long run. * * *

Chief Judge of Allen Superior Court Wendy Davis said the department members of the staff have such a deep understanding of the judiciary, especially Noble, that it will leave a noticeable hole.

Friday was a bittersweet day on the third floor of the Allen County Courthouse, as attorneys, courthouse staff, police officers and others who may have ever encountered King and O’Riordan made their way by their offices to say goodbye.

Posted by Marcia Oddi on Monday, August 11, 2014
Posted to Indiana Courts

Ind. Courts - Former CJ Shepard is interim general counsel of CFA Institute

The subscription-only Indiana Legislative Insight reports this week:

Former Chief Justice Randall T. Shepard has taken on the post of interim general counsel for the CFA Institute in Charlottesville, Virginia. The Institute is the global association of investment professionals with more than 119,000 members in 147 countries and territories “that sets the standard for professional excellence and credentials. The organization is a champion for ethical behavior in investment markets and a respected source of knowledge in the global financial community. The end goal: to create an environment where investors’ interests come first, markets function at their best, and economies grow.”
From Mr. Shepard's listing on the CFA Institute Leadership Team:
Randall T. Shepard, JD: Interim General Counsel

Mr. Shepard oversees the organization’s global legal affairs and the CFA Institute Professional Conduct Program. As general counsel, he directs global litigation, protects CFA Institute intellectual property, provides in-house legal services, and counsels the Board of Governors and volunteer groups. In his professional conduct role, Mr. Shepard oversees the CFA Institute disciplinary process and serves as the executive liaison to the Disciplinary Review Committee. He also acts as the CFA Institute compliance officer responsible for education and enforcement of the CFA Institute Employee Code of Conduct.

He has extensive judicial and academic experience. He has served as Chief Justice of the Indiana Supreme Court (1987-2012), past president of the Conference of Chief Justices, chair of the American Bar Association’s Appellate Judges Conference, and the Section of Legal Education and Admission to the Bar, which oversees accreditation of America’s 200 law schools. He currently serves on the board of directors of Old National Bancorp, based in Evansville, Indiana. Mr. Shepard has taught law at New York University and at Yale, and most recently served as Executive in Residence at Indiana University’s Public Policy Institute and as a Senior Judge in the Indiana Court of Appeals. He has written more than 800 appellate opinions and 65 law review articles.

Mr. Shepard holds degrees from Princeton University, Yale Law School, and the University of Virginia School of Law.

The ILB has been unable to find how long ago this appointment occurred.

The ILB also has not located any news reports or statements from Mr. Shepard re the selection last week of Loretta Rush as Chief Justice of Indiana.

Posted by Marcia Oddi on Monday, August 11, 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 8/11/14):

Next week's oral arguments before the Supreme Court (week of 8/18/14):

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 8/11/14):

Thursday, August 14

Next week's oral arguments before the Court of Appeals (week of 8/18/14):

Thursday, August 20

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, August 11, 2014
Posted to Upcoming Oral Arguments

Friday, August 08, 2014

Ind. Decisions - "Supreme Court to consider IBM welfare privatization case"

The Supreme Court yesterday granted transfer in the case of State of Indiana, acting on behalf of the Indiana Family & Social Services Administration v. International Business Machines Corporation. The 93-page, 2-1 Feb. 13th COA opinion is here.

Chris Sikich has a brief story here for the IndyStar. Although the Supreme Court generally issues its transfer orders at conference on Thursdays, and the parties are notified, the public transfer list is not posted until the following Monday. The story notes: "Justice Mark Massa recused himself. Massa was general counsel to Daniels from 2006 to 2010."

See the docket entries here, from August 7th.

Posted by Marcia Oddi on Friday, August 08, 2014
Posted to Indiana Transfer Lists

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

In Estate of Carman v. Tinkes, et al (ND Ind., Cherry), a 6-page opinion, Judge Hamilton writes:

Edmund Carman died after crashing his car into the back of a commercial pickup truck. His estate brought state negligence claims in federal district court against the truck’s driver, the driver’s employer, and the truck’s owner, invoking the court’s diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). (Carman was a citizen of Indiana, where his estate is pending, while the defendants are citizens of Illinois.) The district court granted summary judg-ment for the defendants. The estate appeals. * * *

The undisputed evidence shows that early one morning in April 2011 while it was still dark outside, Carman was in Gary, Indiana, driving west on U.S. 20. He was driving “quickly” and did not have his headlights on. As he ap-proached a red light at the intersection of U.S. 20 and Utah Street, he did not attempt to stop or slow down. He struck the right rear corner of a Ford F-350 pickup truck that was driven by Daniel Tinkes. The truck had its lights on. The damage to Carman’s car, a Kia Spectra, was devastating: the entire driver’s side of the car was torn off. Carman was killed. * * *

Even under the estate’s version of events, the defendants were entitled to summary judgment.

To succeed on a negligence claim under Indiana law, the plaintiff must prove the standard elements: that the defend-ant had a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plain-tiff’s injury. Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind. 2014). Carman’s estate offers two theories of negligence. The first is that Tinkes was violating traffic laws at the time of the accident, making him per se negligent and permitting a jury to find that he was at least partially at fault for Carman’s death. The second is that an after-market metal bumper on Tinkes’s truck was hazardous and caused the already serious accident to be fatal. Neither theory can survive summary judgment. * * *

The judgment of the district court in favor of defendants is AFFIRMED.

Posted by Marcia Oddi on Friday, August 08, 2014
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Geico Insurance Company, as subrogee of Ralph Heitkamp v. Dianna Graham, an 1-page opinion, Judge Mathias writes:

Insured motorists are called upon every day to pay their deductibles in order for their carriers to cover the necessary repairs to their motor vehicles after accidents. Many carriers refuse to include those deductibles in the subrogated claims they make against the other motorists involved in accidents with their insureds. Because they are left on their own, insured motorists often later sue the other motorist(s) involved in those accidents in a small claims court to recover the deductible amounts they paid. And, almost as often, these insured motorists are successful in the small claims action for their deductibles. But here, Geico Insurance Company’s (“Geico’s”), insured, Ralph Heitkamp (“Heitkamp”), lost his claim for his deductible in the Small Claims Division of the St. Joseph Superior Court. As a result, Geico now appeals the order of the Marion Superior Court granting a motion filed by the other motorist involved in the accident at issue, Dianna Graham (“Graham”), seeking to set aside the court’s earlier entry of summary judgment in favor of Geico. On appeal, Geico claims that the trial court erred in concluding that a prior small claims judgment in favor of Graham acted as res judicata to bar Geico’s claims against Graham. * * *

Under the facts and circumstances before us in this case, we conclude that Geico was in privity with Heitkamp for purposes of the res judicata effects of the St. Joseph County small claim action. Geico’s Marion Superior Court claim against Graham was derivative of Heitkamp’s St. Joseph County small claim against Graham. Heitkamp lost in the small claims action against Graham, and neither he, nor Geico as his subrogee, could relitigate the same claim in Marion County. Accordingly, the trial court did not err in granting Graham’s motion to set aside the judgment on the grounds that Geico’s current claim against her is barred by the claim preclusion branch of the doctrine of res judicata.

In Victor Keeylen v. State of Indiana , a 23-page opinion, Judge Mathias writes:

Victor Keeylen (“Keeylen”) brings this interlocutory appeal challenging the Marion Superior Court’s denial of his motion to suppress. On appeal, Keeylen claims that both Article 1, Section 11 of the Indiana Constitution and the Fourth Amendment to the United States Constitution require the suppression of evidence he claims was discovered as a result of the police installing a GPS tracking device on his vehicles without a warrant. Although we agree with Keeylen that the warrantless installation and use of the GPS devices was improper, we nevertheless conclude that suppression of the evidence discovered during the execution of a search warrant on Keeylen’s residence was not warranted under the particular facts and circumstances of this case. Accordingly, we affirm the trial court’s denial of Keeylen’s motion to suppress. * * *

Even though the warrantless installation of the GPS devices and monitoring of Keeylen’s vehicles was improper, the trial court did not err in concluding that Keeylen failed to establish that the police engaged in deliberate falsehood or acted with a reckless disregard for the truth when they omitted the information regarding the GPS tracking devices from the probable cause affidavit. Nor did Keeylen establish that probable cause would no longer exist if the omitted information had been considered by the issuing judge. Accordingly, the trial court did not err in denying Keeylen’s motion to suppress.

NFP civil opinions today (3):

Kimberly Kraemer v. Haulers Insurance Co., Inc., as subrogee of Linda Shanabarger (NFP)

In re; the Paternity of BKS, CSS v. RSK (NFP)

Patrick Palmer Jr. v. Chastity Carse (NFP)

NFP criminal opinions today (3):

Jason Keith Scott v. State of Indiana (NFP)

Samuel Curts v. State of Indiana (NFP)

R.C. v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, August 08, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - " Indiana Civil Rights Commission voted behind closed doors"

Kara Kenney of WRTV6 reported last evening in a story that begins:

The Indiana Civil Rights Commission, an entity dedicating to enforcing laws, has been found in violation of the Open Door Law for conducting votes behind closed doors, according to an opinion issued by a state public access counselor.

The Open Door Law requires public agencies to conduct their business openly, unless otherwise expressly provided by statute, Call 6 Investigator Kara Kenney reported.

According to an opinion issued August 6 from Indiana Public Access Counselor Luke Britt, the Indiana Civil Rights Commission violated the Open Door Law by not providing adequate notice of an executive session.

The opinion comes in response to a complaint filed by Indianapolis resident Wayne Uhl filed on July 2, who alleged ICRC commissioners take recesses to discuss cases off-the-record before voting on them.

“The transcript suggests this is a common practice of the Commissioners,” read the opinion from Britt. “The IRCC Commissioners do not have an inherent justification for holding closed door discussions about pending cases…. I do not encourage closed-door discussions (even if authorized) unless it is absolutely necessary for the protection of privacy.”

Britt said no votes or decisions are ever to be made behind closed doors as a quorum.

ILB: Here is a copy of the August 4th PAC opinion. It concludes:
Because “official action” is defined so broadly by the Indiana General Assembly, virtually any discussion on matters of public business by a majority of a governing body’s members would fall under the purview of the Open Door Law. The adjudication of administrative cases before the Commission is certainly public business. As such, any closed door meetings would need to be held pursuant to Ind. Code § 5-14-1.5-6.1 as an executive session.

The ICRC Commissioners do not have an inherent justification for holding closed door discussions about pending cases. A properly noticed executive session would be required. Although they have not asserted it as an argument, Ind. Code § 5-14-1.5-6.1(b)(2)(B) authorizes executive sessions to discuss pending administrative litigation. As you have indicated in your complaint, the ultimate authorities of many public agencies hold administrative review deliberations in the open and do not take matters under advisement. I do not encourage closed-door discussions (even if authorized) unless it is absolutely necessary for the protection of privacy. In any case, a governing body as a collective may never take any final action during executive sessions. Individual members may come to a conclusive determination, but no votes or decisions are ever to be made behind closed doors as a quorum.

If appears as if the ICRC has also recognized the public’s interest in observing these deliberations and has commendably amended their practices to deliberate cases in open meetings. While it is noteworthy the ICRC is remediating the issue, a violation has indeed occurred as you describe in your complaint.

You suggest that if a matter was discussed behind closed doors, any decision arising from such a discussion is void. This is not automatically the case. A final action will only be overturned if voiding a decision is a necessary prerequisite to a substantial reconsideration of the subject matter. See Ind. Code § 5-14-1.5-7. The Public Access Counselor does not make these factual determinations and the decision to remand would only be overturned pursuant to an order from a trial court.

Posted by Marcia Oddi on Friday, August 08, 2014
Posted to Indiana Government

Ind. Courts - More on: "1,400 Indiana families sue Indiana DCS for unpaid subsidies"

Updating this ILB entry from June 3rd, which includes a link to the complaint, Marisa Kwiatkowski reports today in the Indianapolis Star:

A La Porte woman says the Indiana Department of Child Services is to blame for denying payment to her and at least 1,400 other families that have adopted special needs children from the state’s foster care system since 2009.

But in a response to the lawsuit Debra Moss has filed against the state agency, DCS shifts the blame to someone else: lawmakers. DCS says the adoption subsidies haven’t been paid because the Indiana legislature failed to appropriate enough money.

Moss’ lawsuit notes that DCS promised in a contract to pay adoption subsidies “if funding becomes available.” As evidence that those funds were available, the lawsuit points out that, since 2009, DCS has returned roughly $240 million to state coffers while not paying the subsidies. Moss’ lawsuit contends that is a violation of the families’ written contracts.

DCS acknowledged returning that amount to the state’s general fund but denied violating the families’ contracts.

“DCS can make adoption subsidy payments only if DCS determines in its discretion that sufficient funds are available in the adoption assistance account and that sufficient funds can reasonably be anticipated to be available in the account during the term of the subsidy,” the agency said in court records filed last week. “This is a condition precedent to payment that did not occur.”

Because of the pending litigation, DCS spokesman Rich Allen said he could not comment on the agency’s reason for returning money to the state’s general fund rather than using it on subsidies.

ILB: This story raises a number of questions, starting with the DCS budget specific requests for the years in question - were monies requested by DCS for the Adoption Assistance Account? Agency requests go to the State Budget Committee and the Governor and are ultimately submitted to the General Assembly as the administration budget. It is a very large and very detailed document, breaking up each agency request by account. It is of course public record.

Another point would be, after the legislature has acted, the Budget Agency distributes money for the first quarter of the new fiscal year into the various accounts of each agency. What money was allocated to the Adoption Assistance Account for each quarter of each year. Did DCS make any requests, including requests for transfers between accounts?

Finally, the complaint contains many references to papers by Christina Morrison, with links, but the website, ifcaa.org, appears to be no longer available.

Posted by Marcia Oddi on Friday, August 08, 2014
Posted to Indiana Courts

Thursday, August 07, 2014

Ind. Decisions - "Nonreligious groups now can perform marriages in Indiana"

Updating this ILB entry from July 14th, which linked to the 7th Circuit opinion of that date, the title to this post is taken from the headline today to this story by Jill Disis of the Indianapolis Star. But the headline is much too broad. The body of the story correctly states:

A secular humanist organization now has the legal right to solemnize marriages in Indiana after the state declined to appeal a federal court decision handed down last month in favor of the group.

The Center for Inquiry last month won a federal appeals court decision that overturned a lower-court decision barring its celebrants the ability to conduct marriages in the state as ordained ministers are able to do. Thursday morning, the organization announced that Indiana Attorney General Greg Zoeller would not appeal the most recent decision.

The settlement, according to the Center for Inquiry, makes Indiana the first state to allow nonreligious celebrants to perform marriages on equal grounds with ordained ministers. * * *

"We're delighted to have the equal status of the nonreligious recognized and finally made official in Indiana," said Reba Boyd Wooden, director of the CFI Secular Celebrant program and plaintiff in the case, in a news release Thursday. "Our Secular Celebrants stand ready to accommodate any couple— religious or nonreligious — who desire a secular ceremony, whether it be a private solemnization or a large wedding in front of family and friends."

As the result of the 7th Circuit opinion, District Judge Barker issued a final judgment yesterday. It reads in part:
IT IS DECLARED that Indiana Code § 31-11-16-1 is unconstitutional to the extent that it fails to extend the right to solemnize marriages to the Center for Inquiry and its certified secular celebrants including, but not limited to, Reba Boyd Wooden and that Reba Boyd Wooden and the certified secular celebrants may solemnize marriages with full legal effect, consistent with the other persons and entities mentioned in Indiana Code § 31-11-6-1, and without risk of any criminal penalties. [ILB emphasis]
In other words, under the ruling, certified secular celebrants of the Center for Inquiry may solemnize marriages in Indiana. Period.

And how many certified secular celebrants are there? Per p. 3 of Judge Easterbrook's opinion:

Reba Boyd Wooden is the Center’s leader in Indiana and is among 23 persons across the nation certified by the Center as “secular celebrants”.
And what of mention that perhaps notaries public will be able to perform marriages in Indiana? Judge Easterbrook only wrote, as Judge Barker yesterday repeated:
If Indiana amends its statute to allow notaries to solemnize marriages, the district court should be receptive to a motion to modify the injunction under 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.

Posted by Marcia Oddi on Thursday, August 07, 2014
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (2):

In Indiana Insurance Company v. Patricia Kopetsky, and KB Home Indiana Inc., an 8-page opinion, Judge Bradford writes:

Appellee/Defendant/Counterclaim Plaintiff Patricia Kopetsky has petitioned for rehearing. Patricia requests that we correct a factual error in our original opinion and clarify our holding regarding a possible finding that George Kopetsky knew (or did not know) of contamination in Cedar Park prior to obtaining CGL coverage from Appellant/Plaintiff/Counterclaim Defendant Indiana Insurance Company. In its response to Patricia’s petition, Indiana Insurance also requests that we clarify our holding regarding George’s knowledge. We grant Patricia’s rehearing petition in order to correct our factual error and in order to clarify our original holding.
In Ryan Gold v. Starr Weather , a 26-page decision with two opinions, Judge Riley writes:
Appellant-Petitioner, Ryan A. Gold (Father), appeals the trial court’s Order approving the relocation request of Appellee-Respondent, Starr C. Weather (Mother), and denying his motion to modify custody. We affirm.

Father raises two issues on appeal, which we restate as follows:
(1) Whether the trial court erred by finding that Mother’s relocation was made in good faith and for a legitimate purpose; and
(2) Whether the trial court erred by denying his motion to modify custody. * * *

BRADFORD, J. concurs
ROBB, J. concurs in result with separate opinion [which begins, at p. 21] I concur in the result reached by the majority, but write separately to comment on a troubling aspect of the specific proceedings here and relocation cases in general.

NFP civil opinions today (2):

D'Arcy Lambert-Knight v. John S. Shelhart and Jennifer Villars (NFP)

Jeanne Rippe v. Daniel Rippe (NFP)

NFP criminal opinions today (1):

Rio Michaels v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, August 07, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues rare order granting reinstatement to practice of law

As we saw in this Feb. 14, 2014 ILB post -- "How bad is 'suspension without automatic reinstatement' by the Supreme Court; can it be the kiss of death for an attorney?" -- indeed, it can be.

So this Court order dated August 5th, in In the Matter of: Mark A. Garvin, is noteworthy. Petitioner, who was suspended for not less than six months effective July 31, 2008, has now been reinstated to the practice of law in Indiana.

Posted by Marcia Oddi on Thursday, August 07, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - New Seating Chart at the Indiana Supreme Court - and A Few Final Thoughts

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

After the Commission concluded its vote, Chief Justice Dickson spoke briefly with the media, followed by Chief Justice-designee Rush. We learned the two of them will talk soon about a transition date, which will occur sometime later this month. That means when the justices return to the bench for oral arguments on September 4, every justice will have a new seat. Here's a photo of the current seating arrangement.

Later on Chief Justice Rush will move to the center of the bench, and each justice will move one seat to the left (from the perspective of the audience facing the bench). Here's the new seating order.

The order of discussing cases at conference will change as well. Justice Rush, the most junior member of the Court, had previously spoken and voted first. As Chief, though, she will now speak last, and Justice Massa will speak and vote first, followed by Justices David, Rucker, and Dickson.

Chief Justice Dickson noted how outstanding each of the justices were and how difficult the decision was, looking to Commissioner Tom Rose, who said the Commission was faced with “an embarrassment of riches.” It is not always easy to tell how badly someone wants a job (and how disappointed he will be if not selected), but Justice Massa seemed the least interested. Justice Rucker’s interview was especially strong and engaging, and the experience and perspective he brings to the Court will hopefully remain, despite talk of retirement in 2012 and law clerk hiring patterns indicative of a possible departure.

What’s next? Justice Rush remarked how pleased she was that Chief Justice Dickson would remain on the Court and a resource for her as she begins the Chief Justice role. (Chief Justice Shepard left the Court in 2012 as Chief, of course, leaving then-Justice Dickson without the same resource on the Court, although still in town and even part of the judiciary as a senior judge on the Court of Appeals.) Justice Rush mentioned that a strategic plan would be developed, and the scope of that plan and possible innovations within the judicial branch will be interesting to watch.

Posted by Marcia Oddi on Thursday, August 07, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Decisions - Tax Court posts one, filed August 6th

In Howard County Assessor v. Kokomo Mall, LLC, a 9-page opinion, Sr. Judge Fisher writes:

The Howard County Assessor has appealed the Indiana Board of Tax Review’s final determination that reduced Kokomo Mall, LLC’s commercial property assessments for the 2007, 2008, and 2009 tax years. The Court affirms. * * *

On appeal, the Assessor has asked the Court to reverse the Indiana Board’s finding that Kokomo Mall made a prima facie case. The Assessor also asks the Court to “reconsider [its] policy . . . concerning the role of the administrative law judge and the Indiana Board[.]” (Oral Arg. Tr. at 4.) * * *

It is well-established that when this Court reviews a final determination of the Indiana Board, it may not reweigh the evidence nor judge the credibility of the witnesses who testified at the Indiana Board’s hearing. See Freudenberg-NOK Gen. P’ship v. State Bd. of Tax Comm’rs, 715 N.E.2d 1026, 1030 (Ind. Tax Ct. 1999), review denied. Thus, despite what the Court or the litigants think about the quality of the evidence presented at the administrative level, the Court is limited as to what it can do when reviewing that evidence on appeal. See id. To the extent the Assessor has done nothing more than invite the Court to ignore this well-established rule under the guise that the Indiana Board ignored her arguments and simply adopted all of Kokomo Mall’s evidence without attempting to gauge its probative value, the Court declines her invitation. Consequently, the Assessor has not shown that the Indiana Board’s final determination must be reversed on this basis.

The Assessor has also asked the Court to reconsider the policy arising from its case law that the mere presentation of a USPAP appraisal establishes a prima facie case. * * *

Because the presentation of an appraisal is not the only way to rebut the presumption that an assessment is correct, it follows that the same type of evidence may be used to impeach the accuracy of an appraisal or lend support to the accuracy of an assessment. [cites omitted] Accordingly, the Court will not reverse the Indiana Board’s final determination on this basis either.

Posted by Marcia Oddi on Thursday, August 07, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Courts - "Chief Justice Rush sounds right to Lafayette legal community"

Chris Morisse Vizza of the Lafayette Journal Courier has a good story this morning on new Chief Justice Loretta Rush:

Bob Reiling and Jerry Withered had a feeling their former law partner would be named chief justice of the Indiana Supreme Court.

It was the same feeling they had in September 2012, when Gov. Mitch Daniels appointed Loretta Rush to serve on the state's highest court.

"Everything she does, she does well," Reiling said. "She is a dynamic person.

"When she was on the juvenile court in Tippecanoe County she brought energy and new ideas, and she will do the same thing at the Supreme Court."

Rush's career began in 1983 when she was hired as an associate at the Lafayette law firm of Dickson, Reiling, Teder and Withered.

She became a partner there in 1987, then in 1997 opened a general practice firm, where she focused on civil matters, primarily concerning children and family issues.

That work built a foundation for her election, and re-election as judge of Tippecanoe Superior Court 3, which handles juvenile issues.

Rush earned a reputation for treating people with respect, handing down fair decisions and implementing technology to better manage her caseload.

That reputation spread across the state when she was a chairwoman of the Indiana Juvenile Justice Improvement Committee.

"From what I observed, Justice Rush is extraordinarily well organized, able to handle a variety of responsibilities and accomplish what she needs to accomplish," Withered said.

On Wednesday, excitement filled the courthouse where for 14 years Rush was a judge.

"She will make a magnificent chief justice," Superior Court 5 Judge Les Meade said.

"It's incredible to think that in two years she's become the spokesperson and leader of all the judges in the state of Indiana," said Randy Williams, judge of Superior Court 1.

Daniels, now president of Purdue University, issued the following statement about Rush's elevation to chief justice.

"With four stellar candidates to consider, the committee could not have gone wrong, but they also could not have done better. Every Hoosier has reason to celebrate this outstanding choice; I know I am."

The celebration will not end soon in Tippecanoe County.

Even more remarkable than the fact that Rush is the state's first female chief justice is the notion that consecutive chief justices came from the same law firm.

Rush will succeed Brent Dickson, who is stepping down after serving two years as chief justice. He will concentrate on legal research and writing until he reaches the mandatory retirement age for justices, 75, in July 2016.

Dickson was a senior partner when the Lafayette law firm hired Rush after she received her law degree from Indiana University Maurer School of Law in Bloomington and passed the state bar exam.

"I think it speaks to the quality of our judicial and bar association members," County Clerk Christa Coffey said.

Reiling said he is still absorbing the news.

"We've had two chief justices come from our law firm," he said. "I pinch myself when I think about that."

Posted by Marcia Oddi on Thursday, August 07, 2014
Posted to Courts in general

Courts - More on yesterday's "Gay marriage showdown in Cincinnati: 4 states, 6 cases, 3 judges"

Updating yesterday's ILB post, here are reports of the oral arguments.

From Chris Geidner of BuzzFeed, a story headed "Four States’ Same-Sex Marriage Bans Up In The Air After Three Hours Of Arguments." The long, analytical story begins:

CINCINNATI — The fate of legal decisions about marriage for same-sex couples in four states likely rests, for now at least, in the hands of one federal judge.

The 6th Circuit Court of Appeals heard hours of oral arguments Wednesday about cases in four states — all concerned either bans on marriages for same-sex couples or the recognition of those marriages. And the question of whether the court will join the other federal courts to rule on those issues likely sits the hands of Judge Jeffrey Sutton.

Nominated to the bench by President George W. Bush in 2001, Sutton was a prominent lawyer for conservative causes before being confirmed to the bench in 2003 — but he also cast a pivotal vote siding with the Obama administration in a 2011 challenge to the Affordable Care Act.

Judge Martha Craig Daughtrey, nominated by President Clinton in 1993, sparred forcefully with the various lawyers defending the states’ bans — asking repeatedly how claimed state interests relating to procreation were furthered by excluding same-sex couples from marriage. Judge Deborah Cook, another nominee of President George W. Bush on the other hand, spoke the least during the arguments but raised issues generally sympathetic to the states when she did join in the fray.

Sutton was left in the middle, speaking positively about same-sex couples but focusing primarily on three questions: one that was, effectively, a procedural question of “hierarchy” and whether the appeals court is bound by an earlier Supreme Court decision against same-sex couples’ marriage rights and two that were, for the most part, policy issues that could play into his ultimate decision in the cases.

From the NY Times today, a story by Erik Eckholm titled "One Court, Three Judges and Four States With Gay Marriage Cases." It begins:
CINCINNATI — The steady march of judicial approval for same-sex marriage over the past year ran into some skepticism here on Wednesday as a three-judge federal appeals panel heard arguments in six same-sex marriage cases from four states.

In three hours of back-and-forth questioning, it appeared that neither side could take victory for granted in the United States Court of Appeals for the Sixth Circuit, where the cases from Kentucky, Michigan, Ohio and Tennessee were heard by two judges appointed by President George W. Bush and one by President Bill Clinton.

Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

All the oral arguments may be heard here, via the 6th Circuit.

Posted by Marcia Oddi on Thursday, August 07, 2014
Posted to Courts in general

Wednesday, August 06, 2014

Ind. Courts - "Rush to be 1st woman to lead Indiana Supreme Court"

Tom LoBianco has this story this evening for the AP. Some quotes:

Gov. Mike Pence praised Rush's appointment in a statement late Wednesday afternoon, noting that the nominating commission "has made history and ensured that Indiana's Supreme Court will continue to have outstanding leadership in the years ahead."

Indiana justices are appointed to five-year terms before facing a retention vote.

Rush's appointment also drew praise from legal experts, who noted that though she is the court's newest member, she has proven herself by writing opinions in a series of contentious cases. Those include one involving the free speech rights of an Indiana blogger and another involving an Evansville smoking ban.

"She [has] written unanimous opinions for the court in some of the most important and complicated cases," said Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law and an expert on Indiana's courts. * * *

During public interviews before her selection, Rush fielded questions about her judicial philosophy, her view of the role of chief justice and how she would balance her home life and the responsibilities of the job.

She likened her philosophy to U.S. Supreme Court Justice Antonin Scalia, because of his narrow reading of the Constitution and the founders' intentions, and said a chief justice must be a role model and build consensus.

After Rush talked about letting her 12-year-old son throw out the first pitch at a recent Gary Railcats game, commission member John Ulmer asked how she would juggle her work and home lives. Rush said it's important to be a good time manager and noted that she has adult children and is experienced at multitasking.

Ulmer said he didn't plan to ask Rush about work-family balance until Rush mentioned her son. That had him thinking about how his family coped when he was a state lawmaker, he said.

"My wife had to raise our children while I worked all day and night, sometimes five nights a week, and I saw how it affected my children," Ulmer said.

Ulmer said he did not ask the three male candidates that question because he knew they didn't have young children.

Rush worked in private practice in Lafayette before serving 14 years on the Tippecanoe Superior Court. She was appointed the state's 108th Supreme Court justice by former Gov. Mitch Daniels in 2012. She is the first woman to serve on the state Supreme Court since Myra Selby stepped down in 1999 after five years on the bench.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts

Ind. Courts - Chief Justice Rush: now there are 20

According to Judgepedia, until today there were 19 female Chief Justices of state supreme Courts.

This afternoon (or technically later this month), there are twenty.

[h/t to Prof. Schumm]

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts

Ind. - New Chief Justice is Loretta Rush [Updated]

The motion, BTW, was made by Mr. Ulmer, seconded by Ms. Northerner, the vote was unanimous!

Here is the announcement from the Court's public information office:

Loretta Rush Selected As Indiana Chief Justice

On Wednesday, August 6, the Judicial Nominating Commission voted to select Loretta Rush as Indiana’s next Chief Justice. Loretta Rush is expected to take office later this month when Chief Justice Brent Dickson steps down as Chief Justice. Dickson will remain on the Supreme Court as an Associate Justice.

The Commission made its selection for Chief Justice from among the other current Justices: Robert Rucker, Steven David, Mark Massa and Loretta Rush. The Commission recruits candidates for appellate level judicial positions and also appoints Indiana’s Chief Justice.

Today, the Commission interviewed each Justice in a meeting open to the public and press. Photographs of each Justice speaking with the Commission can be found at here. At approximately 2:30 p.m. the Commission went into an executive session for discussion. Following the executive session, at approximately 3:50 p.m. the Commission convened in a public session to vote on its selection of Indiana’s next Chief Justice.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts

Ind. Courts - Waiting on decision of JNC re next Chief Justice of Indiana [Updated]

The Judicial Nominating Commission has convened in executive session to reach its decision. The public announcement, if it follows the course of JNC announcements of nominees for court vacancies, will be merely a formality.

The ILB is anticipating an announcement on or about 3:30 PM, but this is just my guess.

[Updated] Close, it looks like a decision was reached by 3:30, but the announcement will be in 15 minutes, which loooks like about 3:50.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts

Ind. Courts - Prof. Schumm's report of Justice Rucker's interview

Justice Rucker

In response to the opening question, Justice Rucker said it was important for the Chief to be a collaborator, consensus-builder, and communicator.

Collaboration is important to crafting unanimous opinions, among other things. The Supreme Court if a board of director, and the Chief sits as the chairman of the board—not the CEO. Chief Justice Dickson has brought issues to the justices as his board—and not taken a dictatorial approach.

As to communication, the Chief is the “public face” of the Court. Justice Rucker said it was important for the Chief to articulate the vision clearly and convincingly to instill confidence in the judiciary.

In response to Mr. Williams’ question about leadership style, Justice Rucker said he would do routine and non-controversial things himself but would consult his colleagues about other decisions. “This is not a one-man show.”

In response to Ms. Northenor’s question about possible changes, Justice Rucker noted the access to justice and civility. Justice Rucker would want his legacy to be helping those with limited English-language proficiency. He would want to enable and empower trial courts to help them.

In response to Mr. Rose’s question about judicial philosophy, Justice Rucker cited Justice O’Connor and said he was a minimalist “deciding the facts of the case”—with an eye toward the next case but not writing expansive opinions. He said this was more of an approach to decisionmaking. He said his philosophy is that everyone should be heard. We should draft our rules in a way that encourages jury trials. He also noted the justices give as careful consideration to pro se litigants as to those with counsel, sometimes asking for amicus briefs in pro se cases.

In response to Mr. Christie’s question about background, Justice Rucker noted he was raised in a working class family and no one could think he was “in an Ivory tower.” He was part of a big family and needed to “eat quick,” which generated the biggest laugh of the day. He had worked in steel mills and went to Vietnam; he has crossed paths with a lot of people from different backgrounds.

In response to Mr. Tinkey’s question, Justice Rucker emphasized interacting with the trial judges. He mentioned the annual meetings with trial judges in the state, listening to their concerns.

In response to a question from Chief Justice about his most gratifying opinion, Justice Rucker noted Anglemyer v. State has been the most cited opinion. He said the case was challenging but important, giving guidance to the trial judges and appellate courts about how to address sentencing issues after the U.S. Supreme Court’s Blakely v. Washington opinion and a legislative response.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts | Schumm - Commentary

About the ILB - Again, think about using Twitter, if you don't already

This is a good time to mention that if you don't follow the ILB on Twitter, @indianalawblog, in addition to reading the blog itself, you might think about doing so.

If you had been following the ILB twitter feed this afternoon, you would have seen a number of tweets (some including photos) from others watching the chief justice interviews that I found noteworthy, and retweeted to my followers.

To learn more, see this earlier ILB post on using Twitter.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to About the Indiana Law Blog

Ind. Courts - Prof. Schumm's report of Justice David's interview

Justice David

In response to the opening question, Justice David cited passion, vision, the ability to bring people to together, and inclusiveness. He said discipline and honest are important as well. He noted the Commission is selecting more than just a Chief Justice but a “chief trustee for justice” in Indiana. He said it is not about the person but the right fit for the position moving forward.

He said it’s important that the Chief has the skill set and the tools but must also have the ability to use those tools at the right time. The Chief needs to be able to make decisions but must also know when to delegate. Confidence is important but humility is even more important.

He noted the other justices were his “brothers and sister” and he would take a bullet for them.

In response to Mr. Williams’ question about leadership style, Justice David said he tries to be as inclusive as possible. He cited Ghandi--that leadership does not mean muscle but relationships. He’s not afraid to say when he needs help on an issue.

In response to Ms. Northenor’s question about changes, Justice David noted he had not had an opportunity to look at things that might need to be taken away. He would like to add or enhance the vision and inclusivity; he said we can do a better job of “listening” to lawyers and businesses to ensure such things as access to the courts. A leader should have a vision but should not be concerned about who gets credit.

In response to Mr. Ulmer’s question about administrative duties, Justice David noted it would be adding a job to an already full-time job of being a justice. He said there are certain things the Chief is responsible for, but bringing in others, as Chief Justice Dickson has done, is important and should continue. He noted that some trial judges have very good best practices, which could be used more broadly.

In response to Mr. Rose’s question about judicial philosophy, he said whenever he thinks there is one the Supreme Court justice “writes something that disappoints him.” He said their job is to be “the silent branch,” calling the balls and strikes and not setting policy. He noted the General Assembly will sometimes disagree with their opinions, which is how it should work. He has no interest to be in the legislature but has great respect for their work. His judicial role is a narrow one.

In response to Mr. Christie’s question about technology, Justice David said it important to master technology to use it for the courts but also to understand how it affects cases, citing the recent U.S. Supreme Court case [Riley v. Calif.] on cell phone privacy.

In response to Mr. Tinkey’s question about promoting justice, Justice David said it is important to be “out and about” talking to groups. He said we have missed some opportunities to partner with the legislative and executive branch. He cited the Judicial Detention Alternative Initiative (JDAI) as a collaboration that had worked well.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Courts - ILB receives quick reactions to one of the questions asked of Justice Rush [Updated]

This ILB has receieved a number of notes from readers along this line:

I hope you will make note of whether any of the male justices get asked how they intend to juggle work and home.
For sure!

[Updated at 2:48 PM] Another note: "Why? Why do they always ask that question of only the women? It is so irritating!!!"

And the reader is correct, none of the other justices was asked this question today.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts

Ind. Courts - Prof. Schumm's report of Justice Massa's interview

Justice Massa

In response to the opening question, Justice Massa said he thought his answer would be similar to the others, noting any of his colleagues would be a superb choice.

Justice Massa noted that over the past thirty years the Indiana Supreme Court has made things better for citizens of the state. He recounted Scott Newman’s remark that the Indiana Supreme Court cares as much about the cases it does not take and those that it does take. He mentioned increasing minority representation on the bench and in the bar, among other things.

Justice Massa also mentioned developing case law, citing the recent Good Samaritan case where the Court allowed for the first time the statute of limitations to be tolled for fraudulent concealment.

Finally, he noted the “ceremonial” and “diplomatic” duties. These include maintaining collegial relationships with the other branches, which sometimes involves collaboration and persuasion.

The most important responsibility of the Chief, though, is maintaining the independence of the judiciary.

Mr. Christie asked about how Justice Massa’s background developed his managerial style. Justice Massa noted his discomfort in discussing his own background when his colleagues were all so well-qualified. He then discussed people that he was able to learn from and emulate, including Scott Newman and Mitch Daniels. He has also led two state agencies.

In selecting judges he noted important traits for selecting judges include not only intellect but humility.

In response to Ms. Northenor’s question about possible changes, Justice Massa said he was unlikely to make any significant changes at least at the outset. He does not come to the position with an agenda. He noted the possibility of consolidating some positions in light of impending retirements. He mentioned a possible change with the Tax Court, allowing an en banc three-judge panel to review.

Ultimately, Justice Massa said the biggest challenge was the leadership role the Supreme Court takes over trial courts. He noted Marion County courts face “terrible challenges” regarding funding, which could require the support and involvement of the Chief Justice.

In response to Mr. Williams’ question about leadership style, Justice Massa said he would share responsibilities. He noted he had clerked for Chief Justice Shepard but noted Chief Justice Dickson had a somewhat more inclusive style, involving the other justices in some administrative decisions that Chief Justice Shepard may not have. He said he preferred the Dickson model, involving colleagues even on somewhat “mundane” topics.

In response to Mr. Rose’s question about judicial philosophy, Justice Massa said it would be “no secret to anyone who read his opinions” that he would fall on “what some would call the conservative side.” He noted the founders were incredible sages and the best way to deal with power is to divide it. He said he believed in separation of powers as much as he believes in gravity. Some issues should be resolved “down the hall” rather than by the Court.

Justice Massa said the biggest challenge faced by the next Chief will be budget. He said the most gratifying part of the job would be serving with his four colleagues and work on things that are interesting and important, which he described as a great privilege.

In response to Mr. Tinkey’s question, Justice Massa said “continuing to uphold the rule of law” was the most important thing the Court could do to further the cause of justice. Justice Massa said the Court is like “instant replay officials,” which get to view the play from ten angles and with unlimited time. He noted trial judges have a more difficult job.

Unlike Justice Rush’s carefully crafted three-point answers, Justice Massa’s message was at times difficult to discern. His humility is certainly admirable, but I don’t know if anyone in the room was left with the sense he really wants the job.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Courts - "Loretta Rush says Chief Justice is a role model. "

That quote from a tweet by reporter Jim Shella, accompanied by this photo:

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts

Ind. Courts - Prof. Schumm's report of Justice Rush's interview

Justice Rush

When Justice Rush entered the room, everyone in the room stood up. (This was not the custom when merely interviewing justice candidates.)

All justices were given advance notice of the first question. What are the most important factors to be considered in the selection of the Chief Justice and why?

She focused on three.

First, be a role model and “pillar of collegiality” and consensus-building for the judiciary. Lawyers and judges look to the Chief as the standard to which they aspire.

Consensus-building was a priority of Chief Dickson—within the Court and with other branches of government. Justices are not a “Lone Rangers” in the law; they must work together.

She has traveled to many conferences and seen states where the justices do not get along well.

Second, strong administrative and managerial skills. She saw the importance of this when elected to the Tippecanoe County bench.

The Chief must develop and maintain a strong administrative team and be willing to delegate responsibilities.

The Chief must also be comfortable with technology, which will offer solutions to many of the state’s problems.

Third, the Chief should be a visionary—“the face of the Court.” We need a Chief who will work will collaboratively with other branches of government to find solutions.

Mr. Williams asked a description of her leadership style. (A question he said he plans to ask all justices.) She explained from Tippecanoe County she learned “you can’t do it all alone” and emphasized the importance of a strong managerial team. She noted that many judges had stepped up for service on Supreme Court Committees. She noted that Chief Justice Dickson has shared administrative responsibilities.

Mr. Rose asked what she thought would be the most challenging and most gratifying part of the job. She noted that the “patchwork” system of funding could be a challenge, noting the judiciary is less than 1% of the state budget and there is not much to cut. The most gratifying part of the job would be working with the bench and bar.

Ms. Northenor asked what changes Justice Rush might make as Chief Justice. “Just because you’ve always done it a certain way” doesn’t mean it should continue. She noted that the civil docket has taken a backseat to some other types of cases. Performance measures and time standards could be considered. She cited a 2012 Chamber of Commerce study noting the importance of timely case resolution for businesses. She also noted a number of initiatives need to continue, including pro bono counsel and addressing litigants with limited English proficiency.

Mr. Christie asked about how Justice Rush’s background prepared her to be Chief Justice. She noted (1) her work as a partner of a law firm, managing other lawyers and trying cases and (2) her experience on the trial bench, which included looking at courts around the state for three months before taking the bench and, after joining the bench, talking regularly with the County Council.

Mr. Tinkey asked how the Chief Justice best raises awareness and the reputation of the judiciary. Justice Rush said public speaking was important, noting she had been to all the law school and in counties around the state. She also mentioned that she went to the Gary Railcats game last week and let her twelve-year-old son throw out the first pitch.

Mr. Ulmer asked how Justice Rush will juggle the workplace with home life. She said home-work balance is important. She said it’s important to become a good time manager. She has three adult children and has “done this for 32 years.” She said she uses every minute in her car.

Mr. Rose asked about Justice Rush’s judicial philosophy and whether it is similar to a current member of the U.S. Supreme Court. She said it is important to give meaning to the language of statutes. She likes Justice Scalia’s adherence to language of statutes but noted she doesn’t always like the tone of his opinions.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Courts - Some photos before the interviews for Chief Justice begin

Prof. Schumm has sent a couple photos of the room where the interviews began a few minutes ago. The room is packed. Extra chairs had to be brought in.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts | Schumm - Commentary

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

For publication opinions today (3):

In Cherokee Air Products, Inc., Cherokee Family Limited Partnership, Tippmann Industrial Products, Inc., Dennis Tippmann, Sr. Family Partnership, LLP, and Tippmann Farms, LLC v. Bruce E. Buchan, an 8-page opinion, Sr. Judge Garrard writes:

Cherokee Air Products, Inc., Cherokee Family Limited Partnership, Tippmann Industrial Products, Inc., Dennis Tippmann, Sr. Family Partnership, LLP, and Tippmann Farm, LLC (collectively “Cherokee”) bring this interlocutory appeal from the trial court’s order granting partial summary judgment in favor of Bruce E. Buchan in an action alleging breach of his employment contract and seeking damages. Concluding that there are no genuine issues of material fact precluding the entry of partial summary judgment in favor of Buchan, we affirm. * * *

The trial court did not err in concluding that the contract did not prohibit Buchan from retiring from his position.

In Kevin Davis v. State of Indiana, a 17-page opinion, Judge Kirsch writes:
Following a bench trial, Kevin Davis was convicted of Class A felony robbery resulting in serious bodily injury.1 He appeals and raises the following three restated issues:
I. Whether the trial court abused its discretion by admitting a witness’s out-of-court prior statements to police identifying Davis as one of two persons involved in the beating and robbery of victim Kevin Taylor (“Taylor”);
II. Whether the trial court abused its discretion when it admitted the depositions of two witnesses on the basis that they were unavailable to testify at trial; and
III. Whether the evidence was sufficient to support Davis’s conviction.
We affirm.
In Craig Alvey v. State of Indiana, a 6-page opinion, Judge Mathias writes:
Craig Alvey (“Alvey”) has filed a Petition for Rehearing of our opinion affirming the Elkhart Superior Court’s denial of Alvey’s petition to expunge the records of his conviction for Class A misdemeanor possession of cocaine. We grant Alvey’s Petition for Rehearing for the limited purpose of addressing a perhaps unique question presented in his petition, but otherwise affirm our original opinion in full. * * *

In short, the plain and unambiguous language of the new version of Indiana Code
section 35-38-9-9 does not contain a three-year waiting period for new petitions unless certain conditions are present, and those conditions do not apply here. Accordingly, we conclude that the three-year waiting period does not apply to any new petition Alvey may file to expunge his Class A misdemeanor conviction under the new, more liberal standards of Indiana Code section 35-38-9-2 (2014). This observation aside, we affirm our original opinion in all respects.

NFP civil opinions today (1):

In the Matter of J.K., A Child in Need of Services, M.K., Father v. Marion County Department of Child Services and Child Advocates, Inc. (NFP)

NFP criminal opinions today (3):

Arthur Gutierrez, Jr. v. State of Indiana (NFP)

Jeffery A. Foster v. State of Indiana (NFP)

Daniel Utterback v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Nominees to Kansas Supreme Court question that court's timeliness in issuing rulings"

Steve Fry reported Aug. 4 to the Topeka Kansas Capital-Journal Online:

The chief judge of the Kansas Court of Appeals, in his interview Monday seeking appointment to the Kansas Supreme Court, criticized the high court for the time it took to resolve a controversial capital murder case in Wichita.

Chief Judge Thomas Malone appeared before the nominating commission that will recommend candidates to fill a vacancy on the Kansas Supreme Court. The commission will submit a short list of candidates to Gov. Sam Brownback, who will appoint the justice.

Malone told the commission it was "not acceptable" that the case involving Jonathan and Reginald Carr — convicted of killing five people, four of them together in execution style — was pending before the high court for 10 years before the ruling was issued July 10.

“I’m sorry, but that’s not acceptable,” Malone said. “The court needs to be aware of the timeliness of its decisions.”

Malone told the commission he had a reputation for getting the job done in a timely manner. * * *

Malone was one of several nominees to bring up the timeliness issue.

"I think timeliness is a big issue on this court," Kansas Court of Appeals Judge Karen Arnold-Burger said. "I think there needs to be an improvement in timeliness."

District Court Judge Steven Montgomery, of Miami and Bourbon counties, recalled a woman who asked him repeatedly whether her case on appeal would ever be ruled on, adding she almost would rather lose the case than have it hanging over her head.

"I don't think that's the way our system is intended to be," Montgomery said. A "shorter turnaround" would increase public confidence in the supreme court, Montgomery said.

Court of Appeals Judge Anthony J. Powell, of Wichita, said it was more important for the ruling to be right, but it is important for it to be timely. Powell has been an appellate judge for 18 months and formerly was a Sedgwick County District Court judge and a state legislator.

Merlin Wheeler, of Emporia, chief judge for the 5th Judicial District, said it was important to deliver a timely opinion.

Wheeler said he writes decisions in cases only when "absolutely necessary."

The story continues with brief reports on many more of the applicants, including:
Victor J. Braden, deputy Kansas attorney general, appeared before the nominating commission via Skype.

Braden, who is a brigadier general in the Kansas Army National Guard and is the deputy commanding general of the Combined Arms Center at Fort Leavenworth, was in Bogota, Columbia, as part of a military tour of Central America and South America. He has been in the National Guard for 32 years.

Braden, who is under consideration for promotion to major general, was asked how he could be a general and Supreme Court justice at the same time. If chosen to be Supreme Court justice, he said he would resign from the Guard.

Arnold-Burger was asked whether it mattered that only one woman applied for the vacancy. Arnold-Burger said it is important to select the best person for the job.

"Is it important to have gender and racial diversity? Absolutely," Arnold-Burger said. If the Supreme Court doesn't reflect the community, that triggers distrust, she said.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Courts in general

Ind. Courts - More on: Choosing the Next Chief Justice of Indiana: This is Huge!

If you missed it, here is Prof. Joel Schumm's long, comprehensive post from yesterday about today's meeting of the Indiana Judicial Nominating Commission to select the next Chief Justice of Indiana.

Prof. Schumm will be attending this afternoon's interviews and reporting on them in detail for the ILB.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Indiana Courts

Courts - "Gay marriage showdown in Cincinnati: 4 states, 6 cases, 3 judges"

Five cases are listed as being argued before a 6th Circuit panel, sitting in Cincinnati, starting at 1:00 PM today:

Interest is high. From the Court's notice:
Arguments will be heard in the Potter Stewart Courthouse, 100 East Fifth Street, Cincinnati, Ohio 45202. Two overflow courtrooms will be provided in which spectators will be able to hear live audio streaming of the oral arguments. Even with overflow space, courtroom seating is very limited, and no other seating will be available in the courthouse. Once the courtrooms have reached capacity, no additional spectators will be admitted to the courthouse.

Audio recordings of the arguments will be available from the court’s website as soon as practical after the conclusion of all of the arguments, and may be downloaded at no charge.

Spectator seating will be on a first-come, first-served basis. Seats may not be “saved” for spectators arriving later.

From an AP story by Amanda Lee Myers:
CINCINNATI (AP) — A federal appeals court is set to hear arguments in six gay marriage fights from four states — Kentucky, Michigan, Ohio and Tennessee — in the biggest such session on the issue so far.

Three judges of the 6th U.S. Circuit Court of Appeals in Cincinnati will consider arguments Wednesday that pit states' rights and traditional, conservative values against what plaintiffs' attorneys say is a fundamental right to marry under the U.S. Constitution. Large demonstrations are expected outside the courthouse by both opponents and supporters.

Michigan's and Kentucky's cases stem from rulings striking down each state's gay marriage bans. Ohio's case deals only with the state's recognition of out-of-state gay marriages, while Tennessee's is narrowly focused on the rights of three same-sex couples.

Attorneys on both sides in the Michigan and Ohio cases will go first and get a half-hour each to make their cases. Kentucky and Tennessee will follow, with 15 minutes for each side from both states. * * *

Constitutional law professors and court observers say the 6th Circuit could deliver the first victory to gay marriage opponents.

The three judges hearing the case are Jeffrey S. Sutton and Deborah L. Cook, both nominees of President George W. Bush, and Martha Craig Daughtrey, a pick of President Bill Clinton.

Sutton is considered the least predictable, shocking Republicans in 2011 when he became the deciding vote in a 6th Circuit ruling that upheld President Barack Obama's landmark health care overhaul.

If the 6th Circuit decides against gay marriage, that would create a divide among federal appeals courts and put pressure on the U.S. Supreme Court to settle the issue for good in its 2015 session.

Two federal appeals courts already have ruled in favor of gay marriage, one in Denver in June and another in Richmond, Virginia, last week. On Tuesday, Utah appealed the ruling from the Denver-based court, asking the U.S. Supreme Court to take up the case and uphold the state's ban.

The 6th Circuit is the first of three federal appeals courts to hear arguments from multiple states in August and September.

The 7th Circuit in Chicago has similar arguments set for Aug. 26 for bans in Wisconsin and Indiana. The 9th Circuit in San Francisco is set to take up bans in Idaho and Nevada on Sept. 8.

From the 6th Circuit oral augment schedule for this week, the ILB has clipped this page re this afternoon's arguments:

From Tresa Baldas of the Detroit Free Press, this story today - some quotes:

Michigan’s gay marriage ban is set for another legal showdown, only this one involves more players, more judges and likely more drama.

Today, the historic civil rights case that centers on the right to marry heads to the U.S. 6th Circuit Court of Appeals in Cincinnati, where three federal appeals judges will decide the fate of same-sex marriage bans in Michigan, Tennessee, Kentucky and Ohio. In each of these states, a judge has ruled in favor of same-sex marriage, though all rulings have been appealed. * * *

“The 6th Circuit cases promise to be a blockbuster, whatever the court decides. There are multiple decisions from multiple jurisdictions involving multiple issues for this court to sort through,” said Marc Spindelman, a constitutional and family law professor at the Ohio State University who has written extensively on issues of gender, sexuality and the law.

At issue, he said, are two key questions: “How do recent U.S. Supreme Court decisions involving lesbian and gay rights affect state-level bans on same-sex marriage? What should happen to state laws that treat same-sex couples and their marriages different than their cross-sex counterparts?”

Wednesday’s oral arguments may contain some important clues about how the 6th Circuit judges read and understand the legal precedents in this area, Spindelman said. They could also reveal if the court will join or buck the emerging of courts declaring that state bans on same-sex marriage are unconstitutional, he said.

The long story goes on to discuss in detail several of the cases.

Posted by Marcia Oddi on Wednesday, August 06, 2014
Posted to Courts in general

Tuesday, August 05, 2014

Ind. Courts - "Who will be Indiana's next chief justice?"

Tim Evans has just posted a long Indianapolis Star story on tomorrow's upcoming selection of a new Chief Justice of the State of Indiana. Some quotes from the story:

History may be made Wednesday when the state's Judicial Nominating Commission names a new chief justice to head the Indiana Supreme Court.

The seven-member panel could tap the first female or the first African-American to head the state's high court and serve as the leader of Indiana's judicial system.

The new chief justice, replacing Brent Dickson, will be selected from the court's four other members: Robert Rucker, Steven David, Mark Massa and Loretta Rush.

Dickson will remain a justice until he reaches the mandatory retirement age of 75 in July 2016. The 28-year veteran of the state's high court has served as chief justice since 2012, when he was named to replace Randall T. Shepard.

None of the other current justices has publicly stated whether they will seek the post, but legal experts expect at least three, and possibly all four, will ask the commission to consider them during a public interview process Wednesday afternoon.

"It is my understanding that all four will go in and make the case that they are the person for the job," said retired Justice Frank Sullivan, now a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Sullivan declined to speculate on who might land the job but said Hoosiers would be well served by any of the potential candidates.

"I think all four of them would be splendid candidates," said Sullivan, who retired in 2012 after 19 years on the court. "Each, in their own way, has a deep commitment to the rule of law and strong, quick, discerning legal minds."

The commission's final decision, expected to come Wednesday afternoon, could give Indiana its first African-American (Rucker) or first female (Rush) chief justice.

Rucker is the second African-American to serve on the court, and Rush is the second female. Both followed former Justice Myra Selby, who was the first black and the first female on the state's highest court. Appointed by then-Gov. Evan Bayh, Selby served on the court from 1995 to 1999. * * *

Although politics is not supposed to play a role in the selection process, the seven-member commission includes three members appointed by Daniels and Republican Gov. Mike Pence, and Dickson, who was appointed by Republican Gov. Robert Orr. The remaining three members are elected by attorneys across the state.

The story then continues, quoting at length, with credit, from the ILB post earlier today by Prof. Joel Schumm.

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to Indiana Courts

Ind. Decisions - "Appeals court reverses convictions in ballot fraud case"

Madeline Buckley of the South Bend Tribune reports on today's Court of Appeals opinion in Dustin Blythe v. State of Indiana. From the story:

The Indiana Court of Appeals has reversed all but one forgery conviction for a defendant in the ballot fraud case that toppled former chairman of the St. Joseph County Democratic Party Owen "Butch" Morgan.

In a unanimous decision on Tuesday, the court vacated nine of ten convictions a jury handed down for Dustin Blythe, a former employee of the county's Voter Registration Office. * * *

A three-judge panel determined Blythe's 10 convictions were part of one criminal act, meaning the panel ordered that only one class C forgery conviction will stand.

St. Joseph Superior Court Judge John Marnocha previously denied Blythe's request to dismiss all but one count.

"The evidence reveals that the falsified signatures were placed on the ballot petitions during a relatively short period of time in St. Joseph County and the placement of the falsified signatures was performed for a single purpose," the decision reads.

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to Ind. App.Ct. Decisions

Law - "The 50 Most Impressive Law School Buildings in the World"

The blog bestchoiceschools.com has compiled this illustrated list of 50 law school buildings. It begins:

From stunning examples of Gothic revival to Brutalism’s giant box-like constructions, the world’s most impressive law school buildings span decades and even centuries. With modern marvels like Frank Gehry’s Loyola Law campus and the new University of Sydney Faculty of Law building, and traditional structures like Yale Law’s Sterling Law Building, these architectural giants were chosen for their ingenuity, aesthetic beauty, and commitment to creating an environment that honors the history and study of law. Many of these buildings house some of the world’s most prestigious and selective law programs, and a number of them set a precedent for green building standards and solutions.
Ranked #22 in the world by this list is Indiana University Robert H. McKinney School of Law, Lawrence W. Inlow Hall. (h/t to McKinney Law Prof. Diana R. H. Winters)

ILB: One thing to think about... Many of the descriptions say things like "the library is the home of nearly 600,000 print volumes", "the library houses the collection’s 625,000 volumes", "The campus’ recent expansion includes a space known as the South Addition, which was intended to house the library’s extensive and growing collection", "the Arthur W. Diamond Law Library which houses over one million volumes", "the Arthur J. Morris Law Library contains over 880,000 volumes", and "Ennead Architects created a large curving glass structure to enclose the law library, the heart of any university program."

In fact, many of the buildings pictured are in fact THE law library building at the selected school. How long will these enormous areas devoted to collections of printed books remain functional; what will be the conception and role of the "library" in the future? I trust that schools planning new construction are looking at this question and that the ABA has a committee looking at the practicality of its library requirements for law school accreditation, in light of the now nearly total digitization of the law.

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to General Law Related

Ind. Decisions - 7th Circuit posts two Indiana opinions, filed August 4th, one a reversal that overrules prior precedent

In Light v. Caraway, Warden (SD Ind., Magnus-Stinson), a 15-page opinion, Judge Tinder writes:

[Petitioner-Appellant Augustus Light's] contended that in light of Begay, he was entitled to a sentence reduction because one of his predicate ACCA convictions did not qualify as a “violent felony.” The Indiana district court dismissed the habeas petition on the grounds that relief under § 2255 had been available to him and had not been “inadequate or ineffective to test the legality of his detention,” and consequently Light did not qualify for the savings clause. The district court reasoned that “the remedy afforded by § 2255 was anything but ‘unavailable’ or ineffective to test the validity” of Light’s conviction. Light timely appealed. We review the denial of his habeas petition de novo, and all of the district court’s factual determinations for clear error. Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2013). * * *

For the foregoing reasons, we AFFIRM the decision below.

In Boley v. Colvin, Social Sec. Adm. (SD Ind., Young), a 10-page opinion, Judge Easterbrook writes:
Marilyn Boley asked the So cial Security Administration for disability insurance benefits. The agency denied her request initially and on reconsidera tion. A person dissatisfied with such a decision has 60 days to request a hearing by an administrative law judge. 20 C.F.R. §404.933(b)(1). Boley took about nine months — but she had a reason. When the Administration made its deci sion on reconsideration, it notified Boley but not her lawyer, despite 20 C.F.R. §404.1715(a), which requires notice to the claimant’s representative. Boley was ill at the time (she was preparing for a double mastectomy) and relied on her law yer to protect her interests; she did not know, until it was too late, that her lawyer was in the dark. * * *

The prospect of moving from one side of a conflict to an other is not attractive, especially when the conflict is so old and the Supreme Court has been content to allow the disa greement to continue. Nonetheless, we have a duty to apply §405(g) the way the Supreme Court did in Salfi and Eldridge, and we very much want to give the statute a reading that avoids unnecessary constitutional litigation of the kind that Watters and similar decisions invite.

Watters is overruled. This opinion has been circulated to all judges in active service under Circuit Rule 40(e). None requested a hearing en banc.

The district court’s judgment is vacated, and the case is remanded with instructions to decide whether substantial evidence, and appropriate procedures, underlie the decision that Boley lacks “good cause” for her delay in seeking intra agency review.

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (1):

In Dustin Blythe v. State of Indiana, a 14-page opinion, Judge Brown writes:

Dustin Blythe appeals his convictions for nine counts of forgery as class C felonies and falsely making a petition of nomination, a class D felony. * * *

[T]he State alleged under Counts I through IX that Blythe, “acting with intent to defraud, knowingly uttered a written instrument that purported to have been made by another person or by authority of one who did not give authority, by forging” election ballot petitions that included the apparent signatures of nine individuals where those individuals had not signed the petitions or given their authority for their signatures to be used on the petitions. Under Count X, the State alleged that Blythe “knowingly falsely made a petition of nomination for Presidential Candidate Barack Obama.” * * *

For the foregoing reasons, we affirm Blythe’s conviction under Count I and remand with instructions to vacate his convictions under Counts II through X.

NFP civil opinions today (1):

The City of Sullivan v. North American Latex Corp, Kenneth Wayne Plummer, and Others Owning Property (NFP)

NFP criminal opinions today (1):

Joshua Devine v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on Lake County and the impact of PERF changes

Updating an ILB post from July 29th headed " Double whammy of PERF changes and criminal code changes," quoting a story from the Chesterton Tribune, the NWI Times followed over the weekend with several stories.

Bob Kasarda's Aug. 2 story is headed Government employees, teachers leaving to avoid retirement losses." It begins:

Porter Superior Court Judge Roger Bradford will begin a sixth term in January without the benefit of his staff of three and their combined 67 years of experience at his side.

His bailiff, court reporter and executive assistant are all retiring Aug. 29, in part, to avoid reductions in the amount of money they expect to receive from a portion of their public employee retirement plan benefits.

Executive assistant Julie Powell said she and the others at the court have to leave now to avoid watching the returns on the annuity portion of their retirement slip from a guaranteed 7.5 percent, despite market fluctuations, to lower market rates over the next few years under a measure enacted by state lawmakers to reduce the chance of unfunded liabilities.

The upcoming losses proved incentive enough to convince the court staff to follow through on retirement plans when Bradford surprised them by opting to seek another term.

"We said, 'Hey, we're in the mindset to go now,'" Powell said.

The loss of retirement money not only affects state and local government employees, but teachers as well. While there is no mass exodus among educators occurring across the region, some are calling it quits to avoid losing any money on their self-funded annuities.

But another Times story, by Bill Dolan on Aug. 3, is headed "Lake County government employees prefer payroll to pension."

And Dan Carden of the Times reported Aug. 3:

INDIANAPOLIS -- The annuity options for retiring public employees, including teachers, may have been much worse if it wasn't for the intervention of a small group of Hoosier lawmakers, including state Sen. Karen Tallian, D-Ogden Dunes.

In July 2013, the trustees of the Indiana Public Retirement System, known as INPRS, voted to eliminate state-managed annuities for new retirees starting July 1, 2014.

At that time, retirees would be required to turn over their lump-sum annuity savings account to a private financial company if they wanted a lifetime monthly benefit to supplement their modest pension payments.

INPRS officials said longer life expectancies and a promised 7.5 percent interest rate made the state-managed annuity unsustainable in the long run and could lead to unfunded liabilities if the state's returns on annuity-backed investments dropped significantly.

Led by Tallian, the General Assembly'sPension Management Oversight Commission said in October that decision was unacceptable.

The panel concluded that, even if INPRS reduced its annuity interest rates to market rates, the state-managed option remained superior because it is fee-free and not seeking to earn a profit like a private insurance or financial management company.

INPRS trustees rejected the commission's recommendation and unanimously voted in December to move forward with privatization.

The Republican-controlled General Assembly moved quickly after convening in January to overrule that decision.

House Bill 1075, cosponsored by Tallian and state Rep. Chuck Moseley, D-Portage, barred privatization prior to 2019, though it permitted INPRS to lower its annuity interest rate toward market rates.

The legislation passed the House 83-0 and the Senate 39-8, but minor differences in the two proposals sent the measure to a House-Senate conference committee where Republican Gov. Mike Pence got involved.

"We tried to get rid of privatization altogether, but the governor's office put the kibosh on that -- threatened to veto it," Tallian said. "We tried everything that we could."

In the end, the House, Senate and governor agreed to a three-year moratorium on privatization and an annuity interest rate phasedown to 5.75 percent for retirees after Oct. 1, and 4.5 percent or the market rate, whichever is lower, for retirees purchasing an INPRS annuity after Oct. 1, 2016.

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to Indiana Government

Ind. Courts - Choosing the Next Chief Justice of Indiana: This is Huge!

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

The Indiana Judicial Nominating Commission has not been faced with a serious contest for Chief Justice since Justices Shepard and Pivarnik vied for the position in 1987. Tomorrow the Commission convenes to discuss the role of the Chief Justice with Justices Rucker, David, Massa, and Rush — and will appoint one of them to the position. This post previews that process, discusses the immense importance of the position, provides some background on those making the selection, and ends with some possible areas of inquiry.

Importance of the position

Three of the candidates (Justices David, Massa, and Rush) are in their mid-50s, which means any one of them could serve for nearly two decades. The decision is especially important for at least three reasons:

Two Years Ago

When Chief Justice Shepard retired in 2012, each justice supported elevating Justice Dickson, the longest-serving justice, to Chief. Cara Wieneke's summaries of those interviews for the ILB may offer some idea of the types of questions the justices will face. But because only Justice Dickson was seeking the position, many, many of the questions were not about the Chief Justice position but instead about selecting Justice Sullivan’s replacement, a task the Commission would take up just a few weeks later.

This Time Around

According to the press release, “[t]he Commission has asked the Justices to speak about the qualities and attributes important in a Chief Justice.” The schedule 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
1:50 p.m. - 2:10 p.m. – Justice Steven David
2:10 p.m. - 2:30 p.m. – Justice Robert Rucker
I will attend and prepare summaries of each interview, which should be posted to the ILB at approximately 1:45 and 2:35. I also plan to wait while the Commission deliberates in private and will attend the public vote, the results of which will be posted to the ILB as soon as it is announced.

A Truly Public Process?

The Commission's agenda allots twenty minutes with each justice; that seems a very short interview period in which to select the leader of the judicial branch. Unlike the binders submitted by applicants seeking an appointment to the Court, there is no application for the Chief Justice position and apparently very few, if any, letters of recommendation have been submitted on behalf of the contenders.*

At least some members of the Commission reportedly have met individually with the justices. This practice was fairly common in selecting the justices in 2010 and 2012, and an opportunity to speak one-on-one does help provide a basis for making this important decision. But some who see or hear of such a meeting might wonder if it’s one of four meetings with each justice or a special opportunity afforded only to the Commission member’s favorite, arranged through personal connections. The perception — especially of those already critical of “the politics” of the Commission process — arguably undermines what is supposed to be an open and public process.

The Deciders

Predicting questions or priorities for Wednesday is difficult, if not impossible. The background of the members might offer some clues, but the process of selecting a Chief Justice among more than one candidate is uncharted territory for all seven members.

The Judicial Nominating Commission is made up of the current Chief Justice, who serves as chair, plus three lawyer members, elected by lawyers from each of the three Court of Appeals geographic districts, and three non-lawyer citizen members, appointed by the Governor, all serving three-year staggered terms.

Biographies are not available on the Commission’s website, but here are short summaries derived from other sources on the web:

Attorney Members

Citizen (non-lawyer) MembersTwo of the commissioners, John Ulmer and Jean Northenor (the only remaining citizen member appointed by Governor Daniels), were members of the Commission in 2012 that interviewed and ultimately selected Justices Massa and Rush. Chief Justice Dickson served part of 2012 and chaired the Commission that selected Justice Rush.

Influence of the Chief Justice

Although each of the seven members has one vote, it seems unlikely that four or more members would select the next Chief without the vote of Chief Justice Dickson. No one knows better the role and responsibilities of the position or the qualifications of the four potential successors than Chief Justice Dickson. The Commission members surely will — and should — give careful thought to his assessment.

Private deliberations

Unlike the Lake County Nominating Commission, which deliberates in public, after the Commission hears from the four justices it will convene in executive session to discuss them and vote. The public vote that follows is a mere formality; the decision will have been made before the public and press is invited back to the conference room for the vote.

Potential Questions

Priorities. Broadly speaking, the Chief Justice sets priorities for the judicial branch in the State of the Judiciary speech and beyond. Although a Chief will likely consult with his or her colleagues on major decisions—and needs at least two votes for such things as rule amendments—the Chief has considerable latitude to bring new initiatives or abandon existing ones. Commission members may well ask questions about each justice’s vision or priorities if selected as the new Chief Justice.

Management style and administrative experience. What type of manager/leader will the new Chief be? How will he or she approach personnel and budget issues? Is a job leading an Indiana Supreme Court agency essentially a job for life or should reviews and replacements occur in some circumstances?

Transparency. Are the activities of the judicial branch sufficiently open (or too open?) to the public? As explained in previous ILB posts, the Judicial Technology Oversight Committee (JTOC), chaired by Justice Massa, has met infrequently with little public information, while the Commission on Improving the Status of Children, led by Justice Rush, has been a model of transparency, providing notice of meetings well in advance of meetings that are both webcast and archived.

Pro bono versus pro se. Chief Justice Dickson has been outspoken in favor of increasing lawyer pro bono work, including the mandatory reporting of pro bono hours. That proposal has been moderated and is still open for comment. How should Indiana meet the needs of those who cannot afford lawyers in civil cases? If pro se litigation is truly a “cancer,” should websites or legal self-help centers be providing do-it-yourself forms for litigants?

Disposition Time. Is a year too long to wait for the Indiana Supreme Court to resolve a case? What, if anything, does the new Chief think should be done to expedite the rendering of opinions?

Finally, although unlikely in a public interview, a fair and revealing question would be “if not you, which of your colleagues would be best suited to be Chief Justice?” Just as lawyers sometimes attempt to dance around or dodge questions at oral argument, I suspect some of the justices might find themselves trying to find a nice way to avoid a direct answer.

The Four Justices

Justice Rucker: The key concern about a Chief Justice Rucker would be the possibility of a short tenure. In 2012 there was some doubt whether Justice Rucker would seek retention or retire. If appointed Chief Justice, would he serve a five-year term? Does he want to take on the increased administrative and public speaking duties that come with the position?

Justice David: His decision in Barnes v. State generated the most negative public and legislative reaction to an Indiana court opinion in decades. What did he learn from that process and would the opinion affect his ability to work with the General Assembly?

Justice Massa: Two current members of the Commission interviewed Justice Massa in 2012 when the “disturbing” television ad he ran as a candidate for Marion County prosecutor in 2010 generated tough questions from an attorney member of the Commission. Will those resurface? More recently, Justice Massa faced considerable public and editorial scrutiny for his decision not to recuse in the Rockport coal gasification case.

Justice Rush: Although many view it as a positive attribute, Justice Rush has shown a streak of independence in dissenting from a couple of high profile opinions in which the three other justices appointed by Republican governors were in the majority. She wrote powerful dissents, joined by Justice Rucker (the only justice appointed by a Democratic governor), in the legislative fines case last June and in the Evansville smoking ban case earlier this year. Interestingly, two years ago then-Justice Dickson emphasized the importance of being seen as a “political neutral”.
* The hundreds of recommendation letters submitted during the justice selection processes in 2010 and 2012 were made available to the public and press before the interviews. I have asked the court’s public information officer about the possibility of reviewing any such recommendation letters sent to the Commission for the Chief Justice position.

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to Schumm - Commentary

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

This ILB post from July 31st includes the State Board of Accounts' reported reaction to "the confidentiality of exit conferences only applies to the auditor or examiner and not attendees." Sean Edmondson reported for WFIE14 Evansville:

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.

But as Andrea Howe reported yesterday in a Princeton Daily Clarion story that begins:
There’s a State Board of Accounts audit conference scheduled Monday morning, and Princeton Mayor Bob Hurst believes he should be there.

Hurst said Saturday he objects to the state agency’s reaction Thursday to Special Prosecutor Rob Krieg’s decision not to seek criminal charges against an Evansville city councilwoman who secretly recorded an Evansville audit conference earlier this spring.

The Associated Press reported Thursday that SBA Chief State Examiner Paul Joyce plans to limit participation in those audit conferences to clerk/treasurers or city clerks, as a reaction to Krieg’s findings.

Princeton’s mayor said he’s participated in nine previous audit exit conferences, and believes he should be there because he can provide information that field examiners need.

Hurst said he’s contacted other mayors and the Indiana Association of Cities and Towns to raise objections to Joyce’s decision, which he likened to “sticking a pencil in my eye.”

Posted by Marcia Oddi on Tuesday, August 05, 2014
Posted to Indiana Government

Monday, August 04, 2014

Ind. Courts - "Beefing up security at the courthouse"

From the Crawfordsville Journal Review Online, Bob Cox reported July 29th - some quotes:

Montgomery County Commissioners are moving forward with plans that will address security and American Disability Act issues at the county courthouse along with improving the courthouse parking lot. DLZ Engineering was contracted to develop a design for the property improvements Monday at the regularly scheduled commissioners meeting.

The advertised issue on the commissioner’s agenda brought several to the Monday meeting. Commission president Phil Bane started the discussion explaining how the commissioners had gotten to the point of contracting engineering services.

“It is no longer 1960,” Bane said. “Our goal is not to impede access to our building, but rather to provide a safe environment for our citizens to conduct business.”

Bane said a security issue that happened 18 months ago prompted the formation of a security committee. Security issue discussions then turned into ADA issues which in turn brought the parking lot into the discussions. * * *

Montgomery Superior Court Judge David Ault spoke in favor of the project. He showed attendees a large assortment of weapons that had been confiscated from persons entering the courthouse. He also said security should start with reducing security threats.

“We have several examples of security failures,” Ault said. “What we are talking about is not if, but when. We are talking about threat management or how we deal with know and unknown threats.”

Ault said he organized the first county security team in 1992 and he believes the county is way behind in terms of protecting patrons in the courthouse.

“We have an opportunity to improve and diffuse the security issues,” Ault said. “The time has come and there is no room for political posturing. It is the right thing and the time is now.”

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Indiana Courts

Environment - "Coal country sues EPA over climate rule"

That is the heading to a story today from The Hill, reported by Benjamin Goad, that begins:

A dozen states representing America’s coal country are suing the Environmental Protection Agency to block forthcoming regulations imposing new limits on greenhouse gas emissions from power plants.

The lawsuit, filed late last week in the D.C. Circuit Court of Appeals, accuses the agency of overstepping its authority under the Clean Air Act.

West Virginia, Alabama, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Wyoming and Indiana are named as plaintiffs in the case.

Stacy Page Online's story includes a copy of the 17-page complaint, filed in the DC Circuit.

Maureen Hayden of the CNHI Statehouse Bureau had a long related story on July 30th in the Kokomo Tribune, titled " For Indiana coal mining town, EPA climate change plan threatens stability: EPA plan to combat climate change sparks worries about loss of jobs."

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Environment

Ind. Decisions - 7th Circuit posts one, decided Aug. 1st

In Webster v. Caraway, Warden (SD Ind., Lawrence), an 11-page opinion, Judge Easterbrook writes:

Hav ing exhausted his opportunities within the Fifth Circuit, where the crime and trial occurred, Webster asked for collat eral relief under 28 U.S.C. §2241 in the Southern District of Indiana, where he is confined. * * *

The United States Code is jam-­‐‑packed with imperative language. Rules of law tell litigants, and courts, what must be done. These rules are enforced when their beneficiaries invoke them. If they are also treated as jurisdictional, how ever, then courts must raise the subject on their own, even when litigants choose to waive or forfeit their rights. Declar for judges but also creates a prospect that the time and ener gy invested in a case will prove to be wasted, when an ap pellate court dismisses the suit or directs the litigants to start over. Curtailing the need for judges to resolve issues on their own initiative, and the risk that both private and judicial ef forts will be squandered, are the principal reasons why the Supreme Court has insisted in recent years that very few rules be treated as jurisdictional. See, e.g., Gonzalez, 132 S. Ct. at 647–48.

The text of §2255(e) does not suggest to us that Congress set out to prevent the Attorney General from consenting to collateral review under §2241, if the Executive Branch thinks that necessary to avert an injustice. We conclude, according ly, that §2255(e) does not contract subject-­matter jurisdic tion—which means that its benefits can be waived or forfeit ed. But in this case the Attorney General has invoked his right to say “enough is enough” and to prevent an addition al round of collateral review. The district court had jurisdic tion and entered the proper kind of judgment. AFFIRMED

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Tiffany Johnson, Jason Thompson, and Cassie Thompson v. Fields Gutter & Siding, Inc., Pamela Sue Fields, and Michael C. Ford, Jr. (NFP)

Eric P. Manns v. Citibank, NA as Trustee for WAMU Series 2007-HE2 Trust (NFP)

Antoinette Crosslin v. Review Board of the Indiana Department of Workforce Development and Kenya Hamilton (NFP)

NFP criminal opinions today (1):

Domingo Gonzalez v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Rush a favorite to be new chief justice"

That is the headline to Dave Bangert's Sunday column in the Lafayette Journal Courier. The column begins:

This will be a big week for Supreme Court Justice Loretta Rush, who could become the first woman named Indiana’s chief justice.

On Wednesday afternoon, a seven-member panel will interview justices Rush, Mark Massa, Steven David and Robert Rucker during public sessions at the Statehouse to pick a replacement for Chief Justice Brent Dickson. Dickson, a Purdue University graduate who practiced law in Lafayette, is stepping down as chief justice but will stay on the court.

It’s been two years since Rush, former Tippecanoe County juvenile court judge and still a Lafayette resident, was named to the state’s high court. She’s the second woman to serve as an Indiana Supreme Court justice.

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Indiana Courts

Environment - "Missouri's 'Right-to-Farm' Vote Isn't as Simple as It Sounds"

From Governing, Chris Kardish had this long story August 1st. Some quotes:

Voters in Missouri face a seemingly simple question in Tuesday’s primary with potentially far-reaching implications: Do they support the right to farm?

Amendment 1 asks if the state constitution should be changed to “ensure that the right of Missouri citizens to engage in agricultural production and ranching practices shall not be infringed.” To supporters, the measure provides greater security from overzealous environmentalists, animal rights advocates and foodies who want greater regulation of agriculture. That’s one of the things opponents most fear -- a barrier to future regulations that respond to new science about food safety or the spread of disease. * * *

Every state has some form of a “right-to-farm” law. These laws typically protect certain farmers and ranchers from nuisance lawsuits, which could come in the form of complaints about noise or odor. In Missouri’s case, farmers or ranchers who have been in operation for more than a year have protections from such complaints and the ability to “reasonably” expand without facing lawsuits. But supporters of Amendment 1 argue that’s not enough.

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Environment

Courts - 6th Circuit: "4 states' gay marriage bans under fire"

Chrissie Thompson and Amber Hunt reported yesterday in the Cincinnati Enquirer in a long story that begins:

The broadest attack yet on states' gay marriage bans will be Wednesday in a packed courtroom in downtown Cincinnati, where lawyers challenging four states' prohibitions will stand shoulder to shoulder in hopes of convincing a three-judge panel that the bans are unconstitutional.

The states – Ohio, Kentucky, Michigan and Tennessee – have so far waged their battles separately, fighting to uphold the bans that voters years ago embraced. Each state faces slightly different challenges filed by same-sex couples, including the right to adopt children as a couple, to have their names placed on a partner's death certificate and to have their marriages – performed legally elsewhere – recognized in the states they call home, where same-sex marriage is illegal.

Despite the variations in the attacks, make no mistake: The ultimate targets are the bans, and the real goal is the right to marry, adopt children and enjoy the same rights that opposite-sex couples have when they exchange vows.

"Putting all of the arguments on the same day back-to-back is certainly unusual and actually a very good move," said Al Gerhardstein, the lawyer heading the challenge to Ohio's same-sex marriage ban. "That way the panel gets the benefit of all the arguments at once, giving them a chance at harmonizing the law in this area."

This 6th Circuit argument Wednesday will be followed three weeks later by Indiana and Wisconsin's oral arguments before our 7th Circuit on Aug. 26th. Unlike the 7th Circuit, the 6th does not wait until the day of the argument to reveal the names of the panel members:
Two of the three appellate judges to consider the bans' fate were appointed by President George W. Bush, including one whose nomination was opposed by liberal groups who deemed him a threat to civil rights.

That judge, Jeffrey S. Sutton, is a states' rights advocate who has argued against federal laws protecting people with disabilities, women and minorities. In 2012, he wrote an opinion for the appellate court that reinstated a suit filed by an evangelical Christian who lost her spot in a counseling program at a Michigan university for refusing to work with clients in same-sex relationships.

He joins judges Deborah L. Cook, a Bush appointee, and Martha Craig Daughtrey, a Covington native who was appointed by President Bill Clinton.

The political divide is noteworthy: Two other appellate panels have already ruled in gay-marriage ban cases with 2-1 decisions.

Legal experts caution against using the judges' backgrounds to determine how they'll rule.

"That's too simplistic of an analysis," said Pierre Bergeron, a lawyer with Squire Sanders' Cincinnati office who has argued cases before all three 6th Circuit judges on the panel. "What you see is courts across the country, regardless of ideological perspective, striking down the gay marriage ban. Certainly there's an element of liberal-conservative to it, but I don't think that's going to be the driver at the end of the day." * * *

Wednesday's hearing will be a three-hour marathon of arguments from each state, beginning with Michigan, then followed by Ohio, Kentucky and Tennessee.

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Courts in general

Ind. Decisions - Transfer list for week ending August 1, 2014

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

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Indiana Transfer Lists

Ind. Law - Trying to use the "updated" online Indiana Code is incredibly frustrating; July 1 change-over exposes system's flaws


I began reporting about the state of the online Indiana Code in 2006, in a Res Gestae article that pointed out (starting on p. 4) that:

  1. Unlike printed versions of the Indiana Code, the current online Indiana Code is accompanied by no explanatory materials, such as the significance of headnotes and history lines, how current the online document is, that it is not official, etc.
  2. The online [2006] Indiana Code is error-ridden. "Little care goes into the public online version of the Code. The LSA staff has its own online system for bill drafting and research. On the public system, items appear and disappear, links are broken, links lead to nothing."
  3. Retention issues - "Where do you go to look for the old version? And where will you go in six months or 50 years?"
In 2007 I published a second Res Gestae article, looking at the trustworthiness of the online Indiana Code, using national standards:
  1. Is it official?
  2. Has it been authenticated?
  3. Is it permanently accessible?
  4. Is it secure?
What happened on July 1st of this year?

Although significant problems remained, gradually over the years the General Assembly and its staff addressed a number of these concerns. But as of July 1st of this year, 2014, the program has taken a giant step backward. That was the date when:
  1. The online 2013 Indiana Code was updated to reflect the legislative changes made by the 2014 General Assembly;
  2. Its predecessor, the 2013 Indiana Code, was retained, but its familiar easy, speedy access and availability via both html and pdf versions, has been scrapped.
The replacement: a s-l-o-w, complex, non-intuitive, multi-step system requiring much effort by the user to find the even most basic information. And this new system does not become any easier the more you use it.

What is this so important?

Because for the majority of Indiana's citizens, including many lawyers and judges, the online Indiana Code, maintained by the General Assembly, is the main (or only) way to access Indiana's statute law.

Reactions from ILB readers

Since July 1st I've heard comments from a number of attorneys, including these three:

My initial reaction

My initial ILB review of the updated Indiana Code, on July 2nd, was not too bad. I did note the "2015 problem" and was later told by LSA that the problem was being corrected.

It is only when I tried to actually use the online Code that the real issues revealed themselves. I soon made a note to myself:

Seems to be designed for occasional use, but not for the occasional user (too high a learning curve), and not by the heavy user (too slow, too time-consuming, too frustrating).
My research

I've spend much of the weekend looking at the "new" Indiana Code. My original intent was to set out some step-by-step instructions for users. I also had a large editing project to complete, which required multiple accesses to the Indiana Code, with extensive cutting and pasting. But as it turned out, the more I worked with the 2014 Code, the more frustrated I got.

It used to be that if I wanted to find a specific section of the Indiana Code I'd either use Google*, typing in, say "IC 13-13-1-6" and I'd get a link going directly to the chapter of the General Assembly's online Indiana Code that contained that section.

Or I'd use the "4 boxes" on the General Assembly website to type in the citation. That would take me directly to the chapter I was looking for, and locate the specific section within the chapter.

Try doing that now! First you get this message:
NOTICE: The URL for the current 2014 Indiana Code has been changed from 2015 to 2014. Please click here to be redirected.
With your next click you get a list of links to all 36 Code titles, and have to drill through those, and the pull-down menus, to arrive at the section you seek.

And it is like Groundhog Day, you have to do this every damn time. (Some of you may be familiar with the term "Jerry-rigged".)

It seems obvious that the designers of this system don't have any idea of what users need, and that the people responsible for overseeing this project don't use it, and haven't tested it.

Only the public uses it, and relies on it for the statute law of the State of Indiana, because the General Assembly in its wisdom has phrased out printed books.

So I now have pages and pages of notes I made as I tried to write out a step-by-step guide, starting with how to avoid pulling up the entire Indiana Code in order to ultimately reach a specific section of a specific chapter of a specific title, and moving on through how to see the bottom half of the pages.

Going from there, I looked at the problem of cutting and pasting from the Code. That is something I do (or at least did in the past) constantly. In the past, I preferred to copy from the html versions of a statute, but that choice is now gone. The user is left with copying and pasting from a pdf version, and here I ran into a real oddity. Following precisely the same steps, I did not get the same results every time! Sometimes I ended up with a pdf with a return after each line. That is a hassle when pasting, but not nearly as much as the other times, when I ended up with a pdf with a return after each word! So when I pasted, the result would look like this:


To quote Doug Masson's observation again: "The new Indiana Code website stinks out loud."
* It is not only Google that is no longer useful in accessing the Indiana Code. "Old" links, such as those in pre-July 1, 2014 ILB posts, or in court opinions, no longer work either. I warned of this in a Nov. 19, 2013 post: "One thing that is clear is that all links to bills, Code cites, and the like, as well as links in court opinions, briefs, and other documents, will be broken. This will be true not only for the ILB, but any links elsewhere, going back for at least a decade."

Posted by Marcia Oddi on Monday, August 04, 2014
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 8/11/14):

Webcasts of Supreme Court oral arguments are available here.

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

This week's oral arguments before the Court of Appeals (week of 8/11/14):

Thursday, August 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, August 04, 2014
Posted to Upcoming Oral Arguments

Friday, August 01, 2014

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

Updating yesterday's post on the counsel, Lambda Legal, for one of the three consolidated Indiana cases known as Baskin v. Borgan to conduct the oral argument "on behalf of plaintiffs in all three Indiana consolidated cases before the 7th Circuit panel next month," the 7th Circuit has responded today with a terse:

IT IS ORDERED that the motion is DENIED. In the absence of an agreement, plaintiffs' counsel in appeal nos. 14-2386, 14-2387, and 14-2388 will each be given five minutes to present an oral argument.
ILB: That totals 15 minutes, so perhaps the Court has reduced the initial allotment of 20 minutes per side?

Posted by Marcia Oddi on Friday, August 01, 2014
Posted to Ind. (7th Cir.) Decisions

Law- Michigan State and other law schools adapt to future

John Schwartz' NY Times "Education Life" column today is headed "This Is Law School? Socrates Takes a Back Seat to Business and Tech." A sample:

Like a number of law schools looking to the future of a challenging profession, this school is pushing its students to understand business and technology so that they can advise entrepreneurs in coming fields. The school wants them to think of themselves as potential founders of start-ups as well, and to operate fluidly in a legal environment that is being transformed by technology.

Michigan State professors don’t just teach torts, contracts and the intricacies of constitutional law. They also delve into software and services that sift through thousands of cases to help predict whether a client’s case might be successful or what arguments could be most effective. They introduce their students to programs that search through mountains of depositions and filings, automating tasks like the dreary “document review” that was once the baptism of fire and boredom for young associates.

Later in the column:
At Indiana University’s law school, Prof. William D. Henderson has been advocating a shake-up in legal education whose time may have come. “You have got to be in a lot of pain” before a school will change something as tradition-bound as legal training, he said, but pain is everywhere at the moment, and “that’s kind of our opening.” He advocates putting more technology and practical training into the curriculum to adapt to a field that is less about “expensive, artisan-trained lawyers” and more about providing legal services at lower cost.

Posted by Marcia Oddi on Friday, August 01, 2014
Posted to General Law Related

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

In U.S. v. Constantino and Nicholas Cejas (SD Ind., Magnus-Stinson), a 25-page opinion, Judge Williams writes:

Brothers Constantino and Nicholas Cejas’ Valentine’s Day drug dealing activities attracted the attention of law enforcement officials. As a result, they were each convicted of conspiring to distribute drugs, possessing and distributing 50 grams or more of methamphetamine, and possessing a firearm to further their drug activity that day. Constantino was also convicted on charges related to his drug activities on February 8, 2011. The brothers appeal their convictions.

They argue that the video showing them at Brian Denny’s home was inadmissible because the government did not properly authenticate it, but the evidence supports the finding that the video was an accurate depiction of the events that unfolded on February 14 and intermittent skips in the footage did not render the entire video inadmissible. Nicholas urges us to find that the video also should have been excluded because it unfairly prejudiced him, but nothing about the video would cause a reasonable jury to decide the case on an improper basis and the inferences the jury drew from it were reasonable. Nicholas’s remaining arguments also fail because his actions on February 14 provided sufficient evidence to support his convictions. Constantino claims it was error to count his gun possession on February 14 as a second conviction under 18 U.S.C. § 924(c) because he continually possessed the gun from February 8, the date of the illicit activities underlying his first conviction, through February 14. But we have held that two predicate drug offenses involving distinct conduct can support two convictions under § 924(c). The jury convicted Constantino of two drug trafficking offenses, and found that he carried a gun during each. So as harsh as a mandatory twenty‐five year sentence for a second conviction may be, it does not violate double jeopardy, and the conviction stands.

We affirm the brothers’ convictions and Constantino’s sentence.

Posted by Marcia Oddi on Friday, August 01, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court rules on Brewington's petitions for rehearing and recusal

Updating this ILB post from June 9th, which includes links to the 18-page petition for rehearing and the 36-page motion for disqualification of Justice Rush, both filed by Daniel Brewington, acting pro se, today the Supreme Court has posted the following documents, filed July 31st:

Posted by Marcia Oddi on Friday, August 01, 2014
Posted to Ind. Sup.Ct. Decisions