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Tuesday, September 30, 2014

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

Updating this ILB post from August 21st, Jeff Neumeyer of 21ALIVE reports this evening, with video, in a story headed "Embattled Judge Finds Two Colleagues Throw Their Support Behind Opponent." A sample:

Allen County Juvenile Judge Dan Heath and retired prosecutor and Judge Steve Sims on Tuesday formally endorsed lawyer Jim Posey in his November bid for a civil court judge slot.

At a public court gathering in August to honor three retirees, [Allen Superior Court Judge Stanley Levine] took the microphone and joked that one of two women leaving her job could pursue a lucrative second career as a phone sex operator.

Levine later apologized for the remarks, admitting that what he meant to be humorous was, in truth, extremely tasteless.

Heath and Sims did not criticize Levine.

"Under the canons of ethics for judges, I am not permitted to speak on any other candidate. But I do want the public to know, if they're listening, that I had determined to endorse Jim before he even decided to run," said Judge Heath.

Posted by Marcia Oddi on Tuesday, September 30, 2014
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides case re charges of attempted child seduction

In Robert Corbin v. State of Indiana, a 3-page per curiam opinion, the Court writes:

This interlocutory appeal challenges the trial court’s refusal to dismiss charges of attempted child seduction. We affirm the trial court. * * *

The trial court denied Corbin’s motion to dismiss but certified the issue for an Appellate Rule 14(B) interlocutory appeal, which the Court of Appeals accepted.

Reviewing for an abuse of discretion and taking the facts alleged in the charging document as true, the Court of Appeals reversed the trial court. See Corbin v. State, 999 N.E.2d 70, 80 (Ind. Ct. App. 2013), vacated. The Court of Appeals concluded that as a matter of law, the internet solicitations did not constitute a substantial step toward the crime of child seduction because Corbin’s requests were simply an invitation to the student, not the required “urging” or “persuasion” discussed in Ward, and in any event because the requests were not made in the student’s presence, the student was never in a position to submit to the solicitation so the requests related to future conduct, not the immediate commission of a crime. We granted transfer of jurisdiction, Corbin v. State, 1 N.E.2d 149 (Ind. 2014) (table), and heard oral argument. * * *

In Ward, this Court addressed the question whether solicitation of a child may suffice for conviction of attempted child molesting. 528 N.E.2d at 52. We noted, as stated in the Court of Appeals opinion, that what constitutes an attempt offense in the area of sex offenses against children can, on occasion, be determined as a matter of law, but often, the question involves subtle distinctions in behavior and the nuance of the context in which the behavior occurs. One difference between Corbin’s case and most of the cases cited by the Court of Appeals, including Ward, is those cases involved review of a conviction after all of the evidence had been presented. Corbin’s case, by contrast, is in the charging stage, when other evidence, if there is any, is not yet known. And for the most part, the charges against him reflect the language of the seduction statute. At this point, we simply cannot say that dismissal is required and we conclude there are enough unanswered questions to affirm the trial court’s denial of the motion to dismiss. In short, the charges match the statutory elements and are sufficient to survive a motion to dismiss at this time.

Having previously granted transfer, we affirm the trial court and remand the case for further proceedings.

Posted by Marcia Oddi on Tuesday, September 30, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit ruling on reconsideration of panel decision in Wis. voter ID case

Updating this ILB post from Sept. 28th, the 7th Circuit has now posted the opinion and dissent in its 5-5 Sept. 12th vote to deny en banc rehearing in Frank v. Walker, the recent Wisconsin voter ID case. The dissent starts on p. 7.

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

Ind. Decisions - Court of Appeals issues 6 today (and 16 NFP)

For publication opinions today (6):

In In re the Visitation of A.D. and B.D., Candy Miller v. Abby Dickens, a 13-page opinion, Judge Pyle writes:

Paternal grandmother, C.M. (“Grandmother”) appeals the trial court’s denial of her petition for grandparent visitation, under the Grandparent Visitation Act, with A.J.M.D. and B.R.M.D. (collectively “the Children”), who are the children of A.D. (“Mother”). The parties entered into an agreement—which was then set forth in an agreed order—that allowed Grandmother to have supervised visitation with the Children under certain conditions during the two months pending a final review hearing. Following that hearing, the trial court denied Grandmother’s grandparent visitation petition, finding that Grandmother had neither met her burden to rebut the presumption accorded to Mother as a fit parent nor her burden to show that visitation was in the Children’s best interests.

Grandmother now appeals the trial court’s order, arguing that the trial court erred by reviewing this case as a petition for grandparent visitation instead of a motion to modify grandparent visitation. Given the specific record before us on appeal, we conclude that the trial court did not err by ruling on this case as a petition for grandparent visitation and by denying Grandmother’s petition. We affirm.

In Travelers Casualty and Surety Company of America, et al v. Maplehurst Farms, Inc., et al , a 14-page opinion, Judge Barnes concludes:
In summary, we conclude that the trial court erred when it interpreted Maplehurst I to require Travelers to pay costs that were incurred as a result of the Dean Settlement. As a result, the trial court erred by granting summary judgment to Maplehurst. We reverse and remand for proceedings consistent with this opinion.
In Calvin Hair v. Deutsche Bank National Trust Company, as Trustee for Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2003-1, an 11-page opinion, Judge Barnes writes:
Calvin Hair appeals the denial of his motion to set aside a default judgment for foreclosure entered in favor of Deutsche Bank National Trust Company (“Deutsche Bank”). We reverse and remand.

The issue before us is whether the judgment obtained by Deutsche Bank was void as to Hair for lack of personal jurisdiction, resulting from ineffectual service of process. * * *

Because the foreclosure judgment obtained by Deutsche Bank was void as to Hair, we reverse the denial of Hair’s motion to set aside judgment. Hair’s judgment lien against the Talbott Street property still exists and we remand for further proceedings to address that lien.

In YTC Dream Homes, Inc., et al. v. DirectBuy, Inc., et al. , a 29-page opinion, Judge Brown writes:
In this interlocutory appeal, YTC Dream Homes, Inc., et al. (the “Appellants”)1 appeal the trial court’s order denying five pro hac vice petitions in favor of DirectBuy, Inc., et al. (the “Appellees”). The Appellants raise three issues which we consolidate and restate as whether the court erred when it denied the pro hac vice petitions. We reverse and remand. * * *

The Appellants argue that the trial court erred in its interpretation of Local Rule 5(C) and that to the extent Local Rule 5(C) conflicts with Ind. Admission and Discipline Rule 3(2) it is “deemed without force and effect.” Appellants’ Brief at 8 (quoting Armstrong v. Lake, 447 N.E.2d 1153, 1154 (Ind. Ct. App. 1983)). They maintain that a local rule which attaches a condition to the application of a rule issued by the Indiana Supreme Court “is an impermissible ‘impingement thereon’ . . . .” Id. (quoting Armstrong, 447 N.E.2d at 1154 (quoting Lies v. Ortho Pharmaceutical Corp., 259 Ind. 192, 195, 286 N.E.2d 170, 173 (1972))). The Appellants cite to the Indiana Supreme Court’s pronouncement in In re Fletcher that “appearances in one state by an attorney regularly admitted and licensed to practice in another state are generally permitted as a matter of comity, incident to the disposition of a particular matter isolated from his or her usual practice in the state of his or her residence” and that this principle is represented in Rule 3(2). Id. at 9 (quoting In re Fletcher, 655 N.E.2d at 59 n.1). * * *

For the foregoing reasons, we reverse the court’s September 9 Order, and we remand with instructions to grant the Attorneys pro hac vice admission.

In Peter Griffith v. State of Indiana , an 18-page, 2-1 opinion, Judge Brown writes:
Peter Griffith appeals his conviction and sentence for battery by means of a deadly weapon, a class C felony. Griffith raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion in excluding certain evidence; and II. Whether Griffith’s sentence is inappropriate in light of the nature of the offense and his character. * * *

For the foregoing reasons, we affirm Griffith’s conviction and sentence for battery by means of a deadly weapon. Affirmed.

BRADFORD, J., concurs.
BARNES, J., dissents with separate opinion. [which begins, at p. 14] I dissent because I believe my colleagues, as well as the trial court, applied a too stringent standard in their interpretation of Evidence Rule 613(b). It is clear to me that Federal Rule of Evidence 613(b), which is identical to Indiana Evidence Rule 613(b), allows impeachment by prior inconsistent statements after the witness to be impeached has already testified. This is true even if the party wanting to introduce the prior inconsistent statements did not cross-examine the witness about those statements. * * * I dissent because I believe my colleagues, as well as the trial court, applied a too stringent standard in their interpretation of Evidence Rule 613(b). It is clear to me that Federal Rule of Evidence 613(b), which is identical to Indiana Evidence Rule 613(b), allows impeachment by prior inconsistent statements after the witness to be impeached has already testified. This is true even if the party wanting to introduce the prior inconsistent statements did not cross-examine the witness about those statements.

In Orr v. State, 968 N.E.2d 858, 863 (Ind. Ct. App. 2012), prior to Griffith’s trial, another panel of this court adopted the federal interpretation of Evidence Rule 613(b).

In William Remy v. State of Indiana, a 12-page opinion, Judge Robb writes:
Following a jury trial, William Remy was convicted of three counts of child molesting, all Class A felonies; one count of child molesting as a Class C felony; and performing sexual conduct in the presence of a minor, a Class D felony. He received an aggregate sentence of ninety-five and one-half years imprisonment. Remy appeals his convictions and sentence, raising the following issues for our review: (1) whether the trial court abused its discretion by allowing certain pornographic materials to be admitted at Remy’s trial; and (2) whether Remy’s sentence is inappropriate in light of the nature of his offenses and his character. Concluding the admission of pornographic images at Remy’s trial was erroneous but amounts to harmless error and that Remy’s sentence is not inappropriate, we affirm.
NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of S.G., minor child, and K.G., the mother, and S.L., the father, K.G. v. Indiana Department of Child Services (NFP)

John B. Sirbu v. Review Board of the Indiana Department of Workforce Development and IDWD U.I. Claims Adj. Ctr. (NFP)

NFP criminal opinions today (14):

Raymond P. Dick v. State of Indiana (NFP)

Derrick Zinerman v. State of Indiana (NFP)

Craig Hatchett v. State of Indiana (NFP)

Kufanyo Brooks v. State of Indiana (NFP)

Larry Troiani v. State of Indiana (NFP)

Breanne H. Rice v. State of Indiana (NFP)

Russell Murrain v. State of Indiana (NFP)

Anessa B. Bennett v. State of Indiana (NFP)

Jamie M. Curtsinger v. State of Indiana (NFP)

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

Raymond Ryan Marling v. State of Indiana (NFP)

Charles C. Wood v. State of Indiana (NFP)

Gordon Lee Peak v. State of Indiana (NFP)

Tarainka A. Cain v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 30, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, including guidance to the state courts dealing with abusive and vexatious litigation practices

In Gersh Zavodnik v. Irene Harper, a 14-page per curiam opinion in a case with a pro se appellant, the Court writes:

The trial court dismissed Mr. Zavodnik's action under Indiana Trial Rule 41(E), and the Indiana Court of Appeals dismissed his appeal for failure to file a timely brief and appendix. We now deny transfer by this per curiam opinion, which also gives guidance to this state's courts on some options when confronted with abusive and vexatious litigation practices.

Plaintiff Gersh Zavodnik is a prolific, abusive litigant. A search of his name brings up 123 cases in Marion County and other counties on the Odyssey case management system (which is not yet in place in all Indiana counties). All but three of those cases were filed since January 2008. Mr. Zavodnik is also a party in thirty-four cases before the Court of Appeals and this Court, including twenty-three special judge requests. * * *

Nothing Mr. Zavodnik has filed or done in this case shows any desire to litigate this case expeditiously to resolution on the merits. Rather, he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings. And this Court has previously warned Mr. Zavodnik against continuing such abusive and burdensome litigation tactics. * * *

As a matter of grace, this Court will once again decline to impose sanctions on Mr. Zavodnik. But we will provide the courts of this state with guidance on options available to sanction and otherwise restrict the abusive and burdensome litigation tactics practiced by Mr. Zavodnik and a small number of other litigants in this state. * * *

I. Litigants Do Not Have a License to Abuse the Litigation Process [p. 5]

A. Statutes and rules addressing abusive litigation practices.[p. 5]

B. Inherent power of courts to limit abusive litigation practices. [p. 6]

II. Pro Se Litigants Must Play by the Rules [p. 8]

III. Litigants Do Not Have an Unfettered Right to Proceed In Forma Pauperis [p. 9]

IV. Courts May Place Reasonable Limits on Filings by Abusive Litigants [p. 10]

[examples of restrictions are listed on p. 11]

V. Judges Should Not Bow to Baseless Demands for Disqualification [p. 11]

Conclusion. * * *

Being duly advised, the Court DENIES the appellant’s petition to transfer jurisdiction. The Court refrains from imposing sanctions or restrictions at this point, but Mr. Zavodnik can expect any further abusive litigation practices in any judicial forum in this state to be met with appropriate sanctions and restrictions. No petition for rehearing is permitted. See App. R. 58(B).

Posted by Marcia Oddi on Tuesday, September 30, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Disciplinary charges filed against Clarksville town court judge

Here is the news release. Some quotes:

The Indiana Commission on Judicial Qualifications has filed disciplinary charges against Clarksville Town Court Judge Mickey K. Weber. The Commission has filed one count of misconduct against Weber related to his January 2014 misdemeanor arrest in Kentucky for Operating a Motor Vehicle While Under the Influence of Alcohol.

In the "Notice of the Institution of Formal Proceedings and Statement of Charges," the Commission asserts police investigated an incident where Judge Weber was alleged to have hit and damaged two parked cars and a fence. At the time he admitted to having been drinking alcohol. Judge Weber was arrested and charged under Kentucky North case 14-F-000600. He self-reported the arrest to the Judicial Qualifications Commission.

In March 2014, Judge Weber pled guilty in Jefferson District Court in Louisville, Kentucky to misdemeanor charges of Criminal Mischief in the second degree and Operating a Motor Vehicle While Under the Influence of Alcohol in the first degree. Judge Weber was ordered to complete an alcohol education class, assessed fines and court costs, and given a mandatory driver's license suspension. * * *

Judge Weber has the opportunity to file an Answer to the charges with the Clerk of the Appellate Court within twenty days of receiving the charges. After the Answer is filed or twenty days has passed, the Indiana Supreme Court will appoint three Masters (Judges) to conduct a public hearing on the charge that Judge Weber committed judicial misconduct. Supreme Court Rules also allow for the Commission and the judge to submit a settlement agreement to the Supreme Court. Any settlement agreement or any decision reached by the Masters must be approved by the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, September 30, 2014
Posted to Indiana Courts

Environment - SCOTUS docket "missing the high-profile environmental cases that dominated last term"

The quote is from a long, interesting Sept. 29th article in Greenwire by Jeremy P. Jacobs, surveying a number of cases. Of particular interest is:

... a pair of cases involving Department of Labor minimum wage and overtime policies [dealing with interpretive rules].

The cases stem from the department's decision in 2010 to change its interpretation of an exemption for employees whose primary duty is selling financial products.

After previously saying mortgage bankers qualified for the exemption -- meaning employers don't need to adhere to the minimum wage and overtime requirements -- the department reversed itself.

The department issued its change in policy in an "interpretive rule" without a notice-and-comment period. The Mortgage Bankers Association challenged the department, and the U.S. Court of Appeals for the District of Columbia Circuit agreed.

When "an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish [under the Administrative Procedure Act] without notice and comment," the D.C. Circuit ruled.

The ruling poses a problem for EPA, which has increasingly used interpretative rules to set policy, said William Buzbee, an environmental law professor at Georgetown Law School.

"Because of the legislative gridlock [on Capitol Hill], EPA has been making more by law interpreting existing law," he said, "because [of], frankly, the need for a lot of questions to be answered."

The ruling immediately poses a problem for EPA's "Waters of the United States" regulatory proposal, which seeks to establish what streams, bogs, marshes and other wetlands qualify for federal protections. After issuing the proposal in March, EPA also carved out more than 50 agricultural exemptions in an interpretive rule (Greenwire, April 4).

Solicitor General Donald Verrilli, in asking the Supreme Court to take the cases, Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association, said the D.C. Circuit ruling would significantly hamstring agencies.

"An agency thus must now undertake notice-and-comment rulemaking simply to explain to the public that the agency has corrected or revised its previous legal interpretation of a regulation in some significant way -- even if no one has ever relied on the prior interpretation," Verrilli wrote.

Buzbee said the practical effect would be to "ossify the process" for interpretive rules. The justices will hear arguments in the case at the beginning of December.

Posted by Marcia Oddi on Tuesday, September 30, 2014
Posted to Environment

Courts - Texas' tweeting Supreme Court justice

Jesse Wegman of the NY Times has a commentary today on Justice Don Willett of the Texas Supreme Court. A few quotes:

The main reason for his online presence, he said, is a practical one: staying connected to voters. Texas state judges are elected, and State Supreme Court justices serve six-year terms. Justice Willett, who was first appointed to the court by Gov. Rick Perry in 2005, has won two elections since and will be on the ballot again in 2018. He calls it “political malpractice” not to make use of social media.

Justice Willett also noted that the American Bar Association’s ethical guidelines approve of the “judicious” use of social media in judicial elections as “a valuable tool for public outreach.” (The wisdom of having an elected judiciary is, of course, another matter.)

Certainly Twitter is not the only way judges — elected or appointed — run into trouble for what they say or do out of court. * * *

For his part, Justice Willett said he errs on the side of self-censorship. “I try to be careful,” he said. “Usually what goes through my mind before I hit the tweet button is, did I misspell or mis-grammatize anything, but also, is this worth polluting the interwebs with for posterity?”

Posted by Marcia Oddi on Tuesday, September 30, 2014
Posted to Courts in general

Ind. Courts - More on: 7th Circuit tie votes on questions of en banc review are reminder of the unfilled vacancy

Updating this ILB post from yesterday, about how the 7th Circuit has had an unfilled seat since 2010, and there is another vacancy coming up next spring, a reader has pointed to this Sept. 29th explanatory article by Ian Millhiser in Think Progress. Some quotes:

Sen. Patrick Leahy (D-VT) is chair of the Senate Judiciary Committee. In that role, he has given each senator veto power over any person nominated to a federal judgeship in their home state. This veto enabled a single Republican senator to control the balance of a key federal appeals court, which just handed down a decision restricting voting rights in Wisconsin. * * *

Although ten judges voted on whether to reconsider Wisconsin’s voter ID law, there are actually eleven active judgeships on the Seventh Circuit. The eleventh seat, however, has been vacant for more than four years.

In 2010, President Obama nominated a University of Wisconsin law professor named Victoria Nourse to this vacancy — Nourse was one of four potential nominees suggested to the White House by a nominating commission sponsored by the state’s two senators. This nomination died, however, after Sen. Ron Johnson (R-WI) defeated incumbent Sen. Russ Feingold (D-WI) in the 2010 election. Shortly after his election, Johnson objected to Nourse’s nomination, claiming that the University of Wisconsin law professor “has very little connection to the state of Wisconsin.”

Johnson’s objection to Nourse took on particular significance after he declined to return a “blue slip” on Nourse to the Senate Judiciary Committee. * * *

Under Leahy’s rule — a rule that Leahy could unilaterally change at any time if he chose to — Johnson’s decision not to return a blue slip on Nourse held up her nomination indefinitely.

Eventually, in early 2012, Nourse asked President Obama to withdraw her nomination.

It’s possible that Johnson had a particular objection to Nourse and that there is some other lawyer that Johnson and Obama could agreed upon to fill the vacancy judgeship, but Johnson hasn’t exactly been in a hurry to find a mutually acceptable nominee. Johnson and his Democratic counterpart, Sen. Tammy Baldwin (D-WI), did not establish their own judicial nominating commission to screen potential nominees until April of 2013. Moreover, the commission waited until July 25, 2014 to announce that it was accepting applications for the Seventh Circuit vacancy — that’s more that four years after this vacancy opened and more than two years after Nourse withdrew her name. [ILB emphasis]

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

Monday, September 29, 2014

Law - Ferguson, Missouri Demands High Fees To Turn Over City Files. And it should come as no surprise! What about Indiana?

First, why should it come as no surprise? Because Ferguson's budget relies on fees and fines:

Governing had a story on August 22nd, reported by Mike Maciag, headed "Skyrocketing Court Fines Are Major Revenue Generator for Ferguson." A sample:

Ferguson's budget relies heavily on public safety and court fines that have skyrocketed in recent years. A review of Ferguson’s financial statements indicates that court fine collections now account for one-fifth of total operating revenue. The St. Louis suburb of about 21,000 residents took in more than $2.5 million in municipal court revenue last fiscal year, representing an 80 percent increase from only two years prior, when fines netted about $1.4 million. * * *

Brendan Roediger, an assistant professor at the Saint Louis University School of Law who supervises a local civil advocacy clinic, said practices of the local court system are a major driver of Ferguson residents’ distrust of government and law enforcement. Roediger described a court system in Ferguson and select areas of St. Louis that function primarily as a revenue generator. “They don’t want to actually incarcerate people because it costs money, so they fine them,” he said. “It appears to be a blatant money grab.”

From his time representing clients in Ferguson, Roediger estimates the court -- which holds three sessions each month -- heard 200 to 300 cases per hour some days.

The city’s most recent annual budget report attributed the sharp increase in fines to a “more concentrated focus on traffic enforcement” from both manned enforcement and the installation of traffic cameras. * * *

Ferguson’s financial documents depict a city increasingly reliant on fines to fund government operations. In all, fines and forfeitures accounted for 20 percent of the city’s $12.7 million operating revenue in fiscal year 2013, up from about 13 percent in 2011.

A Sept. 12th NYT story has an amazing graphic with this label:
An Outlier for Arrest Warrants. Data from municipal courts across Missouri show that in 2013, the city of Ferguson had the highest number of warrants issued in the state relative to its size. Arrest warrants are often served by municipal courts when someone fails to appear in court to pay fines for a traffic or other violation, like shoplifting, assault or disturbance of peace.
NPR's Joseph Shapiro had a story Sept. 10th that began:
Here are just a few of the fees the city court in Ferguson, Mo., can bill you for:

There's a fee to plead guilty. That's $12.

You even pay for your own arrest warrant.

"The sheriff can charge you for the mileage that it costs them to serve a bench warrant," notes Alexes Harris, an associate professor of sociology at the University of Washington.

Each individual fee may seem small, but there are at least a dozen, and they add up. Harris, on her computer, pulled up Ferguson's municipal code.

There's a $2 fee for every court visit. That money goes into a pot for the police department, to pay for police training. There's a charge to ask for a court appearance to be delayed "because of work or family obligations," Harris notes. "So there are just layers and layers of local fines and user fees that are charged to people using the court system."

Plus, they're on top of court fines, which in Ferguson typically run a few hundred, or even a thousand dollars, says Thomas Harvey, co-founder of Arch City Defenders, which provides legal services to the poor.

And these are from the city's municipal court, which handles low-level, nonviolent offenses, mostly traffic violations or code violations like jumping on the light-rail public transportation without paying for a ticket.

Ferguson collected $2.6 million in court fines and fees last year. That was the city's second-largest source of income — or about 21 percent of its total budget.

Harris wrote a book, due out in 2015, about the widespread use, in Missouri and across the country, of court fines and user fees to fund government. It's titled Pound of Flesh: Monetary Sanctions as Permanent Punishment for Poor People. She says these costs fall heavily "on the poor and people of color who are the most likely to come to court." But the poor, she says, "should not be seen as a revenue-generating entity. It makes no sense."

A yearlong NPR investigation, "Guilty and Charged," described the explosion of fees charged to criminal defendants across the country to fund government, as court dockets have grown crowded and the prison population has increased 700 percent over 40 years.

Defendants are now charged for a long list of government services that were once free — including ones that are constitutionally required. For example, NPR found, in at least 43 states and the District of Columbia, defendants can be billed for a public defender; in at least 41 states, inmates can be charged room and board for jail and prison stays; and in at least 44 states, offenders can get billed for their own probation and parole supervision.

Second, here is the long story today on high fees for public records reported by Jack Gillum of the AP, in the Huffington Post. Some quotes:
WASHINGTON (AP) — Bureaucrats in Ferguson, Missouri, responding to requests under the state's Sunshine Act to turn over government files about the fatal shooting of 18-year-old Michael Brown, are charging nearly 10 times the cost of some of their own employees' salaries before they will agree to release any records.

The move discourages journalists and civil rights groups from investigating the shooting and its aftermath.

The city has demanded high fees to produce copies of records that, under Missouri law, it could give away free if it determined the material was in the public's interest to see. Instead, in some cases, the city has demanded high fees with little explanation or cost breakdown. It billed The Associated Press $135 an hour — for nearly a day's work — merely to retrieve a handful of email accounts since the shooting.

That fee compares with an entry-level, hourly salary of $13.90 in the city clerk's office, and it didn't include costs to review the emails or release them. The AP has not paid for the search.

Price-gouging for government files is one way that local, state and federal agencies have responded to requests for potentially embarrassing information they may not want released. Open records laws are designed to give the public access to government records at little or no cost, and have historically exposed waste, wrongdoing and corruption. * * *

Some state open records laws provide records for free or little cost, while others like Missouri can require fees that "result in the lowest charges for search, research and duplication." The AP asked for a fee waiver because it argued the records would serve the public interest, as the law allows, but that request was denied. * * *

Other governments also have demanded spectacular fees. During the 2008 presidential campaign, for instance, news organizations asked for emails belonging to former Alaska Gov. Sarah Palin, the former Republican vice presidential nominee.

The Anchorage Press said officials at first wanted $6,500 in search fees, leading the newspaper to withdraw its request. Thousands of pages of those emails were ultimately provided to news organizations for about $725 in copying charges.

What about Indiana? In the 2014 the General Assembly nearly passed a bill similar to the Missouri law. The bill even included provisions allowing an agency to charge a person using a cell phone for photographing a record.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to General Law Related

Ind. Courts - More on “This is unlike any contempt case I have ever read about or heard about”

Updating this ILB post from Sept. 16th, the Kokomo Perspective today has a story by Pat Munsey reporting on a potential settlement agreement between the parties in the Howard County dispute involving Judge Menges and Mayor Goodnight of Kokomo, that begins:

Lawsuits would be dropped by city, mayor’s record expunged as part of proposal

Howard County just wants it all to go away. That was the message sent to the city of Kokomo last week in the form of a proposed settlement agreement concerning the recent legal wrangling over the Industrial Heritage Trail and access to the county courthouse.

The proposal, which was signed by 11 county officials -- including the Howard County Commissioners, all five county judges, the Howard County Sheriff, and the county’s attorneys -- would drop all lawsuits related to the issue, allow a 20-foot access lane to the west side of the courthouse, and expunge the direct contempt charge from Mayor Greg Goodnight’s record.

“We hoped to put the matter to bed and let the city get the trail finished,” said Howard County Commissioner Tyler Moore. “We want to move down the road. Knowing that it has never been our intent to impede the progress of the trail while still maintaining a desired access to the west side courthouse, we wanted to extend the olive branch.

“To allow that to happen and put the recent series of events behind us, that was the intent of putting the proposal together and sending it over.”

The agreement indicates that the county would have a perpetual and unconditional right of access of 20 feet across the trail and into Buckeye Street and that the city would complete construction on the trail within 10 days of the agreement. Additionally, the city would drop its lawsuit against the county which sought to remove all access to the west side of the courthouse.

The agreement also addresses the legal conflict between Goodnight and Howard Superior Court I Judge William Menges. In it, Menges agrees to set aside the direct contempt order placed against the mayor last month and have it expunged from his record. In exchange, Goodnight would dismiss his appeal which is currently in front of the Indiana Court of Appeals.

The story includes a link to the proposed settlement.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Indiana Courts

Ind. Gov't. - "Editorial: Eric Turner, and the growth of cynicism"

The Indianapolis Star ran this editorial this weekend. It begins:

Somewhere in the recesses of the Indiana Statehouse there must be a dark room where deep-rooted cynicism grows like mold in a dank basement. How else to explain the steady string of self-serving, infuriating acts that leak out of the state Capitol year after year?

The most recent example is ethically challenged state Rep. Eric Turner’s announcement this month that he will resign from the Indiana House shortly after November’s election if he wins another term.

Turner, R-Cicero, plans to take a job with a Georgia-based Christian ministry. But only after he asks voters in his heavily Republican district to support him one last time.

If Turner wins, which remains a distinct possibility because of the longtime lawmaker’s name recognition, financial support and get-out-the-vote network, a group of Republican insiders will then pick his replacement. That designated-lawmaker would have nearly two years to take advantage of the tools of incumbency before ever having to face voters.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Indiana Government

Ind. Courts - "Changes in Marion County Courts and Other Observations"

Marion County Superior Court Judge Tim Oakes has written this article for the Indianapolis Bar Association. The information supplements that in this ILB post from Sept. 5 and this one from Sept. 8th.

Judge Oakes article also talks about the IndyBar judicial surveys. He writes in part:

[M]ost sitting judges have been rated well by those participating in the surveys. We now have slightly more sitting judges scoring above 90 percent on the recommended-to-serve portion than at any other time in the last 15 years. The difference is not that large to show a trend, but more of the Marion County judges are scoring above 90 percent recommended now than ever before. * * *

I cannot recall seeing other surveys that rank their judges as well as the Marion County judiciary. There are always exceptions, but it is good to know that IndyBar surveys generally show that an increasing number of lawyers hold our Marion County judiciary in an increasingly favorable opinion.

ILB: For those unfamiliar with the Indianapolis Bar survey, here are the 2014 survey results. Recall that the judges run staggered 6-year terms, so only some of the seats were up for election in 2014. And here are the questions the participants are asked to consider about each candidate.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In Bryan L. Good v. Wells Fargo Bank, NA., a 14-page opinion, Judge Barnes writes:

Bryan Good appeals the trial court’s grant of partial summary judgment in favor of Wells Fargo Bank, N.A., (“Wells Fargo”) and the subsequent judgment of foreclosure. We reverse and remand.

Good raises seven issues. We address the dispositive issue, which we restate as whether the trial court properly granted partial summary judgment for Wells Fargo on the basis that Wells Fargo was entitled to enforce the promissory note executed by Good. * * *

Wells Fargo initially asserted that it had possession of the Note and was either the original payee or the Note had been duly endorsed. Good responded, challenging Wells Fargo’s status as holder because the Note designated by Wells Fargo was not endorsed. In its reply, Wells Fargo asserted that, because the Note was an electronic note, “delivery, possession, and endorsement of an electronic promissory note are not required pursuant to federal statute.” * * *

Wells Fargo is correct that, pursuant to §7021(d), a person having control of a transferable record, which includes the Note, is the holder for purposes of the UCC and that delivery, possession, and endorsement are not required. According to §7021(b), to show it controlled the note, Wells Fargo was required to designate evidence that a system employed for evidencing the transfer of interests in the Note reliably established Wells Fargo as the person to whom the Note was transferred. A system that satisfies the control requirement is described in §7021(c). Wells Fargo contends that its “possession of the Note and the recitation of its electronic record keeping procedures in the Certificate evidences Well Fargo’s control of the Note . . . .” We disagree. * * *

[T]he Certificate does not suggest that Wells Fargo maintains the single authoritative copy of the Note as described in §7021(c)(1). * * *

Pursuant to statute, upon Good’s request, Wells Fargo was required to provide “reasonable proof” that it was in control of the Note. 15 U.S.C. §7021(f). “Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.” Id. Although Good repeatedly requested such proof, Wells Fargo did not provide any evidence documenting the transfer or assignment of the Note from Synergy to either Wells Fargo or Fannie Mae. Thus, Wells Fargo did not demonstrate it controlled the Note by showing that a system employed for evidencing the transfer of interests in the Note reliably established that the Note had been transferred to Wells Fargo. See 15 U.S.C. §7021(b).

Because Wells Fargo did not establish that it controlled the Note as described in §7021, it did not establish that it was the person entitled to enforce the Note as the holder for purposes of the UCC. See 15 U.S.C. §7021(d); I.C. § 26-1-3.1-301(1). Thus, partial summary judgment for Wells Fargo on this issue was improper. * * *

Wells Fargo has not shown that it controls the Note for purposes of §7021(b) and, accordingly, has not established its status as holder for purposes of the UCC. Because Wells Fargo has not established that it was entitled to enforce the Note as its holder, the trial court’s grant of summary judgment was improper and the resulting judgment must be set aside. We reverse and remand.

NFP civil opinions today (4):

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

In the Matter of the Involuntary Termination of Parent-Child Relationship of G.M. and T.W., Minor Children and Their Father, G.M., G.M. (Father) v. Indiana Department of Child Services et al. (NFP)

Shavaughn Carlos Wilson-El v. T. Esteb, et al. (NFP)

The Estate of Timothy J. Bartruff and All Parties of Interest of Public Record v Dennis C. Hain and Judith A. Hain (NFP)

NFP criminal opinions today (6):

Alvin Kim Poe v. State of Indiana (NFP)

Ronald Wayne Shewmaker v. State of Indiana (NFP)

Corey Hamersley v. State of Indiana (NFP)

Larry Warren v. State of Indiana (NFP)

Charles M. Barlow v. State of Indiana (NFP)

Jeremy Richard Roberts v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Ind. App.Ct. Decisions

Courts - "The Voting Wars Heat Up"

Richard L. Hasen has this article today in Slate that begins:

The fights in our states over how hard or easy it is to vote have been filling the courts and are headed toward the Supreme Court. The cases range from voter ID laws to early voting rules and beyond. Already there is a case from Ohio, with ones from Wisconsin, North Carolina, and Texas potentially on the way in a matter of days or weeks. The stakes are high, not only for the lazy 2014 midterm elections but also for the 2016 presidential election and for the protection of voting rights in the next decade.

The fact that the cases are making it to the Supreme Court at about the same time is no surprise. Over the past decade, in the period I have called “the voting wars,” we have seen both an increase in restrictive voting rights legislation passed by Republican legislatures, such as voter ID laws, and litigation from both Democrats and Republicans to manipulate the election system to their advantage. In 2008, the Supreme Court rejected a constitutional challenge to Indiana’s voter identification law, and in 2013, the Supreme Court in the Shelby County case struck down a key portion of the Voting Rights Act providing that states with a history of racial discrimination in voting get approval before making changes to their voting rules and procedures.

Freed by these rulings, Republican legislatures have imposed tougher voter ID laws, cutbacks in early voting, limitations on voter registration, and other rules that make it harder to cast a valid ballot, such as North Carolina’s rule saying that if a voter casts a ballot at the wrong precinct, it cannot be counted for any races, even those for which the voter is eligible to vote.

Voting rights advocates have sued to block all or parts of these laws.

Keep reading, there is much more.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Courts in general

Environment - "Eagle Marsh project proving complicated"

This is the project intended "to prevent Asian carp from entering the Mississippi and Great Lakes watersheds, both of which converge in the marsh." Brian Francisco has the story in the Sunday Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Environment

Courts - "North Carolina teeth-whitening case could have sweeping implications for other states"

Anne Blythe reported Sept. 25th in the Raleigh News & Observer in a long story that begins:

RALEIGH — What started as an attempt by the N.C. Board of Dental Examiners to kick teeth-whitening services out of mall kiosks, spas and other retail spaces has morphed into a major legal battle with the potential to transform the makeup and reach of similar licensing boards across the country.

The U.S. Supreme Court is scheduled on Oct. 14 to take up a case brought by the dental examiners board against the Federal Trade Commission.

At issue is whether the North Carolina board, made up of dentists, overstepped its regulatory bounds when starting to send cease-and-desist letters seven years ago to teeth-whitening businesses unaffiliated with dental offices. The FTC ruled several years ago that the board engaged in unfair trade practices, and the board has challenged that up to the U.S. Supreme Court.

The high court’s decision could have sweeping repercussions for how states regulate varied fields – from dentistry to health care to law.

From later in the story:
The FTC ordered the North Carolina dental board, which was created by the N.C. General Assembly, to stop sending warning notices to the nonlicensed teeth-whitening services.

The board challenged the FTC ruling, arguing that the federal government was interfering with the ability of a state regulatory board to protect public health and safety.

An administrative law judge and two higher courts disagreed, laying out a path for the country’s highest court to weigh in on a case that has caught the attention of the American Medical Association, veterinarians, optometrists, orthodontists, anesthesiologists and law bars.

A 4th Circuit U.S. Court of Appeals three-judge panel found the North Carolina dental board – with its six dentists appointed by other North Carolina dentists, not state officials – to be a private party not subject to state oversight.

Had there been state oversight, the three-judge panel ruled, and not “private actors in the marketplace taking action outside of the procedures mandated by state law to expel a competitor from the market,” the board could have been exempt from antitrust law.

As the North Carolina dental board continues to challenge the ruling, 23 states have expressed a legal interest in the case and signed on to a friend-of-the-court brief.

ILB: Here is the SCOTUSblog webpage for North Carolina Board of Dental Examiners v. Federal Trade Commission.

Angus Loten and Sarah E. Needleman reported on this case in an Aug. 27th $$$ story, headed "State Licensing Boards Under Fire From Within." It begins:

The Supreme Court will take up an antitrust case this fall that could curb the proliferation of state licenses, a top worry for U.S. small-business owners and entrepreneurs.

At issue: Can state licensing boards staffed with business owners and professionals regulate their own markets without oversight from government employees?

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Courts in general

Ind. Law - More on: The Indiana POST Program: Physician orders for scope of treatment

Updating this ILB post from Dec. 4, 2013, the South Bend Tribune had an editorial Sunday headed "Advancing the conversation about end-of-life care in Indiana," that concludes:

The POST form, which originated in Oregon, is a legally recognized document that covers an individual's detailed preferences in areas including resuscitation, hospitalization and feeding tubes. POST is used voluntarily by those with serious, advanced or terminal illness, or with advanced frailty.

Studies have shown the form increases the chances that patients will receive the end-of-life care that they truly wish. That should be motivation enough to begin those difficult conversations. Hoosiers should consider all their options, including this new legislation, in planning for the future.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Indiana Law

Environment - "NWI woman to represent Indiana on Great Lakes Commission"

Bill Dolan reports in the NWI Times in a story that begins:

PORTAGE | Gov. Mike Pence has named the Northwest Indiana Forum's environmental specialist to represent Indiana on the Great Lakes Commission.

Kay Nelson, who has worked with business and environmental leaders around the area, will help the international agency oversee water use in the Great Lakes Basin.

Nelson, who received a bachelor's degree in environmental science and natural resources from Purdue University and worked previously with the Indiana Department of Environmental Management, joined the Forum in 1998.

Katie R. Holderby, a spokeswoman for the Forum, said Nelson's responsibilities include ensuring economic development is in harmony with environmental protection. The forum is a privately funded economic development group.

Nelson said the Great Lakes Commission was formed six decades ago to ensure Great Lakes water is preserved as a continuing resource for the eight states and two Canadian provinces bordering them. She said the Indiana General Assembly recently approved legislation supporting its mission.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Environment

Ind. Gov't. - "Secretary of State challenger wants to make elections more open"

CNHI's Maureen Hayden's Sunday column for the Anderson Herald Bulletin begins:

INDIANAPOLIS — Beth White was ready with a list of election reforms as she faced a press gaggle on the Statehouse steps last week — just 40 days before her race for Secretary of State goes to voters.

“Here’s the issue,” said White, the underdog challenger. “Our elections here in Indiana need to be better, and they need to work better for the people of Indiana.”

The Democrat trained as a lawyer went on to make an eloquent case for early voting, longer poll hours, and a redistricting process free from the taint of partisan politics.

She made her most vigorous argument in defense of democracy.

White said she’s horrified that Indiana is among the worst in the nation for voter turnout. In 2010, the state ranked 48th among the 50 states. This past May, only 13 percent of its registered voters went to the polls for the primary elections — down from 22 percent in 2012.

When questioned by a reporter as to why it matters if the disengaged don’t vote, White shot back, “Because democracy is not a spectator sport.”

Voter turnout, she said, is a measure of the public’s trust in government.

“Democracy only works when the relationship between government and the governed is a symbiotic relationship, when people believe government cares about them and are invested in influencing their government through their vote,” she said.

People who don’t buy into voting don’t buy into government, she argued. She called that “dangerous” given that government calls on citizens to follow laws, send children to school and pay taxes.

Incumbent Secretary of State Connie Lawson speaks, too, about the need for more voter engagement. But she has a harder row to plow.

As a legislator, the Republican Lawson co-authored a controversial voter ID law — among the first in the nation. This past summer, she launched a purge of the voter rolls, prompted by a lawsuit that claimed the state’s voting rolls were filled with dead people and others long gone.

Lawson argues that she’s supported reforms that “makes it easier to vote and harder to cheat.”

White disputes the first half of the premise and calls voter disillusionment “the real crisis.”

Indiana is one of only three states that closes its polls at 6 p.m. on Election Day, which White says keeps too many voters from participating. To those who question the cost of keeping the polls open longer, she responds, “The cost I worry about is what it means for our democracy when so many people don’t vote.”

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending September 26, 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, September 26, 2014. It is two pages (and 23 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Indiana Transfer Lists

Ind. Courts - 7th Circuit tie votes on questions of en banc review are reminder of the unfilled vacancy

An attorney reader writes this morning, referencing this post:

Your post about the 5-5 vote to deny rehearing en banc review of the Wisconsin voter ID case is a reminder of how frustrating it is that the Seventh Circuit has 11 seats but is operating with only 10 regular judges. This has resulted in a couple of cases in which en banc review was granted but the district court was affirmed on a tie vote, and in one such case the Circuit was left with an unresolved conflict over the correct legal standard to prove class-of-one equal protection claims. Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012) (en banc), cert. denied. As near as I can tell, this is because the vacancy created by the death of Judge Daniel Evans in 2010 remains open, and in fact the President has never even made a nomination to fill it.
Indeed. The ILB has heard several names mentioned as potential nominees, but nothing further.

In addition, Judge Tinder has announced his plans to retire in the spring of 2015.

Posted by Marcia Oddi on Monday, September 29, 2014
Posted to Ind. (7th Cir.) Decisions

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

From Sunday, September 28, 2014:

From Saturday, September 27, 2014:

From Friday afternoon, September 26, 2014:

And a reminder from the ILB: Act now and you can start the October 2014 quarter as an ILB Supporter!

Posted by Marcia Oddi on Monday, September 29, 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 9/29/14):

Thursday, Oct. 2

Next week's oral arguments before the Supreme Court (week of 10/6/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/29/14):

Tuesday, Sept. 30

Wednesday, Oct. 1

Thursday, Oct. 2

Next week's oral arguments before the Court of Appeals (week of 10/6/14):

Tuesday, October 7

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, September 29, 2014
Posted to Upcoming Oral Arguments

Sunday, September 28, 2014

Indiana Courts - More on "Electoral Chaos in Wisconsin"; 7th Circuit denies en banc review of Sept. 12th ruling

Updating this ILB post from Sept. 16th, re the 7th Circuit decision issued Sept. 12th (only hours after oral argument) in the Wisconsin voter ID case, Frank v. Walker, the Milwaukee Journal-Sentinel reported Friday (Sept. 26th) in a story by Jason Stein headed "Bid to get full Appeals Court hearing on voter ID falls 1 vote short" that is particularly strong in breaking down the judicial voting. From the long story:

Madison — Opponents of Wisconsin's voter ID law fell just short Friday of getting a full federal appeals court to reconsider their recent loss in the case before a panel of judges.

On Sept. 12, a three-judge panel of the 7th Circuit U.S. Court of Appeals in Chicago ruled that Wisconsin could implement the law for the Nov. 4 election. The law requires voters to show a photo ID in order to vote.

Those suing over the law asked the full 10-member court to reverse that decision and came just one vote shy of getting the full 7th Circuit to hold a hearing on the case. The members of the court split 5-5 on whether to hold the hearing, which means that the request did not get a majority of votes and failed as a result.

"In the coming days, members of the court may file opinions explaining their votes," the order from the 7th Circuit reads.

Friday's order marked only the latest in a series of legal hurdles cleared — though at times narrowly — by the state's voter ID law. The law was also upheld by the Wisconsin Supreme Court in a pair of rulings last month.

There is a chance that the U.S. Supreme Court could yet consider the matter.

The five 7th Circuit judges who voted to rehear the case included two judges appointed by Republicans and three appointed by Democrats. They were: Diane P. Wood and Ann Claire Williams, both appointed by President Bill Clinton; Richard A. Posner, appointed by President Ronald Reagan; Ilana Diamond Rovner, appointed by President George H.W. Bush; and David F. Hamilton, appointed by President Barack Obama.

All five who declined to take the case were appointed by Republicans, and three of them sat on the panel that first decided the case. The five were: Joel M. Flaum, Frank H. Easterbrook and Michael S. Kanne, all of whom were appointed by Reagan; and Diane S. Sykes and John Daniel Tinder, who were both appointed by George W. Bush.

The original panel was made up of Easterbrook, Sykes and Tinder. Sykes formerly served on the Wisconsin Supreme Court.

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

Courts - Supreme Ambitions: A Novel by David Lat

I finished an advance copy of David Lat's novel, Supreme Ambitions, this weekend. It will appeal to readers of Lat's blog, Above the Law, as well as readers of other law blogs such as How Appealing and SCOTUSblog -- those interested in the inner workings of the federal courts. The nearly 300-page book comes out in early December. I would recommend it particularly to those interested in pursuing federal clerkships.

Posted by Marcia Oddi on Sunday, September 28, 2014
Posted to Courts in general

Friday, September 26, 2014

Ind. Decisions - 7th Circuit decides one today; oral argument was 9/22, just four days ago

In Scott Ian Richardson v. The Koch Law Firm, P.C. (SD Ind., Mangus-Stinson), a 5-page opinion, Judge Easterbrook writes:

Scott Richardson incurred an educational debt in 1988 but did not pay. Indiana University, the creditor, filed suit in May 1998, in state court, and a trial was scheduled for September 7, 2000. Richardson filed a bankruptcy petition on September 1 but did not tell the state court, the University, or The Koch Law Firm, P.C., its coun sel. Nor did he appear for trial. The state judge entered a default judgment, which the Law Firm tried unsuccessfully to collect. Now Richardson says that the Law Firm should pay him for violating two sections of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692f, by trying to enforce a judgment that had been entered in violation of the automatic stay under the Bankruptcy Code, 11 U.S.C. §362.

After learning about the bankruptcy, the Law Firm stopped trying to collect the judgment. The bankruptcy end ed in June 2001, and the Law Firm went back to work, rely ing on 11 U.S.C. §523(a)(8), which makes most educational debts nondischargeable. Richardson filed a second bank ruptcy proceeding in January 2002. It lasted until April 2007. Once again the Law Firm desisted during the bankruptcy’s duration and tried to collect after its end. Those post-­2007 efforts form the basis of Richardson’s current claim.

The district court treated this suit as a collateral attack on the state court’s judgment and dismissed it for want of juris diction, invoking the Rooker-­‐‑Feldman doctrine. * * *

After the bankruptcy judge’s decision, Indiana University asked the state court to vacate its own judgment. On January 28, 2014, the state court obliged. As a result, the basis for the district court’s dismissal under Rooker-­Feldman no longer exists.

Demonstrating appalling judgment, neither side brought this development to our attention, although both sides filed their appellate briefs after the state court vacated its judgment. Because that step affects subject-­matter jurisdiction, counsel for both sides—Ruberry, Stalmack & Garvey, LLC, representing the Law Firm, and Richardson, a member of the bar representing himself—had an ethical duty to alert the court. Yet until the judges asked pointed questions at oral argument, neither side was forthcoming. Richardson even professed not to know the status of the state judgment to which he was a party. That assertion is hard to credit, for the state court’s order shows that it was sent to Richardson. But apportioning blame gets us nowhere. What matters now is that the rug has been pulled out from under the district court’s decision. * * *

Richardson did not pay his debt when it was due in 1988 (and still has not done so, although it has not been dis-­‐‑ charged); he did not alert the Law Firm (or the state court) to his bankruptcy petition in 2000; he did not appear for trial; he filed a motion to vacate the state judgment and lost be-­‐‑ cause he did not show up to argue when it was scheduled for presentation; he did not appeal the bankruptcy court’s decision of August 2013; he did not file a reply brief; he did not tell us about the vacatur of the state court’s judgment. It is hard to see how someone so deficient in the defense of his own interests could be an effective advocate for the interests of clients. And it turns out that he has not been; Indiana has suspended Richardson from practice at least three times. See In re Richardson, 875 N.E.2d 700 (Ind. 2007) (suspension for abandoning clients; recounting earlier discipline); In re Rich ardson, 792 N.E.2d 871 (Ind. 2003) (suspension for lying in discovery, hiding assets, and abuse of legal process). Rich ardson is on notice: misfeasance or nonfeasance in federal litigation will lead to professional discipline. See Fed. R. App. P. 46(c).

The judgment of the district court is modified to be on the merits, rather than for lack of subject-­‐‑matter jurisdiction, and as modified is affirmed.

ILB: I'm told the oral argument is worth a listen, before CJ Wood, and Judges Easterbrook and Sykes.

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

Essential ILB posts: The ILB has selected its "essential posts" from the past two weeks

Today the ILB begins a new feature, which will appear on Friday afternoons either weekly or biweekly in the future - a checklist of ILB posts from the past two weeks you may have missed, or forgotten.

Posted by Marcia Oddi on Friday, September 26, 2014
Posted to Essential ILB Posts

Courts - "Which state has the best chance of making gay marriage the law of the land?"

Supplementing this ILB post from Sept. 23rd, which looked at "Supreme Court: Which case makes the best case for marriage equality?" Dahlia Lithwick and Mark Joseph Stern now have a long story in Slate headed "Gaming the Supreme Court: Which state has the best chance of making gay marriage the law of the land?" After a long intro, the article goes through each state's chances, beginning with the Indiana cases.

Posted by Marcia Oddi on Friday, September 26, 2014
Posted to Courts in general

Ind. Courts - To what extent may judges and judicial candidates participate in the political activities or campaigns of family members?

The Indiana Commission on Judicial Qualifications has issued an advisory opinion addressing a judicial officer's ethical duties with regard to participating in a family member's campaign for elected office. The Commission has concluded that a judicial officer may take a limited role in a relative's campaign (for example, appearing in promotional materials), but must carefully avoid using the prestige of judicial office to advance the relative's candidacy.

Posted by Marcia Oddi on Friday, September 26, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In City of Plymouth Street Department v. Indiana Utility Regulatory Commission , an 8-page opinion, Judge Crone writes:

The City of Plymouth (“City”) appeals the Indiana Utility Regulatory Commission’s (“Commission”) denial of its motion to dismiss an administrative action against the City stemming from damage it caused to an underground natural gas pipeline. The City claims that the Commission failed to satisfy the statutory and administrative requirements concerning notice of the violation and recommended penalties. Finding the notice to be sufficient, we affirm the Commission’s denial of the motion to dismiss.
In Shacare Terry v. Community Health Network, Inc., an 11-page opinion, Judge Robb writes:
Shacare Terry was admitted at Community Hospital (“Community”) while unconscious. During her treatment, it was discovered that Terry was under the influence of a drug and suffered from possible vaginal trauma. The physician performed a medical evaluation but did not complete a rape kit or preserve possible evidence of sexual assault. While treating Terry, staff members of the hospital also made several derogatory statements about her.

Terry sued Community for breach of duty and intentional infliction of emotional distress (“IIED”), but the trial court dismissed the case for lack of subject matter jurisdiction. Terry now appeals, raising two issues that we consolidate and restate as one: whether the trial court erred in determining that it lacked subject matter jurisdiction over Terry’s claims because they fall within the terms of the Indiana Medical Malpractice Act (“the Act”) and Terry did not follow the Act’s procedures before filing her claims in the trial court. Concluding that the trial court did not have subject matter jurisdiction over Terry’s breach of duty claim, we affirm that portion of the trial court’s order. Concluding, however, that the trial court had subject matter jurisdiction over Terry’s IIED claim, we reverse that portion of the court’s order and remand.

In In the Matter of the Adoption and Paternity of K.G.B., E.S. v. T.B. and K.B. , a 19-page opinion, Judge Bradford writes:
On August 22, 2012, Appellee-Petitioner K.B. (“Mother”) gave birth to K.G.B. (the “Child”) out-of-wedlock. Paternity of the Child was not established at the time of the Child’s birth. Approximately one year later, Mother consented to the adoption of the Child by Mother’s father, Appellee-Petitioner T.B., so long as Mother retained her maternal rights to the Child. Soon thereafter, T.B. filed a petition seeking to adopt the Child. A search of Indiana’s Putative Father Registry (the “Registry”) did not reveal any registered putative fathers of the Child or indication that paternity of the Child had been established. Approximately one-and-one-half months after T.B. filed the adoption petition, Appellant-Respondent E.S. (“Putative Father”) filed a petition seeking to establish paternity of the Child (“paternity petition”) and a motion to contest the adoption of the Child by T.B. (“motion contesting the adoption”). In contesting the adoption, Putative Father acknowledged that he had failed to timely register with the Registry.

After Putative Father filed his paternity petition and motion contesting the adoption, T.B. filed a motion to strike Putative Father’s motion contesting the adoption. Mother requested that the adoption and paternity cases be consolidated, a request which was subsequently granted by the trial court. Mother also filed a motion to dismiss Putative Father’s paternity petition. Following a hearing on T.B.’s and Mother’s (collectively, “the Appellees”) pending motions, the trial court granted T.B.’s motion to strike Putative Father’s motion contesting the adoption and Mother’s motion to dismiss Putative Father’s paternity petition. Putative Father argues on appeal that the trial court erroneously granted these motions.

Upon review, we conclude that pursuant to Indiana Code chapter 31-19-5, which relates to a putative father’s rights and obligations regarding the Registry, Putative Father was not entitled to notice of the adoption proceedings because he failed to timely register with the Registry, and his failure to timely register amounted to an irrevocably implied consent to the Child’s adoption. We further conclude that because Putative Father has impliedly consented to the adoption of the Child, he is also barred from establishing paternity of the Child. Accordingly, we affirm the judgment of the trial court and remand the matter for any additional necessary proceedings relating to T.B.’s adoption of the Child.

NFP civil opinions today (0):

NFP criminal opinions today (8):

Ronald D. Lunsford v. State of Indiana (NFP)

Donald G. Perkins v. State of Indiana (NFP)

Linus Johnson v. State of Indiana (NFP)

Samuel Morris v. State of Indiana (NFP)

Tasha Jones v. State of Indiana (NFP)

Michael Antipin v. State of Indiana (NFP)

Cardell Parham v. State of Indiana (NFP)

Nicholas Houston v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 26, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decision - "State Supreme Court rules court backlog violated rights"

Re Wednesday's speedy trial decision by the Indiana Supreme Court, Scott Logan v. State of Indiana (ILB sumary here), Madeline Buckley of the South Bend Tribune reported yesterday evening in a long story:

The Indiana Supreme Court called an Elkhart defendant's almost 1,300-day wait to face trial "considerable, unfortunate and inexcusable," and the unanimous decision urged trial judges around the state to deviate from normal practice when necessary to ensure court congestion does not cause undue delay.

The court on Wednesday vacated a child molesting conviction for Scott Logan. The 43-year-old man was accused of the Class C felony in July 2009, but didn't go to trial until February 2013. A judge sentenced him to six years in prison.

The decision indicates waits for trial due to court congestion must be within the realm of reason, but prosecutors say it's still unclear what is reasonable.

Elkhart Superior Court Judge George Biddlecome heard Logan's case. The judge rescheduled the man's trial multiple times through the years because of his full court docket.

Logan's appeal posed questions about managing a crowded docket while ensuring the right to a speedy trial.

"Certainly what the Supreme Court is trying to convey is that trial courts have the responsibility — even though (state law) allows for a congested calendar exception — to bring a defendant to trial within a reasonable amount of time," said John Kindley, Logan's defense attorney.

The Supreme Court opinion, authored by Justice Steven H. David, notes that only 12 percent of the 1,300 days that spanned the wait for trial were due to Logan asking for more time to prepare a defense.

An Indiana law, called criminal rule 4, says prosecutors must bring a defendant to trial within a year of filing charges, except in cases of court congestion and when the defendant asks for more time.

The decision found that the trial court was in compliance with that state law, but the Supreme Court ruled more broadly that Logan's constitutional rights were violated.

"We are not suggesting, nor implying, that our trial judges must do the impossible," the opinion reads. "We are simply reiterating that they are the gatekeepers of justice."

The Supreme Court recommended judges go outside regular practice when court congestion jeopardizes a speedy trial. For example, the opinion read, judges could delegate tasks to magistrates, delay civil trials and start criminal trials mid-week, rather than the usual Monday.

Though the court offered suggestions, Elkhart County Prosecutor Curtis Hill said prosecutors and judges have to adjudicate cases with shared and sometimes limited court time.

"The decision suggests courts have further responsibility to make adjustments beyond criminal rule 4," Elkhart County Prosecutor Curtis Hill said. "That makes it a bit tricky exactly what the courts are supposed to do in that situation." * * *

The Supreme Court decision noted Logan almost served the length of his six-year sentence — including Indiana's day-for-day credit — before his trial began.

"To hold someone in jail for that amount of time to where he was basically held in jail well above what the advisory sentence was, there is a real risk there could be tremendous pressure to plead guilty," Kindley said. "Otherwise they could be sitting in jail for who knows how long."

Posted by Marcia Oddi on Friday, September 26, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit non-Indiana cases yesterday about panhandling, PCB contamination

In Norton v. City of Springfield, Ill. (CD Ill.), a 20-page, 2-1 opinion, Judge Easterbrook writes:

The City of Springfield has an ordinance (§131.06 of the Municipal Code) that prohibits panhandling in its “downtown historic district”—less than 2% of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings. The ordinance defines panhandling as an oral request for an immediate donation of money. Signs requesting money are allowed; so are oral pleas to send money later. Springfield evidently views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some persons (especially at night or when no one else is nearby) may find threatening. Plaintiffs have received citations for violating this ordinance and allege that they will continue panhandling but fear liability; this gives them standing to contest the ordinance’s constitutional validity. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014). * * *

The disagreement within the Court in McCullen about how to distinguish a content-based from a content-neutral law (four Justices thought that law to have been contentbased)— and the conflict among the circuits about panhandling ordinances—shows that it is difficult to be confident about how the line between subject-matter (usually allowed) and content-based (usually forbidden) distinctions is drawn. We do not profess certainty about our conclusion that the ordinance is content-neutral. But this was Justice Kennedy’s understanding in Lee. Evaluated by the standard for time, place, and manner restrictions Springfield’s ordinance is within the power of state and local government. AFFIRMED

MANION, Circuit Judge, dissenting. [beginning on p. 9]

Today the court holds that a panhandler who asks a passerby for money in the downtown historic district of the City of Springfield commits a crime and may face criminal prosecution for this simple request. This conclusion is alien to our First Amendment jurisprudence. Accordingly, I do not join the opinion of the court because the City of Springfield’s panhandling ordinance is a content-based regulation of speech, subject to strict scrutiny. By concluding that the ordinance is content-neutral, the court misapplies the Supreme Court’s content-based regulation jurisprudence. Consequently, I respectfully dissent.

In NCR Corp. v. Whiting Paper (ED Wis.), a 57-page opinion involving many parties, Chief Judge Wood's opinion begins and ends:
The invention of carbonless copy pa-per by NCR Corporation in the mid-1950s solved a small problem and created a large one. Though it alleviated the messy side effects of carbon paper for those who wanted copies in the pre-photocopy era, over the next quarter-century it became clear that the cost of this convenience was large-scale environmental contamination. That is because, until the early 1970s, the substance coating the paper includ-ed polychlorinated biphenyls (PCBs), a highly toxic pollutant. In the course of producing the carbonless paper, large quantities of PCBs were dumped into the Lower Fox River in Wisconsin, the site of the paper’s production. (References to the River in this opinion mean the Lower Fox, unless the context requires otherwise.) Recyclers poured yet more PCBs into the River. In time, the problem attracted the attention of the federal government, which, invoking the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (popularly known as the Superfund), eventually ordered the responsible parties to clean up the mess. See 42 U.S.C. § 9601 et seq. This case requires us to decide who should foot the considerable bill.

Once the Environmental Protection Agency (EPA) identi-fies the site of an environmental hazard that requires reme-diation under CERCLA, the statute’s financial responsibility rules are triggered. CERCLA imposes a “pay-first, split-the-bill-later” regime. Any individual persons or corporations meeting certain statutory criteria can be required to pay for the cleanup. Anyone who paid can then recover contribution from other responsible parties in accordance with that enti-ty’s equitable share of the costs.

NCR was the exclusive manufacturer and seller of the emulsion that gave treated paper its “carbonless-copy” char-acter during what the parties call the Production Period (1954 to 1971). That emulsion, unfortunately, used Aroclor 1242 as a solvent, and Aroclor 1242 is a PCB. Given its role in the pollution, NCR has thus far picked up the lion’s share of the cleanup tab for the River site. In this action it seeks contribution from several other paper mills along the river. Those firms were in the recycling business; they bought NCR’s leftover scraps of carbonless copy paper, washed the harmful chemicals off into the River, and recycled the pulp to make new paper. Several ancillary questions and counter-claims were raised along with NCR’s contribution claim, and we will address each in turn. The main event, though, relates to the equitable allocation of costs.

The district court, after holding a first phase of discovery on the question of when each party became aware that the primary chemical ingredient of carbonless copy paper was harmful, held that NCR was not entitled to any equitable contribution from the paper mills. Worse than that, from NCR’s vantage point, the court held that the mills had meri-torious counterclaims for cost recovery from NCR. NCR ap-peals that decision, and the defendant recyclers cross-appeal a handful of matters decided against them. Before addressing these matters, we begin with some background about the cleanup effort. * * *

X. Conclusion. We REVERSE the district court’s judgment with regard to Appvion’s ability to bring suit under CERCLA § 107(a). We VACATE the decision to hold NCR responsible for all of the response costs at operable units 2 through 5 in contribution. We AFFIRM the following decisions: that NCR may proceed only under CERCLA § 113(f); that NCR is not liable as an arranger; that Glatfelter’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; that Glat-felter’s counterclaim based on the discharges at Portage should be dismissed; and that the defendants’ state-law counterclaims are preempted. This case is REMANDED for proceedings consistent with this opinion.

In a related case today, U.S. v. NCR Corp. (ED Wis.), a 38-page pinion, Judge Tinder begins:
Today we issue two decisions related to the cleanup of the Lower Fox River and Green Bay Superfund Site in northeastern Wisconsin. This decision addresses a claim brought by the United States to enforce a 2007 unilateral administrative order issued by the Environmental Protection Agency (EPA) under § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9606. EPA’s 2007 order directs several potentially responsible parties (PRPs) to clean up the portion of the Site downstream of Little Lake Butte des Morts.

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

Thursday, September 25, 2014

Ind. Decisions - Huge decision today by Indiana Supreme Court

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

The Indiana Supreme Court’s opinion today in In re Adoption of O.R. is, in a word, HUGE. Like telling a child there is no Santa Claus, Justice Rucker’s opinion shattered lawyers’ longstanding belief that a timely Notice of Appeal was some magical document without which their right to appeal was impossibly doomed. (It remains magical in federal court, for reasons explained in the endnote.*)

Does this mean the floodgates of appeals will open, and the Indiana Court of Appeals will be inundated with hundreds of late appeals? Not at all. Today’s opinion merely concludes, quite correctly, that Appellate Rule 9 allows for forfeiture of an appeal when the Notice of Appeal is not timely filed. But, “although a party forfeits its right to appeal based on an untimely filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to entertain the appeal.”

Many who seek to file a late Notice of Appeal will not be able to make the required showing of “extraordinarily compelling reasons why this forfeited right should be restored.” But they should not, as they have in the past, face a summary dismissal of their appeal. Instead, parties will need to argue “extraordinarily compelling reasons,” which the Court of Appeals must consider in deciding whether to dismiss an appeal.

Post-Conviction Rule 2 currently provides appellants in criminal direct appeals an exception to the forfeiture mentioned in Appellate Rule 9. It does not extend to post-conviction relief, probation revocation, termination of parental rights, and other cases that involve significant liberty interests and constitutional rights. Earlier this year, a panel of the Court of Appeals wrote in a footnote in a termination of parental rights’ case:

Given the constitutional rights implicated in these proceedings, we urge our supreme court to consider allowing belated appeals in cases where the parent’s parental rights have been terminated. As our courts have often stated: “The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. In the Matter of Termination of the Parent Child Relationship of K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).
Broadening Rule PC-2 to apply to cases that involve significant constitutional rights and State action would be an effective, long term solution. That rule provides a process through which trial courts consider motions to file belated notices of appeal and requires litigants to demonstrate diligence in pursuing an appeal and that the late notice was not their personal fault. Without a rule amendment, late notices of appeal will presumably be filed with the Court of Appeals—not the trial court—which will be required to apply Appellate Rule 1 in searching for “extraordinarily compelling reasons” to restore the right to appeal.
________________
* In federal court “[j]urisdictional treatment of statutory time limits makes good sense. . . . Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them.” Bowles v. Russell, 551 U.S. 205, 212-13 (2007).

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to Schumm - Commentary

About the ILB - Another plea for supporters, please read! And then, please act!

Below is the ILB's December plea for supporters, reposted in March and again on July 10th of this year. The results so far? Discouraging. No additional major supporters. Thanks, however, to several of you who have sent anonymous one-time gifts. And luckily for all readers, the ILB still has the stalwarts listed below. Without their support, there would be no ILB.

I believe the ILB has made a significant impact in its nearly 11 years of existence. The ILB operates on a shoestring, and needs more supporters, including major (front page) supporters (who would likely be organizations, bar sections, law firms, or those who do business with law firms).

You are able to read the ILB because of, and thanks to, these major supporters:

Plus these individuals/firms who also help assure the continuation of the ILB: Plus those who generously send occasional gifts to the ILB.

Plus me. As is obvious if you are a reader, I contribute the major part of each day to the ILB. As I am semi-retired and far from independently wealthy, in order to keep this up, the ILB needs more supporters, particularly major (front page) supporters.

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to About the Indiana Law Blog

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

For publication opinions today (1):

In Averitt Express, Inc. v. State of Indiana ex rel. Indiana Department of Transportation, an 18-page decision with a concurring opinion, Sr. Judge Barteau writes:

Averitt Express, Inc., appeals the trial court’s denial of its motion for summary judgment and grant of summary judgment in favor of the State of Indiana, acting on behalf of the Indiana Department of Transportation (INDOT). We affirm in part, reverse in part, and remand. * * *

The trial court properly denied Averitt’s motion for summary judgment. However, although the State was legally authorized to file suit for damage to its property, a dispute of material fact precludes the entry of summary judgment for the State. For the reasons stated above, we affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings.

NAJAM, J., concurs.
BRADFORD, J., concurs with separate opinion. [which begins, on p. 15] While I concur with the disposition of the issues in all respects, I write separately to share some thoughts on both the admissibility of police-prepared accident reports and paragraph six of Trooper Mullen’s affidavit.

NFP civil opinions today (3):

Indiana Farm Bureau Insurance Company, as Subrogee of Real Estate Technologies, LLC v. Wood Shield, LLC (NFP)

In the Matter of: P.S. and K.S., Child in Need of Services, T.F. (Mother) and C.S. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (NFP)

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

NFP criminal opinions today (6):

Adam Prater v. State of Indiana (NFP)

Francisco Villegas, Jr. v. State of Indiana (NFP)

Taevon Spivey v. State of Indiana (NFP)

Kenneth Washington v. State of Indiana (NFP)

Giavonni Montez Wickware v. State of Indiana (NFP)

Elon Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re consent to adoption and re an untimely filing of a notice of appeal

In In the Matter of the Adoption of O.R., N.R. v. K.G. and C.G., a 13-page, 5-0 opinion, Justice Rucker writes:

The biological parent of a minor child attempted to appeal the trial court’s order granting an adoption petition in favor of third parties. Because the Notice of Appeal was not timely filed, the Court of Appeals dismissed the case on grounds that it lacked jurisdiction to hear the appeal. Although we affirm the trial court’s judgment, we conclude the untimely filing of a Notice of Appeal is not a jurisdictional bar precluding appellate review. * * *

The deadline for filing a Notice of Appeal from the trial court’s order was June 10, 2013. Asserting that he was acting on the advice of his trial counsel, Father wrote a letter to the trial court clerk which the clerk filed on June 6, 2013 requesting appointment of appellate counsel “for the purpose of appealing the decision rendered” by the trial court. Father’s trial counsel did not file a Notice of Appeal but on June 19, 2013, nine days after the Notice of Appeal was due, counsel filed a motion to withdraw. The trial court granted the motion on July 1 and on July 3—twenty-three days after the deadline to appeal had passed—entered an order appointing appellate counsel for Father. Fifteen days later, on July 18, Father’s new counsel filed in the Court of Appeals a petition to accept “Amended Notice of Appeal,” which was tendered with the petition. Counsel argued that Father’s June 6 pro se letter to the trial court clerk should be deemed a timely filed Notice of Appeal in substantial compliance with the appellate rules. On August 16, the motions panel of the Court of Appeals granted Father’s petition to accept his Amended Notice of Appeal.

After the issues were fully briefed on the merits, in a memorandum decision, the writing panel of the Court of Appeals sua sponte dismissed Father’s appeal on grounds that it lacked subject matter jurisdiction because Father did not timely file a Notice of Appeal. See In re Adoption of O.R. [NFP], No. 21A01-1307-AD-322 (Ind. Ct. App. Feb. 28, 2014). We now grant Father’s petition to transfer thereby vacating the Court of Appeals’ dismissal of Father’s appeal. In this opinion we explore the question of appellate jurisdiction to entertain this appeal, and address the merits of Father’s claims. In doing so, we affirm the judgment of the trial court. Additional facts are provided below as necessary. * * *

The untimely filing of a Notice of Appeal is not a jurisdictional defect depriving the appellate courts of the ability to entertain an appeal. Instead, the timely filing of a Notice of Appeal is jurisdictional only in the sense that it is a Rule-required prerequisite to the initiation of an appeal in the Court of Appeals. Timely filing relates neither to the merits of the controversy nor to the competence of the courts on appeal to resolve the controversy. * * *

Here, in light of Appellate Rule 1, Father’s attempt to perfect a timely appeal, and the constitutional dimensions of the parent-child relationship, we conclude that Father’s otherwise forfeited appeal deserves a determination on the merits. * * *

In sum not only does the record support the trial court’s conclusion that Father’s consent to the adoption of O.R. was not required, but the record also supports the trial court’s conclusion that the Adoptive Parents’ adoption of O.R. is in the child’s best interest. We find no error in this regard.

Conclusion. We affirm the judgment of the trial court.

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Muncie City Court Judge involved in domestic dispute

The story is in the Muncie Star-Press, reported by Douglas Walker and Keith Roysdon.

Interestingly, it appears that each side was video-recording the other.

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to Indiana Courts

Law - Prior restraint issues in Alabama; Indiana had its own recent incident

The Volokh Conspiracy has a post this morning headed "Alabama trial judge reverses course, vacates restraining order against publishing gas company information." The post quotes some background:

Alabama Gas Corporation filed a temporary restraining order last week to prevent the Montgomery Advertiser from releasing information in a safety document the newspaper obtained from the Alabama Public Service Commission in June.
The ILB is reminded that Indiana had its own prior restraint case. Start with this March 10th, 2012 post headed "South Bend Tribune required to remove published story that was based on DCS records released by trial court order." A sample:
Here is the 2-page Order issued by Chief Judge Robb of the Indiana Court of Appeals yesterday. The operative language:
Appellant's Verified Emergency Motion to Stay Order Granting Access to Public Records is GRANTED pending further order of this Court. The March 6, 2012 Order Granting Access to Public Records issued by the Honorable Peter J. Nemeth, Judge of the St. Joseph Probate Court, is HEREBY STAYED pending further order of this Court.
See also this March 14, 2012 ILB post quoting the Fort Wayne Journal Gazette editorial recapping the events, headed “Prior restraint of the news media publishing public records is inconsistent with the First Amendment."

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to General Law Related

Ind. Gov't. - "DCS employees sue agency over claims of unpaid overtime" [Corrected]

From Marisa Kwiatkowski's just-posted story for the Indianapolis Star:

Two Indiana Department of Child Services employees paint a dismal picture of life as an investigator for the state agency.

In federal court records filed last month, Arlene Nunez and Veronica Martinez claim they are forced to work during their lunch hours, rarely get five hours of continuous sleep during on-call shifts and spend extensive time outside of regular work hours responding to emergencies, conducting investigations and writing reports — all without receiving earned overtime pay.

Nunez and Martinez filed a lawsuit against DCS in federal court in Hammond, claiming the state agency violated the Fair Labor Standards Act by denying them and other employees payment for overtime they have worked.

Nunez and Martinez also said their employer deducted time from weeks when they had worked more than 40 hours and shifted it to weeks they had worked less in order to avoid paying overtime, court records state.

Nunez and Martinez said they complained about working during their lunch breaks, but their supervisors responded, “Don’t even bring it up,” according to the lawsuit.

Both women work as family case managers out of the agency’s Lake County office. Nunez has worked for the state for more than 14 years, and Martinez for 36 years, state records show.

“Just because DCS is a state agency doesn’t exempt it from having to meet the requirements of the Fair Labor Standards Act,” said Nunez’s and Martinez’s attorney Adam Sedia, of the Dyer-based firm Rubino, Ruman, Crosmer and Polen. “We’re holding DCS to the same standard as any other employer.”

ILB: The case is Nunez et al v. Indiana Department of Child Services (2:14-cv-00293-JD-JEM), filed Aug. 20, 2014, before Judge DeGuilio. Here is the 7-page complaint.

[Updated at 10:35 AM] A reader points to an error in an Indianapolis Star paragraph not quoted above - the story should read "class action", NOT "collective action"!:

Nunez and Martinez are asking the federal court judge to certify the lawsuit as a collective action, which means DCS would be required to release the names and contact information of similarly situated employees. Those employees could then opt to join the lawsuit, Sedia said.

[Corrected at 3:40 PM] Apologies to the IndyStar. The ILB has now heard from the attorney in the DCS lawsuit, who writes:

I am the attorney representing the plaintiffs in the story you covered in this post.

The reader who claimed to find an error in the story is not correct. We are seeking certification as a collective action under 29 U.S.C. § 216, which is completely different from a class action under FRCP 23. A collective action is “opt-in,” whereas a class action is “opt-out.”

I ask that you please note the correction. I am happy to answer any questions you might have.

Thank you,

Adam J. Sedia
Rubino, Ruman, Crosmer & Polen
Dyer, Indiana 46311

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to Indiana Government

Ind. Courts - Chief Justice Rush: "Be proactive to aid youths"

A story today by Dartunorro Clark in the Lafayette Journal-Courier reports on the CJ's talk Wednesday to the YWCA Greater Lafayette's fall luncheon. Some quotes:

More than 150 community leaders gathered to hear Rush, the first female chief justice of the Indiana Supreme Court, discuss children, teenagers and issues that she's long championed, including mortality, abuse and high school dropout rates.

There's much more to be done, she said.

"We need to put our resources toward our kids," Rush said. "It defines how we're doing as a society. I'm doing that at the state level."

Her experience as a juvenile judge gave her insight, she said, into what the judiciary can do to work with other branches of government to provide solutions.

Rush said she's pushing for more evidence-based decision-making in courtrooms, tracking the outcomes of programs that help at-risk children and families and seeking to improve trauma care.

"It's important to look at community involvement and the well being of the youth," Rush said. "There's a connection between community involvement and (the number of) children in the courts."

Rush added: "We cannot just be reactive to these things. We can be proactive."

Posted by Marcia Oddi on Thursday, September 25, 2014
Posted to Indiana Courts

Wednesday, September 24, 2014

Ind. Gov't. - Citizens Energy makes minor adjustments to some top salaries

In this ILB post on August 19th, the ILB talked about the IndyStar's Public Employee Salary Database and how almost all of the 170 highest paid "local government" employees are employees of Citizens Energy:

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.

Today John Tuohy and John Russell of the Indianapolis Star report (in a story that repeats itself a bit, don't they have proofreaders - oh, right, they don't anymore):
The Citizens Energy board of directors announced Wednesday it will slash the salary of its president by nearly a third until he retires next summer.

President and Chief Executive Officer Carey Lykins will step down July 1, 2015, after 42 years with the utility company. He will be replaced by Jeff Harrison, the senior vice president of engineering sustainability.

Lykins' annual $1.9 million salary will be cut 32 percent, or by $608,000, until he leaves. The wages of 17 other executives will be reduced by 6 percent to 12 percent, said Dan Considine, a spokesman for the utility. * * *

Earlier this year, the Indiana Utility Regulatory Commission reduced the size of a customer rate increase because it said Citizens Energy's executives' salaries were excessive. The utility's request for a 14.7 percent rate hike was chopped to 9 percent for 300,000 water customers.

ILB: Judging from the database results discussed earlier, however, 6-12% cuts for the top 17 executives is just chipping at the tip of the iceberg.

[More] Here is a quote from Jeff Newman in the IBJ's story today:

State regulators scolded Citizens earlier this year for the high level of executive pay at the municipal utility. Utility watchdogs have criticized the compensation for being inappropriate for a not-for-profit charitable trust.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Indiana Government

Law - How Appealing and Above the Law blogs to team up (or ATL offers How Appealing a new home)

Two of the leading national law blogs, How Appealing and Above the Law, will be located at http://howappealing.abovethelaw.com starting October 1st. As Howard Bashman writes today:

This blog's content, voice, and authorship will remain the same, except in place of "Law.com" in its address you will instead need to use "AboveTheLaw.com"
More from Bashman:
One of the things that I have most appreciated about this blog's current host, ALM/Law.com, and this blog's previous host, Legal Affairs magazine, is that they have completely left me alone to do what I enjoy doing. I have received more requests from the U.S. Supreme Court (a total of one) than I have ever received from ALM/Law.com or Legal Affairs magazine to alter this blog's content in any respect whatsoever. And I anticipate this same sort of hands-off approach will continue during this blog's upcoming affiliation with ATL and Breaking Media.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to General Law Related

Ind. Decisions - Supreme Court decides one today, re speedy trial

In Scott Logan v. State of Indiana, an 18-page decision, Justice David writes [ILB emphasis]:

“To no one will we sell, to no one deny or delay right or justice.” MAGNA CARTA, § XXIX. First articulated in the Magna Carta, the right to a speedy trial is fundamental in our jurisprudence. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). Together with Indiana Criminal Rule 4(C), the right to a speedy trial, as guaranteed by the United States and Indiana Constitutions, ensures those accused of criminal charges speedy administration of justice. In this case, appellant Scott Logan challenges the 1,291-day delay that elapsed between the State’s filing of a class C felony child molestation charge against him and the beginning of his trial as a violation of both Rule 4(C) and his constitutional right to a speedy trial. Ultimately, Logan was convicted and sentenced to six years executed—a sentence that, when his earned good-time credit is considered, Logan essentially served before his trial even began.

Though Rule 4(C) implements a defendant’s right to a speedy trial, our analysis of an alleged Rule 4(C) violation is distinct from that of a claimed constitutional violation, as both constitutions provide a defendant with broader protection of this fundamental right. Illustrating why Indiana affords defendants dual means of securing a speedy trial, here we conclude that despite the trial court’s technical compliance with Rule 4(C), Logan’s unduly long delay violated his constitutional right to a speedy trial. * * *

On appeal, Logan maintained that he was entitled to discharge under Rule 4(C) and that he was deprived of his right to a speedy trial under the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. Finding that the trial court did not err in denying Logan’s motion for discharge under Rule 4(C) and that Logan failed to demonstrate that the delays in his trial violated his constitutional right to a speedy trial, the Court of Appeals affirmed his sentence. Logan v. State, No. 20A05-1304-CR-192, Slip. op. at *10 (Ind. Ct. App. February 28, 2014).

Logan subsequently petitioned this Court to address both issues. We granted transfer, thereby vacating the opinion below. See Ind. Appellate Rule 58(A). * * *

All four Barker factors weigh in Logan’s favor and compel the conclusion that the delay of three years, six months, and eleven days between the filing of the charge against him and the beginning of his trial for class C felony child molestation violated his right to a speedy trial under the U.S. and the Indiana Constitutions. Specifically guaranteed in both constitutions, the right to a speedy trial is a fundamental right of the accused that trial courts must be diligent in protecting and defendants zealous in asserting. Id. at 533. When, on balance, the length of the defendant’s wait for trial, the reasons behind the delay, the defendant’s assertion of his or her right, and the presence of prejudice to the defendant as a result of the delay show that the trial court has not assiduously safeguarded the defendant’s right to a speedy trial, then the defendant must not face the charges filed against him or her.

To prevent the potential for any subsequent violation of a defendant’s constitutional right to a speedy trial due to protracted court congestion, we encourage trial courts to consider setting the defendant’s trial date at his or her first initial hearing and to remain diligent in monitoring the age of these cases. We acknowledge that the State has a vested interest, and indeed an obligation, in monitoring criminal cases to ensure that defendants are brought to justice in a timely manner.

In this particular case, the record reflects that jury trials were scheduled on an average of twenty to twenty-four dates each year. Considering the trial court’s limited availability and Logan’s repeated assertion of his right, we urge trial judges facing similar circumstances to consider, when they deem it necessary, going outside their standard practice in establishing jury trial dates to ensure that a defendant’s right to a speedy trial is guaranteed. For example, a trial judge could move a previously set civil trial in favor of a criminal defendant, start a criminal trial on a different day of the week (say, a Wednesday instead of the typical Monday), or delegate certain tasks to a magistrate in order to free up resources to try the defendant.

We are not suggesting, nor implying, that our trial judges must do the impossible. We are simply reiterating that they are the gatekeepers of justice. Our trial courts must continue to be diligent, adaptable, and creative in an effort to secure a criminal defendant’s fundamental right to a speedy trial.

Conclusion. We therefore order Logan released from incarceration, vacate his conviction for class C felony child molestation, and remand to the trial court for proceedings consistent with this opinion.

ILB: The now vacated Feb. 28, 2014 NFP Court of Appeals opinion concluded: "[T]he trial court did not err in denying Logan’s motion for discharge under Crim. R. 4(C), and Logan has failed to demonstrate that the delays in his trial violated his constitutional right to a speedy trial." This May 22nd ILB entry quotes a SBT story asking "Does Court backlog violate right to speedy trial?"

Here is the June 26, 2014 oral argument
before the Supreme Court.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Indiana pension fund assets grow to record high"

An AP story today in the Gary Post-Tribune begins:

Indiana’s pension fund for public employees and teachers has grown to a record high of $30.2 billion in assets thanks to “a great year” of returns on its investments, the fund’s leader says.

The pension fund’s investment return for the 2014 budget year that ended June 30 was 13.7 percent — or more than double the 6.75 percent target, said Steve Russo, the executive director of the Indiana Public Retirement System.

“It was a very good, and some might say, a great year,” Russo told the Legislature’s Pension Management Oversight Committee last week.

With its 11 percent growth in net assets over 2013, the fund’s growth in net assets means the combined funded status of Indiana’s seven pre-paid pension programs for state and local public employees and teachers now stands at 88.9 percent, up from 85.3 percent.

Pension experts generally consider a funding ratio of at least 80 percent satisfactory to meet future payment obligations.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Indiana Government

Ind. Courts - More on: "Idea of Indiana paying public defenders stirs debate"

Updating this post from earlier today, the ILB has found an expanded version of the AP public defender story, along with attribution; it was written by Charles D. Wilson. We still don't know, however what "legislative committee meeting Monday" the "idea surfaced at." Some quotes:

INDIANAPOLIS (AP) — The state pays the salaries of its judges and prosecutors, but public defenders are paid by counties that are only partially reimbursed for their costs — an approach that some including the executive director of the Indiana Public Defender Council want to see changed.

Larry Landis said it’s time to pay public defenders, who represent people who can’t afford attorneys, the same way as prosecutors because the current pay system is unfair. The idea surfaced at a legislative committee meeting Monday.

“They’ve abdicated their state responsibility,” Landis said. “You’re talking about a constitutionally mandated service where people’s liberties are on the line.”

In Indiana, counties determine how public defenders are paid. Some public defenders work under contract, while others are appointed by judges on a case-by-case basis. There is no statewide system.

Regardless of how they handle paying for indigent defense, the counties that apply get 40 percent of the money they spend on public defenders back from the state. In the last budget, the state set aside $14.8 million to cover public defender costs, and Landis said only 48 counties have set up the local commissions required to receive any of the money.

“If money is tight, which it is, spending money on poor people who are accused of crimes is not going to be a high priority for county funding,” Landis said.

More from the story:
“We do pay a share of that now and the counties pay a share of that,” Kenley said. “This way they have an incentive to keep the cost under control.”

The lack of state salaries is felt on both sides of the courtroom. Other than the elected prosecutor and his chief deputy, the other county prosecutors also are paid by their counties. Low pay leads to high turnover and a lack of experienced attorneys on both sides, said Landis and the executive director of the Indiana Prosecuting Attorneys Council, David Powell.

“Certainly the pay’s too low,” Powell said. “You ought to be able to make a career of that and pay your bills and raise your family.”

Aaron Negangard, prosecutor of Dearborn and Ohio counties in southeastern Indiana, doesn’t believe it’s fair for public defenders to get the same pay as prosecutors. He said they don’t carry the caseloads that prosecutors do and that the burden of proof is on the state, not the defense.

“I’m satisfied with the system the way it is,” said Negangard, who heads the prosecuting attorneys’ lobbying group. “I think the state reimbursement program works well. It keeps the control in the county.”

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In Albert L. Hauck and Mark Wood v. City of Indianapolis, a 17-page opinion regarding the IMPD promotion process, Judge Brown writes:

Albert L. Hauck and Mark Wood appeal the trial court’s order granting summary judgment in favor of the City of Indianapolis (the “City”). Hauck and Wood raise three issues, which we revise and restate as whether the court erred in entering summary judgment in favor of the City and against them. We affirm.
NFP civil opinions today (4):

Servanes J. Wilson, Sr. v. Wabash Valley Correctional Facility and Indiana Department of Correction (NFP)

In Re: The Support of V.B. and S.B., Jeffery A. Roach v. Vicky Lynn Bishop (NFP)

David Roberts v. Estate of Bertha Roberts, Deceased (NFP)

R. Myers & Associates, LLC and Robert D. Myers a/k/a Rob Myers v. Adpoint, Incorporated, Joel Hall and Mary Hall (NFP)

NFP criminal opinions today (2):

David Cox v. State of Indiana (NFP)

Lavon Beverly v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Former Supreme Court Justice Dixon Prentice honored in Clark County

From a brief WHAS 11 story:

JEFFERSONVILLE, Ind. (WHAS11) -- The life of a former Indiana Supreme Court justice is being remembered in Clark County.

On Tuesday morning judges and lawyers put their political differences aside to honor the work and legacy of Dixon Prentice.

He died over the summer at his home in Arizona. He was 95-years-old. Prentice was originally from Clark County, Ind.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Indiana Courts

Ind. Courts - The perils of pro se representation?

In a long (and repetitious) story today in the Richmond Palladium-Item, Bill Engle reports:

In his shortest court appearance yet, Preble County [Ohio] resident John Cahill walked out of Wayne Circuit Court in protest over the judge's involvement in his ongoing fight with the city.

Two minutes into Tuesday's hearing, Cahill, the Eaton-area man who has waged a 17-month fight with the city of Richmond over two abandoned houses he refuses to repair or remove walked out of the courtroom and left the Wayne County Courthouse in protest. * * *

In June, Cahill filed an affidavit accusing the judge of bias and prejudice in the case. On Tuesday, Cahill provided the court a copy of Indiana Supreme Court rulings that said that once a judge is accused of bias and prejudice, he no longer has jurisdiction in the case.

The problem for Cahill, said [Judge David Kolger], is that Cahill's appeal must be done in a timely fashion.

"I agree with [city attorney Walt Chidester's] opinion. This case is over," Kolger said.

Cahill, who is representing himself, started the proceedings by addressing Kolger.

"I'm making a special appearance in this case today," Cahill said. "Since you have no jurisdiction in the case and still you continue to officiate, I will not participate in today's hearing." * * *

In June, Cahill filed an affidavit accusing the judge of bias and prejudice in the case. On Tuesday, Cahill provided the court a copy of Indiana Supreme Court rulings that said that once a judge is accused of bias and prejudice, he no longer has jurisdiction in the case.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Indiana Courts

Ind. Gov't. - "Lost original bond document stalls Portage paving project"

John Robbins of the Gary Post-Tribune reports today:

PORTAGE -- With the whereabouts of a seven-year-old bond document missing, the Portage Board of Works and Safety is facing a roadblock in the paving of a city subdivision. * * *

The bond, a letter of credit that authorizes payments to the city from Porter Bank, was originally issued on Oct. 17, 2005, according to Sandy McDaniel, project manager for the department of Community Development.

After seven years of waiting for the final coat of asphalt to be applied to the streets in Austin Hills, the city has finally lost its patience and wants to pave the streets, but it wants the money first. To get the money though, Porter Bank wants the original bond — a copy won’t do — and the original cannot be found.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Indiana Government

Ind. Courts - "Idea of Indiana paying public defenders stirs debate"; Meeting Monday on Juvenile Justice

Supplementing this Sept. 22nd ILB post headed "Battle over public defender funding in Cass County" is this brief AP story last evening that reported:

INDIANAPOLIS (AP) — The salaries of Indiana judges and prosecutors are paid by the state, but public defenders who stand up for the poor are paid in a hodgepodge of ways by counties that receive only a partial reimbursement for their costs.

Indiana Public Defender Council Executive Director Larry Landis thinks it's time to pay public defenders the same way prosecutors are paid. The idea surfaced in a legislative committee meeting Monday.

House Ways and Means Chairman Tim Brown says he's open to the idea if it can gain broad support.

But the state paying the salaries of public defenders that represent those who can't afford to hire their own attorney may be an idea whose time hasn't quite arrived. Senate Appropriations Chairman Luke Kenley says the state simply doesn't have the money.

Monday the Interim Study Committee on Corrections and Criminal Code held a meeting devoted mostly to juvenile matters. A look at its agenda shows a wealth of interesting speakers and topics. However, currently no exhibits, minutes or archived video are available for this meeting, or the Sept. 15th meeting. Apparently the interested public is out of luck.

Posted by Marcia Oddi on Wednesday, September 24, 2014
Posted to Indiana Courts

Tuesday, September 23, 2014

Courts - Overview of recent constitution-based sex offender rulings

JURIST has this post today, starting with this week's NJ Supreme Court ruling re "requiring a sex offender to wear a GPS tracking device after he has completed his sentence," and including the 7th Circuit decision striking down Indiana's law prohibiting "sex offenders from joining social networking websites."

Posted by Marcia Oddi on Tuesday, September 23, 2014
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

For publication opinions today (6):

In The Branham Corporation v. Newland Resources, LLC; Samuel Sutphin; White River Funding Corp.; et al; Thomas N. Eckerle; Thomas N. Eckerle Prof. Corp. v. The Branham Corporation, a 26-page opinion, Judge Bailey writes:

In 2007, The Branham Corporation (Branham) obtained a judgment against Newland Resources, LLC (Newland) and related entities for breach of contract. The judgment was uncollectible in light of 2004-2005 distributions by Newland that had depleted corporate assets available for creditors. In 2011, Branham filed proceedings supplemental and new claims for relief under the Indiana Crime Victims Relief Act, Indiana Code section 34-24-3-1 (Victims Relief Act) and Indiana’s Corrupt Business Influence Act, Indiana Code section 34-24-2-6 (RICO). * * * Summary judgment was granted to the majority of the defendants on the new claims, on statute of limitations and res judicata grounds. Branham appeals the grant of summary judgment.

The appeal of the grant of summary judgment has been consolidated with an appeal by Thomas Eckerle, a past provider of legal services to Newland, and the Thomas Eckerle Professional Corporation (collectively, Eckerle). Eckerle appeals the denial of a motion to correct error which challenged the February 4, 2013 dismissal, without prejudice, of Eckerle as a defendant. We affirm the trial court’s summary judgment order but remand for inclusion of Eckerle as a prevailing defendant. We reverse the order dismissing Eckerle.

In James Bogner v. Teresa Bogner , a 12-page opinion, Judge Pyle concludes:
Here, the trial court did not indicate in its order that it considered any of the factors that it was required to consider under the Guidelines. In addition, the Parents did not submit any evidence from which the trial court could have considered many of the factors. There is evidence in the record concerning the Parents’ respective incomes and the percentage of the cost of supporting H.B. that each Parent bears. Based on this evidence, the trial court could have considered the second and fourth factors listed in the Guidelines, although there is no evidence it did so. Otherwise, neither party submitted previous tax returns nor any other evidence that would have helped the trial court consider the financial ramifications to H.B. of eliminating Father’s tax exemption, other than Mother’s self-serving testimony regarding the value of the exemption. Accordingly, we conclude that the trial court abused its discretion in modifying Father’s exemption. We remand to the trial court to re-evaluate the issue of the Parents’ tax exemption based on the factors listed in the Child Support Guidelines.
In In re the Estate of Ruth M. Rupley, Charles A. Rupley v. Michael L. Rupley, a 3-page opinion on rehearing, Judge May writes:
Michael Rupley petitions for rehearing of our decision reversing the trial court’s order concluding the balance of a promissory note executed by Michael’s brother Charles and his mother, Ruth Rupley, was an asset of Ruth’s Estate. We grant rehearing for the limited purpose of clarifying our application of the Transfer on Death Property Act. * * *

Ind. Code chapter 32-17-14 does not define “pay on death account,” but it does define “security” as “a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer.” Ind. Code § 32-17-14-3 (12) (emphasis added). Whether the note was a “pay on death account” or a “transfer on death security,” the Act applied retroactively to it and the note was not an asset of the Estate.
We therefore grant rehearing and reaffirm our original opinion.

Vaidik, C.J., concurs.
Riley, J., would deny rehearing.

In In the Matter of the Termination of the Parent-Child Relationship of A.S. and C.S. (Minor Children); K.W. (Mother) and B.S. (Father) v. The Indiana Department of Child Services , a 22-page opinion, Judge Pyle writes:
B.S. (“Father”) and K.W. (“Mother”) (collectively, “the parents”) appeal the trial court’s termination of their parental rights to their minor children, A.S. and C.S. (collectively, “the children”). The parents argue that there was not sufficient evidence to support the termination because some of the trial court’s findings of fact were erroneous, and because the trial court’s findings of fact did not support its conclusions. We conclude that three of the trial court’s findings of fact were erroneous; nevertheless, even without these erroneous findings, the Department of Child Services (“DCS”) presented sufficient evidence to support the termination of the parents’ parental rights. Affirmed.
In Jessica Kishpaugh v. John Odegard and Miriam Odegard, a 24-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court did not err in concluding that Kishpaugh committed theft, breached the Lease, and violated the Tenant Statute. Although the trial court lacked jurisdiction to declare that the theft damages are a non-dischargeable debt in bankruptcy, we conclude that the trial court’s inclusion of this conclusion in its Judgment is harmless error. In addition, we grant the Odegards’ Petition for Appellate Attorney Fees and remand to the trial court to determine the amount.
In Dale Bulthuis III v. State of Indiana , a 19-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion in admitting into evidence the items seized during the search of Wireman’s garage: Wireman voluntarily consented to the search, and the police were not required to give Bulthuis, who was in custody in a police car on an active warrant for his arrest, an opportunity to object to the search. The State presented evidence sufficient to support Bulthuis’s conviction for dealing in methamphetamine: in addition to the presence of precursors and a manufacturing setting, the police found methamphetamine residue, Bulthuis and Wireman had recently purchased relatively large amounts of pseudoephedrine, and Bulthuis made statements implicating himself in the manufacture of methamphetamine. The State was not required to present evidence of an active methamphetamine lab. Lastly, the trial court’s restitution order requiring Bulthuis to pay the State for the costs incurred during the cleanup of the lab was specifically authorized, and indeed required, by the relevant restitution statute. Affirmed.
NFP civil opinions today (4):

Jesse Clements and Gersh Zavodnik v. The Honorable John Hanley and Marion Superior Court 11 (NFP)

Heidemarie Garcia v. Cover-Rite, Inc., J.C. Builders, Inc. and Salvino Verta (NFP)

Richard L. Smart v. Kristina L. Smart (NFP)

PaulaJean Skowronek v. Review Board of the Department of Workforce Development, and Aldi Indiana, LP (NFP)

NFP criminal opinions today (5):

Tony R. Shipley, II v. State of Indiana (NFP)

Forrest R. Ferguson v. State of Indiana (NFP)

Darius Hardiman v. State of Indiana (NFP)

Torrence L. Belcher v. State of Indiana (NFP)

Paul E. Matthews v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 23, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Cherokee County Georgia court reporters accused of stealing $485K"

Alexis Stevens of the Atlanta Journal-Constitution reports today:

Three Cherokee County court reporters are accused of stealing more than $485,000 by billing for pages that didn’t exist, the Sheriff’s Office said Monday.

The investigation into the alleged billing irregularities began in mid-July at the request of District Attorney Shannon Wallace, according to Lt. Jay Baker. Investigators determined that three suspects were intentionally mis-formatting court records and receiving extra reimbursement, and believe the crimes date back to 2006, Baker said. * * *

Court reporters must be certified to work in Georgia and are regulated by the Board of Court Reporting, which can revoke certificates for misconduct, according to the board’s website. State laws regulate the amount court reporters can charge, such as a per page cost for transcripts.

Additionally, court transcripts must follow strict formatting guidelines, according to state rules. For example, each page must have at least 25 lines, and each line must have at least 63 available spaces, online rules state.

Here is the link to the website of the Georgia Board of Court Reporting; unfortunately it seems to currently be unavailable. (Here is the cached version.)

Posted by Marcia Oddi on Tuesday, September 23, 2014
Posted to Courts in general

Ind. Gov't. - Circumventing the General Assembly's budgeting intent via the reversion process?

Some quotes from a long Fort Wayne Journal Gazette editorial today:

[I]t’s one thing to suggest cuts during the budget-planning process. It’s quite another when the legislature appropriates money for vital needs and the governor refuses to spend it. That’s known as reversion – putting money budgeted back into the general fund rather than spending it or distributing it as the legislature originally directed.

Pence would argue that this year’s downturn in state revenue necessitates such actions.

We would say, look first at what’s being cut, and what the need is that the legislature was trying to address, then decide whether that need is outweighed by the generally admirable goal of protecting the state’s surplus.

What was the thinking, for instance, behind Indiana’s efforts to withhold funds appropriated to deal with domestic violence? * * *

Indiana also withheld $27.5 million the legislature had appropriated to state universities during the budget year just past, including $820,000 for IPFW. During a meeting last month in Fort Wayne, members of the legislature’s budget committee noted that lawmakers had reached an oral agreement with the universities that they would not increase tuition if funding were increased.

“Whatever we take from them could end up next year as a tuition hike,” Sen. Karen Tallian, D-Portage remarked.

We can only hope that legislators and the governor conduct an open, honest review of the state’s needs for the next budget and do everything they can to meet those needs. And then, short of true emergencies, the governor should make his administration live by that budget.

A government that doesn’t honor its commitments risks becoming government by sleight-of-hand.

Posted by Marcia Oddi on Tuesday, September 23, 2014
Posted to Indiana Government

Ind. Gov't. - "Toll Road bankruptcy reignites old debate about privatization"

Madeline Buckley reports today in the South Bend Tribune - here are a few quotes from the long story:

In filing for bankruptcy, the company that operates the Indiana Toll Road has reignited an old debate about the controversial privatization of the Toll Road in 2006.

Those who opposed leasing the highway in 2006 are now outspoken, citing concerns about the future of the road and quality of its upkeep.

Meanwhile, Indiana Gov. Mike Pence said in a statement Monday drivers of the route through northern Indiana can expect “business as usual.”

And U.S. Rep. Jackie Walorski said Monday the state included safeguards in the lease to protect the interests of taxpayers. Walorski voted for the lease when she served as a state representative. * * *

Indiana Finance Authority Director Kendra York said in a statement ITR Commission Co. will continue to manage the Toll Road through the bankruptcy process. The Finance Authority must also approve any potential sale of the lease.

“The IFA has been aware of negotiations between the operator and its lenders, so we anticipated this could be a possibility,” Pence said in the statement. “But Hoosiers can expect business as usual on the Indiana Toll Road.”

Back in 2006, Daniels touted the deal as a win for Indiana, comparing the lease to selling Manhattan for beads.

He said Indiana gets to pocket $3.8 billion, but could take back the Toll Road if the operator failed to meet demands.

Locally, though, the deal met with a lot of opposition.

A resident of LaPorte, Shaw Friedman said he sees substandard conditions when driving on the Toll Road.

“Frankly, the state should intervene as a party in the bankruptcy proceeding,” Friedman, an attorney in LaPorte County, said. “The state’s interests are certainly not represented by the hedge funds, banks and lien holders.”

Friedman said the former governor should be first in court to testify that he pledged the state would take back the Toll Road if the operator did not meet its obligations.

“This is a valuable asset that was really, really sold off at a discount when you consider the value the Toll Road could have had by gradually raising tolls,” Friedman said. “The problem is the $3.8 billion was gone in the first six or seven years. What do we do with the remaining 70 years?”

Politicians who opposed the lease in 2006 spoke out Monday.

Posted by Marcia Oddi on Tuesday, September 23, 2014
Posted to Indiana Government

Courts - A very good overview of the status of the courts on marriage equality [More]

See this long article by Lisa Keen of Keen News Service headed "Supreme Court: Which case makes the best case for marriage equality? A sample:

If the Supreme Court declines to review one of the pending marriage cases this session, said [Roberta Kaplan, who represented plaintiff Edith Windsor], it would have to lift the stays currently in place.

“Then marriages between gay couples could happen in a whole bunch of new states,” she said. That would enable same-sex couples to get married in 12 additional states: Utah, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma in the Tenth Circuit; Virginia, North Carolina, South Carolina, and West Virginia in the Fourth Circuit; and Wisconsin and Indiana, in the Seventh Circuit. Added to the 19 states that already enable same-sex couples to marry, and the count will stand at 31 and the District of Columbia.

That seems unlikely.

So, if and when it takes a case, does it matter which marriage equality case the Supreme Court accepts? Does it change the prospects for the decision if it takes a case where the ban has been upheld? Does it matter whether the attorneys arguing the case are seasoned veterans before the Supreme Court?

[More] See also this NYT column by Adam Liptak that begins:
WASHINGTON — The jockeying among the titans of the Supreme Court bar for a place at the lectern when the justices hear the next same-sex marriage case is as understated as it is unmistakable.

In a half-dozen briefs filed in recent weeks, some of the best lawyers in the nation spent many pages arguing that their case was the right one in which to establish a nationwide right to same-sex marriage. They pointed out the attractive features of their own cases and the shortcomings of others.

In legal jargon, streamlined cases without procedural pitfalls are said to be good vehicles. That made the fancy lawyers sound a little like car salesmen.

The case from Virginia, one brief said, is “an excellent vehicle.” The one from Wisconsin, said another, is “an ideal vehicle.” The one from Utah, perhaps the leading candidate, was said to be, with the swagger of understatement, “an appropriate vehicle.”

Posted by Marcia Oddi on Tuesday, September 23, 2014
Posted to Courts in general

Ind. Gov't. - Still more on: What about Domestic violence budget cuts?

Updating this ILB post from yesterday, on Friday's meeting of the Criminal Justice Institute, today Niki Kelly of the Fort Wayne Journal Gazette reports:

INDIANAPOLIS – The Indiana Criminal Justice Institute announced late Monday it will make additional funds available for domestic violence shelters and groups in Indiana – money the state mistakenly reverted last year.

The new dollars involve $344,000 that was sent back to the state General Fund at the end of the fiscal year in June.

A news release from ICJI claimed an additional $448,000 in carry-over money as well, but that money was already slated to be distributed in a pot of $1.18 million approved Friday when more details from the domestic violence groups were gathered.

In all, funding this year will exceed $4.2 million thanks to the administration releasing money that was held back last year. Funds this year total $1.5 million more than in 2013.

At Gov. Mike Pence's direction, applications for these funds will be expedited so they can be made available to shelters as soon as possible, said Mary L. Allen, ICJI's executive director.

Posted by Marcia Oddi on Tuesday, September 23, 2014
Posted to Indiana Government

Monday, September 22, 2014

Courts - 9th Circuit quotes a beloved Hoosier poet today

In an en banc opinion today in Sessoms v. Grounds, the majority opinion by Judge McKeown begins:

An American poet wrote more than 100 years ago: “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”[1] When a suspect says “give me a lawyer,” that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal—it is not a maybe or a perhaps—it is an invocation of the Fifth Amendment right to counsel. * * *
_______________
[1] This quotation is often attributed to James Witcomb Riley, an American poet. Max Cryer, Who Said That First? The Curious Origins of Common Words and Phrases 139 (2001); see In re Fletcher, 489 B.R. 224, 235 & n.36 (Bankr. N.D. Okla. 2013). It has also been attributed to Walter Reuther. Hugh Rawson and Margaret Miner, The Oxford Dictionary of American Quotations 237 (2006).
H/T to Indianapolis attorney Bill Groth, who also notes "although it misspells Riley’s middle name as 'Witcomb.'”

ILB: This is also the case where Twitter has noted Chief Judge Kozinski's lead-in: "Chief Judge KOZINSKI, reluctantly dissenting:".

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Courts in general

Ind. Decisions - "Sex offender doesn't have to register" ruled COA, citing ex post facto laws ruling

A Court of Appeals opinion, Michael T. Paille v. State of Indiana (NFP), is the subject of a story today in the Muncie Star-Press, reported by Douglas Walker.

Based upon the Indiana Supreme Court's 2009 opinion in Wallace v. State, the COA in Paille ruled:

[W]e conclude that application of INSORA to Paille would be a violation of Indiana’s prohibition on ex post facto laws. We therefore reverse and remand with instructions to vacate the criminal charges against Paille and to grant his motion for removal from the sex offender registry.
Today's story reports:
A Muncie man convicted of sex crimes in Florida does not have to register locally as a sex offender, the Indiana Court of Appeals has ruled.

In a 3-0 ruling, the appeals court also ordered local authorities to dismiss two criminal charges pending against 44-year-old Michael Troy Paille that stemmed from his failure to register with the Delaware County Sheriff's Office.

In this month's decision, Judge Cale Bradford acknowledged that when Paille most recently was released from a Florida prison, in 2011, he was "required to register in Florida as a sex offender for at least 25 years."

However, because Paille's Florida crimes and convictions predated the 1994 enactment of Indiana's Sex Offender Registry Act, he is not required to register here, Bradford wrote. He noted a 2009 ruling by the Indiana Supreme Court that "the application of INSORA to crimes committed before INSORA's 1994 enactment was unconstitutional."

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court suspends Marion County attorney for two years, without automatic reinstatement [Updated]

In In the Matter of: Trezanay M. Atkins, a 5-page opinion in a disciplinary case, the Court writes in a per curiam opinion:

We find that Respondent, Trezanay M. Atkins, engaged in attorney misconduct by committing criminal conversion while acting in a fiduciary capacity and by engaging in conduct involving dishonesty. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least two years without automatic reinstatement. * * *

The Marion County Bar Association (the "MCBA") is a local bar association that exists in large part to assist in the professional development of African American attorneys practicing in the Indianapolis area. The MCBA elects and/or appoints officers, including the treasurer, who serves a one-year term. The treasurer of the MCBA serves in a fiduciary capacity.

In 2011, Respondent submitted an application to join the organization and applied for the position of treasurer. Respondent served as treasurer from June 2011 until December 2012. As treasurer, Respondent had signatory authority on the MCBA's checking account at Regions Bank.

Respondent admitted that during her term as treasurer of the MCBA, she misappropriated funds that belonged to the MCBA. She admitted that she converted the proceeds of 30 checks drawn on MCBA's checking account. The memo lines of the unauthorized checks often contained false statements in order to make it appear that the checks were used for legitimate MCBA expenses. Respondent also admitted she converted the proceeds of one debit and the proceeds of 21 counter checks drawn on the MCBA's checking account. The sum of all funds that Respondent admitted she converted was over $9,100.

During her tenure as treasurer of the MCBA, the Respondent was also responsible for preparing monthly financial reports. These reports were distributed to all officers and board members of the MCBA. Respondent falsified the financial reports to conceal her thefts from the MCBA. * * *

We note that Respondent made full restitution to the MCBA. Restitution made only after a client has filed a grievance or after disciplinary proceedings are initiated does not qualify as a mitigating circumstance. * * *

Respondent’s deliberate theft from an association she served as treasurer in violation of her fiduciary duty is among the most serious types of misconduct. The Court concludes that Respondent should be suspended from the practice of law in this state for a period of not less than two years, without automatic reinstatement.

Conclusion. The Court concludes that Respondent violated the Indiana Rules of Professional Conduct by committing a criminal act that reflects adversely on her honesty, trustworthiness, and fitness as a lawyer and by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than two years, without automatic reinstatement, beginning November 3, 2014.

[Updated on 9/23/14] The IndyStar today has a story about the suspension.

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Battle over public defender funding in Cass County

Mitchell Kirk had a long story Sunday in the Logansport Pharos Tribune headed "Public defense funding lacking: County council cuts request by $128,000." Some quotes:

Local attorneys and a judge said the governmental body responsible for Cass County's finances hasn't allowed for enough funding for public defense services as 2015 budget talks concluded Friday, Sept. 19.

The Cass County Commissioners created a public defender board in November 2013 to be eligible for partial compensation for indigent defense services from the Indiana Public Defense Commission. * * *

The county council appropriated $450,000 to the public defenders for 2014. Jay Hirschauer, chairman of the public defender board, said the county has required $618,000 in indigent defense services so far this year.

These costs have been supplemented by a non-reverting fund supplied by fees paid by those who require the indigent services in Cass County's three courts. As of Sept. 19, the fund held $13,311.15.

Public defenders cited that in their justification for their budget submission, saying $490,000 will not be enough to cover the county's indigent defense costs in 2015.

"It just can't be done," Hirschauer told council members.

Pherson said Indiana Code requires the non-reverting fund to only be used for supplemental purposes and that public defense services must be adequately budgeted for.

"That cannot continue," she said of the tens of thousands of dollars continuing to go from the fund to indigent defense services.

Cass County Superior Court II Judge Rick Maughmer defended the attorneys' proposed budget before council members as well, going on to predict a similar if not greater caseload for local courts in 2015.

"Through this year I've continued to supplement the lack of funding," he said in an interview after the meeting of the payment of bills he's authorized through the courts' fund for helping with indigent defense.

Hirschauer added he estimates the county will receive a total of $200,000 in reimbursements from the Indiana Public Defense Commission this year. Those funds go into the county's general fund.

Those reimbursements are only possible if public defenders adhere to regulations like caseload requirements.

[Cass County Council President George Stebbins] told Hirschauer he is not willing to appropriate more funds to the board when the reimbursements are not guaranteed. He added should indigent defense services require supplements throughout 2015, that the public defender board could request them from the council.

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Indiana Courts

Ind. Gov't. - "For taxes and services, a question of who pays"

Tom LoBianco of the AP has a story today, here in the Michigan City News-Dispatch, on the distribution of the tax burden and changes in the tax structure. But the story concludes with this:

Pence has continued a practice of cutting upward of 3 percent from most state agencies in order to maintain cash reserves of $2 billion.

But that combination of stagnating incomes and tight-fisted spending has spurred problems for Pence and the state.

The state agreed last week to pay $15 million to settle a lawsuit against the Department of Child Services from adoptive parents who said the state skipped out on payments promised them dating from 2009. Meanwhile, the Bureau of Motor Vehicles announced it had overcharged drivers $29 million in fees and would be issuing refunds.

The governor's staff also worked quickly last week to allay concerns from advocates for victims of domestic violence that they would be facing budget cuts again this year, despite having secured an additional $1 million in the state budget for their services.

Democratic Schools Superintendent Glenda Ritz, meanwhile, has asked for $109 million in the upcoming budget to end the state's practice of charging public school families for textbooks.

Last week's tax panel met just one day after a national report from the credit-rating agency Standard & Poor's was issued showing that the widening income gap in Indiana and nationwide has cut into the state's ability to collect taxes to pay for services. The report found that as more money was concentrated among the wealthiest people, less of it was being taxed, thereby putting Indiana and other states in a pinch as they look for ways to continue operating.

It might not always be explicitly stated at the Statehouse during the upcoming tax and budget battles, but at the center of it will be the question of who's paying for what the government is providing.

[More] See also this story by Maureen Hayden in the Goshen News, about "last week’s nearly daylong first meeting of the legislature’s 'blue ribbon' panel assigned to study business taxes."

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Indiana Government

Law - " Stop and seize: Aggressive police take hundreds of millions of dollars from motorists not charged with crimes"

Michael Sallah, Robert O’Harrow Jr., and Steven Rich of the Washington Post published a series on federal civil forfeiture the beginning of September. From the intro:

Stop and Seize: In recent years, thousands of people have had cash confiscated by police without being charged with crimes. The Post looks at the police culture behind the seizures and the people who were forced to fight the government to get their money back.

Part 2: One training firm started a private intelligence-sharing network and helped shape law enforcement nationwide.

Part 3: Motorists caught up in the seizures talk about the experience and the legal battles that sometimes took more than a year.

The ILB totally missed the series (although it has followed the topic closely), until this weekend when the Post ran an opinion piece headed "Government self-interest corrupted a crime-fighting tool into an evil." It begins:
John Yoder was director of the Justice Department’s Asset Forfeiture Office from 1983 to 1985. Brad Cates was the director of the office from 1985 to 1989.

Last week, The Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to General Law Related

Ind. Gov't. - More on: The state budgeting process for the 2015-2017 state budget is underway

Supplementing this ILB post from Sept. 17th, Niki Kelly of the Fort Wayne Journal Gazette had a long, informative story Sunday on the budget-making process now underway under Governor Pence.

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Indiana Government

Ind. Gov't. - More on: What about Domestic violence budget cuts?

Updating this ILB post from Friday, there were several news reports this weekend about the Friday meeting of the Indiana Criminal Justice Institute, which controls disbursement of the already appropriated domestic violence funds. From a story by Marisa Kwiatkowski and Tim Evans in the Sept. 19th Indianapolis Star:

One by one Friday, domestic violence advocates walked to the front of a crowded meeting room and pleaded with directors of the Indiana Criminal Justice Institute to release money intended to fund shelters and help abuse victims.

The institute's proposed funding, they said, can't meet the growing demand for services, spurred in part because of publicity surrounding Ray Rice and other NFL players who face accusations of domestic violence.

But the advocates, who have been forced to turn away victims and cut programs, left the meeting with no guarantees.

The board voted to give Hoosier domestic violence programs about $2 million, which is about $1.2 million less than what is available and less than the panel charged with reviewing their grant requests recommended.

Board members left the door open on providing additional funds — if the groups provide more details to justify how they will spend the money.

Advocates entered the meeting fearing the state was poised to hold back money they desperately needed. They left wondering why the institute's leaders suddenly demanded more information. * * *

After the meeting, Mark Stuaan, an attorney and chair of the board's Victim Services Division Committee, explained the board voted to award about $2 million in grants to 42 agencies to be used for shelters, counseling and other services.

Stuaan said the board deferred making a decision on whether to give money to 11 other agencies that had not previously received funding. He said the board felt the budgets for those agencies lacked sufficient information or detail, but there were no suspicions or allegations of inappropriate conduct.

In addition, the board also is requesting more information from the other 42 agencies.

Board chairman John Hill said the justice institute will provide guidance next week to agencies on what information is needed.

Berry said advocates also want an explanation for why about $344,000 in money intended for domestic violence programs was returned last year to the state general fund. There was some confusion Friday among board members about why the funds were reverted.

State Budget Director Brian Bailey told the board the state is looking into the matter. He said officials are trying to determine whether the reversion "should or shouldn't have happened." * * *

After the meeting, Christy Denault, communications director for the governor, acknowledged the funds were "mistakenly reverted at the end of the 2014 fiscal year." She said in an email reply to a question from The Star that the error "came to the attention of the Office of Management and Budget yesterday."

That office, she said, "is reviewing and will restore those funds."

Niki Kelly of the Fort Wayne Journal Gazette reported:
The Indiana Criminal Justice Institute released $1.9 million in domestic violence grants Friday but left more than a $1.1 million on the table while shelters are turning away victims.

John Hill, deputy chief of staff to Gov. Mike Pence and chair of the ICJI Board of Trustees, promised on behalf of Pence that no domestic violence funds will be reverted – or returned to the state’s savings account – in this fiscal year.

That came after state budget Director Brian Bailey admitted that $340,000 was reverted in the recently ended fiscal year 2014, possibly against the law.

He said his office is reviewing the matter, and the Pence administration might restore the funding.

ICJI board member AmyMarie Travis – Jackson County prosecutor – said she is baffled that the question hasn’t already been answered since the issue was brought up to key officials months ago.

In addition to the reversion, $448,000 is still sitting in the account from last year that wasn’t spent. That is part of the $1.1 million now awaiting release.

Bailey said there were no requests for the funds, which drew loud laughter from dozens of advocates supporting domestic violence services who attended the Friday meeting.

They angrily stressed that while individual shelters are receiving the same amount as last year, the Indiana Criminal Justice Institute is holding back additional funds the legislature appropriated in 2013.

“This is the second year in a row that all the money hasn’t gone out,” said Laura Berry, executive director of the Indiana Coalition Against Domestic Violence. “The programs are desperate, and it’s prudent we get that money out as soon as possible.”

ILB: As the ILB tweeted Saturday:
Administration reversion of already appropriated domestic violence funding echos reversions reported last month of adoption subsidy funding...

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (4):

Jason L. Wanzell v. State of Indiana (NFP)

Davarius L. White v. State of Indiana (NFP)

Robert Abbey v. State of Indiana (NFP)

Juan Martinez v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 19, 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, September 19, 2014. It is two pages (and 25 cases) long.

One transfer was granted last week:

See also this ILB post from Friday re one of the cases not granted transfer, headed Supreme Court lets COA ruling in Dram Shop Liability case stand."

Posted by Marcia Oddi on Monday, September 22, 2014
Posted to Indiana Transfer Lists

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

From Sunday, Sept. 22, 2014:

From Saturday, Sept. 21, 2014:

From Friday afternoon, Sept. 20, 2014:

Posted by Marcia Oddi on Monday, September 22, 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 9/22/14):

Thursday, Sept. 25

Next week's oral arguments before the Supreme Court (week of 9/29/14):

Thursday, Oct. 2

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/22/14):

Tuesday, September 23

Friday, September 26

Next week's oral arguments before the Court of Appeals (week of 9/29/14):

Tuesday, Sept. 30

Wednesday, Oct. 1

Thursday, Oct. 2

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, September 22, 2014
Posted to Upcoming Oral Arguments

Sunday, September 21, 2014

Ind. Law - ILB Legislative Research Shortcuts Updated; More Research Hints (read carefully)

The ILB has updated its simplified research ("shortcuts") page, "The Indiana Law Blog's Legislative Research Shortcuts."

This ILB post supplements and updates this August 4, 2014 post, which was headed "Trying to use the 'updated' online Indiana Code is incredibly frustrating." One of the major problems mentioned in that post has now been corrected. The "4 boxes", where you can type in a Code citation and go directly to the section, is now working properly.

Unfortunately, you can't link directly to the "4 boxes" search form. But you can access it by going to the main GA page, then selecting "Code" from the upper right corner.

One more thing. There is a secret, although perhaps not intentionally so, Indiana Code advanced search page. Access it here.

Here is a list of earlier ILB entries on the Legislative Research Shortcuts page.

Posted by Marcia Oddi on Sunday, September 21, 2014
Posted to Indiana Government | Indiana Law

Saturday, September 20, 2014

Ind. Decisions - More on: "ACLU asks for federal recognition of Indiana same-sex marriages"

In this ILB post from July 11, the ILB links to a letter of that date sent by the Indiana ACLU to U.S. AG Eric Holder asking for a statement of federal recognition for Indiana same sex marriages performed in Indiana between June 25th and 27th.

This would be similar to the recogition Attorney General Eric Holder granted on March 28th regarding the status of same-sex marriages that had been performed in the State of Michigan a few days earlier:

I have determined that the same-sex marriages performed last Saturday in Michigan will be recognized by the federal government. These families will be eligible for all relevant federal benefits on the same terms as other same-sex marriages.
But AG Holder has not responded to the Indiana request, or that of two other states. A long, Sept. 19th article in the Washington Blade by Chris Johnson reports:
Holder has already announced that the Obama administration would recognize same-sex marriages performed in Utah and Michigan following court rulings in those states that allowed marriage equality before stays were imposed on the decisions. But no such announcement has been made for same-sex marriages performed in Arkansas, Indiana and Wisconsin, where courts have similarly allowed same-sex couples to marry for brief periods of time.

Posted by Marcia Oddi on Saturday, September 20, 2014
Posted to Indiana Decisions

Friday, September 19, 2014

Ind. Decisions - Supreme Court lets COA ruling in Dram Shop Liability case stand; more

The ILB has just learned that the Supreme Court has denied transfer in the case of Pierson v. Service America (49A02-1307-CT-00561). This is a case involving dram shop liability, here is the ILB summary of the May 21st Court of Appeals opinion, including:

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

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

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

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

The vote of the Supreme Court was 4-1, with Justice Massa voting to grant transfer.

And in another case, according to this news report last evening from WTHITV 10:

The Indiana Supreme Court will review a Valley high-profile child abuse case.

The state’s top court agreed to review the case against Larry Russell of Terre Haute. He and his wife Nikki pleaded guilty to neglect and criminal confinement charges.

The court of appeals overturned Larry Russell’s 10 year prison sentence. The court felt his plea agreement did not follow state law.

The Supreme Court’s decision to take on the case means both the appellate and trial courts rulings are vacated.

Here is the ILB summary of the COA opinion in Larry D. Russell, Jr. v. State of Indiana (84A01-1312-CR-532).

ILB Comment: Presumably, both these cases and a number of others will be listed on the Clerk's Transfer List, which likely will be available to the public sometime Monday morning.

Back in the day, several clerks ago, the transfer list used to be available on Friday afternoons. Just saying...

The SCOTUS goes a step further, making publicly available the list of cases it will be considering in conference, followed after the conference with a list of those acted on.

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

Ind. Courts - Information on judicial retention - where is the birth date?

The ILB has been looking at the Court's judicial retention site for 2014 and notices that it does not list the birth dates of the judges and justices up for retention in November.

As I posted in 2010 and in 2012 in commenting on the Court's previous retention websites:

I would have liked to see: (1) The age of each judge. By law, an appellate judge must retire at age 75. Thus, whether a judge will be able to finish his/her term is a fact voters should be able to take into consideration.
Again this year, that information has not been made available for the voters on the retention website.

(Notably, this year's Supreme Court Annual Report does list, for the first time, the birth dates of the five current justices. See pp 4 and 5.)

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Indiana Courts

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

For publication opinions today (2):

In City of Mitchell v. Randy Phelix, a 15-page opinion, Judge Barnes writes:

The City of Mitchell (“the City”) appeals the trial court’s denial of its complaint for declaratory judgment related to Randy Phelix’s claim for medical expenses. The Indiana Association of Cities and Towns and the Indiana Municipal Lawyers Association filed an amici curiae brief in support of the City. We reverse.

The City raises two issues, which we revise and restate as whether the trial court properly found that the City was required to pay Phelix’s medical expenses under Indiana Code Section 36-8-4-5. * * *

We recognize the inconsistency here—PERF apparently determined that Phelix’s medical condition was at least in part a result of his employment, but the worker’s compensation carrier determined that his medical condition was not related to his employment. However, that inconsistency would have been better addressed by Phelix exhausting his administrative remedies in the worker’s compensation proceedings. Where the statutes are unambiguous, as here, we are constrained to apply the statutes as written. The trial court erred when it concluded that Phelix was entitled to have the City pay his medical bills under Indiana Code Section 36-8-4-5 despite the worker’s compensation carrier’s denial of his claim.

Conclusion. The trial court erred when it determined that the City was required to pay Phelix’s medical expenses under Indiana Code Section 36-8-4-5. We reverse.

In JDN Properties, LLC v. Vanmeter Enterprises, Inc., an 11-page opinion, Judge Barnes writes:
JDN Properties, LLC, (“JDN”) appeals the trial court’s grant of summary judgment in favor of VanMeter Enterprises, Inc. (“VEI”). We reverse and remand.

The sole restated issue before us is whether there is any evidence VEI caused or contributed to ground pollution in land that VEI sold JDN, as required to support JDN’s claim against VEI under Indiana’s Environmental Legal Actions (“ELA”) statute. * * *

To the extent VEI implies that a party seeking recovery under the ELA must prove that a defendant both caused or contributed to pollution and had knowledge of such pollution,4 the plain language of the statute does not require both. Rather, we believe knowledge of pollution is one way in which an owner of land may be held liable under the ELA for causing or contributing to hazardous pollution, under circumstances like those present here. Because there are genuine issues of material fact as to whether VEI had actual knowledge of petroleum contamination caused by its tenant, whether such contamination occurred during VEI’s ownership of the land and whether the contamination discovered in 2009 was the same contamination discovered between 1988 and 1991, it was improper to grant VEI’s motion for summary judgment.

Conversely, we reject JDN’s claim that it is entitled to summary judgment in its favor. The evidence we have described is conflicting as to whether VEI had knowledge of a petroleum leak occurring during its ownership of the land. Thus, there are genuine issues of material fact still to be resolved as to whether VEI caused or contributed to the petroleum contamination and a grant of summary judgment in JDN’s favor would be inappropriate.

Conclusion. There are genuine issues of material fact in this case regarding whether VEI caused or contributed to the ground contamination discovered by JDN in 2009. We reverse the grant of summary judgment in favor of VEI on JDN’s claim under the ELA and remand for further proceedings.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: K.C. & K.G. (minor children), and R.G. (mother) & T.G. (father) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Coverage of two of yesterday's Supreme Court oral arguments

Dan Carden of the NWI Times has stories today about two of the cases argued yesterday before the Indiana Supreme Court.

In a story headed "Fate of 3,800 Lake adoptions hangs on Indiana Supreme Court" Carden reports:

The Indiana Supreme Court heard oral arguments Thursday in a dispute that could void 3,800 Lake County adoptions approved over the past 14 years.

At issue was whether state law and local court rules authorized the Lake Superior Court's juvenile division to assent to the adoptions, alongside its other statutory tasks of ruling in child abuse and neglect cases and overseeing paternity and child support matters.

Backed by a March Court of Appeals ruling in his favor, attorney Larry Stassin, of Dyer, argued state law puts adoption cases solely under the jurisdiction of probate court, which administers wills.

Lake County does not have a dedicated probate court. Instead, probate matters are lumped into the civil division of Lake Superior Court.

"I cannot find a statute that conveys jurisdiction in adoption proceedings to the juvenile court," Stassin said.

Deputy Attorney General Robert Henke argued Stassin is misreading the law.

He said probate jurisdiction isn't limited to the civil division but resides with the Lake Superior Court, which contains both the civil and juvenile divisions, along with criminal and county divisions.

As a result, the Superior Court is not required to send adoption cases to civil court and can direct adoptions to juvenile court, so long as the action is authorized by local caseload management rules, as it is in Lake County, Henke said.

The high court's five justices focused most of their questions on how they could authorize the Lake juvenile court to approve adoptions when they previously let stand a 2006 Court of Appeals decision that explicitly denied juvenile courts the authority to finalize adoptions.

You can review the oral argument in Adoption of J.D. here.

In a story headed "Should annoying drinkers go to jail?," Carden reports:

What does it mean for a drunk person to "annoy?"

Does singing badly in a karaoke bar count? Yelling in a library? How about sleeping it off at a bus stop when no one else is around?

The Indiana Supreme Court will have the final say after hearing oral arguments Thursday in a challenge to the state's 2012 public intoxication law, making it a misdemeanor crime if a person is drunk in a public place and "harasses, annoys or alarms another person."

Rodregus Morgan, 52, of Indianapolis, was convicted of public intoxication after an Indianapolis police officer encountered him sleeping in a downtown bus shelter two years ago.

The officer said he smelled alcohol on Morgan's breath and was annoyed that Morgan became agitated and was reluctant to leave the shelter when directed.

Suzy St. John, Morgan's attorney, argued to the high court that the public intoxication statute is unconstitutional because the term "annoy" is not defined in the law. St. John also argued it sets an unknowable standard ripe for abuse because what may annoy one person might not bother another.

"To a sober person, just seeing an intoxicated person might be annoying," St. John said. "I consider myself a reasonable person, and seeing someone sleeping at a bus stop wouldn't annoy me at all."

Deputy Attorney General George Sherman admitted the law likely is unconstitutional -- as the Court of Appeals concluded 3-0 in February -- but he urged the justices to save it by attaching a "reasonable person" standard.

You can review the oral argument in Morgan v. State here.

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Indiana Courts

Ind. Gov't. - Still more on: "Porter Co. prosecutor says he’s exempt from anti-nepotism laws " What of "domestic partners"?

Referring to the July 11, 2012 memo from State Court Administration to "Judicial Officers" re whether the new county nepotism law applies to judges and judicial employees, which the ILB posted yesterday, an attorney reader points to the Code of Judicial Code, Rule 2.13, cited in the memo, which reads [emphasis added]:

RULE 2.13: Hiring and Administrative Appointments

(A) In hiring court employees and making administrative appointments, a judge:

(1) shall exercise the power of appointment impartially and on the basis of merit; and

(2) shall avoid nepotism, favoritism, and unnecessary appointments.

and Comment 2:
[2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge's spouse or domestic partner, or the spouse or domestic partner of such relative.
Earlier in the Code, this defintion is provided:
Domestic partner” means a person with whom another person maintains a household and an intimate relationship, other than a person to whom he or she is legally married.
As the attorney reader points out, the Code mentions:
... domestic partnership relationships when the State doesn't, and when no there are no state domestic partnership benefits.
ILB: Looks like a good point.

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - More on: "State files licensing action against four Indiana physicians for violations of abortion record-keeping, advice and consent laws"

Updating this ILB entry from yesterday, which quoted from AG Zoeller's news release, the Indianapolis Star today has this story by Shari Rudavsky, headed "Complaints against doctors could make abortion rarer."

You think?

A quote from the story:

Until the Medical Licensing Board holds a hearing scheduled for Dec. 4, the licenses of the four doctors will remain active. The board will decide whether to take action, which could range from a reprimand to revoking the license to practice.

With only a few clinics operating in the state, such a move could have an impact. “We don’t even know how many people have chosen not to provide abortion care because they have been seeing what’s going on, the pressure the state is putting on abortion providers,” said Dr. Sue Ellen Braunlin, co-president of the Indiana Religious Coalition for Reproductive Choice.

Whittling down the number of abortion providers would make it more difficult for women who undergo the procedure to do so safely, said Betty Cockrum, president and chief executive officer of Planned Parenthood of Indiana and Kentucky, which has no connection to the Clinic for Women.

“The more these activists are successful at reducing the number of providers in Indiana, the more difficult they make it for women to have access to a safe abortion,” she said.

State law closely regulates how abortion providers must report procedures to the Indiana State Department of Health and in recent years, new reporting requirements have been added by the legislature.

For instance, see these ILB posts from the 2013 and 2014 sessions.

Today Emily Shire of The Daily Beast has this long story, headed "Indiana’s Crazy Administrative Abortion Demands Have Doctors Racking Up the Violations." Some quotes, but there is much more worth reading in the story:
These four physicians are facing potential loss of their medical license for “violations of abortion record-keeping and advice and consent laws,” according to a press release from Zoeller’s office.

These violations essentially stem from unsatisfactory patient paperwork. Under Indiana law, abortion providers must fill out an extensive Terminated Pregnancy Report (TPR). The state charges that the aforementioned doctors have failed to complete these forms within the established guidelines.

While some of the information requested is pertinent, such as the type of termination procedure and date of procedure, other categories seem more onerous: name of the father, age of the father, number of previous abortions and/or miscarriages a woman may have had, and dates of said abortions. Additional information required seems bluntly biased, such as “post-fertilization age of fetus” and “information as to whether the fetus was delivered alive.”

The violations also stem from submission of TPRs past the state-mandated deadline. Under Indiana law, TPRs for abortions performed between January 1 and June 30 must be submitted to the State’s Department of Health by July 30, and TPRs for abortions performed from July 1 through December 31 no later than January 30.

The Indiana Attorney General’s office appears to be taking its cue in their complaints against Klopfer, Glover, Pasic, and Robinson from state and local Right to Life groups. The nature of the violations almost entirely stem from the alleged failure to properly complete a TPR or for filing one too late, a tactic anti-abortion groups have used in the past against abortions providers within the state, including Klopfer.

Also somewhat related is this Aug. 17th story from the Winston-Salem NC Journal, which begins:
After passing laws imposing new conditions on abortions and elections, taking away teacher tenure and providing vouchers for private school tuition, Republican state legislators have seen those policies stymied in state and federal courtrooms.

So they have passed another law, this one making those kinds of lawsuits less likely to succeed when filed in state court. Beginning in September, all constitutional challenges to laws will be heard by three-judge trial court panels appointed by the chief justice of the state Supreme Court.

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Indiana Government

Ind. Courts - Some Highlights of the Indiana Supreme Court’s 2013-14 Annual Report

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

Just about two and a half months after the Indiana Supreme Court’s fiscal year ended, the Court released its annual report Thursday morning. Last year’s report was issued on November 4 and summarized in this post.

During the past year the court received, primarily through petitions to transfer, 300 civil cases (36%) and 523 criminal cases (64%), very similar to the numbers of civil and criminal cases last year. But the justices were far more likely to grant transfer and issue opinions in civil cases. The Court issued 49 civil transfer opinions (60%) compared to just 33 criminal transfer opinions (40%). Last year was more closely divided between civil (35 opinions or 54%) and criminal (30 opinions or 46%).

The number of opinions written by each justice during the past year was similar to the previous year, with the exception of Justice Rush, who had served only a partial year in 2012-13: Justice David (19), Chief Justice Dickson (18), Justice Rush (15), Justice Massa (14), and Justice Rucker (13). Perhaps most surprising was the division between civil and criminal, as Chief Justice Dickson and Justice Massa, who spent most of his professional life working as a prosecutor, wrote about 70% of their transfer opinions in civil cases. Justices Rucker and David authored slightly more criminal than civil opinions, and Justice Rush was even split.*

The court heard oral arguments in 80 cases this past year compared to 72 the previous year. Roughly the same percentage of arguments (20% this year; 19% the previous year) were held before deciding whether to grant transfer.

The report includes several photographs of the justices fulfilling their various duties. As this photograph of the Court's weekly conference shows (page 21), hundreds of pages of paper filings are considered by the justices each week. Within the next couple of years, those stacks of paper will likely be replaced with iPads or laptops. As explained on page 31 of the report:

The Supreme Court also launched a major effort this fiscal year to develop statewide electronic filing standards for both appellate and trial courts. An advisory committee completed a comprehensive revision of rules for e-filing and submitted the draft to the Committee on Rules of Practice and Procedure. The Rules Committee published the proposed rules for comment and will eventually submit their recommendation to the Court.
_________________
*The numbers for Justice Rush in the chart on page 14 appear inconsistent with the list of cases on page 20. Although the chart notes ten civil opinions, only the following seven cases are civil as I understand the term: Adoption of C.B.M., Schwartz, Kesling, Fulp, In re S.D., In re E.M., and Andrews. The following seven cases (not four as in the table) were criminal transfers: N.L., Becker, I.T., Ramirez, Brewington, McIlquham, and Berry. According to Appellate Rule 2(G), Juvenile Delinquency (JD) cases are considered criminal appeals. The report appears to count the two delinquency cases (and one other case) as civil cases.

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Schumm - Commentary

Ind. Gov't. - "Indiana settles DCS adoption suit for $15 million"; What about Domestic violence budget cuts?

The ILB has a number of earlier posts under the heading "1,400 Indiana families sue Indiana DCS for unpaid subsidies." This post from Aug. 14, quoting a FWJG editorial, gives a good overview. It ends:

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.
Late yesterday, Tom LoBianco of the AP reported:
INDIANAPOLIS — The Indiana Department of Child Services announced Thursday it has reached a settlement with adoptive families who alleged the state had reneged on promised payments.

The state will pay $15.1 million to about 1,800 families who adopted special needs children. The settlement was filed in LaPorte Superior Court on Thursday afternoon and still needs court approval.

The settlement follows shortly after Gov. Mike Pence announced last month that the state would resume paying subsidies to the adoptive families.

The state took over adoption subsidies in 2009 from the counties but did not continue the practice of paying additional aid for families who adopted special needs children, which ultimately led to the lawsuit. The settlement covers payments dating back to 2009. * * *

Irwin Levin, the Indianapolis lawyer who filed the suit, said in a statement that the deal "will help adoptive families provide for the physical and emotional needs of the children. We're very happy the Governor and Director Bonaventura were cooperative and agreed to get the adoptive families the help they need."

Virginia Black of the South Bend Tribune has a comprehensive story here.

ILB: The domestic violence budget cuts issue (see ILB post here) was also briefly in the news yesterday, with an IndyStar reporter initially tweeting: "BREAKING: Anti-domestic violence group says state has agreed to restore funding it had planned to withhold," but an hour later tweeting "The governor's office is now saying there is no agreement with anti-domestic violence group on funding. I'm trying to sort this out."

TomLoBianco of the AP reported late yesterday:

INDIANAPOLIS – An advocate for victims of domestic violence said her group reached agreement Thursday with Indiana officials over funding for the private agencies serving them, but a state official denied there was a deal.

Indiana Coalition Against Domestic Violence director Laura Berry said that her group has reached a deal with the state that avoids about $1 million in cuts that had been planned.

The issue was poised to boil over Friday at a meeting of the Indiana Criminal Justice Institute's board of trustees. But Barry said the deal calls for a separate meeting in two weeks where all of the $3.5 million allocated by lawmakers will be approved by state officials.

Advocates have said the administration of Gov. Mike Pence had been poised to cut roughly $160,000 in funding and place a hold on another roughly $826,000 in aid for 53 domestic violence shelters around the state.

Spokesman Gary Abell of the Indiana Criminal Justice Institute, which administers the funding, disputed Berry's contention.

"Nothing has changed," Abell said Thursday evening. He said the funding was still up for discussion at Friday's meeting.

Abell also said no further meetings were planned.

Earlier in the day, he had said there was never a plan to cut any funding and added that the $826,000 was only being held until shelters could show how they planned to use the money.

The fight over state funding for domestic violence cropped up amid the national debate over the NFL player Ray Rice's suspension for domestic abuse. It also stems from budget constraints in Indiana, which many Democrats and social services advocates say have been artificially created by Republicans.

Pence has continued a practice of cutting agency budgets at the start of each year to maintain the state's significant cash reserves. The state has maintained a $2 billion cash savings, even as tax collections have fallen off.

Pence's budget director told other members of the State Budget Committee last month that state agencies were already preparing for cuts again this year unless tax collections improve.

Posted by Marcia Oddi on Friday, September 19, 2014
Posted to Indiana Government

Thursday, September 18, 2014

Ind. Courts - "At IU McKinney today for this year’s Government Practice Section Debate. 2014 topic: Judicial Selection"

For those of you who didn't follow this on Twitter, @IndyBar has tweeted from a debate today between former Indiana Supreme Court Justice Ted Boehm and Tom John of Ice Miller. Here are the tweets, read in reverse order. Check out the photos.

Big thanks to Justice Boehm, Tom John & Judge Oakes. Great display of civility while discussing a hot topic! pic.twitter.com/pwrgzn3f9E

In addition to our esteemed debaters, great questions are coming in from former Justice Sullivan, Judge Baker & variety of top notch attys.

John: Need more confidence in judiciary? Require more disclosure. Judges unlikely to jeopardize careers over small donations from lawyers

Boehm: Current system won’t survive constitutional attack bc it places meaningful vote only in the hands of those who associate with a party

John: if your premise is that election system is a bad process, shouldn’t the judges it produces also be bad? Not the case in Marion county

Now Tom John gets his shot, presenting the case for electing judges. pic.twitter.com/1bNTXFwolR

Boehm: elections cause judges to be in the business of raising money. Who do they raise money from? Lawyers.

Justice Boehm is up first, arguing for merit selection. pic.twitter.com/Hf0QGswARx

Judge Tim Oakes introduces today's debaters: former Sup Ct Justice Ted Boehm & Tom John of Ice Miller. pic.twitter.com/lHAGGyW7Yl

We’re at @IUMcKinney today for this year’s Government Practice Section Debate. 2014 topic: Judicial Selection.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Courts

Environment - "Single-Stream Recycling Is Easier for Consumers, But Is It Better?"

See this article by Sarah Laskow in The Atlantic.

"Indy sued over $45M recycling center deal" was the heading of this Sept. 12th ILB post.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Environment

Ind. Decisions - Tax Court decides one today

In Nick Popovich v. Indiana Department of State Revenue, a 15-page opinion in a lawsuit initiated in 2010 in which there have been several rulings (here is the docket), Judge Wentworth writes:

This matter concerns Nick Popovich’s motion for default judgment, costs, and attorney’s fees as sanctions for the Indiana Department of State Revenue’s purported spoliation of evidence and discovery abuses. The Court denies Popovich’s motion. * * *

As the Court has noted previously, the discovery process in this case has been acrimonious. See Popovich v. Indiana Dep’t of State Revenue (Popovich II), 7 N.E.3d 419, 423 (Ind. Tax Ct. 2014), reh’g denied, 13 N.E.3d 954 (Popovich III) (Ind. Tax Ct. 2014). Indeed, the parties have used the discovery process not as a mechanism to unearth all relevant facts and evidence, but rather as an opportunity for gamesmanship, which engendered secrecy, incivility, and distrust. While the Court does not condone this behavior, it cannot infer from the facts before it that the Department intentionally or even negligently destroyed, mutilated, or altered Popovich’s 2003 transmittal envelope. Nor can the Court infer from the facts that the Department conspired to supplant Popovich’s 2003 transmittal envelope with his ex-wife’s transmittal envelope. Accordingly, Popovich has not shown that the Department’s discovery misdeeds warrant the entry of a default judgment and an award of all litigation expenses, including attorney’s fees.

Conclusion. For the above stated reasons, the Court DENIES Popovich’s Motion for Trial Rule 37 Sanctions, Including Judgment and Fees. The Court will schedule, by separate order, an Indiana Trial Rule 37(A)(4) hearing on the propriety of expenses given its resolution of Popovich v. Indiana Department of State Revenue (Popovich I), 7 N.E.3d 406 (Ind. Tax Ct. 2014), Popovich II, and Popovich III.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Gov't. - "Starke County Settles Lawsuit With Former Treasurer"

The ILB has had a long list of posts, the most recent from Oct. 25, 2012, on the removal of Starke County Treasurer Linda Belork from office in 2011, and her reinstatement by court order on Oct. 18, 2012.

Today Mary Perren reports for WKVI K99.3:

Starke County officials have settled the lawsuit filed by a former elected official. Linda Belork was exonerated of wrongdoing in 2012 after the Starke County Commissioners removed her from office in August of 2011.

That action was prompted by fund balance discrepancies discovered in a state audit of the Starke County Treasurer’s office. Further investigation found a clerical error was to blame for the missing money. Belork filed a counterclaim against the county, and both sides agreed to work with a court-appointed mediator in an attempt to resolve the issue. Court records indicate an agreement was reached last Thursday, Sept. 11. On Monday the Starke County Council approved a request from the commissioners to transfer $138,000 from the county’s rainy day fund to settle the lawsuit. County attorney Marty Lucas is hopeful this will resolve the issue.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Government

Ind. Gov't. - More on: "Porter Co. prosecutor says he’s exempt from anti-nepotism laws "

Updating this post from a few minutes ago, Lafayette attorney Doug Masson has sent along this July 11, 2012 memo from State Court Administration to "Judicial Officers" re whether the new county nepotism law applies to judges and judicial employees.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Courts | Indiana Government

Ind. Courts - Supreme Court hears argument on the meaning of "annoying" in our public intoxication statute

Oral argument took place this morning in the case of Rodregus Morgan v. State of Indiana. This is the case the ILB posted about yesterday, here.

If you want to watch an example of a good oral argument, with the attorneys and justices all actively engaged, it is now available for viewing here.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Courts

Ind. Gov't. - "Porter Co. prosecutor says he’s exempt from anti-nepotism laws "

An interesting story today by Amy Lavalley of the Gary Post-Tribune. Read it all; this part particularly caught my eye (the employment bifurcation comes up often in county budgeting disputes involving local judges):

VALPARAISO — Porter County Prosecutor Brian Gensel’s sons are working in his office, taking files home and digitally scanning them so they can be archived.

Gensel said he isn’t covered by a state law or a county ordinance against nepotism in public offices and doesn’t have to file an affidavit with the county that he will abide by those rules.

“The prosecutor actually is technically employed by a judicial circuit” and is exempt from the law, he said, citing a ruling by the Indiana Prosecuting Attorneys Council to that effect. “I’m a state employee. I get a $5,000 supplement (from the county), but that doesn’t make me a county employee.”

As for the anti-nepotism rules, Gensel said he didn’t think they were “meant to cover part-time teenage jobs.”

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Government

Ind. Gov't. - Purdue student points out what should have been obvious to all

Stacy Bogan, a Purdue University student from West Lafayette, has an excellent guest opinion piece today in the Lafayette Journal & Courier:

The current and former commissioners for Indiana’s higher education system have proposed a bizarre solution to the problem of low degree completion rates among community college students.

In Teresa Lubbers and Stan Jones’ Sept. 14 guest column, they note that “students who take 15 or more credits per semester earn better grades, are more likely to stay enrolled in school, and ... are far more likely to graduate (than those carrying 12 credits)”. These commissioners have concluded that all students should, therefore, carry a 15-credit course load.

This is illogical. It’s akin to saying to a group of people who couldn’t haul 12 pounds of rocks up a hill, “Oh, if you’d been hauling 15 pounds of rocks, you would have succeeded.”

A more intelligent approach would be to look at the factors that distinguish students taking 15 credits from those taking 12.

I’m a returning adult student (at Purdue University), so I match the profile of community college students, 70 percent of whom are older than 22, 27 percent of whom have children, and 17 percent of whom are single parents. The commissioners asserted that our population takes 12 credit hours because we are have been discouraged from working harder. I can tell you that I am taking 12 credits because I have a job, children, house and older parents to care for.

Loans help, but the cost of attendance on which financial aid is based is wildly inaccurate. Housing and food are supposed to cost me $9,370, travel $210 and miscellaneous expenses $1,550. So $11,130. But I have two children. The federal poverty level for a family of three is $19,790 — cost of living calculations for adult students with children ought to bring me up to at least that level. But they don’t. I’m allowed to borrow an additional $5,000 to pay for child care, but nothing for feeding them. Never mind shoes, bicycles and the time my daughter broke her arm. Last year I had to buy a new hot water heater. If I hadn’t had some cash reserves when I enrolled at Purdue, I would have had to quit (hot water’s not exactly optional).

It may be true that students who can carry 15 credits successfully are more likely to graduate. It’s not because of the credits, though; it’s because they had more money and fewer demands on their time to begin with. Excluding everyone else might improve graduation rates, but only because the pool of participants will be drastically smaller.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Government

Environment - "Construction project aimed at preventing Asian carp from migrating through Fort Wayne and reaching the Great Lakes"

Brian Francisco of the Fort Wayne Journal Gazette reports:

The U.S. Army Corps of Engineers is spearheading the Eagle Marsh project as a means of controlling the spread of invasive species that compete for food and habitat with native species. Asian carp have been seen swimming in the Wabash River, which connects to Eagle Marsh through the Little River. No carp have been found in the Little River.

Eagle Marsh also drains into the Maumee River, which flows to Lake Erie. The fear is that if carp would reach the wetland on the southwest outskirts of Fort Wayne, flooding could carry them to the Junk Ditch, the Maumee and Lake Erie, where they would threaten commercial and recreational fishing.

Plans are to rebuild nearly 9,100 feet of berm, obstructing a potential path for Asian carp.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Environment | Indiana Government

Ind. Gov't. - More on "Indiana Toll Road operator weighs bankruptcy, sale"

Updating this ILB post from Sept. 15th, Rick Callahan of the AP has a story today that reports:

INDIANAPOLIS – The state agency that oversees the Indiana Toll Road has given the highway’s debt-saddled private operator until late November to prove that it’s meeting its debt obligations amid reports that the company is considering filing for bankruptcy and selling off its multibillion-dollar Toll Road lease.

The Indiana Finance Authority sent a letter Aug. 26 to ITR Concession Co. giving the company 90 days to show that it can meet its obligations to its lenders in compliance with the company’s lease responsibilities, said Jim McGoff, the authority’s Toll Road oversight director. * * *

The Wall Street Journal reported last week that ITR Concession, based in Granger, was weighing a possible bankruptcy filing as company officials work to reduce their roughly $6 billion debt load through a debt restructuring that could set the stage for it to sell its Toll Road lease.

McGoff said the Finance Authority is aware that the company and its lenders “are in the process of finalizing negotiations for a debt settlement.”

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Government

Courts - SCOTUS sends "Mixed signals on same-sex marriage"

Lyle Denniston of SCOTUSblog has an interesting commentary today that begins:

If Justice Ruth Bader Ginsburg was speaking for the Supreme Court on Tuesday night in Minnesota about how the Justices will deal with the same-sex marriage issue this Term, the question just may go untouched for a time. She seemed to be saying that, until there is a fresh split among federal appeals courts on the issue, there would be no need for the Court to move with dispatch to confront the constitutional controversy.

Those comments appeared to run directly counter to the impression the Court gave only a week earlier, when it rushed its planning to take up the question at its first Conference of the Term on September 29. Without waiting for all of the filings to come in on cases from five states, the Court staff — probably not acting independently — referred all seven pending petitions for that early review. That is almost unprecedented, under the Court’s rules and normal procedures.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Courts in general

Ind. Gov't. - "Domestic violence budget cuts assailed"

Niki Kelly reports today in the Fort Wayne Journal Gazette, clarifying a dispute that arose yesterday. Some quotes:

INDIANAPOLIS – The Indiana Coalition Against Domestic Violence is crying foul over cuts in funding to shelters and victims implemented by Gov. Mike Pence’s administration. * * *

“I want everything that is due to the program,” said Laura Berry, executive director of the coalition. “Our demand for services is off the charts, and we are in critical need.”

She added that the last two years the coalition has had to fight with the Indiana Criminal Justice Institute to get all the money that is appropriated to it.

The institute is the state agency that oversees and distributes the funding through grants.

“This is the wrong time to be on the wrong side of this issue,” Berry said.

But the anti-domestic violence advocates and the Pence administration offered radically different budget data.

“The media is being fed inaccurate information,” Pence spokeswoman Kara Brooks said. “Gov. Pence did not order cuts to the domestic violence fund for reversions or any other purpose.”

Later, though, Indiana Criminal Justice Institute spokesman Gary Abel did confirm that $344,000 of funding for the domestic violence prevention and treatment program was reverted to aid the state’s bottom line at the end of fiscal year 2014 in June.

All agencies were told by Pence’s Indiana Office of Management and Budget to revert money – or not spend everything appropriated.

In fact, for the recently ended fiscal year, the Indiana Criminal Justice Institute reverted more than $500,000 of its funding, or 8 percent of its appropriation. That means the majority of that money came from the domestic violence program.

Abel said the money was reverted because there was no plan submitted on how to use it. He said the agency is working with the groups this year to avoid a recurrence.

Berry said more money is slated to be reverted this year – about $160,000. And overall more than $1 million is being held back pending further information.

Berry is especially upset because she and other groups lobbied legislators in 2013 for additional money and $700,000 was added annually to the current two-year budget. But she said Pence hasn’t let them spend it all.

The issue will come to a head Friday when the Indiana Criminal Justice Institute Board of Trustees – all appointed by Pence – reviews the latest program grants.

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Indiana Government

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

For publication opinions today (2):

In Cheryl Welton v. Midland Funding, LLC as Assignee of Chase Bank USA, NA as Issuer of Disney Consumer Credit Card, an 8-page opinion, Judge Barnes writes:

Cheryl Welton appeals the denial of her Indiana Trial Rule 60(B) motion for relief from judgment granted to Midland Funding LLC (“Midland”). We affirm. * * *

Welton contends she demonstrated mistake, surprise, or excusable neglect by explaining that the failure to respond to the motion for summary judgment was the result of a calendaring error attributable to her attorney while he was establishing a new firm. She also claims her first motion for relief for judgment demonstrated her meritorious defense—that she paid the debt in 2010. Welton asserts that, by filing the motion for relief from judgment, she simply was seeking “the opportunity to respond to Midland’s summary judgment motion where the failure to do so resulted from mistake and excusable neglect.” * * *

We believe that the plain language of Trial Rule 56(I) allows a trial court to alter a time limit if a motion for extension of time is timely filed. It does not vest a trial court with the discretion to allow a party to file an untimely response simply because he or she had previously filed a timely motion for extension of time. To hold otherwise, would create the very uncertainty our supreme court sought to avoid in Mitchell.

Even if Welton’s motion for relief from judgment had been granted, Welton would not have been permitted to belatedly respond or designate evidence in opposition to Midland’s motion for summary judgment. Without a response, it is hard to imagine how the outcome of the summary judgment proceedings would have been different. Because vacating the judgment would have been an empty exercise, Welton has not shown she has a meritorious defense to Midland’s motion for summary judgment. Taking this with the fact that the trial court had already granted Welton relief from judgment once and the fact that Welton specifically asked for and was granted an extension until January 14, 2013, but still did not file a response, leads us to conclude that the trial court did not abuse its discretion in denying her second motion for relief from judgment. * * *

Welton has not shown that the trial court abused its discretion in denying her motion for relief from judgment. Welton’s challenge to the underlying grant of summary judgment for Midland is not available for our consideration. We affirm.

In Michael W. Sloan v. State of Indiana, a 23-page, 2-1 opinion, Judge Brown writes:
Michael W. Sloan appeals his conviction and sentence for child molesting as a class A felony. Sloan raises two issues, which we revise and restate as: I. Whether the trial court abused its discretion by excluding certain evidence; and II. Whether the court abused its discretion in sentencing him. We affirm in part, reverse in part, and remand. * * *

Based upon the record, we conclude that the evidence that Sloan wished to elicit from his mother would not have had a probable impact on the jury, that the exclusion of this evidence did not affect Sloan’s substantial rights, and that the trial court did not abuse its discretion in excluding this testimony. See Mathis v. State, 776 N.E.2d 1283, 1286-1287 (Ind. Ct. App. 2002) (holding that the trial court properly excluded evidence that would not have had any impact on the verdict), trans. denied. * * *

We find the record does not support the aggravating circumstances found by the trial court. Accordingly, we conclude the court abused its discretion in enhancing Sloan’s sentence by five years and remand with instructions to impose the advisory sentence of thirty years.

CONCLUSION. For the foregoing reasons, we affirm Sloan’s conviction for child molesting as a class A felony, reverse the sentencing order, and remand with instructions to impose the advisory sentence of thirty years served in the Department of Correction. Affirmed in part, reversed in part, and remanded.

BARNES, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 19] I concur with the majority’s conclusion that the trial court acted within its discretion in excluding certain evidence from trial. However, I respectfully dissent from the majority’s conclusion that the trial court abused its discretion in sentencing Sloan.

NFP civil opinions today (1):

Robert F. Lynn, Linda S. Lynn, and Robert Lynn Company, Inc. v. Ronnie Shaffer and Jane Shaffer (NFP)

NFP criminal opinions today (4):

Terence W. Lowery v. State of Indiana (NFP)

Darryl S. Newell v. State of Indiana (NFP)

Deadrian Boykins v. State of Indiana (NFP)

Joseph Wayer v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 18, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, September 17, 2014

Ind. Gov't. - "State files licensing action against four Indiana physicians for violations of abortion record-keeping, advice and consent laws"

Some quotes from a press release this afternoon from Attorney General Zoeller's office:

INDIANAPOLIS – Attorney General Greg Zoeller’s Office today filed administrative licensing complaints with the Indiana Medical Licensing Board against four physicians for violations of abortion record-keeping and advice and consent laws. The complaints ask the board to consider appropriate disciplinary action against the medical licenses of these doctors operating in Lake, St. Joseph and Marion counties. * * *

Indiana law requires physicians performing abortion procedures to submit terminated pregnancy reports to the Indiana State Department of Health (ISDH) for statistical purposes and comply with other advice and consent requirements and record-keeping requirements.

Most of the complaints appear to be against Dr. Ulrich Klopfer of South Bend. However:
The AG’s Office also filed administrative licensing complaints today against Dr. Resad Pasic, Dr. Kathleen Glover and Dr. Raymond Robinson, all of whom perform abortion procedures in Marion County and are in alleged violation of similar record-keeping and advice and consent laws regarding abortion procedures.

The AG’s Office requests a disciplinary hearing in the cases filed today, but the doctors’ licenses to practice remain active until further action by the licensing board.

There appears to be quite a bit of paperwork now required in conducting these doctors' practices, for example:
Klopfer filed pregnancy-termination reports with ISDH on 1,818 abortion procedures he performed between July 2012 and November 2013, but the complaint notes that all 1,818 reports were incomplete and incorrect in some way. Each report contained on average four omissions or errors involving medical and statistical information that must be reported to ISDH for statistical purposes. For example, all of Klopfer’s reports failed to identify the name or age of the father, offering a prepopulated response of “unknown” instead.
The statute involved is IC 16-34-2, Requirements for Performance of Abortion; Criminal Penalties.

Here is the complete press release.

Posted by Marcia Oddi on Wednesday, September 17, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today

In State of Indiana v. Frank Greene, a 12-page, 5-0 opinion, Justice David writes:

Convicted of class B felony criminal confinement, Frank Greene alleged in his petition for post-conviction relief that his trial and appellate counsel provided ineffective assistance by failing to present allegedly controlling precedent from this Court and thus adequately challenge the sufficiency of the evidence underlying his conviction. Greene argued that had counsel submitted Long v. State, 743 N.E.2d 253 (Ind. 2001), to their respective courts, he would have obtained, at worse, a conviction for class D felony criminal confinement. Persuaded, the post-conviction court ordered his class B felony conviction reduced to a class D felony. The Court of Appeals affirmed [State v. Greene, Dec. 27, 2013], and the State appealed.

The validity of Greene’s post-conviction claim turns on the legitimacy of his argument that Long compelled a different result at trial. Specifically, he contends Long holds that in order for a defendant to be convicted of class B felony criminal confinement, the State must have proven beyond a reasonable doubt that serious bodily injury to the victim resulted when the victim was moved from one place to another. Concluding that Greene mischaracterizes Long, we find that the post-conviction court clearly erred in its judgment, as Greene’s counsel did not render ineffective assistance by failing to argue a misstatement of the law. * * *

As previously explained, the viability of Greene’s ineffective assistance of counsel claim turns on the strength of his assessment of Long, which he claims holds that serious bodily injury to the victim must occur during the course of the victim’s removal for a class B felony criminal confinement conviction to be upheld. Our review has revealed that Long and Redman actually hold that serious bodily injury to the victim must be sustained during the charged offense of criminal confinement: a defendant’s knowing or intentional forcible removal of the victim from one place to another. Thus, the victim must suffer serious bodily injury as the result of the act of forcible removal, whether or not the act of force occurs simultaneously with the act of removal.

What Greene argues his trial and appellate counsel should have argued, then, is not the law. By failing to present an incorrect interpretation of case law, Greene’s counsels’ conduct did not fall below an objective standard of reasonableness, and they did not render ineffective assistance. In deciding otherwise, the post-conviction court committed clear error. Under the facts of this case, the State presented more than sufficient evidence for the jury to infer that Greene’s act of force, i.e. his strangulation of Johnson, facilitated his removal of Johnson from one place to another and resulted in serious bodily injury to her.

Conclusion. We therefore reverse the post-conviction court’s modification of Greene’s conviction and sentence for class B felony criminal confinement.

Posted by Marcia Oddi on Wednesday, September 17, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - The state budgeting process for the 2015-2017 state budget is underway

Looking back at the 2013-2015 budget, one can access the initial requests of many of the agencies here.

For 2015-2017, all that is available online right now are the instructions sent out to the state agencies. The cover letter states that "it is imperative that agency budget requests be fully and timely completed by Friday, August 29 to assist in Governor Pence's submission of the next biennial State budget in the 2015 legislative session." The budgets are submitted electronically.

What happens next is detailed in this description of the budget preparation process on the State Budget Agency website (I have highlighted the time when I would anticipate public access to the agency submissions):

Budget Request Submission.

The budget process begins during even-numbered years with the State Budget Agency issuing Biennial Budget Instructions to state agencies. The instructions provide guidance to state agencies in submitting requests for funding. Each state agency prepares and submits a budget request, which includes a Current Services Budget, representing the cost of maintaining agency services at current levels. The budget submission may also contain New Services Requests, covering proposed increases, Capital Project Requests, covering one-time expenditures for the construction and maintenance of state facilities. In addition, the budget submission may include internal reallocations and budget reductions.

Budget Agency Review

The Budget Agency reviews the submitted budget requests and formulates recommendations. Budget review includes a detailed analysis of agency programs, operational performance, changes in population and cost trends, and other factors related to the efficient, effective use of public resources. The Budget Director discusses the analyses and recommendations, including any variances, with the Governor. The requests are adjusted as approved by the Governor, and then presented to the Budget Committee.

The Budget Committee

The Budget Committee is composed of four legislators – one Democrat and one Republican from both the House of Representatives and the Senate – and the Director of the Budget Agency. The Budget Committee holds public hearings with state agencies to outline their budget requests. After the hearings are completed and future revenue estimates are presented via the Revenue Forecast, the committee makes a single, comprehensive budget recommendation to the Governor.

Posted by Marcia Oddi on Wednesday, September 17, 2014
Posted to Indiana Government

Ind. Courts - Supreme Court to hear argument tomorrow on the meaning of "annoying" in our public intoxication statute

In the second oral argument the Supreme Court will hear tomorrow morning, Rodregus Morgan v. State of Indiana (watch it here at 9:45 AM), the justices will address whether "annoys" in Indiana's public intoxication statute is unconstitutionally vague. The case has received a lot of media attention and also caught the attention of at least one late-night talk show host, Jimmy Fallon, whose brief reference occurs at 56 seconds into the monologue:


Posted by Marcia Oddi on Wednesday, September 17, 2014
Posted to Upcoming Oral Arguments

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Mark Keaton v. Douglas Goeglein (NFP)

City of Evansville v. Anna K. White (NFP)

NFP criminal opinions today (1):

Robert P. Benavides v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 17, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Yet another major BMV collection error, this one found by BMV

Updating this ILB post from yesterday, Tony Cook and Justin L. Mack have this story today in the Indianapolis Star. This quote is of interest:

Gov. Mike Pence has also authorized [BMV Commissioner Don] Snemis to hire an independent consulting firm to audit the BMV’s processes, procedures and STARS system. That move comes on top of an independent fee review the agency ordered last year.
The ILB recalls the earlier review. This Sept. 30, 2013 post quotes a Jon Murray story about the results of the earlier review, including:
Indianapolis law firm Barnes and Thornburg conducted the review of all fees following the BMV’s acknowledgment of the driver’s license overcharges.

“That review showed just how complex the statutes that govern fees are, and we found several errors that have led to both undercharges and overcharges on a number of fees,” Waddell said in the news release. “The BMV has taken immediate steps to address any overcharges by crediting affected motorists’ accounts and has corrected all overcharged fees going forward.”

Gillespie declined The Star’s request for a copy of Barnes and Thornburg’s fee study, saying it was protected by attorney-client privilege.

This Oct. 2, 2013 ILB post includes this quote from a Fort Wayne Journal Gazette editorial:
There’s also the $55,000 cost of hiring an Indianapolis law firm to conduct a study, a copy of which the BMV refused to give to the Indianapolis Star, citing attorney-client privilege.
ILB: So will the results of this new review be publicly accessible? And what about the earlier B&T review?

Posted by Marcia Oddi on Wednesday, September 17, 2014
Posted to Indiana Government

Ind. Gov't. - "Sen, Mike Delph to be lauded for fighting same-sex marriage"

Bill McCleery reports today in the Indianapolis Star in a story that begins:

The Indiana Family Institute plans to name State Sen. Mike Delph as its “Legislator of the Year” on Thursday, citing the Carmel Republican’s “unflinching support of the proposed marriage amendment.”

Last winter, Delph fought furiously to bring a referendum on same-sex marriage to Indiana voters this fall. He earned a rebuke from his own party for harsh words against what he perceived as GOP legislative leaders’ lack of commitment to that cause.

The measure, known as HJR-3, would have asked voters whether the state’s constitution should define marriage as a compact solely between a man and woman. The proposed amendment failed to make it out of the Indiana General Assembly, but the fight made Delph a hero among some social conservatives and a villain among many wanting to legalize same-sex marriage.

In the fall election, Delph now faces a Democratic opponent, J.D. Ford, who is gay. * * *

Delph will receive the award at a reception Thursday preceding a dinner at which Gov. Mike Pence is scheduled to be the main speaker. The Indiana Family Institute describes itself as a faith-based organization that is “pro-family, pro-life and pro-religious liberty.” Pence is a past board member of the organization.

Posted by Marcia Oddi on Wednesday, September 17, 2014
Posted to Indiana Government

Tuesday, September 16, 2014

Ind. Courts - "Judge resigns following Call 6 Investigation into wedding business"

Updating earlier ILB posts reporting on the WRTV6 investigation, Kara Kenney of Ch. 6 reports this evening in a breaking story that begins:

INDIANAPOLIS - Center Township Small Claims Court Judge Michelle Scott submitted her resignation Tuesday to Marion County Democratic Party chairman Joel Miller, Call 6 Investigator Kara Kenney reported.

The letter did not give a reason for Scott stepping down, however, her departure comes days after the Call 6 Investigators questioned whether Scott is using public resources to promote her private wedding business.

The Call 6 Investigators used a hidden camera at the City County Building and found public employees handing out business cards for Scott's wedding services, and those same government workers directing people to her private office, which is a block from the CCB.

Center Township Small Claims Court Judge Michelle Scott dodged questions last week about allegations she is using city and county resources to promote the private wedding business she runs on Market Street with her husband, Rich Scott.

Rule 1.3 of the judicial conduct code states "it is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind."

Scott’s last day is Oct. 3, according to her resignation letter.

Scott was defeated in the primary by attorney Brenda Roper, and Scott’s last day would have been Dec. 31.

Marion County Democratic Party chairman Joel Miller said they have to find a replacement for Scott before the November election, and the most likely candidate is Brenda Roper.

“That would be fairly common in this type of situation,” said Miller. “From the date of resignation starts at 30-day clock. We have to make the appointment for the person within that 30 days.”

Earlier today, Kenney had this story that began:
The judge who oversees Small Claims Courts in Marion County is drafting a rule change in response to a Call 6 Investigation that appeared to show a judge using public resources to promote her private wedding business.

Judge Louis Rosenberg, advisor for Small Claims Courts, told Call 6 Investigator Kara Kenney he is drafting a proposed amendment to the code of judicial conduct.

Rule 1.3, "Avoiding Abuse of the Prestige of Judicial Office," states a judge shall not use the prestige of judicial office to advance personal or economic interests of the judge or others.

Center Township Small Claims Court Judge Michelle Scott dodged questions last week about allegations she is using government resources to promote the private wedding business she runs with her husband, Rich Scott.

Posted by Marcia Oddi on Tuesday, September 16, 2014
Posted to Indiana Courts

Ind. Decisions - Federal Judge Young reinstates the SSM lawsuit, Love v. Pence [Updated]

The ILB wrote at length about the lawsuit, Love v. Pence, on August 19th and August 20th. Love was the first same-sex marriage challenge filed in federal court in Indiana since the SCOTUS decision in Winston. And it was dismissed by Judge Richard Young on the grounds that "the Governor is not a proper party because the Plaintiffs’ injuries are not fairly traceable to him and cannot be redressed by him."

The Love plaintiffs filed a motion to reconsider. As the ILB wrote on Aug. 19:

[I]n 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 ...

Now, nearly a month later, Judge Young has issued an 8-page "Entry on Plaintiffs' Motion to Reconsider" in Love v. Pence. He concludes:
In light of the new evidence, the court reinstates the married Plaintiffs’ claims that Section 31-11-1-1(b) are unconstitutional. The claims brought by the unmarried Plaintiffs remain dismissed, because the Governor cannot remedy the harms alleged by them. Thus, the court GRANTS in part and DENIES in part Plaintiffs’ motion (Filing No. 35). As a result, the court also VACATES its Entry on Plaintiffs’ motion for preliminary and permanent injunctive relief (Filing No. 33), which had denied that motion as moot.
[Updated 9/17/14] Charles D. Wilson of the AP has this story this afternoon. Some quotes:
A federal judge has reinstated four same-sex couples' claim against Indiana Gov. Mike Pence over the state's refusal to recognize gay marriages performed out of state.

Judge Richard Young said in a ruling Tuesday that he had initially dismissed the couples' claim against Pence, but he reinstated part of the lawsuit because Pence had shown he had power to enforce the ban despite claims that he had no such control.

"The Governor is vested with the executive authority in Indiana and has exercised his authority to declare how state executive agencies should act," Young said in his eight-page ruling.

Young says Pence demonstrated his authority in a pair of memos sent from his office to executive agencies instructing them on what to do following a ruling that struck down the ban. A federal appeals court also overturned the ban, and Indiana has asked the U.S. Supreme Court to hear the case. * * *

Young did not reinstate a part of the lawsuit that challenged the constitutionality of the ban's basic provision that only opposite-sex couples may marry in Indiana. Jennifer Drobac, a professor at Indiana University's McKinney School of Law who specializes in sexual orientation legal issues, said that part of the ban is enforced by county clerks, who were not named in the suit, while the part concerning out-of-state marriages is enforced by the state.

Hundreds of couples were married from June 25, when Young struck down the ban, to June 27, when the 7th U.S. Circuit Court of Appeals put the decision on hold. Pence's office initially told agencies to abide by Young's ruling. Then on July 7, he instructed executive branch agencies "to execute their functions as though the June 25 court order had not been issued."

Pence's decision, announced in memos from chief counsel Mark Ahearn, applies to state agencies that report to the governor's office and affects services controlled by those agencies, such as food stamps or the ability to file jointly for state taxes.

"It is clear that through these memoranda, the Governor is issuing instructions to state agencies regarding compliance with court orders," Tuesday's ruling said.

Posted by Marcia Oddi on Tuesday, September 16, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - “This is unlike any contempt case I have ever read about or heard about”

Yesterday the ILB reported that the Supreme Court had denied emergency transfer in a matter titled In the Matter of the Direct Contempt of Greg Goodnight, Mayor of Kokomo.

Today the Kokomo Perspective has a long story by Pat Munsey, headed "Leading law professor critical of Menges." Here is a sample from the story; you are urged to read the story in its entirety:

Joel M. Schumm, Clinical Professor of Law and Director of the Judicial Externship Program at Indiana University’s Robert H. McKinney School Law, has followed the recent conflict between the two officials, and he was surprised in how direct contempt was applied.

“This is unlike any contempt case I have ever read about or heard about,” said Schumm. “Usually, direct contempt cases are things that happen in the courtroom, and it is clear that the person’s intent is to disrupt the proceeding. This is some distance from that.”

But it is the audacity displayed by the judge over time that has Schumm most intrigued. Being aware of several past incidents in which Menges pursued contempt charges -- from the protestors of the Occupy Kokomo movement, to the jailing of a woman last year because of a crying baby in the courtroom belonging to someone else, to the contempt brought against Goodnight, Schumm places Menges’ conduct in a peculiar category.

Marion County Superior Court Judge Kimberly Brown was removed from the bench in March on 47 charges of misconduct. The Indiana Commission on Judicial Qualifications found that Brown had delayed the release of several defendants from jail, failed to supervised her court employees, and created a hostile work environment.

“If you look at the judicial canons about how judges are supposed to behave, and if you look at the Kimberly Brown case, the things she was alleged doing got her removed from the bench,” said Schumm. “Hers seem mild compared to some of the things this guy has done.”

Posted by Marcia Oddi on Tuesday, September 16, 2014
Posted to Indiana Courts

Ind. Gov't. - Still more on: Controversy about Indiana public employee salary databases

The ILB has had two posts, on Aug. 19th and Sept. 2nd, under the heading "Controversy about Indiana public employee salary databases." One of the questions raised, to quote an IndyStar story, is whether the "Indiana Gateway for Government, which [shows] * * * just how much money every teacher, police officer and city council member brought home last year," should continue to include doctors and staff at county hospitals. Steve Key of the Hoosier State Press Association says "yes", explaining in his monthly column, this month titled Salaries tell about more than money," that the county hospital salary information "offers a window into the effectiveness of county hospital leadership."

The Indiana Hospital Association wants the state Board of Accounts to remove the salaries of doctors working for county hospitals from a database of public employees.

The list is a record the public can tap to see what individual public employees and officials are paid.

The hospital association points out that county hospitals are self-sufficient entities that don’t receive tax dollars.

Officials say public access to salary information puts county hospitals at a competitive disadvantage to private hospitals in the retention and recruitment of physicians.

I understand that point of view, but the fact remains that leadership of county hospitals is tied to county government.

The assets of the county hospital belong to taxpayers. The fiscal health of a county hospital has implications for the health of their communities and the economic strength of those communities.

County commissioners appoint the boards that operate county hospitals. Those decisions can have a dramatic impact on the provision of health care and the ability of county hospitals to compete with neighboring private hospitals.

Those boards make decisions on the building of new wings and the purchase of new diagnostic and treatment equipment.

The boards approve strategic planning concerning the hiring and level of financial support for new general practice doctors and where those doctors’ offices will be located within the hospital’s geographic sphere of influence.

Those doctors feed patients into the hospital.

The boards also make decisions on specialty areas of medicine, including preventive and surgical.

All of these decisions build a hospital’s reputation in a competitive health care market.

Savvy Hoosiers make conscious decisions about who they want to treat their heart ailment or sports injury.

So while county hospitals may be in a position where they don’t need to spend tax dollars, the tie between county government and those hospitals is strong, and citizens have a vested interest in the operation of those hospitals.

So what does that have to do with public knowledge of doctors’ compensation?

In a period of competition between hospitals, public and private, and an era where rural hospitals struggle to attract needed physicians to care for citizens and maintain a county hospital’s bottom line, what physicians are paid is relevant.

Is the struggle to lure young physicians a factor of salary offered, rather than rural location? Does the county hospital need to over-compensate for the lack of cultural amenities with a higher salary offer?

The ability for the public to make comparisons between their county hospital and similarly situated rural county hospitals may point to a leadership issue with the board.

The inability to hire particular specialists may push county residents to take the longer drive outside the county for medical care. Not only is this an inconvenience to county residents, but in the long run it may damage the financial viability of the county hospital.

A financially weak county hospital not only can impact the level of health care for that county, but it can impact the local economy.

County hospitals are often one of the largest employers in a county. If the hospital isn’t doing well financially, there can be a ripple effect for the community.

And if the reputation of the county hospital is poor, it could play a role in the decision of companies looking to choose where to build a new manufacturing plant or other industry.

So while I understand the competitive concern of county hospitals, I vote for continued access to data that offers a window into the effectiveness of county hospital leadership.

It’s directly linked to the leadership of elected county officials.

Steve Key is executive director and general counsel for HSPA.

Posted by Marcia Oddi on Tuesday, September 16, 2014
Posted to Indiana Government

Indiana Courts - "Electoral Chaos in Wisconsin"

In 2007 the 7th Circuit decided the Indiana voter ID case, Crawford v. Rokita. This week the 7th Circuit ruled in another voter ID case, this one re the State of Wisconsin, Frank v. Walker. Today the NY Times writes in an editorial that begins:

It is difficult to understand the reasoning of the federal appeals court panel that permitted Wisconsin officials to enforce a controversial voter ID law less than two months before Election Day. That’s partly because the panel’s five-paragraph order, issued late Friday only hours after oral arguments, offered the barest rationale for lifting the stay that Judge Lynn Adelman of the federal district court had placed on the law in April.

Judge Adelman issued a remarkably thorough 70-page opinion finding that the law violated both the Voting Rights Act and the Constitution by making voting harder for a substantial number of Wisconsinites — disproportionately those who are minority and poorer, and who tend to vote Democratic. (The law, passed in 2011 by a Republican-controlled Legislature but since tied up in lawsuits, requires prospective voters to present a government-issued photo ID, like a driver’s license or passport.)

Regardless of how the appeals panel eventually responds to the merits of Judge Adelman’s ruling, its interim decision to lift the stay has thrown the Wisconsin midterm elections into chaos. The state had already mailed out almost 12,000 absentee ballots that did not include any identification requirement. It is unclear how those ballots will be counted. Officials say recent fixes in the law make it easier to get an ID, but that may not help hundreds of thousands of residents get the required ID in time.

Rick Hasen, a professor of election law at the University of California, Irvine, called the panel’s decision “a big, big mistake” on his blog. He added: “It is hard enough to administer an election with set rules — much less to change the rules midstream.”

Read the NYT editorial here; it has many additional links.

[More]
For a different take, see this post today at Wisconsin Appellate Law.

Posted by Marcia Oddi on Tuesday, September 16, 2014
Posted to Indiana Courts

Ind. Gov't. - Yet another major BMV collection error, this one found by BMV

From a news release issued by BMV this afternoon:

BMV Announces Excise Tax Refund
Governor Authorizes Independent Audit of BMV Processes

Indianapolis, IN – Don Snemis, Commissioner of the Indiana Bureau of Motor Vehicles (BMV) announced today that the BMV has determined that some customers are entitled to excise tax refunds. The BMV will work with the Indiana Department of Revenue to issue those refunds.

“The BMV has determined that some Hoosier’s vehicles were misclassified for excise tax purposes. As a result, those customers overpaid excise taxes when registering their vehicles. These misclassifications stretch back to 2004 when the BMV’s System Tracking and Record Support (STARS) computer system was implemented on a limited basis,” said Snemis. The STARS system was fully implemented in 2006.

Under Indiana law, vehicles are placed in a tax classification based on value. This value is determined by using the price of the vehicle and applying an adjustment factor based upon Consumer Price Index data related to increases in new automobile prices. This data is entered into the BMV’s STARS system in order to automatically calculate excise taxes when vehicles are registered. In some circumstances, the STARS system did not apply the adjustment factor, which caused some vehicles to be misclassified.

Snemis continued by saying “all previously misclassified vehicles will be reclassified using the proper data. Anyone who overpaid will be notified by mail and provided a pre-printed claim form, per Indiana law, to obtain a refund with interest. Hoosiers affected by this miscalculation can expect to receive a letter within about 30 days,” said Snemis.

The BMV has issued about 60 million registrations and collected about $3.4 billion in excise taxes since 2006. While final data is not yet available, it is believed that about 180,000 individuals were affected by this miscalculation, and the total refund is about $29 million plus interest.

The BMV distributes excise taxes to county and local governments on a regular basis. To mitigate the impact to local governments, the state will cover the upfront cost of refunds to taxpayers and will recoup the overpayment by adjusting distributions to local governments over the next two years. Additionally, the state will cover all interest payments.

Governor Mike Pence authorized BMV Commissioner Don Snemis to hire an independent consulting firm to audit the BMV’s processes, procedures and STARS system.

Posted by Marcia Oddi on Tuesday, September 16, 2014
Posted to Indiana Government

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

For publication opinions today (3):

In Willie Jenkins v. Mary Jenkins, a 6-page opinion, Judge Crone writes:

Willie Jenkins (“Husband”) appeals the trial court’s order granting a motion to vacate contempt hearing filed by Mary Jenkins (“Wife”). The sole issue presented for our review is whether the trial court erred when it granted Wife’s motion and vacated the hearing without allowing Husband fifteen days to respond to the motion pursuant to local court rule. Concluding that it was not in the interests of justice for the trial court to ignore its rule and grant Wife’s motion prior to allowing Husband time for response, we reverse and remand for further proceedings. * * *

This is not one of those rare cases where the trial court’s adherence to its own procedural rule would defeat justice instead of serving as a means of obtaining orderly and speedy justice. Therefore, the trial court should have followed its own rule, and its failure to do so was error as a matter of law. We reverse the trial court’s order vacating the hearing and remand for further proceedings consistent with this opinion.

In State Farm Fire & Casualty Company v. Joseph Martin Radcliff and Coastal Property Management, LLC, a/k/a CPM Construction of Indiana , a 22-page opinion, Judge Riley writes:
Appellant-Plaintiff/Counterclaimant-Defendant, State Farm Fire & Casualty Company (State Farm), appeals the trial court’s denial of its Trial Rule 60(B) Motion, which rejected its request for relief on the limited issue of defamation after a jury awarded 14.5 million dollars to Appellees-Defendants/Counterclaimants-Plaintiffs, Joseph Martin Radcliff (Radcliff) and Coastal Property Management LLC, a/k/a/ CPM Construction of Indiana (CPM). We affirm. * * *

Based on the foregoing, we conclude that the trial court properly denied State Farm’s T.R. 60(B) Motion and affirm the trial court’s denial of State Farm’s request based on T.R. 60(D).

In Brent A. Mechling v. State of Indiana, a 7-page opinion, Judge Robb writes:
Brent Mechling appeals his three-year sentence for invasion of privacy, a Class D felony. Mechling raises two issues for our review: (1) whether the State is estopped from arguing Mechling waived his right to appeal in his plea agreement where the State failed to object when the trial court advised Mechling at the sentencing hearing about a right to appeal; (2) whether Mechling’s sentence is inappropriate in light of the nature of his offense and his character. Concluding Mechling validly waived the right to appeal his sentence in a written plea agreement and that the State is not estopped from enforcing the waiver provisions of Mechling’s plea, we affirm.
NFP civil opinions today (1):

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

NFP criminal opinions today (3):

Roy C. Bebout v. State of Indiana (NFP)

Travis Booker v. State of Indiana (NFP)

Jerry C. Jackson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 16, 2014
Posted to Ind. App.Ct. Decisions

Monday, September 15, 2014

Courts - Former Brooklyn Supreme Court trial judge debuts in new TV show, "Hot Bench"

Recall this story from the July 29, 2013 NY Times? Here is a sample from the story:

So go the negotiations in the courtroom of Patricia DiMango, a straight-talking State Supreme Court justice brought in to the Bronx from Brooklyn to do what she does best — put old cases to rest.

Since arriving in January, Justice DiMango has been an anomaly in the Bronx courts, where she is charged with clearing a backlog of felony cases that had swelled to crisis proportions. Her brash style and forceful personality, not to mention her relentless efficiency, have set her apart in a courthouse infamous for inaction.

In six months, she has churned through more than 500 cases, slashing by 40 percent the backlog of those over two years old, and leading senior court officials to declare a partial victory after years of failed efforts.

Well, thanks to Judge Judy, Justice DiMango is now TV Judge DiMango. Here is a long story in the Sept. 13th NY Daily News, about the new daytime show, that started today. [On ch. 10 at 1 pm in Indy] The long story with plenty of photos, reported by Nancy Dillon, begins:
LOS ANGELES — Don’t be fooled by the false eyelashes — she’s still dispensing real Brooklyn justice.

Former Brooklyn Supreme Court judge Patricia DiMango debuts in her new CBS syndicated daytime court show “Hot Bench” this Monday.

While she has traded in her Kings County court staff for a Kardashian-style glam squad that chases her around set, taming and spraying her Barbie blond locks, she’s retained the same outspoken wit and grit that made her a standout on Schermerhorn St. * * *

The new program is the first spinoff from TV juggernaut Judge Judy Sheindlin and features a trio of judges deciding small claims cases.

DiMango, 61, is a natural on camera alongside co-stars Tanya Acker and Larry Bakman, but her new career almost didn’t happen.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Courts in general

Ind. Decisions - Interesting 7th Circuit immigration ruling, circuit split

In Jean Jeudy v. Eric Holder, Jr., a 19-page opinion, Judge Hamilton writes:

Jean Jeudy petitions for review of an order of removal issued by the Board of Immigration Appeals (BIA). The BIA found that Jeudy was removable based on a 1995 drug offense and a 2000 voting offense. It also determined that he had not accrued the seven years of continuous residence in the United States required for a per-son in Jeudy’s situation to request discretionary cancellation of removal under 8 U.S.C. § 1229b(a). Jeudy has been a law-ful permanent resident since 1989, and he reached seven years of continuous residence in 1996. The BIA, however, applied the “stop-time rule” of § 1229b(d)(1), which took ef-fect in 1997 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. The new stop-time rule was applied to cut off Jeudy’s period of continuous presence as of the time of his 1995 drug offense. Jeudy’s petition for review challenges only this application of the stop-time rule to deny his eligibility to request cancellation of removal.

The BIA has determined that the stop-time rule applies retroactively to reach offenses that were committed before the rule’s effective date. See In re Robles-Urrea, 24 I. & N. Dec. 22, 27 (BIA 2006); In re Perez, 22 I. & N. Dec. 689, 692–93 (BIA 1999) (en banc). Jeudy counters that (a) the stop-time rule cannot be applied retroactively because Congress did not provide any clear statement of intent to that effect, as re-quired by Landgraf v. USI Film Products, 511 U.S. 244 (1994), and INS v. St. Cyr, 533 U.S. 289 (2001), and (b) applying the rule here would have an impermissible retroactive effect. This issue, which our court has not yet addressed, has divid-ed our colleagues in other circuits. See, e.g., Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1200–01 (9th Cir. 2006) (stop-time rule for offenses may not be applied retroactively); Peralta v. Gonzales, 441 F.3d 23, 29–31 (1st Cir. 2006) (opposing view).

We grant Jeudy’s petition. The statutory stop-time rule does not convey a clear intent on the part of Congress to govern retroactively, and the stop-time rule would have an impermissible retroactive effect if it were applied to Jeudy’s 1995 drug offense to render him ineligible for discretionary relief after he had already accumulated the seven years of continuous residence needed to be eligible.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Law - More on: Institutional knowledge meaningless at Indianapolis Star?

Updating this ILB post from this morning, a reader directed my attention to this Romenesko post from Sept. 12th, headed "Gannett’s Indianapolis Star puts a reporter on the Beer, Wine and Coffee beat." Romenesko notes:

There are many congratulations for Amy Haneline in the replies – but there’s at least one raised eyebrow, too: “So IndyStar cuts back education coverage and adds a reporter to the beer, wine and coffee beat? Congrats!”
Also in the post, a link to a 10-page “internal use only” Indianapolis Newsroom Beats memo.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Law

Ind. Gov't. - "'Transparent' Indiana government often elusive"

From an AP article by Tom LoBianco, here in the FWJG:

When Gov. Mike Pence unveiled his new $9 million government management system, he ran down a list of ways it would make state government work better before ending with the promise that state government will also be more “transparent.”

But last week’s rollout of the new Management and Performance Hub, which Pence vowed will make Indiana the best state in the nation at crunching big data, was plagued with confusion – and a lack of transparency. Pence said it would help eliminate duplicative programs but didn’t identify which programs he’d targeted to cut. Even the most basic question – how much the state had paid for the program – proved problematic.

The promise of “transparent” government is almost universally popular among politicians. It evokes the vision of a truly “small d” democratic government that is answerable to the people and supports the concept of public trust.

But the talking point of transparency often remains just that: a talking point. * * *

Gerry Lanosga, a former Indianapolis-based investigative reporter, authored a 2013 report detailing the many holes in the state’s public access laws for the State Integrity project. Indiana was ranked in the middle (C-) among other states on a range of integrity issues but was awarded an “F” for formal public access to information.

Lanosga detailed numerous statutory loopholes in the state’s public records laws. The Pence administration has demonstrated one of those loopholes with a flat refusal to provide the governor’s calendar to media, citing precedent that Indiana’s governors are exempt from disclosure under broad (and discretionary) rules.

Other public records requests can take months to fill.

Maybe it’s time to redefine transparency.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Government

Ind. Courts - "Tainted shots fallout felt in legal system"

Virginia Black has this story today in the South Bend Tribune. The long story begins:

Sept. 15--Two years after the news broke of the hundreds of patients sickened by contaminated steroid solution, lawsuits on behalf of those patients against the company that made the solution and the clinics that bought and administered the injections are coming to life in civil courts.

South Bend attorney Douglas Small is coordinating meningitis-related litigation for Indiana in a multi-district federal lawsuit in Boston against the company that made the faulty solution, New England Compounding Center. Small said he is limited by what he can say about pending litigation, but his firm's website says the owners and insurers of NECC have agreed in principal to a compensation fund of more than $100 million to be distributed to victims of the company's actions.

Yet lawsuits against the clinics that bought the solution -- against federal regulations, court papers allege -- and injected it into patients are just beginning to engender lively fights in court.

Small filed suit in April in Elkhart Superior Court for nearly 70 who were patients of Orthopedic and Sports Medicine Center of Northern Indiana, or OMSC, based in Elkhart. That lawsuit also names the company's Fort Wayne malpractice insurance carrier.

Three local people died as a result of receiving the tainted solution, the lawsuit alleges: Kathy Dillon of South Bend, and Viola Copsey and Jack Durben of southwestern Michigan.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 today (and 11 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

Shelley Murphy v. Indiana Women's Prison and Correctional Medical Services, Inc. (NFP)

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

In the Matter of the Termination of the Parent-Child Relationship of S.F. and A.D., T.F. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (8):

Jeremiah Lee Collins v. State of Indiana (NFP)

In the Matter of J.C. v. State of Indiana (NFP)

Michael A. Windhorn v. State of Indiana (NFP)

Brenda Beecher v. State of Indiana (NFP)

Joshua Batchelor v. State of Indiana (NFP)

Matthew J. Knight v. State of Indiana (NFP)

Ryan D. Smith v. State of Indiana (NFP)

Desmond J. Sanders v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - Institutional knowledge meaningless at Indianapolis Star?

The IBJ had a story this weekend by Anthony Schoettle headed "Indy Star loses bevy of sports veterans." Some quotes:

The Indianapolis Star sports department in one month has lost four reporters and a columnist with a combined 123 years of experience at the paper.

Well-known reporters Phil Richards, Mike Chappell, Phil B. Wilson and Mark Ambrogi left the state’s largest daily newspaper in September. And last month, columnist Bob Kravitz joined WTHR-TV Channel 13.

Throw in the 2013 departures of two other sports reporters—IU beat writer Terry Hutchens for Scout.com and Indianapolis Colts and Indiana Pacers beat writer Mike Wells for ESPN—and about half The Star’s sports writing staff has turned over in 14 months.

And then this, coming from Richards:
“If institutional knowledge counts for anything, it will be a substantial deficit,” he said. “Nobody at the Star is local anymore. The Star has virtually no one with ties to the community and no one with a grasp of the local community. And I think that matters.”
ILB: And how is this relevant? Some of us are still mourning the transfer of the knowledgable Jon Murray from the court beat to local government, now several years ago. (Jon has since moved on to the Denver Post.) He was succeeded by a reporter with no court experience, who was in turn succeeded by Tim Evans. Today Evans has announced on Twitter:
I am shifting gears at @indystar - from covering courts/law to serving as new "Fighting For You" consumer advocate. My colleague @kristine_guerra taking over coverage of courts/law at @indystar.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Law

Ind. Decisions - Now both Judge Young's district court, and Judge Posner's 7th Circuit, SSM decisons have been stayed by the 7th Circuit

As expected, the 7th Circuit has granted the motion for stay of its decision in the Baskin v. Bogancases. The ruling:

IT IS ORDERED that the motion is GRANTED. The mandate in appeals 14‐2386, 14‐2387, and 14‐2388 is STAYED pending final disposition of petition for writ of certiorari. The stay will terminate automatically if the certiorari petition is denied or will terminate upon the judgment of the Supreme Court if the certiorari petition is granted.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Should Notre Dame police adhere to public records law?"

Here is the long story reported by Madeline Buckley and Margaret Fosmoe in the Sunday South Bend Tribune. The story begins:

SOUTH BEND -- In October 2010, University of Notre Dame junior Declan Sullivan died when the scissor lift on which he was filming a football team practice fell to the ground.

Three years later, Mark Ellsworth, hired as part of a crew to cut down trees to make way for a new campus parking lot, was killed by a falling tree.

Last weekend, a man was critically injured when he fell down a stairwell in the university's Main Building.

In all three cases, Notre Dame Security Police, an authorized police force under Indiana law, investigated. Yet there were no police reports made available and the three cases never showed up on the campus police log.

As mandated by the federal Clery Act, Notre Dame Security Police keeps a log of criminal incidents reported on campus. The Clery Act requires all colleges that participate in federal financial aid programs keep a record and disclose to the public information about certain crimes on and near their campuses.

But Notre Dame officials say the campus police force has no legal obligation to provide a log of accidents and other non-criminal incidents the department investigates.

The holes in the university's incident log raise the question: Should a fully certified police force be subject to Indiana's public records laws?

Meanwhile, other private universities and colleges in Indiana that have authorized police forces vary wildly in how those departments keep incident logs.

Some experts and state officials say sworn police officers -- even those working on private university campuses -- are under the purview of state law.

"If you have a police agency that is enforcing state law, that entity falls under the public records law," said Stephen Key, executive director and general counsel of the Hoosier State Press Association.

Public access to that information is critical so citizens know how agencies enforcing Indiana law are operating, Key said. When questions arise about such issues as police use of force, response time or level of professionalism, the public needs access to make an informed judgment about how the agencies are performing, he said.

"They can't address these issues if certain information is not made publicly available," he said. "It may be a private individual who is injured on private property, but it falls under the scope of the state."

Luke Britt, Indiana's public access counselor, said any police force deputized under state law is subject to the state's access to public records law.

"If they are under the badge, they are going to be a public law enforcement agency," Britt said.

There is much more to read in the story.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending September 12, 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, September 12, 2014. It is one page (and 1 case) long:

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Transfer Lists

Ind. Courts - Indiana Bar exam report out this morning [Updated]

Changing past practice, those who took the test received results on Friday.

So far, the results from the July 2014 bar exam do not appear to be available on line. The ILB will check here later.

[Updated] July 2014 results are now available at the above link.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Courts

Ind. Courts - More on: NFP Decisions Cannot Be Cited — Or Can They?

Updating this ILB post from Sept. 10th, Prof. David R. Cleveland of the Appellate Advocacy Blog (A Member of the Law Professor Blogs Network) had this post on Sept. 12th. A few quotes:

Professor Joel Schumm noted on The Indiana Law Blog that the Indiana Supreme Court recently rejected a proposal to permit citation of memorandum decisions for as "persuasive precedent." The Indiana high court rejected even this compromise position without a single dissenting vote, making this the official Indiana position for the foreseeable future. * * *

I question whether any U.S. court has the authority to: 1) bar citation of its own opinions or 2) strip a decision of precedential value at the time of its issuance. Such actions seem to run afoul of various constitutional provisions and the fundamental nature of judicial power.

The late Judge Richard S. Arnold predicted that the federal rule against citation was doomed to fail. He recognized, long before others did, that judicial decisions were the very stuff of our system of justice. There is no substitute for them, and they are the kind of information that even a gag rule cannot fully suppress. He was right. In the federal system, unpublished opinions were routinely cited by both advocates and courts, and ultimately, the citation ban was abolished as untenable and undesirable.

One can hope that Indiana's Supreme Court will come to a similar conclusion the next time it confronts the issue.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Courts | Schumm - Commentary

Ind. Gov't. - "Indiana Toll Road operator weighs bankruptcy, sale"

This story by Joseph S. Pete appeared in the NWI Times late Friday. It begins (ILB emphasis):

The Indiana Toll Road operators are looking at filing for bankruptcy to get out from under $6 billion in debt and selling the right to operate the road, according to media reports.

Citing anonymous sources, the Wall Street Journal reported the road's operators, Spain's Cintra and Australia's Macquarie Group Ltd., have reached an agreement with their largest creditors to restructure debt in bankruptcy court and to sell a new party the rights to operate the road under the remainder of a $3.8 billion, 75-year lease.

The Indiana Toll Road Concession Co. would file for Chapter 11 bankruptcy, which involves the reorganization of debt and not liquidation, sell the right to operate the road, and funnel most of the sales proceeds to secured creditors, which are mostly hedge funds.

Toll Road operations should not be affected by any deal, according to a source familiar with the situation. Any bankruptcy filing or change in management would not impact drivers, truckers, Toll Road employees or communities that 157-mile toll road cuts through. Indiana would continue to own the road, which is lease in a public-private partnership.

Paula Chirhart, a senior vice president at the investment bank Macquarie, declined to comment.

The NWI Times had an earlier toll road bankruptcy story on June 20th - the full story is still accessible from the NWI Times.

Posted by Marcia Oddi on Monday, September 15, 2014
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next [Updated]

This week's oral arguments before the Supreme Court (week of 9/15/14):

Thursday, Sept. 18

Next week's oral arguments before the Supreme Court (week of 9/22/14):

Thursday, Sept. 25

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/15/14):

Tuesday, Sept. 16

Next week's oral arguments before the Court of Appeals (week of 9/22/14):

Tuesday, September 23

Friday, September 26

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, September 15, 2014
Posted to Upcoming Oral Arguments

Friday, September 12, 2014

Ind. Decisions - More on: State agrees to recognize Whiting same-sex couple's marriage

Updating this ILB post from earlier today, here now, thanks to Equality Case Files ‏@EQCF, are all the documents in Romero v. Brown:

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - COA issues news release re "Elkhart 4" decision

The COA has now issued a news release re today's "Elkhart 4" ruling:

Appeals Court affirms Elkhart felony murder convictions: Court also orders revised sentences ordered for three appellants

INDIANAPOLIS – In companion cases decided today, the Court of Appeals of Indiana affirmed the felony murder convictions of two juveniles and an adult who participated in a 2012 burglary in Elkhart, IN, that led to the shooting death of an accomplice.

Separate panels of judges handed down the opinions, which both direct the trial court to issue amended sentencing orders for the appellants.

Blake Layman and Levi Sparks, the juveniles, and Anthony P. Sharp, Jr., were tried together and convicted in Elkhart Circuit Court in August 2013. Layman and Sparks jointly appealed their convictions and sentences of 55 and 50 years, respectively. Sharp separately appealed his conviction and sentence of 55 years in prison.

Layman and Sparks v. State is a 2-1 decision with separate concurring and dissenting opinions. Sharp v. State was decided unanimously. Both opinions are marked “for publication,” which means they can be cited as precedent in future cases.

Under Indiana Rules of Appellate Procedure, parties have 30 days to seek rehearing by the Court of Appeals or petition for transfer to the Indiana Supreme Court. An Appeals Court opinion is not certified, or final, while those procedural options remain open.

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 13 NFP) - including three of the Elkhart felony-murder appeals

For publication opinions today (4):

In Blake Layman v. State of Indiana; Levi Sparks v. State of Indiana, a 27-page, combined, 2-1, three-opinion decision, Judge Bailey writes:

In this consolidated appeal, Blake Layman and Levi Sparks appeal their convictions for felony murder1as well as the sentences imposed thereon. We affirm in part and remand with instructions.

Layman and Sparks raise the following issues: I. Whether their convictions and sentences violate the United States and Indiana Constitutions; II. Whether Indiana Code section 35-42-1-1, the felony murder statute, was properly applied in this case; and III. Whether their sentences are inappropriate. Sparks also argues that there is insufficient evidence to support his felony murder conviction. * * *

Layman and Sparks forfeited appellate review of their constitutional claims because they failed to raise them at trial. The felony murder statute was properly applied in this case, and there is sufficient evidence to support Sparks’ conviction. However, we remand this cause to the trial court with instructions to issue an amended sentencing order consistent with this opinion.

MAY, J., concurs in result with separate opinion.
KIRSCH, J., dissents with separate opinion.

[J. May's concurring opinion begins at p. 14] While I reluctantly agree a jury could find Layman and Sparks guilty of felony murder even though neither they nor their accomplices killed anyone, I write separately to address whether Layman and Sparks waived the constitutional issues they raise. I write also to express my serious concerns about the felony murder statute and how it was applied in the case before us, and to suggest an approach to its application that I believe is more in line with recent Indiana and United States Supreme Court decisions. * * *

[ILB: a thorough discussion follows, concluding]

As the lead opinion’s outcome in the case before us is permitted by existing Indiana law, I must concur in the result. But I believe application of the agency approach to prosecutions of juvenile felony murder defendants, even though such defendants are subject to adult court jurisdiction, offers an approach more consistent with the spirit of Brown and Fuller than the ”proximate cause” approach required by Palmer for adult felony murder defendants.

[J. Kirsch's dissenting opinion begins at p. 25 and concludes]

Here, by contrast [to Palmer and Jenkins], sixteen-year old Blake Layman and seventeen-year old Levi Sparks were (1) unarmed and (2) attempting to commit a non-violent burglary of what they believed was an unoccupied residence. The defendants here were attempting to commit a non-violent crime when the unforeseeable tragedy giving rise to this case unfolded.

Because the circumstances here are very different from those before the Court in Palmer and Jenkins, I respectfully dissent from my colleagues’ conclusion that Indiana Code section 35-42-1-1, the felony murder statute, was properly applied in this case.

In In re the Marriage of Tina M. Harpenau v. Robin P. Harpenau, a 13-page opinion, Judge Robb writes:
When Tina (“Mother”) and Robin (“Father”) Harpenau were divorced in August 2013, the parties agreed to joint legal custody of the parties’ two minor children with Mother to have primary physical custody subject to Father’s parenting time. In October 2013, Mother filed a notice of intent to relocate to Scott County; Father filed a petition to modify custody objecting to the move. The trial court found Mother’s proposed relocation was made in good faith and for a legitimate reason but that it was not in the best interests of the children. Accordingly, the trial court granted Father’s petition to modify, awarding primary physical custody to Father, granting Mother the same parenting time as Father originally had, and ordering Mother to pay child support. Mother appeals, raising two issues for our review: 1) whether the trial court abused its discretion in granting Father’s petition to modify; and 2) whether the trial court abused its discretion in modifying child support. Concluding the trial court did not abuse its discretion in modifying custody due to Mother’s proposed move or in modifying child support accordingly, we affirm.
In In Re: The Marriage of Ann (Sutton) Baker v. Milo Sutton , a 10-page opinion, Judge Robb writes:
Ann Baker Sutton (“Mother”) appeals from the trial court’s order modifying custody and granting primary physical and legal custody of the parties’ fifteen-year-old son, B.S. (“Child”), to Milo Sutton (“Father”). Mother raises one issue: whether the trial court’s decision to modify custody was erroneous. Concluding the order was not in error, we affirm.
In Anthony P. Sharp, Jr. v. State of Indiana , a 19-page opinion, Sr. Judge Darden writes:
Anthony P. Sharp, Jr., appeals from his conviction of and sentence for felony murder, contending that there was insufficient evidence to support his conviction, that the felony murder statute was improperly applied in this situation, and that his sentence is inappropriate in light of the nature of the offense and the character of the offender. Consistent with our standard of review, we affirm Sharp’s conviction. However, we reverse the trial court’s sentencing decision and remand with instructions to modify Sharp’s sentence. * * *

In summary, the evidence is sufficient to support Sharp’s conviction for felony murder. The application of the felony-murder statute to the facts of this case is proper under existing precedent. However, Sharp has met his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character. We therefore remand this matter to the trial court to vacate its previously imposed sentence, and to enter an order imposing a sentence of fifty-five years with forty-five years executed and ten years suspended to probation.

NFP civil opinions today (4):

Eric D. Smith v. Keith Butts (NFP)

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

Stacy Knighten v. East Chicago Housing Authority Individually and d/b/a West Calumet Complex, Davis Security Service, LLC, and Donnell Caldwell (NFP)

In re the Paternity of: S.L. b/n/f R.H.B. v. T.L. (NFP)

NFP criminal opinions today (9):

Gregory Davis v. State of Indiana (NFP)

Veronica E. Perry v. State of Indiana (NFP)

Albert J. Lane v. State of Indiana (NFP)

Philip H. Chamberlain v. State of Indiana (NFP)

Clark A. Klemme v. State of Indiana (NFP)

Bernard Ford v. State of Indiana (NFP)

Lee Tibbetts v. State of Indiana (NFP)

Joseph Brett Mayer v. State of Indiana (NFP)

Nikki Russell v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to Ind. App.Ct. Decisions

Law - More on "Power of Attorney Is Not Always a Solution"

Updating this ILB post from yesterday, a northern Indiana attorney writes:

No mention of the drafting attorney being at fault in Christine's case. Maybe a practice tip would be to use full first, middle, and last names? We have a statute that allows an attorney-in-fact to sue and recover treble damages and costs if an institution doesn't comply with a valid POA. See IC 30-5-9-9 (although (b) does apply). There are also statutes that insulate the bank from liability for relying on a POA. See IC 30-5-8.

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to General Law Related

Courts - Amicus representation

Recall this long ILB post from Sept. 3rd, headed "Seeking Facts, Justices Settle for What Amicus Briefs Tell Them."

Now the 61-page September issue of the ABA's publication, Appellate Issues (h/t How Appealing), "addresses the theme of amicus representation from a rich variety of perspectives."

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to Courts in general

Ind. Courts - "Indy sued over $45M recycling center deal"

Note: The ILB would like to post a copy of this lawsuit ...

From a news report attributed to "Fox59 and Star":

A lawsuit has been filed against the City of Indianapolis over a recently finalized recycling contract.

In August, the city agreed to a deal with Covanta worth an estimated $112 million. Two paper companies and an Indianapolis resident are listed as plaintiffs in the lawsuit.

The city is accused of violating requirements for bidding and public notice. The suing parties are trying to put the brakes on the deal that includes building a $45 million recycling facility. An attorney for the plaintiffs declined to comment.

Public comment was allowed during a city board meeting but the lawsuit argues a separate hearing was required. It goes on to accuse the city of failing to release any potential agreement and terms before the meeting.

Court documents also show one of the companies, Rock-Tenn Converting, would have potentially bid on the project if it had the opportunity.

Stephanie Wilson, a spokeswoman for the city’s Department of Public Works, defended the deal in an email.

“We are perfectly within our legal right to amend our contract with Covanta,” she said. “The new Advanced Recycling Center will be one of the most modern facilities in the world and is a common-sense program to increase recycling in the city — at no cost to taxpayers or government.”

Public Works Board Member Greg Garrett said he didn’t receive a copy of the contract until a couple days before the scheduled vote. A majority of the board members were appointed by the Ballard administration. Garrett said he tried to raise concerns about the contract and board procedure.

Covanta said the company is moving ahead with the construction project and is currently in the process of obtaining permits. The new facility is scheduled to be up and running by 2016.

“What we’re seeing and I think the most troubling thing about this, is that we’re seeing a pattern of lack of transparency, and lack of accountability and lack of oversight,” said City-County Councilor Zach Adamson.

Adamson compared the deal to the restrictive contract for the Regional Operations Center. The contract with Covanta discourages competition from alternative recycling programs. Under the terms, Covanta could impose penalties on the city if it launched a new or better recycling program.

Recycling advocates voiced their concern about the new Covanta facility. The Indiana Recycling Coalition has called the plan a “major step backwards.” * * *

Ballard has said the plan would increase participation in recycling from less than 10 percent to 100 percent, since all of the city’s trash would be filtered by the new plant’s recycling sorter.

ILB observation: It would seem this pretty much puts the brakes on the recycling of paper in Indianapolis. If all trash and garbage is mixed together when picked up and delivered to the recycling sorter, it will be possible to sort out glass and metal, but most paper products in the remaining household refuse mixture would end up suitable only for the incinerator or landfill.

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - "Indiana legislators need a change in course on ethics"

The Richmond Palladium-Item this morning is republishing a FWJG editorial - some quotes:

Rep. P. Eric Turner's fall from legislative grace comes not a day too soon. It will have come too late, however, if it doesn't produce an ethics overhaul for the Indiana General Assembly. Legislative candidates should be prepared to explain where they stand on mending the institution's damaged reputation.

House Speaker Brian Bosma finally acknowledged the embarrassing conflict of interest held by his second in command after the Associated Press revealed what Turner had at stake in the last session. It was no Statehouse secret that the Cicero Republican was one of the legislature's wealthiest members. And yet his colleagues allowed him to lobby against a nursing home bill that would have harmed his financial interests.

The proposed moratorium on nursing home construction would have cost Mainstreet Property Group — owned by the lawmaker, his family and a small group of other investors — millions. Documents obtained by the AP showed Turner stood to earn as much as $2 million from development projects that were allowed to proceed because the construction moratorium did not pass.

While the General Assembly's lax regulations allowed him to intervene, it was clearly unethical for Turner to use his powerful status for personal gain. It was unconscionable to do it at Hoosiers' expense.

The editorial goes on to explain (ILB emphasis):
The state has too many nursing homes — spending $1.1 billion a year more on long-term care than the national average.

According to the Kaiser Family Foundation, Indiana has 763 nursing home beds for every 100,000 residents, compared to a national average of 528 beds. Not surprisingly, the state lags in spending on home health care — $422 million a year below the national average. The Indianapolis Business Journal calculated the burden of paying for too many nursing home rooms at $37.8 billion, or $780 for every Indiana resident.

That's a steep price for allowing a citizen-lawmaker to ply his trade on the Statehouse floor.

The current low standards provided Turner the cover he needed.

"I have no doubt the House Ethics Committee review of this matter was thorough and resulted in the correct conclusion; however, it also revealed significant gaps which must be addressed," Bosma said in stripping Turner of his leadership post. "My greatest concern is restoring the confidence of the public in their elected officials."

Voters can hold Bosma to his word by insisting that legislative candidates endorse a comprehensive package of tough ethics laws. Kentucky's code, for example, would clearly have prohibited Turner from lobbying to protect his own interests. It also places oversight of the code with an independent nine-member commission.

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to Indiana Government

Ind. Decisions - State agrees to recognize Whiting same-sex couple's marriage [Updated]

The NWI Times is reporting in a story that begins:

HAMMOND | A federal judge on Thursday approved an agreement for Indiana to recognize the marriage of two Whiting women while the state appeals a ruling overturning its gay marriage ban.

Veronica Romero and Mayra Yvette Rivera filed a lawsuit in U.S. District Court this week asking a judge to order Indiana to recognize their Illinois marriage because Rivera has advanced ovarian cancer.

The couple's lawsuit named Indiana Attorney General Greg Zoeller; Indiana Health Commissioner William VanNess; and Lake County Clerk Michael A. Brown, who issues marriage licenses.

A joint stipulation was filed Wednesday in which Indiana agreed to recognize the couple's marriage and, in the event of Rivera's death, issue a death certificate listing her as married and recording Romero as the surviving spouse. The Indiana State Department of Health also agreed to assist local health departments, funeral homes, physicians, coroners and others involved in completion of a death certificate to understand their duties in the couple's case.

U.S. District Judge Joseph Van Bokkelen on Thursday acknowledged the agreement and stayed the case while Indiana appeals a ruling overturning its gay marriage ban to the U.S. Supreme Court.

The agreement comes following an order in a separate federal case in which Indiana was ordered to recognize the marriage of another lesbian couple. That emergency order, issued by U.S. 7th Circuit Court of Appeals, applies only to Munster residents Amy Sandler and Niki Quasney, who also is fighting advanced ovarian cancer.

Zoeller said in a statement Thursday that he has a duty to defend the laws passed by the Indiana General Assembly but also must respect previous decisions by the courts.

"Our 7th Circuit Court of Appeals has previously made an exception to Indiana's existing statute and recognized a plaintiff’s out-of-state marriage under similar, difficult circumstances." Zoeller said. "In this new case, the stipulation both sides filed mirrors the 7th Circuit’s earlier approach."

Both sides requested all further activity be stayed until the Supreme Court decides the underlying legal issues of state marriage licensing authority, Zoeller said.

Romero and Rivera have been in a committed relationship for more than 27 years and were legally married in March 2014 in Illinois, according to their lawsuit. They have two children.

Rivera is undergoing chemotherapy treatments for ovarian cancer and Romero is her primary caretaker. On July 22, Rivera entered hospice care, the lawsuit says.

[Updated at 10:50 AM] Here, via Equality Case Files ‏@EQCF, is the ruling and the joint stipulation.

Posted by Marcia Oddi on Friday, September 12, 2014
Posted to Ind Fed D.Ct. Decisions

Thursday, September 11, 2014

Ind. Decisions - Federal Court denies Women's Health Link’s request for preliminary injunction to permit public service advertisement on Ft. Wayne city buses, but keeps lawsuit alive

Today, in Women's Health Link v. Fort Wayne Public Transportation Co., a 21-page opinion, United States District Court Judge Robert L. Miller, Jr. wrote:

Women's Health Link, Inc., which provides counseling with a "life-affirming perspective" for pregnant women, wants a preliminary injunction requiring Fort Wayne Public Transportation Corp. to allow Women's Health Link’s public service advertisement on city buses the Transportation Corporation operate. The Transportation Corporation, which is better known as “Citilink,” says that it rejected the Women's Health Link ad because of its viewpoint-neutral policy not to accept public service announcements that express or advocate positions on political, religious, or moral issues. Women's Health Link says Citilink already has allowed such ads on its buses. Based on the limited record of a sort often seen at the preliminary injunction, the court denies the preliminary injunction motion because Women's Health Link hasn't shown a reasonable probability of success on its contention that Citilink hasn't applied its rules consistently and neutrality. Along the way, the court also denies Citilink's motion to dismiss Women's Health Link's case. * * *

This is a surprising holding, even to the court. Undisputed facts indicate that had Women's Health Link not included the “life-affirming” phrase on its website, or even with that phrase, had Women's Health Link not shared an address and phone number with Allen County Right to Life, its ad would have ridden the Citilink buses throughout 2014. In the First Amendment sense, such a scenario evokes the quacks-like-a-duck doctrine. But while the discovery process might smoke out a duck, this preliminary injunction record contains no evidence at all that the Women's Health Link PSA was rejected for any reason other than the Citilink advertising policy.

For all of these reasons, the court DENIES the defendant’s motion to dismiss [Doc. No. 25], and DENIES plaintiff’s motion for a preliminary injunction [Doc. No.15].

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Ind Fed D.Ct. Decisions

Law - "South Carolina legislature determined to rewrite even more history"

That is the headline to this long, Sept. 8th editorial in the Columbia South Carolina newspaper, The State, written by Cindi Ross Scoppe, arguing the case against expungement legislation.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to General Law Related

Ind. Courts - "Seymour attorney lands in jail after being intoxicated in court"

Paul Gable, editor of The Shelbyville News, posted this story Wednesday afternoon. The story begins:

A Seymour attorney found himself going from defense attorney to defendant this week in Shelby County Superior Court II.

According to a probable cause affidavit, Joseph M. Robertson II drove from Seymour to Shelby County on Monday and did so with an alcohol concentration equivalent to at least .15 gram of alcohol per 100 milliliters of his blood or 210 liters of his breath.

A report from the Shelby County Sheriff's Department states that Judge David Riggins found Robertson in contempt of court and Riggins requested Robertson be tested for alcohol.

The report states it was determined Robertson had driven from Seymour to Superior Court II and then acted inappropriately with a staff member by touching her inappropriately three times.

"Judge Riggins also advised that he had a victim testify at the Contempt of Court proceedings that Robertson almost ran her off the roadway on his way to the courthouse," the report states.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Indiana Courts

Ind. Courts - More on: AG Zoeller files with 7th Circuit for stay of mandate

Updating yesterday's post, the plaintiffs in two of the three consolidated cases, Fuji and Lee, have filed an 8-page Response to the State's Motion to Stay Mandate. I'm told the Baskin plaintiffs are filing separately.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Ind. (7th Cir.) Decisions

Environment - "State panel gives preliminary OK for new manure storage rules"

Updating this ILB post from Sept. 7, Bob Segall of WTHR13 has a long story, with video, on yesterday's meeting of the Indiana Environmental Rules Board. From the long story:

INDIANAPOLIS - State regulators are one step closer to regulating stand-alone structures and lagoons that are at the center of a debate dividing Indiana's agricultural and environmental interests.

Indiana's Environmental Rule Board voted unanimously Wednesday afternoon to give preliminary approval for new rules that will regulate "satellite" manure storage facilities -- despite testimony from environmental groups that believe the rules are too lenient.

The vote followed a one-hour public hearing and lengthy comment period designed to gather public feedback on the proposed rules, and it comes after a WTHR investigation showed tons of out-of-state manure are being shipped into Indiana each week.

Truckloads of manure

For years, large mounds of manure have been piling up across Indiana. 13 Investigates exposed the practice nearly four years ago, documenting how thousands of truckloads of manure were dumped in Indiana from Ohio poultry farms. The farms decided to export the manure following an environmental disaster at Grand Lake St. Mary's in western Ohio. The rapid growth of blue-green algae in the massive lake killed off birds, fish and tourism.

A state investigation showed the algae crisis was the direct result of manure runoff that drained into the lake from area farm fields. Soon thereafter, state officials encouraged farmers to transport manure away from the Grand Lake St. Mary's watershed, and they helped secure federal funding to help subsidize the cost trucking manure to nearby states like Indiana.

A highly valued fertilizer, poultry manure is considered a commodity, and federal interstate commerce laws prohibit Indiana from allowing truckloads of manure into the state.

But following WTHR's "Dumped in Indiana" investigation in 2010, the Indiana Department of Environmental Management admitted it lacked proper oversight of Indiana's manure imports, and the agency took action.

With IDEM's help, the state chemist's office enacted new regulations to help control the application of out-of-state manure in Indiana. At the same time, IDEM identified yet another hole in its regulations.

"Do you know what they're doing?"

While manure storage facilities on large factory farms are tightly regulated by IDEM, a new breed of manure storage facilities was emerging in Indiana with no oversight whatsoever. Several stand-alone "satellite" manure storage structures (SMSS) were appearing in eastern Indiana, and because they were built on farms that did not fall under IDEM's rules for confined feeding operations involving hundreds or thousands of chickens, hogs or cows, the state could not regulate the construction or safety standards of those sites.

"We had a gap in our statute," said IDEM Office of Land Quality assistant commissioner Bruce Palin. "We feel it's important that we have some oversight of those kinds of structures because if they are not constructed properly and it would leak and fail, it would have disastrous effects."

The state is only aware of a few SMSS buildings in Indiana so far. One such facility is now being built near 250 houses in the town of Milton in Wayne County -- about 200 feet from the home of Mahlon Whitaker.

"A neighbor called and said 'Do you know what they're doing next to your filed?' There was no notice, no notification, no nothing," Whitaker told WTHR in December. "It's on a scale unlike anything that's been seen… it shouldn't be allowed."

Based on its unanimous vote Wednesday afternoon, it is clear the Environmental Rule Board is going to allow SMSS buildings in Indiana. But the panel also appears ready to place limitations on where those manure storage units are located and how they are built.

Public debate

The preliminary rules approved by the Board include minimum setbacks from nearby homeowners and construction requirements mandating each SMSS be built to the same standards as manure storage facilities on large industrial farms.

"We believe these structures are a positive improvement in the management of manure in an engineered and controlled system, and we urge the adoption of this rule," said Josh Trenary, executive director of the Indiana Pork Advocacy Coalition.

More from the long story:
But environmental activists and residents who live near farms with stored poultry manure say the pungent smell travels for miles – sometimes even requiring them to wear gas masks. They asked the Environmental panel for more protections.

"We feel this rule is grossly inadequate in terms of protecting the public health and our drinking water supply," said Dave Menzer of the Citizens Action Coalition.

"Allowing millions of gallons, football-field-sized lagoons in very sensitive areas known to have direct contact with ground water and surface water, it's quite frankly an unconscionable disregard for environmental and public health for people who live in rural communities and who rely on well water for their drinking water," testified Kim Ferraro of the Hoosier Environmental Council.

Board members seemed sympathetic to their concerns.

Immediately after voting to grant preliminary approval to the new rule, several panel members suggested changes will be coming.

"You can expect to see changes to the final version," said Board chairwoman Beverly Gard

IDEM must now develop a final rule, then allow for more public comment and also hold another public hearing. That means a final rule for manure storage in Indiana is still six months or even a full year away.

Rick Callahan of the AP also covered the story, here is his report, with video, on WRTV 6. Some quotes:
The Environmental Rules Board unanimously approved the draft rules after environmentalists told the panel the regulations aren't tough enough and could turn Indiana into a dumping ground for out-of-state manure.

Since 1971, Indiana has regulated manure storage at the state's large livestock farms where thousands of animals are raised in close quarters. But the new rules are the state's first for "satellite" manure ponds, lagoons, tanks and other structures located off-site of livestock farms that serve as holding basins for manure trucked in from such farms.

The rules, which still need the board's final approval, would apply to earthen ponds, lagoons, tanks and other structures designed to store at least 1 million gallons of manure.

Dave Menzer of the Citizens Action Coalition told the board the draft rules are "grossly inadequate" compared with what's needed to protect Indiana's public health and its water supplies.

He said earthen manure lagoons can fail or leak during heavy rain events and taint the groundwater that rural residents rely on for private wells to provide their drinking water.

Menzer also said he fears the rules detailing the construction, management and operation standards for the manure lagoons will spur an influx of manure from livestock farms in other states.

"We're inviting out-of-state waste in and we're very concerned that this rule does not protect the public health," he told the panel.

Josh Trenary, executive director of the Indiana Pork Advocacy Coalition, disputed that contention, saying the rules would actually make it more difficult to bring manure into Indiana from other states, in part because the storage basins would require state approval.

"It's by no means something that's laying the groundwork for manure coming in from out-of-state," he said.

Instead, Trenary said such lagoons give livestock farmers a chance to sell some of their manure to crop farmers, who apply the liquid waste to their land as an alternative to commercial fertilizer.

Kim Ferraro, the Hoosier Environmental Council's water and agriculture policy director, said the proposed rules for lagoons that she said can be as large as football fields don't provide sufficient buffer zones around sinkholes and other areas with porous limestone geology where surface and groundwater often mix. She said that poses a threat to private wells.

She said manure waste contains not just livestock excrement but animal blood, afterbirths and contaminants such as detergents used in the cleaning of livestock pens.

"It's quite frankly an unconscionable disregard of the environment and the health of people who live in rural communities and rely on well water for their drinking water," Ferraro said.

Bruce Palin, assistant commissioner of the Indiana Department of Environmental Management's office of land quality, said Indiana currently has three off-site manure lagoons, one of which is part of a livestock farm operation but is not located on that farm.

Board chairwoman Beverly Gard, a former state senator, said the panel is expected to tweak the rules in response to some of the issues raised by environmentalists and the board's members before giving its final approval to the regulations, likely early next year.

"Preliminary adoption doesn't necessary mean everyone agrees with everything that's in it," she said.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Environment

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

They are combined: SEC v. First Choice Management and CRM Energy v. Bradley (ND Ind., Miller). Judge Posner writes the 6-page opinion, affirming the order in First Choice and dismissing the appeal in CRM.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Ind. (7th Cir.) Decisions

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

For publication opinions today (0):

In Lewis Oil, Inc. v. Bourbon Mini-Mart, Inc. and Robert E. Wanamacher, a 10-page opinion, Judge Crone writes:

Robert E. Wanamacher owned Bourbon Mini-Mart, Inc. (“Mini-Mart”), in Bourbon, Indiana. In 1991, the Indiana Department of Environmental Management (“IDEM”) filed a complaint against Wanamacher and Mini-Mart (collectively “Appellees”) seeking reimbursement for the cleanup of contaminants from the Mini-Mart property and an adjoining property that once housed a gas station.

Lewis Oil, Inc., was voluntarily dissolved in 1997. In accordance with Indiana Code Section 23-1-45-7, Lewis Oil published a notice of dissolution stating that any claim against it would be barred unless a proceeding to enforce the claim was commenced within two years after publication of the notice. Omitted from the notice was a description of “the information that must be included in a claim” as required by paragraph (b)(2) of the statute.

In 2003, Appellees filed a third-party complaint against Lewis Oil, alleging that it owned and operated underground storage tanks (“USTs”) at the adjoining gas station that released petroleum products that contributed to the contamination. Lewis Oil filed a motion for summary judgment asserting that Appellees’ claims were time-barred pursuant to Indiana Code Section 23-1-45-7 because the lawsuit was filed more than two years after the notice of dissolution was published. In response, Appellees argued that their claims were not time-barred because the notice did not contain a description of “the information that must be included in a claim.” Appellees also filed a motion for partial summary judgment as to whether Lewis Oil owned and operated the USTs. In a summary judgment reply brief, Lewis Oil argued that the notice was valid pursuant to Indiana Code Section 5-3-1-2.3, which applies to notices published pursuant to statute, because a reasonable person would not be misled by the omission. The trial court denied both parties’ summary judgment motions.

In this interlocutory appeal, Lewis Oil contends that the trial court erred in denying its summary judgment motion because a reasonable person would not be misled by the omission in its notice of dissolution. We agree. The requirement that a notice of dissolution describe “the information that must be included in a claim” is clearly intended for the benefit and protection of the dissolved corporation, and the claimant would have firsthand knowledge of the claim.

Therefore, we conclude that Lewis Oil’s notice of dissolution was valid and that Appellees’ claims are time-barred because their lawsuit was filed more than two years after the notice was published. Accordingly, we reverse and remand with instructions to enter summary judgment in favor of Lewis Oil. And because we find Lewis Oil’s argument dispositive, we do not address Appellees’ arguments on cross-appeal regarding the trial court’s denial of their partial summary judgment motion, which we affirm.

In Lee Travis Griffin v. State of Indiana, a 17-page opinion, Judge Najam concludes:
In sum, we conclude that the State presented sufficient evidence to support Griffin’s convictions. We also hold that Griffin waived any error related to the admission of the autopsy photographs but, his waiver notwithstanding, the trial court did not abuse its discretion when it admitted the photographs into the record. And we hold that the trial court did not abuse its discretion when it refused to issue a reasonable theory of innocence instruction on these facts. Thus, we affirm Griffin’s convictions.
In Brian M. Marley v. State of Indiana , a 10-page opinion relating to changes in the criminal code:
Marley claims that his sentence is inappropriate in light of the recent changes to the Indiana criminal code that have, under certain circumstances, notably decreased the sentences for drug offenses. Marley does not claim that the new criminal code statutes apply directly to his conviction and sentence; he claims instead that we should consider the public policy set forth in the new criminal code in determining whether his sentence is inappropriate. * * *

Generally speaking, the sentencing statutes in effect at the time the defendant committed the offense govern the defendant’s sentence. Barber v. State, 863 N.E.2d 1199, 1209 (Ind. Ct. App. 2007). However, the doctrine of amelioration provides an exception to this general rule where a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to that statute rather than the sentencing statute in effect at the time of the commission or conviction of the crime. Id. Notably, the doctrine of amelioration does not apply where the legislature, in a specific saving clause, expressly states an intention that crimes committed before the effective date of the ameliorative amendment should be prosecuted under prior law. Turner v. State, 870 N.E.2d 1083, 1087 (Ind. Ct. App. 2007).

Here, the General Assembly, in enacting the new criminal code, also enacted savings clauses. Specifically, both Indiana Code section 1-1-5.5-21 and section 1-1-5.5- 22 state that the new criminal code “does not affect: (1) penalties incurred; (2) crimes committed; or (3) proceedings begun” before the effective date of the new criminal code sections, i.e., July 1, 2014. These sections also provide that “Those penalties, crimes, and proceedings continue and shall be imposed and enforced under prior law as if [the new criminal code] had not been enacted.” Id. And, in no uncertain terms, these sections state: “The general assembly does not intend the doctrine of amelioration (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to apply to any SECTION [of the new criminal code].” Id.

It is abundantly clear from these statutes that the General Assembly intended the new criminal code to have no effect on criminal proceedings for offenses committed prior to the enactment of the new code. We think this is true with regard to considering the appropriateness of a sentence under Appellate Rule 7(B); we are to proceed as if the new criminal code had not been enacted. We therefore decline to take into consideration the lesser penalties of the new criminal code in addressing the appropriateness of Marley’s sentence. Instead, we consider what Appellate Rule 7(B) requires us to consider: the nature of the offense and the character of the offender. * * *

Because of the clear, unambiguous language of the savings clause statutes, we decline to take into consideration the lesser penalties of the new criminal code when addressing the appropriateness of Marley’s sentence. Upon considering the nature of the offense and the character of the offender, we are unable to say that Marley’s sentence of ten years executed and two years suspended is inappropriate.

NFP civil opinions today (3):

Daniel E. Stuckman, Sr., and Daniel E. Stuckman, Jr. v. Angela C. Stuckman, as Personal Representative of the Estate of Gary A. Stuckman, deceased, and Angela C. Stuckman, et al. (NFP)

Nancy Hay v. Richard Hay (NFP)

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

NFP criminal opinions today (3):

Alberto Villalva v. State of Indiana (NFP)

Michael T. Paille v. State of Indiana (NFP)

Thomas Booker v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indianapolis attorney Jesse L. Coleman suspended for 60 days

From In the Matter of: Jesse L. Coleman, filed Sept. 8, 2014:

Violations: The parties sharply dispute when an attorney-client relationship arose between Respondent and his clients and the extent of Respondent's duties in the Mortgage Foreclosure Case. After a careful review of the parties' arguments and the evidence, the Court concludes the Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:[1]

1.3: Failure to act with reasonable diligence and promptness by his failure to promptly notify the foreclosure court of the bankruptcy filing and his failure to attend the § 341 meeting of creditors in the bankruptcy case.

1.4(a)(3) and 1.4(b): Failure to keep a client reasonably informed about the status of a matter and failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions by his failure to keep TC and GC reasonably informed about what was happening in the foreclosure action and his failure to alert them that a delay in filing for bankruptcy relief might prevent them from trying to pay the mortgage arrearage through a Chapter 13 plan and save TC's house.

Discipline: For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 60 days, beginning October 20, 2014. * * *
____________
[1] The Court concludes that the Commission failed to meet its burden of proof on its charge that Respondent violated Rule 1.4(a)(4), which prohibits failure to comply promptly with a client's reasonable requests for information.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Close email loophole in Open Door Law"

Updating this Sept. 3rd ILB post, from an NWI Times editorial yesterday:

If there's one good thing about the feud between Indiana Superintendent of Public Instruction Glenda Ritz and the State Board of Education, it's that the board inadvertently found a flaw in the Indiana Open Door Laws that needs to be fixed.

The Indiana State Board of Education didn't admit it was wrong to hold a meeting via email, although it paid the legal fees for plaintiffs including former Merrillville school Superintendent Tony Lux.

After the board members privately drafted and approved a letter via email, requesting the General Assembly's help in calculating school grades for 2012-13, Ritz complained, and rightly so, that the board acted improperly.

The lawsuit by Lux and the other plaintiffs failed to get the board members to admit they were wrong to conduct the public's business in private. However, it served a good purpose, which was to cue up a necessary discussion on the legality of decision-making by email.

The board made several mistakes in this email exchange. One was to discuss the public's business in private. This wasn't just two board members; this was the majority of the board. Another was to do so without alerting the public. Worst of all was making the decision in secret.

The Indiana Open Door Law serves as a reminder to public officials that they represent the public and must conduct business in public.

Acting in secret fuels suspicion and undermines trust in government.

The Indiana General Assembly must revise the Open Door Law next year to prohibit meetings via email, because they exclude the public from the deliberations being made by board members.

This is true not just for the State Board of Education, but other government boards as well. Conduct business in the open, not being closed doors or through secret emails.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Indiana Government

Law - "Power of Attorney Is Not Always a Solution"

From the Aug. 22nd "Wealth Matters" column in the NY Times, this report by Paul Sullivan that begins:

FOR millions of people over the decades, the power of attorney has been an inexpensive way to give someone the right to act on another person’s behalf. But its power is not always absolute and when it fails, the consequences can be nothing short of disastrous.

Take the cautionary case of Christine, a 62-year-old Connecticut woman, who agreed to tell us her story so others might learn from it, but asked that her last name be withheld to protect her and her family’s privacy.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to General Law Related

Ind. Courts - More on "Hidden camera video raises questions about judge's wedding business"

Updating this ILB post from Sept. 5th, Kara Kenney of WRTV6 had a new report with video last evening, headed "Judge dodges questions about wedding business."

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Indiana Courts

Ind. Courts - Governor Pence Names Bodie J. Stegelmann Goshen City Judge

Updating this ILB post from May 20th of this year, headed "Goshen mayor Allan Kauffman suggests cutting city court," that included this quote from the Elkhart Truth:

The city court has operated at a deficit for at least 10 years, according to income and expense data provided by Kauffman. The court ended 2013 with a $164,210 loss, and in 2012, the court ended up $120,949 in the red.
and that ended with an ILB note:
The ILB looked back at its long, long list of earlier posts including the term "city court" and found many interesting entries, including several proposing abolition of an existing city court, several proposing creation of such a court (noting the revenue that could be generated), a number concerning discipline of city court judges.
Today Gov. Pence has announced:
Indianapolis – Governor Mike Pence today named Bodie J. Stegelmann as Judge in the Goshen City Court.

“With nearly two decades of criminal and civil law experience, Bodie Stegelmann has the expertise and passion necessary to serve Hoosiers well as Goshen City Court Judge,” said Pence.

Stegelmann works a partner with the Goshen, Indiana law firm of Yoder, Ainlay, Ulmer & Buckingham, LLP, where he is primarily engaged in business planning and real estate law and advises various local government bodies.

Posted by Marcia Oddi on Thursday, September 11, 2014
Posted to Indiana Courts

Wednesday, September 10, 2014

Law - "POLITICO’s Eric Bradner Latest to Join CNN Politics Digital"

The story from FishBowl DC begins:

Eric Bradner, a trade reporter for POLITICO Pro, is set to join CNN as a reporter on the CNN Politics Digital breaking news team, we’ve learned. He joined POLITICO in August 2013 from the Evansville Courier & Press where he was the Statehouse bureau chief.
I guess I won't be seeing Eric on Morning Joe after all.

See also Huffington Post story, "CNN Raids Politico For Growing Digital Politics Team."

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to General Law Related

Ind. Courts - AG Zoeller files with 7th Circuit for stay of mandate

Here is a copy of the 17-page motion for an immediate stay of the Court's mandate in Baskin v. Bogan pending the final disposition by the U.S. Supreme Court of their fully submitted petition for writ of certiorari.

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court reaffirms separate Indiana summary judgment standard

Arend J. Abel, Cohen & Malad, has posted in the firm blog this discussion of Hughley v. State, decided yesterday by the Supreme Court (ILB summary here, 2nd case):

Two and a half years ago, I wrote a blog article wondering whether a decision from the Court of Appeals signaled a change in Indiana’s summary judgment standard. Now we have the answer. In a unanimous decision in Hughley v. State, which Indiana’s Chief Justice Loretta Rush wrote, the Indiana Supreme Court reaffirmed the Indiana summary judgment standard.

The Indiana standard differs from the federal summary judgment standard in important ways. Under the Indiana standard, a party seeking summary judgment must negate an element of the other party’s claim, or establish an affirmative defense, such as the statute of limitations, with undisputed evidence. Under the federal standard, by contrast, the moving party can simply assert that the other party has no admissible evidence to support the claims, the so-called “no evidence” summary judgment motion, which was sanctioned by the United States Supreme Court in Anderson v. Liberty Lobby, Inc.

Despite criticism of the Indiana Standard, Chief Justice Rush and the other four members of the Indiana Supreme Court adhered to it, noting that the criticism “overlooks the policy behind that heightened standard.” “Indiana,” Justice Rush wrote for the Court, “consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.”

In the course of deciding the case, the Supreme Court held a “a perfunctory and self-serving” affidavit was enough to prevent summary judgment. In the case, an individual had been arrested for dealing cocaine, in his house, where “apparent cocaine residue and other indicia of cocaine dealing were in plain view on the kitchen table.” Defendant was searched, and police found more than $3800 in his front pocket, mostly in twenty-dollar bills. Nevertheless, in the State’s civil forfeiture case, the defendant filed an affidavit that stated merely that the money was not proceeds of criminal activity and that he intended to use it only for lawful purposes. There was a similar issue with Defendant’s 1977 Buick, leading to a similar paragraph in the affidavit. This, the Court held, was enough.

The high-water mark in questioning the Indiana standard was a dissenting opinion [from denial of transfer, in Lenhardt Tool, 2000] by former Justice Boehm, joined by former Chief Justice Shepard, followed by a fairly gutsy opinion by the Indiana Court of Appeals. But now it is clear that Indiana will remain a jurisdiction where it is harder for parties to get summary judgment. For those representing civil plaintiffs, that’s a big win.

ILB: Some readers may recall that Prof. Schumm wrote this after the second round of interviews to fill the second Supreme Court vacancy in 2012:
Nearly every applicant was asked (usually by Chief Justice Dickson) whether they had a preference for the federal or Indiana summary judgment standard. This question was probably not of great interest to the lay members of the Commission but certainly was of interest to the lawyer members, each of whom is probably much happier with the Indiana standard. This post from Arend Abel on the Indianapolis Litigation Blog explains the difference: The Indiana Supreme Court in Jarboe held in 1994 that "Under Indiana's standard, the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence. ... In this respect," the Jarboe decision explained, "Indiana's summary judgment procedure abruptly diverges from federal summary judgment practice. Under the federal rule, the party seeking summary judgment is not required to negate an opponent's claim." The Court then held "Indiana does not adhere to Celotex and the federal methodology."
Prof. Schumm's recounting of the then-Judge Loretta Rush interview, however, does not indicate that she was asked the question.

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - NFP Decisions Cannot Be Cited — Or Can They?

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

As noted in this post Friday afternoon, the Indiana Supreme Court rejected the Rules Committee’s proposed rule to allow citation of unpublished decisions as persuasive precedent. The proposal was advanced by three sections of the Indianapolis Bar Association and yours truly. The modest proposal, which would have maintained two classes of opinions (one binding and the other merely persuasive) was discussed in this April 21 post and this May 13 post. The Court instead made merely cosmetic changes to Appellate Rule 65, retaining the prohibition on citing “not-for-publication memorandum decisions,” which will simply be called “memorandum decisions” in 2015.

As no dissenting votes are noted, it seems unlikely the issue will resurface before passage of a few years and the retirements of at least two justices. So, what happens now?

A Call for Consistency

If lawyers are stuck with a rule that defies the modern reality of “memorandum decisions” being easily accessible, one could at least hope for greater consistency in how they are handled.

First, we could hope for greater consistency in the classification of opinions by the Court of Appeals. As noted in several posts, such as this one, memorandum decisions have sometimes decided issues of first impression or other significant issues that warrant publication.

Lawyers could also hope for greater consistency in the Court of Appeals’ own practices of citing unpublished opinions, which were explored in this May 29 post.

Finally, many lawyers hope for a level playing field with rules enforced consistently regarding lawyers’ citing unpublished opinions. The response from the Court of Appeals’ however, has varied from one law clerk’s explanation that citing unpublished decisions won’t get lawyers into trouble but should be done in a footnote to Chief Judge Vaidik’s scolding during a recent oral argument of counsel who had cited unpublished decisions in a brief:

The rules provides that you are not to cite not for publication opinions and you have done so in this case and there's not some judges that accept them and some judges don’t. The rules are the rules. So I wonder, as I look through your brief, what rules you have chosen to follow and what rules you haven’t.
Only one version of Rule 65 is on the books; it should be applied equally to lawyers and litigants regardless of the judge or panel they happen to draw.

Creative Ways Around Rule 65?

Disappointed but not deterred, some lawyers will seek ways to cite helpful memorandum decisions when they believe it is important to their clients’ case. I’m not endorsing any of the following (except #3, which I used several years ago), but I offer the following, which I have heard lawyers mention in recent days:

1. Relying on Appellate Rule 1, which allows the appellate court to grant leave to deviate from any appellate rule, counsel might file a motion requesting permission to cite a memorandum decision. Of course the reasons for the motion and significance of the unpublished decision will need to be discussed in the motion. Worst case, the motion is denied—and the judges have seen the unpublished decision and read about its relevance to the lawyer’s case.

2. Give a hint that a memorandum decision has addressed the issue without providing a citation to the decision: “No published opinions have addressed this issue.” Daring lawyers might go further, “but an unpublished opinion decided in March of 2009 dealt with the same facts,” or “starts with J” or “rhymes with cones” is asking for trouble. Joking aside, however, to avoid an allegation of plagiarism a lawyer who relies on the reasoning of an unpublished decision is arguably obligated to give attribution, in some form. The rule simply prohibits a citation to the taboo unpublished decision.

3. Cite a party’s brief that addressed the same issue. For example, assume the Attorney General previously conceded that a certain jury instruction was error, and the earlier case was reversed in an unpublished decision. Several months later, a different Deputy Attorney General files a brief in your case arguing no error from the same instruction. Counsel could cite the State’s concession in its brief, which conveniently has the same cause number as the memorandum decision in which the instructional error led to reversal. (If you later file a motion to publish your unpublished decision, noting the issue has now surfaced twice and the State has been arguing inconsistently, be prepared for the motion to be denied. Don’t expect any reasons; none are required or provided in denying motions to publish — and many, if not most, motions to publish are denied.)

4. Ask the appellate court to take judicial notice of a memorandum decision in another case. Evidence Rule 201(b)(5) allows courts to take judicial notice of “a law,” including “records of a court of this state.”

5. Litigate the issue. I can think of a number of creative legal theories here, such as the unfair treatment of a client who receives a memorandum decision and now faces greatly diminished odds at transfer compared to those lucky litigants who receive published opinions.

Or something along the lines of Anastasoff v. United States, 223 F.3d 898, 899 vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000), which was decided on federal constitutional grounds before the Federal Rules of Appellate Procedure were amended to allow what the Indiana Rule proposed 65 amendment sought:

The judicial power of the United States is limited by the doctrine of precedent. Rule 28A(i) allows courts to ignore this limit. If we mark an opinion as unpublished, Rule 28A(i) provides that is not precedent. Though prior decisions may be well-considered and directly on point, Rule 28A(i) allows us to depart from the law set out in such prior decisions without any reason to differentiate the cases. This discretion is completely inconsistent with the doctrine of precedent; even in constitutional cases, courts "have always required a departure from precedent to be supported by some `special justification.'" [citation omitted] Rule 28A(i) expands the judicial power beyond the limits set by Article III by allowing us complete discretion to determine which judicial decisions will bind us and which will not. Insofar as it limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional.

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to Indiana Courts | Schumm - Commentary

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

For publication opinions today (2):

In Pinnacle Healthcare, LLC and Patrick J. Sheets, M.D., Inc. v. Patrick J. Sheets , a 14-page opinion, Judge Najam writes:

Pinnacle Healthcare, LLC (“Pinnacle”), and Patrick J. Sheets, M.D., Inc. (“the Practice”) (collectively, “the Appellants”) bring this interlocutory appeal from the trial court’s denial of their motion for a preliminary injunction against Dr. Patrick J. Sheets, which sought to enjoin Dr. Sheets from violating or continuing to violate contractual noncompete, nonsolicitation, and nondisparagement clauses. The Appellants raise three issues for our review, which we restate as whether the trial court’s denial of their motion for a preliminary injunction is clearly erroneous. We reverse and remand with instructions. * * *

In sum, the trial court’s judgment denying the Appellants’ motion for a preliminary injunction is clearly erroneous. The trial court’s findings do not disclose a valid basis for its judgment with respect to any of the four requirements for a preliminary injunction. Further, the trial court’s assessment of the public interest and its reliance on Udom are contrary to Indiana law. [ILB: Udom is a Tenn. case cited on p. 6]

Accordingly, we reverse the trial court’s denial of the Appellants’ motion for a preliminary injunction, and we remand with instructions for the court to hold a hearing on the Appellants’ motion pursuant to Indiana Trial Rule 65. While the court may consider the evidence presented at the December 13, 2013, hearing on Dr. Sheets’ motion pursuant to Indiana Trial Rule 65(A)(2), as the court itself recognized in its order on the Appellants’ motion a hearing is required at least on the Appellants’ new allegations. See Appellants’ App. at A7. Hence, on remand, the court shall hold a hearing on the Appellants’ motion and, thereafter, the court shall enter a judgment on the Appellants’ motion that is not inconsistent with this opinion.

In Town of Lapel, Indiana v. City of Anderson, Indiana, a 10-page opinion, Judge Baker writes:
The Town of Lapel (Lapel) appeals the trial court’s order granting summary judgment to the City of Anderson (Anderson). After Lapel annexed a parcel of real property located in Madison County, Anderson filed a declaratory judgment action seeking to have the annexation declared invalid and void. The general rule is that the only way to challenge an annexation is via a statutory remonstrance or statutory appeal. Anderson does not meet the criteria to be a remonstrator or a statutory appellant. There are limited exceptions to the general rule, providing that under certain circumstances, a complainant may bring a declaratory judgment action to challenge an annexation. We find that Anderson does not meet these exceptions and that, consequently, it does not have standing to challenge Lapel’s annexation. Therefore, we reverse and remand with instructions to enter summary judgment in favor of Lapel.
NFP civil opinions today (3):

In Kokomo Board of Zoning Appeals v. Markland Properties, LLC, Thrust Inc. d/b/a Tease Bar, Brett Morrow and Dustin Ogle (NFP), an 11-page opinion, Judge Mathias writes:

The Kokomo Board of Zoning Appeals (“the BZA”) appeals the Howard Circuit Court’s order reversing the BZA’s decision that Markland Properties, LLC, Thrust Inc. d/b/a Tease Bar, Brett Morrow and Dustin Ogle (collectively “Tease Bar”) increased the floor area of the business beyond the ten percent expansion allowed under Kokomo’s Zoning Ordinance, and therefore, Tease Bar could no longer operate its sexually oriented adult entertainment business as a legal-nonconforming use. We affirm. * * *

There is no question that by removing an interior wall, Tease Bar’s square footage increased and it now occupies the entire ground floor of the building. But the increase in square footage of the non-conforming use did not expand the existing “structure” or “floor area” as those terms are defined in the Ordinance. For all of these reasons, we agree with the trial court that there was “no evidence introduced to support the contention that the structure was enlarged, expanded, increased, or extended.” See Appellant’s App. p. 16 (emphasis in original). For this reason the BZA’s decision was arbitrary and an abuse of discretion. We therefore affirm the trial court in all respects.

Donald Moss v. Progressive Design Apparel, Inc. (NFP)

Mary Ragon as Personal Representative of the Estate of Larry Ragon v. Eli Lilly & Company (NFP)

NFP criminal opinions today (4):

Jay Sleet v. State of Indiana (NFP)

Melissa S. Johnson Mabie v. State of Indiana (NFP)

Roy Austin Smith v. State of Indiana (NFP)

James McDuffy v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Oops: 7th Circuit Cites Forgotten Evidence in Ruling "

Jacqueline Palank of the WSJ Bankruptcy Beat Blog, wrote yesterday about the recent Timothy Durham decision. Some quotes:

A federal appeals court recently overturned two of multiple fraud counts against the former chief executive of a bankrupt Indiana investment firm after prosecutors didn’t back up the charges with evidence. * * *

The U.S. Court of Appeals for the Seventh Circuit on Thursday ruled that federal prosecutors’ failure to provide key evidence to back up two counts of wire fraud against Mr. Durham, while “clearly an oversight,” nevertheless warranted dropping the charges (h/t Indianapolis Star).

Specifically, Mr. Durham’s attorneys had argued that prosecutors didn’t provide evidence that a transfer of $250,000 and another of $50,000 constituted wire fraud. The appeals court agreed, citing the single-page printouts that showed that the transfers were made, but didn’t show how they were allegedly used to further the fraud.

“The government apparently intended to introduce additional evidence regarding the circumstances of these transfers but neglected to do so,” the court found. “Without the additional documentary evidence, the jury had no evidence about how the money was used.”

Court papers show the printouts were meant to introduce larger exhibits that would show that the funds were paid to a country club as dues and to a luxury garage.

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to Ind. (7th Cir.) Decisions

Law - "Does obtaining leaked data from a misconfigured website violate the CFAA?" [Updated]

Here is a very good Volokh Conspiracy post by Orin Kerr on the legality of using information from a misconfigured website.

See this related April 18, 2013 ILB post, "For those whose real crime is outsmarting the authorities, severe punishment awaits."

[Updated 9/11/14]
See this Sept. 8th story in Wired, by Andy Greenberg, titled "FBI’s Story of Finding Silk Road’s Server Sounds a Lot Like Hacking."

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to General Law Related

Ind. Gov't. - "Deal may be near in Indiana stage collapse suit"

The ILB has had 120 earlier posts on the State Fair stage collapse that occurred over three years ago. Ken Kusmer of the AP had this report yesterday that begins:

INDIANAPOLIS

A lawsuit filed by victims of the 2011 Indiana State Fair stage collapse appears to be nearing a settlement, a mediator's report indicates, more than three years after the fatal accident that killed seven people and injured more than 40.

John Van Winkle mediated the talks between the state of Indiana, its co-defendants — Live Nation Worldwide, Dave Lucas Entertainment and Mid-America Sound — and at least 11 plaintiffs who opted out of an $11 million state payout. He noted the progress in a report to Marion Superior Court Judge Theodore Sosin filed Saturday. The Associated Press obtained a copy of the report Tuesday.

"At or after the mediation sessions of May 5th and 6th, the plaintiffs and all but one of the defendants reached agreements to settle or agreements in principle to settle," Van Winkle wrote, without identifying the holdout defendant.

The parties in the case are trying to "finalize releases and other settlement documentation," Van Winkle said.

"Because of the number of parties involved, to facilitate the finalization of the agreements, the court might consider settling a deadline of fifteen or thirty days for the parties to complete the settlements," Van Winkle wrote.

The case consolidated 11 separate lawsuits, with plaintiffs including the estates of three people who died in the collapse.

Posted by Marcia Oddi on Wednesday, September 10, 2014
Posted to Stage Collapse

Tuesday, September 09, 2014

Ind. Decisions - Supreme Court decides two today

Barbara J. Pohl v. Michael G. Pohl, an 11-page, 5-0 opinion, Chief Justice Rush writes:

Nearly twenty years ago, our decision in Voigt v. Voigt reserved the question of whether a court may modify a maintenance obligation that originates in a settlement agreement, but rests on grounds such as incapacity that would have permitted an identical award even in the absence of an agreement. 670 N.E.2d 1271, 1280 n.13 (Ind. 1996). That question poses a choice between a rock and a hard place: As Voigt recognized, permitting modification may unjustly upend a delicate balance the parties struck in negotiations with the expectation of finality. Id. at 1278 & n.11. Yet prohibiting it may cause undue hardship to a party who faces unforeseen circumstances.

We conclude that prohibiting modification will cause harsh results somewhat less frequently than the alternative, making it the better of those two unsatisfactory choices. We therefore hold that any maintenance provision in a settlement agreement, regardless of its grounds, is modifiable only if the agreement so provides. But this agreement does so provide—echoing the language of the incapacity maintenance statute by making the agreed maintenance amount subject to “further order of the court” in the alternative to “agreement of the parties.” We therefore reverse the trial court and remand with instructions to apply the incapacity maintenance statute’s “substantial and continuing change in circumstances” standard to the evidence presented at the modification hearing. * * *

Reserving a question, as we did in Voigt, is based on our sense that the issue viewed head on may not align with our initial leanings. That is certainly true here—that despite intimating other-wise in Haville and Ryan, we believe our conclusion in Voigt holds even when a court could have issued an identical maintenance award in the absence of the parties’ agreement. That solution, though imperfect, is preferable to the alternative, which we believe would defy freedom of contract more often than it would save parties from undue hardship. If divorcing parties want to make judicial modification available for their maintenance agreements, they must say so in their contract—as the parties did here.

We therefore reverse the trial court’s judgment and remand with instructions to consider whether, under Indiana Code section 31-15-7-3(1), the evidence established a substantial and continuing change in circumstances that makes the Addendum’s agreed maintenance award unreasonable, and if so, to then determine an appropriate modification.

Oral argument was heard in this case on June 12th. The vacated Court of Appeals opinion, affirming the trial court, was from Nov. 26, 2013.

In Anthonio Hughley v. State of Indiana, The Consolidated City of Indianapolis/Marion County, and The Indianapolis Metropolitan Police Department, a 6-page, 5-0 opinion, Chief Justice Rush writes:

Under Indiana Trial Rule 56, summary judgment is precluded by any “genuine” issue of material fact—that is, any issue requiring the trier of fact to resolve the parties’ differing accounts of the truth. Merely resting on the pleadings will not permit the non-movant to raise such an issue, but a competent affidavit will. Here, Defendant’s affidavit was self-serving and none too detailed—but it was competent, and it contradicted the State’s designated evidence on a material fact. It was therefore sufficient to preclude summary judgment, regardless of whether Defendant would likely prevail at trial. We accordingly reverse the trial court. * * *

“Summary judgment should not be granted when it is necessary to weigh the evidence.” Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282, 285 (Ind. 1991). Because Defendant designated competent evidence in response to the State’s motion for summary judgment, weighing it—no matter how decisively the scales may seem to tip—was a matter for trial, not summary judgment. The trial court’s judgment is therefore reversed, and we remand this matter with instructions to deny the State’s motion for summary judgment.

Transfer was granted in this case on June 13th, vacating a Feb. 20th NFP opinion which had affirmed the trial court. There was no oral argument.

Posted by Marcia Oddi on Tuesday, September 09, 2014
Posted to Ind. Sup.Ct. Decisions

Environment - "Illinois EPA: Communication breakdown in BP oil spill in lake" [Updated]

Updating this brief ILB post from March 28th, here is a Chicago Sun-Times column from Sept. 9th that begins:

The BP oil spill into Lake Michigan earlier this year was “a shot over the bow,” jolting Illinois officials to consider the prospect of future industrial accidents and the threat to drinking water.

That’s according to an Illinois Environmental Protection Agency official who warned his colleagues in an email shortly after the March 25 spill that communication and coordination were not good following the incident in northwest Indiana.

U.S. and Indiana officials who went to the site of the spill apparently never contacted key Illinois authorities to give an all clear on drinking water safety. Had the accident been worse, the government folks responsible for protecting the public’s drinking water may have been slow to prevent oil from contaminating water supplies, according to the March 28 email, obtained by the BGA.

“We may have dodged a bullet because we did not have a check and double check on this incident from the drinking water program perspective,” public water supply manager Dave McMillan wrote in an email to Illinois EPA colleagues.

McMillan described in his memo a breakdown in communication among government agencies, including Indiana’s environmental regulators and the U.S. Environmental Protection Agency. These agencies didn’t alert key Illinois officials to let them know whether drinking water was potentially contaminated, he said.

In the end, officials who oversee Chicago and other water systems tested and determined that drinking water supplies were not affected by the spill, McMillan said. The drinking water intake in Hammond, Ind., which provides water to hundreds of thousands of people, however, “was pretty darned close to the incident,” McMillan noted. As much as 1,600 gallons of oil were accidentally dumped into Lake Michigan from the BP refinery located on the shoreline in Whiting, Ind. It remains unclear whether the spill was caused by a mechanical glitch, human error or something else.

[Updated at 3:11 PM] The ILB is pleased to learn that IDEM reads the ILB, in real time. I've just received this note:
Hi Marcia,

Regarding the post that quotes the Sun Times article, there are a few things that IDEM would like to clarify. First, there was never any threat to drinking water, something IDEM’s own Emergency Response section determined early on, based on weather conditions. Second, there was no breakdown in communications. From the very start, IDEM was working with US EPA, US Coast Guard, and Illinois emergency response officials to make sure everyone knew what was going on. Had the weather conditions been different or the spill larger, we of course would alert drinking water operators of the danger. This is something our ER staff is trained to do.

Many thanks,

Dan Goldblatt, Public Information Officer, IDEM Media Relations

Posted by Marcia Oddi on Tuesday, September 09, 2014
Posted to Environment

Ind. Courts - More on: Today Indiana files with SCOTUS for review of 7th Circuit's same-sex marriage opinion

Updating this post from earlier today linking to the State of Indiana's petition for cert in Baskin v. Bogan, here now, also in record time, is the 27-page response of the consolidated respondents. Some quotes:

Respondents believe the Seventh Circuit was wholly correct in its decision. Nonetheless, Respondents agree that the Court should grant review in this case. The questions presented by this case are of exceptional importance to Respondents and the nation and should be resolved expeditiously. Additionally, this particular case presents an excellent vehicle to review the constitutional issues presented. * * *

If this Court grants review, it should affirm the Seventh Circuit’s decision, which correctly held that the Indiana marriage ban unconstitutionally discriminates against same-sex couples, unlawfully relegating their families to second-class status.

Posted by Marcia Oddi on Tuesday, September 09, 2014
Posted to Indiana Courts

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

For publication opinions today (2):

In Robert O. Hedrick v. Angela R. Gilbert, a 15-page opinion, Judge Baker writes:

Robert Hedrick appeals from the trial court’s order, which: (1) declined to modify Hedrick’s original child support agreement with his ex-wife, Angela Gilbert, which provided that they would each bear 50% of the cost of their child’s postsecondary educational expenses, (2) found Hedrick in contempt and issued a sanction as a result, and (3) required Hedrick to pay a portion of Gilbert’s attorney fees. Gilbert filed a motion to dismiss the appeal, arguing that it was untimely filed. Finding that the appeal was timely filed, that the trial court did not abuse its discretion in denying Hedrick’s petition to modify the original child support agreement or in finding Hedrick in contempt for failing to comply with that original order, and that the trial court erroneously entered an attorney fee award against Hedrick, we affirm in part and reverse in part. * * *

Additionally, we acknowledge the authority that stands for the proposition that in a divorce case, a gross disparity of income between the parties can support an award of attorney fees to the party with lesser income available. See, e.g., Tompa v. Tompa, 867 N.E.2d 158, 166 (Ind. Ct. App. 2007). In this case, however, at the time of the modification hearings, there was not such a gross disparity in the income of Hedrick and Gilbert that an attorney fee order was warranted on this basis. Consequently, we find that the award of attorney fees was erroneous and reverse the trial court’s order to that extent only.

In State of Indiana v. Jacob A. Wroe, a 14-page opinion, Judge Baker writes:
The State of Indiana appeals the trial court’s order granting Jacob Wroe’s motion to suppress all evidence related to a polygraph examination Wroe had taken, including the stipulation to its admissibility signed by Wroe and the State. Although we acknowledge the concerns raised by Wroe regarding the agreement that he signed, and have significant reservations about the reliability of polygraph examinations and their admissibility in court, we are compelled by precedent to reverse the trial court’s order. * * *

Notwithstanding the language of the Stipulation, Sanchez is still the law of the land. Therefore, should the State decide to refile charges against Wroe, the trial court still retains the discretion afforded by Sanchez to consider the examiner’s qualification and the testing herein. This opinion has focused solely on the first prong of the Sanchez test and should not be interpreted to relate to any of the other three prongs. We also note that in the end, it will be the jury’s province to consider and weigh all evidence, including the polygraph examination results.

NFP civil opinions today (0):

NFP criminal opinions today (5):

Homer Ballard v. State of Indiana (NFP)

Lance Brownlee v. State of Indiana (NFP)

Monica L. Ritter v. State of Indiana (NFP)

Todd A. Garland v. State of Indiana (NFP)

William Mallory v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, September 09, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - AG Zoeller has carried his legal battle against recognition of same-sex marriage across the country using Indiana resources

Attorney General Zoeller's news release today again defends his office's actions as the State of Indiana's attorney:

Under its duty to defend the state laws the people’s elected representatives in the Legislature pass from lawsuits plaintiffs’ lawyers file, the Attorney General’s Office has served as state’s lawyer in the consolidated lawsuit Baskin et al. v. Bogan et al. that plaintiffs filed in March in U.S. District Court for the Southern District of Indiana. * * *

In defending Indiana’s marriage statute and the state defendants as its duty from the plaintiffs’ lawyers’ lawsuit, the Attorney General’s Office has provided a defense through its existing office budget the Legislature approved in advance. The case is assigned to an on-staff salaried attorney who does not charge billable hours. Unlike other states, Indiana has not hired outside counsel to defend its statute.

Earlier this year the Attorney General published opinion pieces in a number of newspapers around the state defending his office's filing of amicus briefs in courts around the nation, defending not the Indiana statute, but the statutes of other states prohibiting same-sex marriage. A quote: "By authoring or joining amicus briefs, our state government’s voice can be heard on fundamental issues even if we are not parties to a case."

In this long ILB post from June 23rd, the ILB questioned whether:

...the AG's view of "our state government's voice" about social issues in other states should be heard and financed with Indiana tax dollars. But in recent years the sole purpose of many of the 29 amicus briefs authored in the AG's office and filed in jurisdictions around the country has been to defend prohibitions against same-sex marriage in other states (sometimes even where a state's own elected officials have opted not to appeal a federal judge's ruling against that state's same-sex marriage prohibition).

Posted by Marcia Oddi on Tuesday, September 09, 2014
Posted to Indiana Government

Ind. Decisions - Here is the AG's statement re the SCOTUS filing today

Updating this morning's ILB post, Attorney General Zoeller has now issued a news release on this morning's SCOTUS petition. It notes:

Today was the deadline for Indiana to file its cert petition in order to be considered along with the Utah, Oklahoma and Virginia petitions during the Supreme Court’s first conference Sept. 29 where justices will to decide which cases to hear early in their next term, which begins in October and lasts through June 2015. If the Supreme Court decides to “grant cert” and accept a case, then it will set deadlines for the sides to file briefs and will schedule oral argument for later date.

Posted by Marcia Oddi on Tuesday, September 09, 2014
Posted to Indiana Decisions

Ind. courts - Today Indiana files with SCOTUS for review of 7th Circuit's same-sex marriage opinion

Wasting no time, today Attorney General Zoeller has filed a 57-page petition for writ of certiorari in Brogan v. Baskin. Some of the arguments presented on behalf of the State of Indiana:

I. These Cases Present the Most Worry- Free, Comprehensive Vehicle Yet for Review of Core Same-Sex Marriage Issues

This case may present the cleanest vehicle yet for the Court to resolve core same-sex marriage issues. There are no defendant standing issues to distract from the core legal issues, and full redress is possible because Petitioners include not only a county clerk who issues marriage licenses, but also state officials with actual authority to confer concrete benefits of recognition (rather than mere general supervisory authority) in the event Respondents prevail. And the State’s Attorney General, rather than attacking his own State’s traditional marriage law, provides a robust defense of the law. What is more, both licensure of in-state marriages and recognition of out-of-state marriages have been thoroughly briefed and argued, and Indiana does not offer same-sex couples a marriage-substitute such as domestic partnerships or civil unions that could complicate evaluation of the marriage issue.

II. The Unorthodox, Overtly Policy-Driven Analysis of the Decision Below Warrants Direct Review

Another reason for using this case to address the two core same-sex marriage issues is that the decision below strayed far from this Court’s Fourteenth Amendment doctrine. The Seventh Circuit, in an opinion by Judge Posner, expressly created its own four-part equal protection framework that presupposed the existence of the right being claimed and the existence of the classification being contested, declared that some nebulous form of heightened scrutiny applied, relied on the untested assertions of various amici “experts,” and all at once declared that Indiana’s traditional marriage definition also fails rational basis. Even aside from the Court’s ultimate resolution of the same-sex marriage issues, if left undisturbed, the analysis employed below is likely to create substantial doctrinal confusion in any number of equal protection cases proceeding through the Seventh Circuit, including perhaps those where gay and religious rights collide.

Posted by Marcia Oddi on Tuesday, September 09, 2014
Posted to Ind. (7th Cir.) Decisions

Monday, September 08, 2014

Ind. Courts - "A state of ridicule: Judges rule Indiana's gay marriage ban indefensible"

That is the headline to a long editorial today in the Fort Wayne Journal Gazette. A sample:

Attorney General Greg Zoeller seemed to be unfazed by Thursday's ruling by the U.S. 7th Court of Appeals against Indiana and Wisconsin's bans on gay marriage. Zoeller immediately called for a stay of execution of the order until the issue can be decided by the nation's highest court. * * *

Such determination is expected from great athletes and used-car salespeople. But it only befits a state's legal department when the issues are ones of high principles. In the appeals court hearing, the attorneys for Wisconsin and Indiana were exposed as advocates in search of a good argument. In that hearing and in Thursday's opinion, the states received not just reasoned refutation, but well-deserved ridicule.

The ruling noted that Indiana and Wisconsin had given “no reason” for their need to prohibit gay marriage. But the opinion went much further in demolishing the states' cases.

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Indiana Courts

Ind. Law -More on: "Blogger spied for bounty hunters in deadly Kosciusko shootout"

Updating this ILB post from Sept. 4th, a long, comprehensive story this weekend by Chris Meyers of the Fort Wayne Journal Gazette relates the facts and puts them in context. A sample:

If the accounts from the bounty hunters are accurate, Staley crossed a line no journalist should, two professors said.

Fred Brown, a member of the ethics committee with the Society of Professional Journalists and teacher of communication ethics at the University of Denver, said the line shouldn't be blurred between police operations and reporting on them.

“Clearly, this is not good journalism,” he said.

Stacey Page Online had an announcement posted Friday afternoon that Staley resigned. Attempts by phone and email to reach her were not successful.

See also this Sept. 5th story from the Goshen News, headed "Bounty hunter informant resigns as online editor."

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Indiana Law

Ind. Decisons - More on: "Ind. Courts - "Judge rules against Indiana BMV in ‘0INK’ license plate case" [Updated twice]

Updating this ILB post from May 8th, WISHTV8 is reporting:

Indiana’s high court has agreed to stay a lower court ruling ordering immediate resumption of the state’s suspended vanity license program.

The decision means drivers will have to wait for the outcome of an appeal hearing before getting the green light to apply for new vanity plates.

The ruling, issued late Thursday and entered into public record on Monday, prohibits enforcement of a May ruling from Marion County Judge James Osborn. Osborn had ordered the BMV to immediately reinstate its personal license plate program under a new set of rules, and inform all eligible drivers that they could again apply for new vanity plates.

The order to stay was unanimous, according to court records.

[Updated at 7:40 PM] Rafael Sanchez had a story this evening on WRTV6 about a trial court ruling today. A quote:
A Marion County judge said Former BMV Commissioner Scott Waddell wrongfully withheld testimony claiming privilege. The judge ruled Waddell must now answer at least 28 questions that he initially said he could not answer.

The Call 6 Investigators obtained his taped deposition from last April. Waddell was being questioned in connection to the ongoing lawsuit that claims the BMV knew it was overcharging Hoosiers on several services such as registrations and titles, but never fixed the problem.

During his deposition, Waddell was advised by his attorney when not to answer questions. A court order now says those unanswered questions can be asked again.

[Updated on Sept. 9th] Here is the Sept. 4th Supreme Court order granting the stay.

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Some interim legislative meetings of interest this month

Upcoming Interim Committee meetings in September: Here is the current calendar for September, 2014. Using that and this list, I've pulled information on some interim legislative meetings of interest this month.

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Indiana Government

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

For publication opinions today (3):

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, a 23-page opinion, Judge Kirsch writes:

Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. (collectively, “Intervenors”) appeal the order of the Indiana Utility Regulatory Commission (“the Commission”) approving Duke Energy Indiana, Inc.’s (“Duke”) request to include power plant construction costs incurred from October 1, 2011 through March 31, 2012 in a rate adjustment rider. On appeal, Intervenors raise the following restated issues:

I. Whether the Commission erred when it authorized Duke to pass on to ratepayers 100% of Duke’s requested financing costs for the period under review when the Commission’s authorization was made in the absence of findings of fact and conclusions thereon regarding costs incurred during a three-month delay; and

II. Whether the Commission erred by allowing Duke to consider 50% of the power plant to be “in-service,” and thereby increase customer rates, despite Duke’s admission that the plant had not reached its “In-Service Operational Date” as that term was defined in a Commission-approved settlement agreement to which Duke was a party, when such determination was made in the absence of Commission findings of fact and conclusions thereon. * * *

We remand to the Commission for actions consistent with this opinion.

In Department of Financial Institutions, State of Indiana v. Michael Massey, an 8-page opinion, Judge Kirsch writes:
The Indiana Department of Financial Institutions (“the DFI”) appeals following the trial court’s reversal of the DFI’s decision to deny Michael Massey a Mortgage Lender Originator’s (“MLO”) license. The DFI now appeals, presenting two issues that we restate as follows: I. Whether the DFI has made a prima facie showing that it is the MLO licensing authority; and II. Whether the DFI has made a prima facie showing that it acted within its discretion when it denied Massey an MLO license on character and fitness grounds. We reverse. * * *

Through its citation to SAFE and FLML, the DFI has met its prima facie burden of showing, in this case, that it is the licensing authority for MLOs who operate in Indiana. * * *

The DFI Board voted unanimously to deny Massey a license based upon character and fitness grounds, among other things. The DFI argues that it acted within its discretion when it denied Massey a license on those grounds. * * * 750 Ind. Admin. Code 9-3-2(b)... permits the DFI to deny a MLO to an applicant who does not meet its character and fitness requirements. Massey had convictions for armed robbery, possession of marijuana with intent to deliver, and possession of a firearm by a felon for which he served a total of ten years. The ALJ determined that the DFI acted within its discretion when it denied Massey an MLO license on character and fitness grounds due to those convictions. Appellant’s App. at 21. Based upon the facts that were not in dispute below and our prima facie standard of review in this case, the DFI has established that it acted within its discretion when it denied Massey an MLO license.

In Lori A. Henderson v. Reid Hospital and Healthcare Services, a 19-page, 2-1 opinion, Judge Kirsch writes:
Lori A. Henderson appeals the trial court’s order granting summary judgment in favor of Reid Hospital and Healthcare Services (“the Hospital”). She specifically contends that it was error to grant summary judgment because the trial court utilized the wrong standard when it held that the Hospital did not have a duty to remove the ice that had accumulated on its premises until the freezing fog had ceased and that genuine issues of material fact existed as to whether the Hospital used reasonable care under the circumstances when it cleared its premises of ice. We reverse and remand. * * *

BAILEY, J., concurs.
MAY, J., dissents with separate opinion. [that begins, at p. 17] The majority is correct that whether a particular act or omission is a breach of duty is generally a question of fact for the jury. N. Indiana Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003). But it can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts. Id. This is such a case. Only a single inference -- that the Hospital exercised reasonable care -- can be drawn from the undisputed facts. The Hospital was therefore entitled to summary judgment and I must respectfully dissent.

NFP civil opinions today (0):

NFP criminal opinions today (5):

Jessica Lewis v. State of Indiana (NFP)

Raymond Shelley v. State of Indiana (NFP)

Gary Wilder v. State of Indiana (NFP)

Thomas W. Badgley v. State of Indiana (NFP)

Steven C. Peters v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues public reprimands to two Franklin attorneys

The cases are In the Matter of Jennifer J. Auger and In the Matter of Michael R. Auger, issued Sept. 2, 2014.

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending September 5, 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, September 5, 2014. It is two pages (and 26 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Indiana Transfer Lists

Ind. Courts - More on: Changes in Marion County Court assignments

The ILB has received several emails on Friday's post. Thanks to several experienced court observers for helping with the answers:

  1. What are the current assignments?

    Answer: See the complete list here. Of those, McCarty, Shaheed, Sosin, Rosenberg, and Sore, are retiring. Dave Cook is finishing Kim Brown's term.

  2. Does the list posted Friday of court assignments mean anything other than changing court rooms? For example, a reader asks: "Does this mean a case now pending before Pat McCarty will be before Gary Miller when Pat retires?"

    Answer: The cases stay with the room. So, yes, Miller will take over McCarty's cases.

  3. Might Welch and Oakes take some of their complex, long pending cases with them? They are staying in the same type of court.

    Answer. If it is a Special Judge case, it goes with the judge. If not, it stays. However, if both sides agree, and judge agrees, cases can travel with judge.

  4. "Regarding your recent post on CHANGES IN MARION COUNTY COURT ASSIGNMENTS, it is interesting that we have not yet had the election. This points out the absurdity that Common Cause is attempting to address in its lawsuit."

    Answer. There are no other candidates on the ballot, so announcing now is not an issue. It gives people time to prepare. Giving new court assignments now will also help some litigants decide if their cases should speed up or slow down!

Posted by Marcia Oddi on Monday, September 08, 2014
Posted to Indiana Courts

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

From Sunday, September 7, 2014:

From Saturday, September 6, 2014:

From late Friday afternoon, September 5, 2014:

Posted by Marcia Oddi on Monday, September 08, 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 9/8/14):

Next week's oral arguments before the Supreme Court (week of 9/15/14):

Thursday, Sept. 18

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 9/8/14):

Friday, September 12

Next week's oral arguments before the Court of Appeals (week of 9/15/14):

Tuesday, Sept. 16

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, September 08, 2014
Posted to Upcoming Oral Arguments

Sunday, September 07, 2014

Ind. Decisions - More on "Purdue rebuffed in Wartell case: Justices let stand ruling declaring report to be public"

Commentary on the Wartell case continues with this column today by Dave Bangert of the Lafayette Journal-Courier, headed "What does Purdue have to hide in IPFW case?," that begins:

Did former Purdue University President France Córdova point to a picture of Michael Wartell, then the Indiana University-Purdue University Fort Wayne chancellor, and say: "I am going to replace this one with a woman"?

Wartell, pushed from his job in 2011, says yes. Purdue, defending against a pair of lawsuits from Wartell, says that wasn't the case.

Either way, the situation is the gift that keeps on giving, still providing fresh episodes in Purdue's effort to make a bad situation go away two years after Córdova retired as president. * * *

What skeletons are in that public document closet are anybody's guess. Just know that if Purdue is fighting this hard, the details are going to be juicy.

The column concludes:
Last week, the Fort Wayne Journal Gazette editorialized, "Eventually, Purdue will run out of legal tricks, and the 'Trimble Report' will become public. Too bad the time, energy and money spent on fighting its release couldn't have been spent on, say, education."

Whether that's true or just wishful thinking, we'll find out soon. Don't underestimate the ability of Purdue to keep things bottled up. It's legend by now. (This is a school that successfully scheduled a public trustees meeting at O'Hare Airport — not a room in O'Hare, but just at the third-busiest airport in the U.S. — to discuss the eventual hiring of Daniels and got away with it.)

But working this hard to protect the secrets in that report does as much to confirm suspicions of the put-upon at IPFW as anything else Purdue could do. [Link inserted by ILB]

Posted by Marcia Oddi on Sunday, September 07, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Diocese cleared in disability suit: But judge lets former teacher pursue unfair-firing case"

Updating a lengthy list of earlier ILB posts on this lawsuit, Rebecca S. Green of the Fort Wayne Journal Gazette reported in a long story this weekend that begins:

The local Catholic diocese did not violate the rights of a local teacher under the Americans with Disabilities Act when it chose not to renew her contract after she sought treatments for infertility.

But because those treatments were directly related to her gender, the former language arts teacher’s termination might have been sexual discrimination, according to a federal judge.

In a lengthy ruling filed Wednesday in federal court, U.S. District Judge Robert L. Miller Jr. granted the diocese’s request for summary judgment on the disability issue.

He allowed the case to move forward, however, on the issue of whether the Fort Wayne-South Bend Catholic Diocese discriminated against Emily Herx on the basis of her gender under Title VII of the Civil Rights Act of 1964. * * *

In his ruling, Miller found that the federal civil rights law does not give religious organizations “freedom to make discriminatory decisions on the basis of race, sex, or national origin.”

Because Herx had not argued she was the victim of religious discrimination, Title VII’s protection did not necessarily apply to the diocese, court files stated.

Miller also found that nothing so far suggested Herx fit the definition of a “minister” of the church. That means the diocese is not protected by the ministerial exception to Title VII, according to court documents.

A jury should get to decide whether the diocese’s treatment of Herx – firing her for getting the procedure that would make her pregnant having never done so to a male teacher – is in fact discriminatory, the judge ruled.

“The … issue is whether Mrs. Herx was nonrenewed because of her sex, or because of a sincere belief about the morality of in vitro fertilization,” Miller wrote in his order.

Here is a link to the 29-page, Sept. 3rd opinion by Judge Robert L. Miller, Jr.

Posted by Marcia Oddi on Sunday, September 07, 2014
Posted to Ind Fed D.Ct. Decisions

Environment - "Indiana too lax on livestock manure ponds?"

Following up on this ILB post from Sept. 5th, Ryan Sabalow of the Indianapolis Star reported this weekend:

[W]hile applauding the state for putting some standards in place, the Hoosier Environmental Council warns that the regulations under consideration are so lax that rural areas across Indiana might become dumping grounds for out-of-state manure "without much notice or consent from the community."

The environmental group says the proposed rule only regulates the largest facilities, and doesn't adequately address concerns about seepage or spills into drinking water.

"The rule has no teeth," said attorney Kim Ferraro, the HEC's water and agriculture policy director.

Environmentalists say they're particularly troubled that the proposed rules would allow in-ground lagoons larger than a football field. Aside from manure, environmentalists say the stored waste also could include dairy parlor "wash," blood and cow afterbirth. * * *

How the state handles out-of-state manure is the latest in a long list of complaints from environmental groups over a statewide legislative push for expansion of what they disparagingly call factory farms.

Environmental groups have been critical of state efforts to encourage large-scale confined livestock operations in Indiana by taking [sic.] it more difficult for local governments to use ordinances to prohibit new operations due to smells and other concerns.

State lawmakers also have passed laws that make it difficult for a neighbor to win a nuisance lawsuit against a large confined operation, some of which have so many thousands of confined animals they produce more sewage than the closest town. [ILB: e.g. Right-to-Farm laws]

IDEM officials have countered such criticisms, saying the state goes beyond federal standards in regulating massive livestock farms and the manure they produce.

Posted by Marcia Oddi on Sunday, September 07, 2014
Posted to Environment

Ind. Gov't. - "Owen County investigation finds wide range of financial irregularities"

That is the headline to this story today in the $$$ Bloomington Herald-Times, reported by Laura Lane. The subhead to the long story is: "Former auditor suspected of credit card misuse, diverting county funds, not paying bills." Some quotes:

Owen County Council member Angie Lawson, suspected of bilking the county of hundreds of thousands of dollars by using county credit cards to purchase everything from liquor to panties to $500 Visa gift cards, touts her experience, credibility and dedication to public service in a biography asking voters to choose her in November’s county clerk election. * * *

Lawson, 56, is being investigated on suspicion of illegal use of county-issued Wal-Mart credit cards. Preliminary Indiana State Police reports indicate Lawson went on shopping sprees often, sometimes spending more than $2,000 in one transaction.

In court documents unsealed Aug. 29 by Monroe Circuit Judge Marc Kellams, an ISP detective alleges Lawson diverted the Wal-Mart bills to a post office box she shared with her husband and daughter, then issued online check payments using electronic signatures without sending the bills through her office and on to the county commissioners for review.

When the payments appeared in county bank statements, there would be check numbers correlating with dollar amounts, but the check recipients are not listed.

Court documents in the case state that there might be as many as 75 county-issued Wal-Mart cards circulating and that Lawson may have given some to family members and friends.

She is also suspected of spending more than $18,000 in county funds for mail-order novelty items purchased from the Oriental Trading Co. and paying with a county check; not paying almost $50,000 in county health insurance premiums; and siphoning thousands from a county account that pays lawyers to represent indigent clients. * * *

Lawson has not been charged with any crimes. Morgan County Deputy Prosecutor Bob Cline, who is overseeing the investigation, has yet to file any criminal charges and would not say when charges might come.

Lawson was terminated from her job as a deputy in the Owen County Auditor’s Office in August after the allegations arose. Her annual salary was $27,860.

She was the Republican precinct committeewoman in Wayne Township 2, where her husband, Larry, was the vice precinct committeeman, but they have resigned in light of the suspicions of financial malfeasance. Lawson also has resigned as treasurer of the Owen County Republican Party.

She has not pulled out of the race for Owen County clerk; she beat incumbent clerk Jeff Brothers in the primary election.

Posted by Marcia Oddi on Sunday, September 07, 2014
Posted to Indiana Government

Ind. Gov't. - "New IU guide details sexual misconduct reporting responsibilities"

A story today in the Bloomington Herald-Times, by MJ Slaby, reports:

If a student comes to an Indiana University employee to share an experience of sexual misconduct, a new guide from the university aims to be that employee’s first resource.

The guide is part of ongoing changes to prevent and respond to sexual violence at IU and helps clarify which employees, universitywide, are obligated to report sexual misconduct to a Title IX coordinator, said Emily Springston, IU associate general counsel. * * *

Employees obligated to report incidents include all who work with students directly or “employees that students might reasonably believe have some authority to take action or a duty to report,” according to the guide. That includes all instructors, advisers, coaches and athletic staff, residential hall staff, employees in offices that see students and all supervisors and university officials. * * *

The guide tells employees to provide support and encourage seeking help, yet avoid counseling or pressuring students. Employees should also remind students that employees are obligated to report such incidents and can’t keep absolute confidentiality. However, employees are expected to respect the privacy of all involved.

Certain employees are considered confidential and not obligated to report, including “licensed, professional mental health counselors” and “staff in the student advocates offices specifically designated as nonprofessional sexual assault advocates for students,” according to the guide.

The guide is being given to employees at training sessions, meetings such as the Bloomington Faculty Council meeting on Tuesday and meetings with deans and department leaders, she said. It is also part of the newly unveiled stopsexualviolence.iu.edu website, she said.

Springston said the guide isn’t law, but could be as part of proposed legislation. And as the law changes, the guide may change as well, she added. But she said that doesn’t mean only obligated employees should report sexual misconduct.

“We feel everyone has an ethical responsibility to report,” she said.

Posted by Marcia Oddi on Sunday, September 07, 2014
Posted to Indiana Government

Ind. Law - Need for return of copy editors to the Indianapolis Star evident

Last week the Star had a story which both on line and in print revealed the unfamiliarity of both the reporter and editors with oral arguments, in particular referencing "testimony" of the attorneys before the justices.

Today Matthew Tully's print column, "Time to move past same-sex marriage fight," includes a rookie mistake that any review should have caught:

Court ruling after court ruling has struck down laws such as Indiana’s. Twenty-one rulings have come down in the past year, and the opponents of gay marriage have won all of one of them. As for Indiana’s law, the 8th U.S. Circuit Court was particularly blunt, almost mocking the state’s arguments by calling them “implausible.”
The error has been corrected in the online version I just checked.

Posted by Marcia Oddi on Sunday, September 07, 2014
Posted to Indiana Law

Saturday, September 06, 2014

Ind. Decisions - "Purdue rebuffed in Wartell case: Justices let stand ruling declaring report to be public"

Although the transfer list from the Supreme Court's conference Thursday is not yet publicly posted (but the parties likely have been advised), Rebecca S. Green of the Fort Wayne Journal Gazette is reporting this morning:

The Indiana Supreme Court will let stand a lower court's ruling declaring public the report concerning the termination of former IPFW Chan­cel­lor Mike Wartell.

By declining to hear arguments in the case, the state's highest court is basically saying it is not disagreeing with the Indiana Court of Appeals' decision to declare the hotly sought-after document, known as the Trimble Report, a public record.

And it is the latest loss for Purdue University in the cases surrounding the 2012 removal of Wartell as the head of IPFW. * * *

Purdue refused to make Trimble's report accessible to Wartell's attorneys, claiming it was protected. Purdue was upheld by the Indiana public access counselor. Wartell took the matter to the Indiana Court of Appeals, which ruled that the document was a public record.

Alongside the Tippecanoe County lawsuit, Wartell filed a federal law­suit, alleging that Purdue had never before enforced its policy requiring university executives to retire at 65.

According to the federal lawsuit, in late 2010 or early 2011, then-Purdue President France Córdova 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 Wartell with a 64-year-old woman, Vicky Carwein, and she assumed his duties in September 2012.

Purdue has been trying to keep the Trimble Report secret in the federal case as well, claiming it is protected by attorney-client privilege.

But in July, a federal magistrate judge ruled that had Trimble been working as Purdue's attorney, Wartell would have been told that before he talked to him.

The document was subject to discovery and should be disclosed, according to court documents.

The university's attorneys challenged that ruling as well, asking for the court to review additional documents not available to the magistrate when he made his ruling. A federal judge declined to consider those documents and let stand the original order to disclose.

In another attempt to keep the document under wraps, the university asked earlier this week to have the document declared confidential in the federal lawsuit.

If the court grants that request, the lawsuit would be disclosed only to Wartell's attorneys and never to anyone else, including the media and the general public.

ILB: But would such a federal trial court declaration override the separate Indiana state court rulings?

Here is a long list of other ILB posts on the Wartell cases, including this editorial Friday from the FWJG, headed "A telling silence: Purdue makes one more try to quash report."

Here is the March 24, 2014 Court of Appeals decision
, for which, according to this morning's story, transfer has now been denied by the Supreme Court.

Here is the docket entry
from Thursday, Sept. 4: Note the vote is 3-2:

09-04-2014 THIS MATTER HAS COME BEFORE THE INDIANA SUPREME COURT ON A
PETITION TO TRANSFER JURISDICTION FOLLOWING THE ISSUANCE OF A
DECISION BY THE COURT OF APPEALS. THE PETITION WAS FILED
PURSUANT TO APPELLATE RULE 57. THE COURT HAS REVIEWED THE
DECISION OF THE COURT OF APPEALS. ANY RECORD ON APPEAL THAT
WAS SUBMITTED HAS BEEN MADE AVAILABLE TO THE COURT FOR REVIEW,
ALONG WITH ANY AND ALL BRIEFS THAT MAY HAVE BEEN FILED IN THE
COURT OF APPEALS AND ALL THE MATERIALS FILED IN CONNECTION WITH
THE REQUEST TO TRANSFER JURISDICTION. EACH PARTICIPATING MEMBER
OF THE COURT HAS VOTED ON THE PETITION. EACH PARTICIPATING
MEMBER HAS HAD THE OPPORTUNITY TO VOICE THAT JUSTICE'S VIEWS ON
THE CASE IN CONFERENCE WITH THE OTHER JUSTICES.
BEING DULY ADVISED, THE COURT NOW DENIES THE APPELLANT'S
PETITION TO TRANSFER OF JURISDICTION.
LORETTA H. RUSH, CHIEF JUSTICE
ALL JUSTICES CONCUR, EXCEPT FOR DICKSON, J., AND MASSA, J., WHO
VOTE TO GRANT THE PETITION TO TRANSFER.

(ORDER REC'D ON 09/05/14 @ 12:23 PM) ENTERED ON 09/05/14 AB

Posted by Marcia Oddi on Saturday, September 06, 2014
Posted to Ind. Sup.Ct. Decisions | Indiana Government | Indiana Transfer Lists

Friday, September 05, 2014

Ind. Courts - "Hidden camera video raises questions about judge's wedding business"

Kara Kenney reports this evening for WRTV6 in a story that begins:

INDIANAPOLIS - Hidden camera video is raising questions about a Marion County judge's wedding business, Call 6 Investigator Kara Kenney reported.

Wedding officiants are accusing Center Township Small Claims Court Judge Michelle Scott of using public resources to promote the private wedding business she runs with her husband, Rich Scott.

Officiants contacted Kenney after obtaining their own footage of government workers at the City-County Building handing out business cards for Scott's wedding services and directing people to her private office on East Market Street.

David Daniels, a wedding officiant since 1961, said Scott is benefitting from free advertising at the CCB, the place where brides- and grooms-to-be go for their marriage licenses. * * *

The Call 6 Investigators used a hidden camera at the CCB and found public employees handing out business cards for Scott's wedding services and those same government workers directing people to her private office, which is a block from the CCB. * * *

According to Marion County Small Claims Court Rules, which went into effect March 2013, the fee for weddings performed on the Court premises or during the "regular office hours" of the Court shall be $80.

Any wedding fees collected by a judge during regular office hours shall be deposited into the Township General Fund, according to the rules.

Records also show that even though workers at the CCB are directing people to the judge's office, it's her husband who actually performs the bulk of the ceremonies.

Numbers obtained by the Call 6 Investigators show Michelle Scott and her husband Rich perform more weddings than any other wedding officiants in Marion County.

The Scotts have officiated more than 1,300 weddings since January 2013, which is 12 percent of all ceremonies performed. * * *

Their website shows they charge $150 for a weekday wedding at their office and $300 for a weekend wedding at the office.

A lot of judges perform weddings, especially small claims court judges, but the rules of judicial conduct say judges are not allowed to use their prestige or their facilities to promote their own economic interests.

It's not clear if Judge Michelle Scott has violated that rule.

ILB: Judge Scott lost in the primary, so will no longer be a Marion County Small Claims Court Judge at the end of this year.

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Indiana Courts

Ind. Courts - Supreme Court posts rule changes, but again fails to permit citation of cases designed by COA panels as NFP or memorandum opinions

The Supreme Court has just posted 13 orders amending rules of court.

A cursory look by the ILB at changes to the Appellate Rules (filed Sept. 2, 2014) reveals cosmetic changes to Rule 65, Opinions And Memorandum Decisions (see p. 7 of document), but retention of the Not for Publication concept (NFPs renamed "memorandum decisions") and no change to the prohibition against citation of such cases.

ILB Comment: The ILB finds this to be very disappointing.

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Indiana Courts

Ind. Courts - Changes in Marion County Court assignments

The ILB has just received this information re changes in the Marion County Court assignments, effective Jan. 1, 2015:

Court assignments effective January 1, 2015. The following list will reflect the changes made, those court assignments not listed will remain the same.

Criminal Courts

Court-----Judge

7---------Clayton Graham

15--------Helen Marchal

16--------Angela Dow-Davis

17--------Christina Klineman

20--------Shatrese Flowers

21--------PJ Dietrick


Civil Courts

1--------Heather Welch

2--------Tim Oakes

3--------Gary Miller

12-------John Chavis

13-------Jim Joven

Probate Court--------Steve Eichholtz

Traffic Court--------Marcel Pratt

Obviously with such movement, commissioner and magistrate assignments may change.

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Courts in general

Ind. Courts - Candidate for Howard Circuit Court may have violated Code of Judicial Conduct

So reports this long story posted Aug. 27th at KokomoPerspective.com. Some quotes:

Richard Russell wants to be judge, and he is willing to break the rules to get there. The Republican candidate for Howard Circuit Court recently sent out a letter, personally requesting campaign donations. Unfortunately, the Indiana Code of Judicial Conduct prohibits such activity.

The letter, dated Aug. 18, 2014, was sent to hundreds of potential voters in Howard County, and in it, Russell explained his need for funds.

“Campaigns require hard work and much sacrifice,” Russell wrote. “However, if you agree with me that we need a change in Howard County, then I humbly request your support in making that change a reality. * * *

The letter was accompanied by a return envelope for donors to send their money. And Russell signed the letter, leaving no question from whom it came.

The difficulty with the missive is that the judicial code of conduct specifically prohibits a candidate for judge from directly taking part in fund raising. According to Canon 4, Rule 4.1(8), “a judge or a judicial candidate shall not personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4.”

While Russell’s campaign did pay for the mailing, as indicated by the disclaimer at the bottom of the letter, it did not make the request on behalf of the candidate.

Unfortunately, this is not the only instance that appears to violate the judicial conduct code, coming from Russell’s campaign. His website -- russell4judge.com -- contains a number of photos of Russell with family and friends, as well as photos from the campaign trail.

But one photo in particular -- depicting Russell as he sits on the judge’s bench in Tipton County -- seems to run afoul of another section of Canon 4. In Rule 4.1(10), it states that “a judge or a judicial candidate shall not use court staff, facilities, or other court resources in a campaign for judicial office or for any political purpose.”

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Indiana Courts

Environment - State Hearing Wednesday on Rule Governing Out-of-State Livestock Production Waste

From a news release of the Hoosier Environmental Council:

The Indiana Environmental Rules Board will hold a public hearing next week on a proposed rule for massive outdoor pits and lagoons referred to as satellite manure storage structures (SMSSs) that take in very large volumes of industrial livestock waste from out of state.

SMSSs, by definition, are massive storage pits for livestock production waste sent to Indiana from other states’ industrial-scale livestock operations sometimes referred to as CAFOs or factory farms. SMSSs hold a minimum of one million gallons of liquid waste or at least 5000 cubic yards of solid waste and can be the size of a football field. The proposed rule allows “earthen lagoons” -- essentially unlined holes in the ground – to be used for storing millions of gallons of livestock production waste (such as dairy parlor wash, manure, blood, and even afterbirth) in rural areas across Indiana without much notice or consent from the community.

These satellite manure lagoons pose several environmental and public health threats including groundwater contamination in rural areas where people rely on wells for their drinking water.

While the Hoosier Environmental Council supports IDEM’s intent to establish regulations to oversee these structures, the organization is cautioning Hoosiers that the proposed rule does not, in its current form, protect their interests.

According to Kim Ferraro, HEC's Director of Water Policy, "the proposed rule poses an unreasonable risk to rural Hoosiers by allowing unlined manure lagoons to be built in sensitive areas such as 100 year flood plains with direct access to surface and ground waters. It lacks any meaningful notice or public commenting provisions to give impacted neighbors a say in whether a proposed SMSS should be permitted, and leaves locals with the cost of cleaning up the mess if (and when) a leak occurs and damages the community.”

The Environmental Rules Board hearing on the draft SMSS Rule will be held Wednesday, September 10th at 1:30 p.m. eastern, at the Indiana Government Center South, 200 W. Washington Street, Conference Room A, in Indianapolis. It is open to the public.

ILB: The Environmental Rules Board in 2013 replaced the long-standing Indiana Water, Waste, and Air Boards. This one Board now handles all those matters.

Here is the agenda of the upcoming Sept. 10th meeting. Preliminary adoption of the draft Satellite Manure Storage Structures Rules is #7 on the agenda.

Here are the packets for all the agenda proposals, including the rules information sheets and draft and proposed rules.

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Environment

Environment - "U.S. and Indiana Enter into Settlement for $26 Million Cleanup in East Chicago"

Some quotes from a news release:

September 3, 2014. Under a proposed settlement reached with the United States and the state of Indiana, the Atlantic Richfield Company and E.I. Du Pont de Nemours and Co. (DuPont) will pay for an estimated $26 million cleanup of lead and arsenic contamination in parts of a residential neighborhood in East Chicago, Indiana, announced the U.S. Department of Justice and the U.S. Environmental Protection Agency (EPA).

The yards in this neighborhood are contaminated with lead and arsenic through industrial operations that took place from at least the early 1900s through 1985. During that time, lead smelting and refining as well as other manufacturing processes that used lead and arsenic were located on and near the area that came to be known as the Calumet neighborhood of East Chicago. The cleanup will involve digging up contaminated soil, hauling it away for disposal, and restoring the yards with clean soil.

Under the settlement, EPA itself will do the work in the neighborhood. EPA will identify the yards that need to be remediated, will work with property owners to develop property‑specific drawings showing which soils on each property must be excavated, will do the excavation, and will restore the properties after excavation is complete. Atlantic Richfield and DuPont will pay for EPA’s work and will also be responsible for transporting the contaminated soil out of the neighborhood and properly disposing of it.

To manage the cleanup, EPA and the state divided the Calumet neighborhood into three zones. Today’s settlement covers two of them: a neighborhood that includes the Carrie Gosch Elementary School and residences operated by the East Chicago Housing Authority and a neighborhood located between the Elgin & Joliet Railway Line on the west and Parrish Avenue on the east. Cleanup of the third area of the Calumet neighborhood is the subject of further discussions.

“Under this settlement, Atlantic Richfield and DuPont will fund the first phase of cleaning up historical lead and arsenic contamination in residential properties in part of East Chicago,” said Sam Hirsch, Acting Assistant Attorney General for the Department of Justice’s Environment and Natural Resources Division. “This marks the start, not the end, of cleaning up the contamination that has burdened this community for far too long.”

“This settlement ensures that almost 300 residential properties, parks and public spaces in East Chicago will be cleaned up – and that the companies responsible for contaminating those sites will pay 100 percent of the costs for this phase of the cleanup,” said EPA Regional Administrator Susan Hedman.

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Environment

Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)

For publication opinions today (4):

In Cardinal Ritter High School, Inc. v. Aleesha Bullock, a 20-page opinion, Judge Baker writes:

Cardinal Ritter High School, Inc. (Ritter) appeals the determination of the Administrative Law Judge (ALJ) for the Indiana Civil Rights Commission (ICRC) finding that Ritter violated the Indiana Civil Rights Law (ICRL) when it did not select appellee-complainant Aleesha Bullock as a member of the girls’ varsity basketball team. Ritter argues that, as it is a private, religious institution owned and operated by the Roman Catholic Archdiocese of Indianapolis, the ICRL is not applicable. Also, Ritter contends that the findings of fact and conclusions of law issued by the ALJ are unsupported by substantial evidence and maintains that the $25,000 award to Bullock for emotional damages is based on speculative evidence. We find that the ICRC has jurisdiction over the girls’ basketball team at a private, religious institution. However, we conclude that when, as here, the case hinged entirely on the credibility of the witnesses, the issuance of an order by an ALJ who did not hear the evidence or observe the witnesses is not in accordance with law, is contrary to the constitutional rights of the parties, and is without observance of procedures required by law. Therefore, we vacate the order of the ICRC and remand with instructions to conduct a new hearing and issue a timely ruling.
In In the Matter of B.W. and A.K., Alleged to be Children in Need of Services, A.C. (Mother) v. Indiana Department of Child Services, a 20-page opinion, Judge Najam writes:
A.C. (“Mother”) appeals the trial court’s orders appointing guardians over her children, A.K. and B.W., following a permanency hearing. Mother presents a single issue for our review, namely, whether the trial court abused its discretion when it appointed guardians over the children. We reverse and remand with instructions. * * *

DCS has not presented clear and convincing evidence that Mother is currently unable to provide a safe home for the children or that the guardianships are in the children’s best interests. We hold that the trial court abused its discretion when it appointed guardians for the children. We reverse the trial court’s judgment and remand with instructions that the court reunite the children with Mother.

In Brenda K. Tipton v. Margaret Isaacs, M.D., St. Vincent Hospital and Healthcare Center a/k/a Ascension Health, Christina Francis, M.D., and James R. Minor, M.D., a 12-page opinion, Judge May writes:
Brenda K. Tipton appeals summary judgment for various healthcare providers she sued after her hysterectomy. As the consent form Tipton signed is determinative of all issues she raises on appeal, we affirm. * * *

Tipton consented to Dr. Francis’ participation in her surgery, and Tipton’s healthcare providers did not make a deceptive material misrepresentation of past or existing facts or remain silent when they had a duty to speak. We accordingly affirm the summary judgment for the defendants.

In Jerome Yates v. State of Indiana , a 4-page opinion, Judge May writes:
Jerome Yates was convicted after a jury trial of Class A misdemeanor resisting law enforcement. He argues on appeal he could not have been convicted of resisting law enforcement by fleeing because he did not have a duty to stop. We affirm. * * *

Officer Robinette had reasonable suspicion to order Yates to stop. Officer Robinette saw Yates commit two infractions, operating a bicycle left of center and operating a bicycle on a public roadway without an audible device, which provided reasonable suspicion to stop Yates.

NFP civil opinions today (4):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of G.G., Minor Child, and Her Mother, S.V., S.V. v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: R.W. & K.W., Minor Children, and B.W., Father v. The Indiana Department of Child Services (NFP)

In re the Adoption of E.H. and M.H., S.H. and B.S. v. M.S. and S.S. and the Indiana Department of Child Services (NFP)

Cynthia S. Giema v. Chrysler Group, LLC, Bosak Motor Sales, Inc., Will Farrellbegg, Jerry P. Giema and Rosemary Giema, Cynthia R. Novotny, and Kathy Willman (NFP)

NFP criminal opinions today (6):

Jordan W. Buskirk v. State of Indiana (NFP)

Anthony W. McGriff v. State of Indiana (NFP)

Shaun Cox v. State of Indiana (NFP)

Jeffrey S. Burke v. State of Indiana (NFP)

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

Theola Ann Heggler v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Supreme Court hears right-to-work challenge yesterday

Three stories today about yesterday's oral argument in Zoeller v. Sweeney:

Niki Kelly of the Fort Wayne Journal Gazette writes:

Indiana Supreme Court justices seemed skeptical during arguments Thursday about whether the state’s right-to-work law is unconstitutional.

While Justice Steven David con­ceded that the law is anti-union, he and his colleagues said the state statute doesn’t require unions to pay for so-called “free riders.” That is a federal law.

“The remedy here is to write your congressman,” Justice Mark Massa said. “If you don’t like free riders, take it up with Congress.”

A federal court this week upheld the law un­der the U.S. Con­sti­tu­tion. But Thursday’s bat­tle focused on whether it breaches the Indiana Constitution.

The case was the first appeal of two Lake County judicial rulings that found the state’s right-to-work law violates the Indiana Constitution.

Dan Carden reports in the NWI Times:
The five justices of the Indiana Supreme Court struggled during oral arguments Thursday to pin down precisely how the state's right-to-work law is unconstitutional.

Chief Justice Loretta Rush appeared most sympathetic to Lake Superior Judge John Sedia's 2013 decision striking down the labor law that found prohibiting unions from collecting "fair share" fees from nonmembers for bargaining and grievance services they receive violates the state's constitutional guarantee of compensation for services.

Rush, a former Lake County resident, pressed Solicitor General Thomas Fisher, a Jasper County native defending the law on behalf of Republican Attorney General Greg Zoeller, to explain why right-to-work isn't an uncompensated state demand for particular services.

Fisher argued right-to-work simply is a general regulation of business practices and not a situation where the state is forcing someone to do something without pay. The requirement that unions provide services to nonmembers at a unionized workplace is in federal law, he said.

"The particular services clause was not intended to eliminate all free rider issues," Fisher said. "This (right-to-work law) protects the voluntary aspect of what union membership is supposed to be about."

Justice Steven David was skeptical of that claim. He said there clearly is a demand for services and suggested the state is relying on a "nod, nod, wink, wink" argument by putting the origin of that demand on the federal government.

"Let's cut to the chase. This is clearly anti-union legislation," David said. "It's certainly not pro-union legislation."

David advanced and repeatedly returned during the 45-minute court session to the idea that the state is reallocating union funds without the union's consent, since unions forced to spend their members' dues representing nonmembers cannot spend that money on other things.

But when David asked Dale Pierson, attorney for the International Union of Operating Engineers, Local 150, the union challenging the right-to-work law, why that was unconstitutional, it took Pierson several tries to tie it to a state constitutional claim.

"The right-to-work law itself is the state demanding and taking money from the union," Pierson said.

Rush then wondered whether the union might be better off bringing an "as applied" challenge to the law once the union has been compelled to pay attorney fees and other costs associated with representing a nonmember, rather than arguing the law is unconstitutional on its face.

Justice Mark Massa, the former attorney for Republican Gov. Mitch Daniels, who signed right-to-work into law immediately upon its passage by the Republican-controlled General Assembly in 2012, left no doubt he believes the law is constitutional.

Massa pointed out federal law permits unions to be "members-only," which frees them from the obligation to represent nonmembers as "exclusive-agency" unions must.

As a result, unions seeking the additional federal protections of exclusive-agency also must consent to the cost of additional state requirements relating to that designation, Massa said.

Pierson responded by pointing out that members-only unions are fiction. They theoretically can exist under federal law but the National Labor Relations Board has not approved one in years.

Also, employers are not required to bargain with members-only unions as they must with exclusive-agency unions, Pierson said.

But Justice Robert Rucker, a Gary native, said so long as members-only unions are a possibility, the Operating Engineers' challenge to Indiana's right-to-work law "must fail" since exclusive-agency unions are choosing to put themselves at the mercy of right-to-work.

Near the end of the court's session, Justice Brent Dickson, a Hobart native, expressed his reluctance to overturn a law enacted by the Legislature, absent a clear violation of the Indiana Constitution.

While Dickson acknowledged right-to-work might force unions to provide services without compensation, he too noted it was federal law forcing unions to do so. The state's bill of rights cannot be used to defend Indiana unions from federal action, he said.

Rush ended oral arguments — her first since replacing Dickson as chief justice Aug. 18 — with the promise, "We will take this under advisement and issue an order in due course."

The Indianapolis Star story by Barb Berggoetz revealed some unfamiliarity with oral arguments - some quotes:
The 45-minute hearing over the 2012 law in the court’s packed Statehouse chambers pitted the state attorney general’s office against lawyers representing union members.

The state of Indiana appealed a Lake County judge’s ruling that the law, passed by a Republican-controlled legislature, violates Indiana’s constitutional prohibition against forcing anyone to provide a service — union representation in this case — for free.

Testimony by Solicitor General Thomas Fisher, representing Attorney General Greg Zoeller, and Dale Pierson, representing the International Union of Operating Engineers Local 150, was interrupted frequently by questions from Supreme Court members, as is common. They asked skeptical questions about exactly how the law violates Indiana’s constitution and the impact of the federal requirement for unions to represent all members of bargaining units.

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Indiana Courts

Ind. Decisions - Coverage of yesterday's 7th Circuit ruling on same-sex marriage

Coverage of yesterday's 7th Circuit same-sex marriage ruling from Tim Evans of the Indianapolis Star. See the long story here; some quotes:

Indiana's argument for prohibiting same-sex marriage is "totally implausible," a federal appeals court ruled Thursday in upholding a lower court's ruling that the ban is unconstitutional.

The 7th U.S. Circuit Court's decision, though, doesn't clear the way for same-sex couples to wed in Indiana. A stay against the initial ruling remains in effect. * * *

The three-judge panel's ruling, which also decided a similar case in Wisconsin, was at times harsh in its assessment of the state's rational for banning gay marriage.

"The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible," said the ruling, written by Justice Richard Posner, who was appointed to the appeals court by former President Ronald Reagan.

"The governments of Indiana and Wisconsin have given us no reason to think they have a 'reasonable basis' for forbidding same-sex marriage," Posner wrote. "And more than a reasonable basis is required."

Posner said Indiana's argument that "thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization" was not supported by evidence.

"Formally these cases are about discrimination against the small homosexual minority in the United States," he wrote. "But at a deeper level ... they are about the welfare of American children."

The judges found fault in the argument Indiana pressed hardest. That the only reason government encourages marriage is to induce heterosexuals to marry so there will be fewer accidental births and abandoned children, the court said, overlooks the reality that many such unwanted children are adopted by gay parents.

"Those children would be better off both emotionally and economically," the ruling said, "if their adoptive parents were married."

The ruling also said: "More than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation." * * *

Indiana's current ban on gay marriage remains in place — trapped in a sort of legal limbo where it has been declared unconstitutional but remains in force while the appeals process works through the courts. That means county clerks will not be allowed to issue marriage licenses to same-sex couples as they did during a three-day window in June after U.S. District Judge Richard Young first struck down the Indiana law but before the appellate court issued its stay.

Niki Kelly's long story in the Fort Wayne Journal Gazette is headed "Indiana gay marriage ban shot down." It begins:
The 7th Circuit Court of Appeals on Thursday issued a lightning-fast ruling declaring Indiana's and Wisconsin's gay marriage ban implausible and unconstitutional. It came nine days after the states' cases were argued before the three-judge panel.

“The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended – is so full of holes that it cannot be taken seriously,” the ruling said.

Ken Falk, attorney for the ACLU of Indiana, smiled widely at a news conference and said the ruling came “fairly quick.”

He said the original stay in the case is still in effect, which means no same-sex marriages can currently occur in Indiana.

“This is a very good day, continuing a streak of very good days,” said Falk, who appreciated the court pointing out how silly the arguments against gay marriage are.

The unanimous ruling, written by Judge Richard Posner, said the ban violates the federal equal protection clause by denying homosexuals a right that is granted to heterosexuals – the right to marry an unmarried adult of their choice

“The discrimination against same-sex couples is irrational, and therefore unconstitutional,” the decision said.

Posner was sometimes almost tongue-in-cheek while refuting the arguments for the ban.

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - Fallout from Clark County drug court problems continue

The ILB has had a long list of posts on the Clark County drug court. Charlie White of the Louisville Courier-Journal had this story yesterday, headed "Clark County civil-rights suit now class action." Some quotes:

Forty people who're now listed as plaintiffs in a federal civil-rights lawsuit allegedly spent a total of 2,560 days in jail without a hearing, attorney or other due process, according to a brief filed by attorneys this week against Clark County officials and its drug court treatment and probation programs.

On Thursday, a magistrate judge in U.S. District Court in New Albany granted Louisville attorney Mike Augustus' motion, certifying the case as a class-action suit with two classes of potential victims.

The first class — which is seeking monetary damages for each person's "loss of freedom," — includes all people who were participants in treatment program and who were incarcerated for more than 72 hours without due process from February 18, 2012 until August 4.

The second class, seeking declaratory and injunctive relief only, includes all who are or will be subject to the jurisdiction of the program as a participant and as a result face or will face the possibility of being alleged or determined to be in violation of the rules, terms or policies of probation or drug court. * * *

The plaintiffs' complaint that was amended in April lists the following defendants: Clark Circuit Court II Judge Jerry Jacobi, former drug court program director Susan Knoebel, drug court bailiff Jeremy Snelling, Clark County Sheriff Danny Rodden, chief probation officer Henry Ford, community corrections director Stephen Mason, work release director Danielle Grissett, drug court case manager Josh Seybold, the Clark County Board of Commissioners as its executive body and other unknown county work release and court clerk employees. * * *

Jacobi, who is being represented by the Indiana Attorney General's Office, fired Knoebel after initially suspending her and Snelling in January. Indianapolis attorney Rosemary Borek is representing Knoebel and Snelling, while other defendants are being represented by attorney Jeff Lowe, of the New Albany-firm Kightlinger & Gray LLP. * * *

The drug court was suspended in mid-February by the Indiana Judicial Center, an arm of the state Supreme Court, after allegations of unlawful conduct by drug court staff and practices harmful to participants. The state high court later agreed to reinstate the drug court conditionally, lifting the ban March 7 strictly to allow existing participants a chance to complete treatment and have their charges dismissed.

It was the first time Indiana has suspended a drug court or any other problem-solving court.

Jacobi lost during the May primary election to political newcomer Laura Harbison.

Posted by Marcia Oddi on Friday, September 05, 2014
Posted to Indiana Courts

Thursday, September 04, 2014

Ind. Decisions - "Indiana, Wisconsin same-sex marriage bans fall"

Here are some quotes from Lyle Denniston's just-posted SCOTUSblog report on today's 7th Circuit opinion:

The Seventh Circuit’s combined ruling in Baskin v. Bogan (the Indiana case) and Wolf v. Walker (the Wisconsin case) took a markedly different approach from that employed in many of the federal courts’ rulings against bans on same-sex marriage. It had as much philosophical and sociological content as legal analysis, and it used a good measure of sarcasm about and even something close to disdain for the two states’ arguments. Although decided by a three-judge panel, it had the distinctive style of its author, Circuit Judge Richard A. Posner, a jurist with a sharp wit, a devotion to scholarship, and an eclectic range of public policy interests, many non-judicial.

In this opinion, he even made use of the writings of the nineteenth-century English political philosopher and social commentator, John Stuart Mill, in dismissing the states’ arguments that many people find same-sex relationships repulsive.

As for legal arguments, the Posner opinion decided only the claim of discrimination in the two states’ bans on same-sex marriage and thus stayed away from the debate that figured in many cases about whether such bans violated a fundamental right — keyed to due process guarantees – for same-sex couples to enter marriage equally with opposite-sex couples.

In finding that the two states’ laws do discriminate against same-sex couples, the Seventh Circuit’s ruling avoided applying a more demanding constitutional test, concluding that the bans at issue were “irrational and therefore unconstitutional.” The “rational basis” test is the mode of analysis that is most generous to challenged to state laws.

Denniston also notes:
The next ruling from a federal appeals court is expected from the U.S. Court of Appeals for the Sixth Circuit, which has under consideration laws against same-sex marriage in the four states within its geographic area: Kentucky, Michigan, Ohio, and Tennessee. That decision could come at any time. Other federal appeals courts have already struck down bans in Oklahoma and Utah (the Tenth Circuit), as well as Virginia (the Fourth Circuit).

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Does today's ruling lift the 7th Circuit stay of Judge Young's SSM decision?

Updating this ILB post from earlier today (which included a link to the June 27th stay), a news release posted by the Attorney General's office late this afternoon has the best explanation I've seen of the stay situation:

The 7th Circuit’s ruling does not become effective until the 7th Circuit issues a mandate. Until then, the stay the 7th Circuit issued on June 27, 2014, remains in effect. The Attorney General’s Office soon will file a motion for stay with the United States Supreme Court, urging the high court to stay the effect of the 7th Circuit’s ruling pending appeal. If the stay motion is granted, then the status quo will remain in place – and Indiana’s marriage definition will remain enforceable – until an appeal is concluded.

The U.S. Supreme Court’s precedent is to grant a stay of a lower court ruling invalidating a state marriage law.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court decides one today

In Housing Partnerships, Inc. v. Tom Owens, Bartholomew County Assessor, a 4-page ruling on a petition for rehearing, Judge Wentworth writes:

On June 4, 2014, the Court issued an opinion in Housing Partnerships, Inc. v. Tom Owens, Bartholomew County Assessor, 10 N.E.3d 1057 (Ind. Tax Ct. 2014), holding that Housing Partnerships failed to show that its rental properties qualified for the charitable purposes exemption under Indiana Code § 6-1.1-10-16 for the 2006 tax year. See Housing P’ships, Inc. v. Owens, 10 N.E.3d 1057, 1059 (Ind. Tax Ct. 2014). Housing Partnerships now requests the Court to reverse that decision. The Court denies its request. * * *

Both in its original tax appeal and its Petition for Rehearing, Housing Partnerships used only conclusory statements to link the evidence of its good deeds to how its good deeds lessen governmental burdens. This is insufficient to show that it is entitled to a charitable purposes exemption for the 2006 tax year. Accordingly, the Court grants rehearing for the limited purpose of providing the above clarification and otherwise DENIES Housing Partnerships’ Petition for Rehearing.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Law - "Blogger spied for bounty hunters in deadly Kosciusko shootout" [Updated]

Wow! This is a bizarre story. The ILB has linked to several "Stacey Page" stories (here is one) in the past; she runs a useful online newspaper, Stacey Page Online.

Christian Sheckler has the report for the South Bend Tribune.

Here is a lengthy story this afternoon from the Goshen News, headed "'Stacey Page' editor responds to Helman shoot-out report." A few quotes:

GOSHEN — Journalist Stacey Staley, editor of the online news site Stacey Page Online, admitted Thursday that she cooperated with bounty hunters from Barnett’s Bail Bonds to help confirm the location and identity of a troubled Kosciusko man they were attempting to serve a felony warrant to. The interview was part of a tragic timeline of events that concluded with a deadly shootout on Aug. 25 just east of Lake Wawasee. * * *

Staley denied she knew an altercation might take place that day. A confirmation of Staley’s interaction with Barnett’s Bail Bonds was also posted on the Stacey Page Online Facebook page early Thursday afternoon.

Staley wrote a series of articles regarding her interview with Helman that were published on staceypageonline.com, which is operated by The Papers Inc. based in Milford, Ind. Staley did not disclose in the articles that she was working as an informant for the bail bond company.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Indiana Law

Ind. Decisions - Does today's ruling lift the 7th Circuit stay of Judge Young's SSM decision?

Here is the stay, issued by the 7th Circuit on June 27th. The pertinent language:

Upon consideration of the EMERGENCY MOTION FOR STAY PENDING
APPEAL, filed on June 27, 2014, by counsel for the appellants,

IT IS ORDERED that the motion is GRANTED. The district court'ʹs order dated
6/25/14 is STAYED pending resolution of this appeal.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit upholds most Tim Durham convictions

In U.S. v. Timothy Durham (SD Ind., Magnus-Stinson), a 31-page opinion, Judge Sykes writes:

Timothy Durham, James Cochran, and Rick Snow were convicted of perpetrating a widespread financial fraud that caused more than $200 million in losses to thousands of victims, many of them elderly or living on modest incomes. After taking control of Fair Finance Company, a previously well-established and respected business, the trio quickly turned it into their personal piggy bank. They used money invested in Fair to support their lavish lifestyles and to fund loans to related parties that would never be repaid. When the company’s auditors raised red flags about its financial status, the auditors were fired. When Fair experienced cashflow problems, it misled investors and regulators so it could keep raising capital.

Eventually the scheme began to unravel. One of the company’s directors, himself under investigation in a separate matter, alerted the FBI that Fair was being operated as a Ponzi scheme. After an investigation, the FBI seized Fair’s computer servers and arrested Durham, Cochran, and Snow. A jury convicted them on various counts of conspiracy, securities fraud, and wire fraud.

They now appeal their convictions and sentences on several grounds. We reject all of their challenges save one. The government failed to enter into the trial record key documentary evidence supporting two counts of wire fraud against Durham. It was clearly an oversight, but the mistake leaves a crucial gap in the evidence on those counts. Accordingly, we reverse Durham’s convictions on Counts 2 and 5 of the indictment and remand for resentencing without those countsin the mix. In all other respects, we affirm the defendants’ convictions and sentences. * * *

For the foregoing reasons, we REVERSE Durham’s convictions on Counts 2 and 5 and REMAND for resentencing without those counts. In all other respects, the defendants’ convictions and sentences are AFFIRMED.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides Indiana/Wisconsin same sex marriage appeals

In Baskin v. Bogan (SD Ind., Young) and Wolf v. Walker (Wis.), a 40-page opinion the combined same sex marriage appeals, Judge Posner concludes:

The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are AFFIRMED.
The oral argument was August 26th, nine days ago.

Here are some quotes from the opinion:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the va-lidity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are law-ful. The states have appealed from district court decisions invalidating the states’ laws that ordain such refusal.

Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hard-est in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of mar-riage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married. * * *

We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a rea-sonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discrim-inatory law or policy constitutionally suspect. [cites omitted] These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won’t have to consider that possibility). The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims. [cites omitted] * * *

[O]ur main focus will be on the states’ argu-ments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in chan-neling procreative sex into (necessarily heterosexual) mar-riage. We will engage the states’ arguments on their own terms, enabling us to decide our brace of cases on the basis of a sequence of four questions:

1. Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

2. Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychologi-cal commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society. Intellect, for example, has a large immutable component but also a direct and substantial bearing on qualifications for certain types of employment and for legal privileges such as entitlement to a driver’s li-cense, and there may be no reason to be particularly suspi-cious of a statute that classifies on that basis.

3. Does the discrimination, even if based on an immuta-ble characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable charac-teristic, but a rule prohibiting persons over 70 to pilot airlin-ers might reasonably be thought to confer an essential bene-fit in the form of improved airline safety.

4. Though it does confer an offsetting benefit, is the dis-criminatory policy overinclusive because the benefit it con-fers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the de-sired benefit. Imagine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are, let’s assume, essential to the efficient operation of government. The tax is therefore socially efficient, and the benefits clearly outweigh the costs. But that’s not the end of the inquiry. Still to be determined is whether the benefits from imposing the tax only on women outweigh the costs. And likewise in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes. * * *

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seri-ously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irra-tional, and therefore unconstitutional even if the discrimina-tion is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

It is also why we can avoid engaging with the plaintiffs’ further argument that the states’ prohibition of same-sex marriage violates a fundamental right protected by the due process clause of the Fourteenth Amendment. * * * In light of the compelling al-ternative grounds that we’ll be exploring for allowing same-sex marriage, we won’t have to engage with the parties’ “fundamental right” debate; we can confine our attention to equal protection. * * *

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimi-nation on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wis-consin for their discriminatory policies are not only conjec-tural; they are totally implausible.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. (7th Cir.) Decisions

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

In Neal v. LaRiva (SD Ind., Magnus-Stinson), a 6-page opinion, Chief Judge Wood concludes:

Neal obviously did not get the message we intended to send through the Mack order. This suggests that a monetary fine alone for his perjury is not likely to deter him from fu-ture abuse, although perhaps such a fine might send some incremental message. We therefore have decided to take three steps, for the purpose of deterring Neal from future abuse of the habeas corpus process, punishing him for his actions, and protecting the integrity of the court.

First, we are imposing an additional fine of $500 on Neal. Until he pays all outstanding fees and sanctions, clerks of all federal courts within this circuit must return unfiled any pa-pers he submits in any habeas corpus action unless the peti-tion attacks a state-court criminal judgment. See Montgomery v. Davis, 362 F.3d 956, 957–58 (7th Cir. 2004). As in Montgom-ery, the filing bar imposed by this order applies to any post-judgment motions Neal might try to file in any existing case. After two years, Neal may seek modification or rescission of this order.

Second, we order Neal to show cause within 14 days of this opinion why we should not sanction him under Federal Rule of Appellate Procedure 38 for filing a frivolous appeal.

Third, we order the Clerk of this court to send copies of this opinion and the case file to the United States Attorney for the Southern District of Indiana, so that he may consider the question whether Neal should be prosecuted for the crime of perjury, 18 U.S.C. § 1621, or any other offense that he deems appropriate.

The judgment of the district court is AFFIRMED.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

In Progressive Paloverde Insurance v. Jacob P. Arnold, an 8-page opinion, Judge Robb writes:

This appeal involves a claim for uninsured motorist proceeds by Jacob Arnold against his auto insurer, Progressive Paloverde Insurance (“Progressive”). Progressive brings this interlocutory appeal challenging the trial court’s order denying Progressive’s motion for partial summary judgment. Progressive raises one issue for review: whether the trial court’s denial of partial summary judgment was erroneous. * * *

Concluding Arnold’s insurance policy’s uninsured motorist coverage exclusion does not violate public policy and Progressive is entitled to judgment as a matter of law, we reverse.

In Marq Hall v. State of Indiana, a 32-page, 2-1 opinion, Judge Najam writes:
Marq Hall appeals his conviction for child molesting, as a Class A felony, following a jury trial. He presents three issues for our review, which we consolidate and restate as: 1. Whether the trial court abused its discretion when it excluded certain impeachment evidence at trial. 2. Whether the trial court abused its discretion when it denied his motion to compel discovery. We reverse and remand for a new trial. * * *

The trial court abused its discretion when it excluded from the evidence the phone call between Hall and A.D. regarding M.T.’s credibility after the State opened the door to that evidence. Because the trial court’s error was not harmless, we reverse Hall’s conviction. And because two other issues are likely to recur during a new trial, we also hold that the trial court did not abuse its discretion when it excluded evidence of M.T.’s reputation for untruthfulness in the community, but that the trial court abused its discretion when it denied Hall’s motion to compel A.D. to answer the deposition question regarding M.T.’s prior false accusation of sexual misconduct. Reversed and remanded for a new trial.

BROWN, J., concurs.
VAIDIK, C.J., dissents in part and concurs in part with separate opinion. [which begins at p. 25] I respectfully disagree with the majority’s decision to reverse Hall’s Class A felony child-molesting conviction. First, I agree with the majority that the trial court properly excluded the evidence of M.T.’s reputation for untruthfulness in her community and that the trial court should have granted Hall’s motion to compel A.D. to answer the deposition question about M.T.’s alleged prior false allegation of sexual misconduct with a boy in Kentucky. However, I disagree that the contents of A.D.’s entire phone call with Hall should be admitted. In any event, I believe that any error by the trial court in excluding the phone call was harmless and would therefore affirm Hall’s conviction for Class A felony child molesting.

In Tracey L. Wheeler, Jr. v. State of Indiana, a 9-page opinion, Judge Bailey writes:
Petitioner Tracey L. Wheeler, Jr. (“Wheeler”) appeals the denial of his petition for post-conviction relief, which challenged his convictions for Dealing in Cocaine and Maintaining a Common Nuisance. We affirm.

Wheeler presents the issue of whether he was denied the effective assistance of appellate counsel because appellate counsel declined to allege that Wheeler had been denied his right of self-representation. * * *

Wheeler fails to demonstrate a reasonable probability that the outcome of his direct appeal would have been different had appellate counsel raised a Faretta claim. Wheeler has not shown that he was denied the effective assistance of appellate counsel.

In Lawrence Gyamfi v. State of Indiana is a 15-page, confusing opinion with respect to how the judges line up - who should have become the majority/lead opinion? Judge Riley writes:
Gyamfi raises three issues, one of which we find dispositive and which we restate as: Whether the trial court abused its discretion by admitting certain evidence which was derivative of evidence obtained during an unlawful search and seizure. * * *

Based on the foregoing, we conclude that the trial court abused its discretion by admitting the contested evidence which amounted to fruit of the poisonous tree pursuant to Article 1, Section 11 of the Indiana Constitution. Reversed and remanded.

ROBB, J. concurs and concurs with Bradford, J. concurring in part, concurring in result separate opinion

BRADFORD, J. concurs in part and concurs in result with separate opinion [which begins, at p. 13] I concur with the majority that the trial court abused its discretion in admitting the challenged evidence, i.e., the security tape from the Speedway store located in Greenfield, at trial. However, I write separately to reiterate that I believe that the inevitable discovery rule could apply under both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution if the State were to demonstrate by a preponderance of the evidence that the challenged evidence would have been discovered but for the unlawful search. The State, however, failed to do so here. * * *

In light of the uncertainty in McNally’s and Siefert’s testimony, any determination that the challenged evidence would inevitably have been discovered is based on supposition and, as such, cannot support a finding to that effect by a preponderance of the evidence. Accordingly, I agree with the majority’s determination that the trial court abused its discretion in admitting the challenged evidence at trial and concur with the conclusion to reverse Gyamfi’s convictions.

NFP civil opinions today (3):

Aubrey Thompson v. State of Indiana (NFP) is a 2-1 NFP opinion on rehearing (Or it it? There is a NFP box, but not a heading reading "MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION) to a June 4th NFP opinion. "We grant the State’s petition for rehearing for the limited purpose of clarifying our analysis in light of Thang v. State, 10 N.E.3d 1256 (Ind. 2014)."

Dolen Glenn v. Indiana Department of Correction (NFP)

In the Matter of the Termination of the Parent-Child Relationship of I.T., S.T., and W.T., minor children, and C.T., Mother, and W.T., Father, et al. v. Indiana Department of Child Services (NFP)

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

NFP criminal opinions today (8):

Shawnee Wilson v. State of Indiana (NFP)

David J. Heineman v. State of Indiana (NFP)

Marcus J. Schneider v. State of Indiana (NFP)

Kevin I. Colon, Sr. v. State of Indiana (NFP)

Markus Burton v. State of Indiana (NFP)

Jeremy Hall v. State of Indiana (NFP)

Bradley Cochran v. State of Indiana (NFP)

Robert Mular v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Purdue insists Wartell case files be kept secret"

Updating this ILB post from yesterday, that quoted the most recent of several stories in the Fort Wayne Journal Gazette reported by Rebecca S. Green, the FWJG today published this editorial, headed "A telling silence: Purdue makes one more try to quash report":

What is it that Purdue University doesn't understand about the word “no”?

State and federal courts both have ruled that an investigative report on why IPFW Chancellor Mike Wartell was forced out of office cannot be kept secret. Yet Purdue slogs on, wasting more money on its crusade to keep the report hidden from Indiana citizens.

Purdue claims that the “Trimble Report” is protected by attorney-client privilege. Though attorney John Trimble prepared the report on Wartell's removal, he was hired as an investigator, as U.S. District Judge Robert L. Miller determined last week in ordering that the report be made available to Wartell and his lawyers.

Now Purdue is asking the court for a protective order that would prevent anyone but the former chancellor and his legal team from seeing the report.

The university maintains “that the Trimble Report contains confidential, private information, including related to third parties.”

When an institution goes to these lengths to protect information that clearly falls into the public category, it's hard not to think there's something fairly significant in the report. No one except a few Purdue officials knows what that is, at this point.

But beyond the inherent public interest in seeing that officials aren't allowed to pick and choose what information they're comfortable releasing, there are some specific issues that the Trimble Report might shed light on.

For one, there is the question of why Purdue decided to enforce its executive-retirement-at-65 provision against Wartell and not grant him a waiver, as it had for other university leaders in the past. Was Wartell, as he has alleged, a victim of discrimination and harassment?

What role does the report show France Cordova, the Purdue president, played in the efforts to get Wartell to step down? Does then-Gov. and soon-to-be Purdue President Mitch Daniels show up in the narrative?

Eventually, Purdue will run out of legal tricks, and the Trimble Report will become public. Too bad the time, energy and money spent on fighting its release couldn't have been spent on, say, education.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Indiana Courts | Indiana Government

Ind. Decisions - "Appeals court finds in favor of Anderson lawyer"

The opinion by the Court of Appeals yesterday, in the case of Charles W. Turner v. Montague M. Oliver, Jr., which the Court designated as Not-for-Publication, is the subject of a story this morning in the Anderson Herald-Bulletin, reported by Zach Osowski. Some quotes:

ANDERSON — An Indiana Court of Appeals ruled in favor of Anderson attorney Montague Oliver Jr. following a dispute between Oliver and Charles Turner.

The dispute arose over use of Turner's Westlaw account, a legal and law research service that requires a fee for information. According to court documents, Turner agreed to let Oliver use the account providing Oliver didn't go beyond the legal sources included in the plan Turner was paying for.

On Sept. 16, 2010, someone using Turner's account searched for items outside of the plan resulting in charges of $2,104. Turner filed a complaint against Oliver on July 20, 2011, accusing the lawyer of the charges and asking for him to cover the cost.

Judge Baker's opinion in the NFP decision begins:
Charles Turner appeals the trial court’s order denying his motion to correct error, which Turner filed after the trial court entered judgment in favor of Montague Oliver on Turner’s complaint. Finding that Turner has waived multiple issues for lack of cogency, and finding no abuse of discretion or other error, we affirm.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Listing of law firm names on titles of Supreme Court opinions

A reader asked yesterday: "Is there a new convention that the names of law firms will not be reflected in the Supreme Court opinion?"

Answer: It looks like J. Dickson and J. Rucker always list firms. The three new folks don't. A former court insider says the titles on Supreme Court opinions vary by chamber, and are generally added by the Justice's judicial assistant.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - More on: Blackford Circuit Court admonishes attorney for not wearing socks

In an entry mid-day on Tuesday, the ILB posted this order of the Blackford Circuit Court.

Now the most recent of a seemingly endless stream of news reports on this matter appears this morning on the front page of the Indianapolis Star, here authored by Tim Evans. The headline, "'Matthew McConaughey' of Indiana Bar needs to put on socks, law professor says." The law professor quoted is from John Marshall Law School in Chicago. Neither the judge, Judge Young, nor the admonishee, Attorney Glickjfield, commented for the story. A human resources person at a local insurance company did...

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Indiana Courts

Ind. Courts - Chief Justice Rush takes new seat this morning

Supreme Court oral arguments begin this morning at 9:00 AM with the right-to-work case, followed by two other oral arguments. See the details in this Upcoming Oral Arguments post from the ILB.

Watch the arguments live here. Today's arguments are highlighted.

This morning will be Chief Justice Loretta Rush's first presiding as Chief Justice of Indiana. That means when the justices return to the bench for oral arguments this morning, every justice will have a new seat. Here's a photo of the seating arrangement the last time the Court met.

Today Chief Justice Rush replaces Dickson in 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.

Posted by Marcia Oddi on Thursday, September 04, 2014
Posted to Indiana Courts

Wednesday, September 03, 2014

Ind. Decisions - Supreme Court issues third opinion today

In Old National Bancorp d/b/a Old National Trust Company v. Hanover College, an 8-page, 5-0 opinion, Justice David writes:

A trustee appealed a trial court’s termination of two of its trusts. The Court of Appeals dismissed the appeal for a lack of jurisdiction. Because we find the trustee lacked standing to appeal in its representative capacity and did not appeal in its individual capacity, we likewise dismiss this action. * * *

Simply put, Old National arguing that it appealed here in anything other than its representative capacity fails the Duck Test.[4]

Thus, regardless of whether Indiana Code § 30-4-6-11(a)’s broader-sounding terms permit persons to appeal the termination of a trust when those persons were not parties to the trust proceedings, or whether Indiana Appellate Rule 17(A) implies that all such aggrieved persons must first intervene at the trial level before seeking an appeal, the outcome in this case does not change. Old National was a party to the trust proceedings in its representative capacity as trustee and never sought to intervene in its individual capacity. It then appealed in its representative capacity—which it now concedes it lacked the power to do after the trusts were terminated—and claimed to be appealing in its individual capacity only once it faced dismissal.

Conclusion. Because Old National lacks standing to pursue this appeal, we lack jurisdiction to hear it. It is therefore dismissed.
_________
[4] See Walczak v. Labor Works-Ft. Wayne, LLC, 983 N.E.2d 1146, 1148–49 (Ind. 2013).

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Governor Names James Huston to IURC

Updating this ILB post from Aug. 14th, the Governor has announced today:

Indianapolis – Governor Mike Pence today named James Huston as Commissioner of the Indiana Utility Regulatory Commission (IURC). Huston will fill the current vacancy on the IURC created by the resignation of Commissioner Jim Atterholt, who now serves as the Governor’s Chief of Staff. Effective immediately, Huston will serve the remainder of Atterholt’s term, which expires on March 31, 2017.

“With a lifetime of public service, James Huston’s commitment to Indiana is unmatched,” said Pence. “His proven leadership and unique background will go far as he continues his service to Hoosiers as Commissioner of the Indiana Utility Regulatory Commission.”

Huston currently serves as Chief of Staff at the Indiana State Department of Health. From 2011 to early 2013, he served as Executive Director of the Office of Faith Based and Community Initiatives. Huston has held a variety of leadership positions throughout his more than 30-year career at both the federal and state level, including time spent as assistant deputy treasurer for the State in 1989 and Deputy Commissioner for the Bureau of Motor Vehicles from late 1986 to 1987. He is a 1987 recipient of the Sagamore of the Wabash Award and a member of Brownsburg Kiwanis. Huston earned his undergraduate degree from Ball State University.

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court issues a second opinion today

In TP Orthodontics, Inc., Christopher Kesling, DDS, MS, Adam Kesling, and Emily Kesling, et al. v. Andrew Kesling, Individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001 et al., a 20-page, 5-0 opinion, Justice David writes:

Following the initiation of a derivative suit by sibling minority shareholders, TP Orthodontics’ board of directors formed a special litigation committee (the “SLC”) to investigate the derivative claims pursuant to Ind. Code § 23-1-32-4 (2007). After a year-long investigation, the SLC produced the report that is at issue here. As a result of the report’s recommendations, TPO filed a motion to dismiss certain derivative claims and attached a heavily redacted version of the report in support of its motion. Approximately 120 of the report’s 140 pages had been redacted “to prevent disclosure of attorney-client privileged information and attorney-work product prepared in anticipation of litigation.” (Appellant’s App. at 183.)

Seeking access to the unredacted report in order to challenge the SLC’s conclusions on one of only two grounds permitted by Indiana law, the sibling shareholders filed a motion to compel production of the full report. The trial court granted the sibling shareholders’ motion, and the Court of Appeals affirmed on interlocutory appeal. After holding oral argument, we granted TPO’s petition to transfer and are now faced with resolving two valid but competing interests: the siblings shareholders’ desire to access the full SLC report in order to contest the SLC’s conclusions, and TPO’s desire to protect privileged attorney-client communications and attorney work product potentially contained within the SLC report. * * *

An in camera review “should be a rare procedure in discovery disputes” because it “requir[es] the trial court to expend a great amount of time and energy.” Richey, 594 N.E.2d at 445; Canfield v. Sandock, 563 N.E.2d 526, 531 (Ind. 1990). But here, such an expenditure of resources is worthwhile. Under these and similar circumstances, the trial court serves as a gatekeeper whose sole obligation at this stage of the proceeding is to review the SLC report to determine what is or is not privileged attorney-client communication and what is or is not privileged attorney work product. It will not look for evidence on the ultimate issue, i.e. whether the SLC conducted a good faith investigation. Should the trial court determine that the SLC report contains privileged attorney-client communication and/or privileged attorney work product, it will redact the privileged information before ordering the release of the redacted SLC report to the derivative plaintiffs. However, absent derivative plaintiffs’ valid or unasserted claims of attorney-client privilege or work product privilege, SLC reports are to be presumptively disclosed.

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - State Board of Education settles Open Door lawsuit filed by Ed Eiler, et al. [Updated]

Updating this ILB post from July 28th about the lawsuit, Eiler v. State Board of Education, where the issue was whether or not the members of the State Board of Education violated the open meeting law in agreeing to and ratifying by email a letter to legislative leaders, after the adjournment of an open meeting, the parties today agreed to a settlement. Here is the news release of the plaintiffs:

Today the parties in the Open Door Lawsuit filed last December against the Indiana State Board of Education, Eiler, et al. v. Indiana State Board of Education, reached a signed settlement agreement.

The State of Indiana agreed to pay all of Plaintiffs’ accrued attorney fees and court costs. Given the length of time since the actions in question occurred and the costs involved in continuing to pursue the lawsuit, the Plaintiffs agreed to abandon further legal action. Although the Board made no admission of improper conduct, the Plaintiffs believe that the Board’s agreement to pay attorney fees and court costs speaks for itself.

The case did identify a potential ambiguity in the Open Door Law, which is whether agencies and boards in Indiana may “meet” to conduct official business or to take final action entirely by group email, as occurred in this case. The use of emails to conduct the public’s business creates a risk that public officials will engage in private debate and discussion on matters that belong at public meetings subject to public scrutiny. This is an issue which the General Assembly needs to address next year so that the intent of the Open Door Law--that the official actions of public agencies be conducted transparently so that the public may be fully informed—is not once again compromised.

Here is the 2-page settlement agreement. Here are the pertinent provisions:
3. In consideration of Plaintiffs' agreed upon dismissal of the Lawsuit with prejudice; their abandonment of all claims sought in their Complaint; and their abandonment of any and all requests,(including requests for documents under the Access to Public Records Act) relief or remedies in any manner arising ftom the facts that gave rise to the Complaint; Defendant, without malcing any admission of fault or improper conduct, agrees to reimburse Plaintiffs' reasonable attorneys' fees and costs.

4. Defendant further agrees that the sum of Fifteen Thousand Five Hundred Dollars ($15,500.00) represents a reasonable attorneys' fee and that One Hundred Forty One Dollars ($141.00) represents Plaintiffs' recoverable costs, and that these amounts shall be paid not later than 21 days from the Court's approval of this Settlement Agreement.

[Updated at 5:50 PM] Here is another statement:
At-Large State Board of Education member Gordon Hendry issued the following statement in response to the announcement today that the Attorney General has agreed to settle a lawsuit against the State Board for alleged violations of the Open Door Law late last year.

The settlement includes the payment of legal fees to plaintiffs’ attorneys with admission that no violation of the Open Door Law occurred and no ability for plaintiffs to ever bring the lawsuit again.

“It’s unfortunate that a frivolous lawsuit like this one wasted so much time and energy that would have been better spent focusing on the needs of Indiana’s students.

“The most important thing to take away from this agreement is that no violation of the Open Door law occurred, and this case is permanently laid to rest.

“As former Public Access Counselor for the City of Indianapolis, I’m well acquainted with these laws and knew from the outset that this lawsuit was just a ploy to distract from the recent progress our state has made in K-12 education.

“That being said, I’ve long been an advocate for improving our access laws and making sure they are evolving in step with technology. I’d welcome a conversation with the Department of Education, the Governor, the Attorney General and the General Assembly about ways lawmakers can improve transparency in government so Hoosiers can see how their tax dollars are being spent.

“For now, though, I’m relieved that we can get back to the important work of helping our schools, teachers, parents and students succeed.”

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Indiana Courts | Indiana Government

Ind. Gov't. - Indiana's federally run health insurance marketplace and potential impact of lawsuit by Pence/Zoeller

Some quotes from Dan Carden's Aug. 28th story in the NWI Times:

Hoosiers purchasing health insurance on Indiana's federally run marketplace next year will select from at least 975 plans offered by nine companies, up from four companies and 278 plans this year.

Tina Korty, attorney for the Indiana Department of Insurance, told a panel of state lawmakers Thursday that health insurance companies are eager to sell to Hoosiers after taking a "wait and see" approach in the marketplace's first year.

She said 2015 marketplace health insurance premiums will increase 5 percent on average.

That's a far cry from the annual double-digit premium increases Hoosiers paid before the Affordable Care Act was in effect. * * *

State Sen. Karen Tallian, D-Ogden Dunes, questioned Korty as to whether Indiana should establish its own state-run health insurance marketplace and set longer open enrollment periods, rather than relying on the federal system.

Korty said the Pence administration has concluded the $40 million start-up cost for equipment and technology and the $40 million annual expense of running the marketplace and hiring people to make eligibility decisions isn't worth it.

State Rep. Tim Brown, R-Crawfordsville, chairman of the Legislature's Interim Study Committee on Fiscal Policy, agreed.

"The exchange is a very high-tech, kind of high-risk endeavor, and until we have some assurance at the federal level that their tech part is OK, then that would put high-risk to us at the state," Brown said. "I think I'd like to go through another cycle to see how they do."

However, Tallian said she's concerned for the thousands of Hoosiers who no longer could afford their health plans if Gov. Mike Pence and Attorney General Greg Zoeller, both Republicans, succeed in their lawsuit seeking to deny federal premium assistance payments for plans purchased on Indiana's federally run marketplace.

Pence and Zoeller contend only insurance purchases made through state-run marketplaces are eligible for premium assistance.

Nearly 118,000 Hoosiers are receiving federal payments or tax credits to reduce their health insurance costs.

"I hope the General Assembly can stop this destructive silliness and establish an exchange in Indiana," Tallian said. "That will make Mr. Zoeller's lawsuit moot, and Indiana can get on with the business of getting people insured."

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 19 NFP)

For publication opinions today (1):

In Mobile Home Management Indiana, LLC v. Avon Village MHP, LLC, State of Indiana Bureau of Motor Vehicles, Treasurer of Hendricks County Indiana , a 10-page opinion, Judge Robb writes:

Mobile Home Management Indiana, LLC (“MHMI”) appeals the trial court’s summary judgment grant in favor of Avon Village MHP (“New Avon”), awarding New Avon ownership and title to seventeen mobile homes obtained through an auction. MHMI appeals, raising four issues for our review, one of which we find dispositive: whether New Avon complied with the timing requirements of Indiana Code section 9-22-1.5-1 et seq. in acquiring several mobile homes through an auction process. Concluding New Avon did not comply with the statutes, we reverse and remand for judgment to be entered in favor of MHMI. * * *

Concluding the auction is void due to New Avon’s failure to comply with the statutory requirements leading up to the auction of the mobile homes, we reverse and remand for judgment to be entered in favor of MHMI.

NFP civil opinions today (4):

Town of Cedar Lake v. Review Board of the Indiana Department of Workforce Development and Mary J Dickson (NFP)

Papa Ndiaye v. Review Board of the Indiana Department of Workforce Development and Federal Mogul Corp. (NFP)

Charles W. Turner v. Montague M. Oliver, Jr. (NFP)

Mariea L. Best v. Russell C. Best (NFP)

NFP criminal opinions today (15):

Brian S. Hartman v. State of Indiana (NFP)

Brian House v. State of Indiana (NFP)

Anthony Johnson v. State of Indiana (NFP)

Tarik Fields v. State of Indiana (NFP)

Raveon Harrell v. State of Indiana (NFP)

B.J. v. State of Indiana (NFP)

Samantha Lee v. State of Indiana (NFP)

Kristen Shane Lester v. State of Indiana (NFP)

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

Brandon J. Lunkin v. State of Indiana (NFP)

David Hooker v. State of Indiana (NFP)

Davetta Davidson v. State of Indiana (NFP)

Timothy McSchooler v. State of Indiana

Cameron Wood v. State of Indiana (NFP)

Jared W. Baehl v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from last Friday, Aug. 29th, the Supreme Court has now made its two rulings – granting the stay and denying consolidation - available on the Supreme Court website.

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Christopher Cross v. State of Indiana, a 7-page, 5-0 opinion, Justice Rucker writes:

Appellant challenges his convictions and aggregate 38-year sentence following resentencing for various crimes arising from a foiled drug sale. In this appeal, we address whether the appellant’s firearm enhancement is based on the same behavior used to convict and sentence the appellant for carrying a handgun without a permit. We conclude that it is and therefore vacate his conviction and five-year firearm enhancement. * * *

We vacate Cross’ conviction and five-year sentence imposed under the handgun enhancement charge. This cause is remanded to the trial court for further proceedings.

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Purdue insists Wartell case files be kept secret"

Updating this ILB post from yesterday, quoting from an Aug. 30th Fort Wayne Journal Gazette story by Rebecca S. Green, headed "Purdue rebuffed on points of lawsuit," the same reporter has another long story today. Some quotes from the start of the long story:

Having lost every effort so far to keep the so-called “Trimble Report” under wraps, Purdue University’s attorneys are now seeking a protective order in the case stemming from the 2011 removal of IPFW Chancellor Mike Wartell.

On Tuesday, the school’s attorneys asked a federal court judge to allow them to keep the report secret, or at least parts of it, because of its sensitive investigative nature and argue again that it is protected by attorney-client privilege.

It appears, according to the proposed protective order, the document would be disclosed only to the parties in the lawsuit and kept from anyone else.

But the attorney-client privilege argument hasn’t held up well in previous attempts to keep the report from Wartell’s attorneys in the battle over the former chancellor’s forced retirement.

And their federal request that it not be disclosed to the public is in direct opposition to a state-level ruling that the document is a public record.

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Indiana Courts

Ind. Courts - Former Marion Co. Dep. Pros. David Wyser resigns from practicing law

Updating a long list of posts referencing former Marion County Deputy Prosecutor David Wyser, including this one from Feb. 26th headed "David Wyser suspended by Supreme Court," on Aug. 28th the Supreme Court filed this "Published Order Accepting Resignation and Concluding Proceeding." The Herald Bulletin has a brief story here.

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Ind. Sup.Ct. Decisions

Courts - "Seeking Facts, Justices Settle for What Amicus Briefs Tell Them"

From Chris Geidner's Aug. 26th story in BuzzFeed, reporting on the 7th Circuit same-sex marriage oral arguments (ILB emphasis):

“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?”

A story the day before in the Indianapolis Star looked at some of the dozens of amicus briefs filed in the case;
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.
All that is prelude to this eye-opening "Sidebar" column today by Adam Liptak of the NY Times. In the past, the ILB has written about appellate judges who seek to supplement the facts in the record with their own research. Liptak's long column begins:
WASHINGTON — The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Others stood out. They presented fresh, factual information that put the case in a broader context.

The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs.

But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary.

“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

The trend is at odds with the ordinary role of appellate courts, which are not supposed to be in the business of determining facts. That is the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process.

Appellate courts traditionally take those facts, fixed in the trial court record, as a given. Their job is to identify and apply legal principles to those facts.

Here is the link to forthcoming paper, by Alli Orr Larsen of William & Mary Law School, that Liptak cites, titled "The Trouble with Amicus Facts." Here is the abstract:
The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.

The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

Posted by Marcia Oddi on Wednesday, September 03, 2014
Posted to Courts in general

Tuesday, September 02, 2014

Ind. Courts - Insulting Names Don’t Belong in Lawyers’ or Judges’ Lexicons

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

Two recent events caused me to think about what lawyers calls each other, and what judges call lawyers. There is arguably a big gray area here, but this post offers some thoughts worth considering.

What Lawyers Call Lawyers

A female attorney recently told me about an unpleasant conversation with opposing counsel. Although litigation is often not particularly civil, an older male lawyer went out of bounds by continually referring to her as “hon.” Even more troubling, this was not the first time she’s been called “hon” or “sweetie” by male lawyers.

Some might not mind—or may even enjoy—greetings like sweetie or dear from their server at a diner, but it’s not a professional way to greet another lawyer. Whether intended or not, “hon” and “sweetie” strike many as sexist. The same lawyer would never use those equivalent terms when referring to a male lawyer.

Lawyers should strive to be professional and civil—not merely ethical under the Rules of Professional Conduct. Nonetheless, calling an opposing lawyer “hon” or “sweetie” may well violate Rule 8.4(g). That rule prohibits “conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon” gender, among other things.

The Indiana Supreme Court has found violations of 8.4(g) for a lawyer who referred to someone as an “illegal alien” and another lawyer who asked a company representative if he was “gay” or “sweet” after hearing what she thought was a feminine-sounding voice.

Moreover beyond the Rules of Professional Conduct, lawyers could face sanctions if they engage in what a Maryland case refers to as “sexual trial tactics” that “undermine women litigators’ credibility, professionalism, and ability to represent their clients.” There, in a deposition of a female plaintiff who alleged the male defendant negligently infected her with genital herpes, the defendant’s male lawyer had the following exchange with the plaintiff’s female lawyer:

[Male Defense Lawyer]: It must have been in poor taste if [female lawyer] said it was in poor taste. It must have really been in poor taste.
[Female Plaintiff’s Lawyer]: You got a problem with me?
[Male Defense Lawyer]: No, I don’t have any problem with you, babe.
[Female Plaintiff’s Lawyer]: Babe? You called me babe? What generation are you from?
[Male Defense Lawyer]: At least I didn’t call you a bimbo.
The Maryland court aptly concluded: “While strategy and tactics are part of litigation, and throwing your adversary off-balance may well be a legitimate tactic, it is not legitimate to do so by the use of gender-based insults.”

What Judges Call Lawyers

Judicial Conduct Rule 2.3 requires judges to avoid words or conduct that manifest bias or prejudice—and to ensure lawyers in their courtroom do the same. A comment to the rule notes that manifestations of bias or prejudice includes “demeaning nicknames.” Rule 2.8(B) requires judges be patient, dignified, and courteous to lawyers, litigants, and others. A judge referring to a lawyer as “sweetie” or “hon” would surely runs afoul of these rules. Similar terms would also be a problem, and calling a young male lawyer “son” would seem inadvisable.

Although less of a concern, is it “dignified” to call lawyers by their first name during court proceedings? I was surprised when reviewing a transcript of a recent bench trial that the judge repeatedly referred to the female lawyer by her first name. Although seemingly less frequent, the judge also called the male lawyer by his first name. Although I’m not suggesting this is an ethical violation, I do worry how such familiarity might be perceived by the dozens of people sitting in the courtroom.

What Lawyers Call Judges

The expectation or unwritten rule for lawyers addressing judges seems easy: “Judge” or “Your Honor” on the bench and off-the-bench in the presence of other lawyers or clients. In social settings with judges who lawyers knew before they took the bench, first names are usually fine—and arguably less awkward for the judge. A recent article about the appointment of Chief Justice Rush quoted a lawyer: “I’m sure in Indianapolis she’s Chief Justice Rush. In Lafayette, she’s Loretta to everyone.”

The names we call each other say a lot about our professionalism and civility but also makes a difference in how others perceive us. In the courtroom, the formal labels are important to a dignified process. In many other settings, “Judge Smith” would much rather be “Mary” just as Professor Schumm would much rather be Joel.

Note: I hope to do a follow-up post that includes comments or stories from lawyers or judges. I encourage you to email me; we won’t use your name unless you insist.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today

In Natural Resources Defense Council v. Poet Biorefining- North Manchester, LLC, Poet Biorefining- Cloverdale, LLC, Central Indiana Ethanol, Inc., et al., 17-page, 5-0 opinion (with a David v. Goliath-type lineup of attorneys on p. 1), Justice David writes:

Agencies at both the state and federal level are tasked with promulgating, interpreting, and enforcing specific regulations pertaining to their particular area of expertise. Because of the agencies’ degree of expertise, courts exercise significant deference in reviewing those interpretations. Here, Indiana’s environmental agency revised its interpretation of a regulatory term and that interpretation was challenged and subjected to judicial review. But in light of the deference we show to such an agency assessment of its own regulations, we find the new interpretation reasonable—and because no more formal revision process was required, we affirm the trial court. * * *

In 2011, the Indiana General Assembly passed a law providing that for purposes of Indiana’s SIP, “chemical process plants” did not include fuel ethanol plants. Act of May 10, 2011, Public Law 159-2011, § 21(e), 2011 Ind. Acts 1614–15; Ind. Code § 13-17-3-4(e) (Supp. 2011).2 IDEM then published a nonrule policy document, citing the EPA’s Ethanol Rule and affirming its intention to interpret the phrase “chemical process plants” in Indiana’s SIP in accordance with the Ethanol Rule—in other words, to exclude ethanol plants from being classified as chemical process plants. 20110525 Ind. Reg. 318110311NRA (May 25, 2011). This change was then incorporated into the Indiana Administrative Code, see 326 Ind. Admin. Code 2-2-1(ff)(1)(U), but again, Indiana’s SIP has not yet been amended through the EPA approval process to codify this new interpretation. * * *

NRDC challenges IDEM’s policy change in a number of ways, but they boil down to two main arguments: was IDEM required to formally amend Indiana’s SIP to effect the change, and if not, is IDEM’s interpretation of the term “chemical process plant” correct? * * *

[I. SIP Revision not Required] We agree with IDEM that this provision “incorporates the SIC Manual strictly for the purpose of determining whether pollutant-emitting activities at a facility belong to the same industrial grouping.” (IDEM’s Br. at 11.) Whether the SIC Manual defines chemical process plants to include fuel ethanol plants or not, that definition is not incorporated into the PSD SIP’s definition of major stationary source or chemical process plant. As such, it does not compel IDEM to formally amend the SIP in this case. * * *

[II. IDEM’s Interpretation of Indiana’s SIP is Reasonable.] “The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)). The same principle is true here at the state level. And here, the purpose of the Clean Air Act is to create a framework within which states may regulate and operate. To do so successfully, states and their implementing agencies must be afforded the flexibility to responsively adapt to changing technologies, market fluctuations, environmental conditions, and shifts in public policy.

Requiring the Clean Air Act and SIPs to contain each and every rule, definition, interpretation, and administrative construction would turn a framework into a hide-bound behemoth of legal provisions addressing all manner of minutia that would require years to modify for even the most basic of reasons. “[W]ere the shoe on the other foot,” (NRDC’s Br. at 32), and were IDEM promulgating an interpretation tightening pollution restrictions, we doubt that NRDC would be making this claim with such force. * * *

The only question here, then, is whether IDEM’s new interpretation is reasonable and supports the issuance of the permits in this case. More specifically, the question is whether the regulatory phrase “chemical process plant” can reasonably be interpreted to permit exclusion of fuel ethanol plants. * * *

NRDC argues that the plain meaning of “chemical process plant” must include fuel ethanol plants, because the phrase “refers on its face to a category of industrial facilities that utilize chemical processes to produce chemical products,” and “[f]uel ethanol plants fall squarely within that definition” because “converting raw plant matter to fuel ethanol is a chemical process.” (NRDC’s Br. at 39–40.) But we do not see interpretation of the phrase as needing to be that strict. * * *

Whether the interpretation is sound public or environmental policy is not something we review, nor do we seek to propose a long-term judicial definition of “chemical process plant” that will bind IDEM to our view of how that phrase should apply in every circumstance. The question we face is only whether IDEM’s exclusion of fuel ethanol plants from that phrase is reasonable, and we find that it is.

Conclusion. Neither the Clean Air Act nor Indiana’s State Implementation Plan mandate that IDEM pursue the formal SIP revision process before excluding fuel ethanol plants from the chemical process plant major source category. Moreover, there is nothing unreasonable in IDEM’s decision to define “chemical process plant” to incorporate such an exclusion as a matter of regulatory interpretation. We therefore affirm the trial court.

ILB: Interesting opinion, with some language that may cut both ways in future years.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Environment | Ind. Sup.Ct. Decisions | Indiana Government

Ind. Courts - Governor Pence Names Bruce Parent Lake Superior Court Judge

From the news release:

Indianapolis – Governor Mike Pence today named Bruce Parent as Judge in the Lake Superior Court, Civil Division.

“With nearly two decades of civil law experience and expertise in Lake County, Bruce Parent has the skills and dedication necessary to serve Hoosiers well as Lake Superior Court Judge,” said Pence.

Currently, Parent, who has served as a public defender with the Lake Superior Court since 1997, works as a sole practitioner with the Law Office of Bruce D. Parent, PC, where he is primarily engaged in family law. From 1995 to 1997, Parent worked as a Lake County deputy prosecutor. He is a registered Indiana family law mediator and member of the Lake County Bar Association, as well as the Indiana Public Defender Council. Parent earned his undergraduate degree and master’s degree from the University of Wisconsin and his law degree from Valparaiso University.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Courts

Ind. Courts - A look at the Indiana Tax Court

The ILB has received a number of notes from readers asking about the time it takes to get a decision from the Indiana Tax Court. The following table shows disposition time for final Tax Court opinions for the first nine months of 2014.

Tax Court: Final Decisions This Year (1/1/14 - 9/1/14)
Opinion Transmitted to Tax Court Transmitted to Oral Argument Oral Argument Oral Argument to Opinion Opinion Date/Author Total Time
Gary School v. DLGF (45T10-1104-TA-30) 4/19/11 182 10/18/11 (Wentworth) 1046 8/29/14 (Wentworth) 1228
Ind'pls Racquet Club v. Marion Co.Ass. (49T10-1201-TA-1) 1/17/12 295 11/7/12 (Wentworth) 652 8/21/14 (Fisher) 947
Howard Co.Ass. v. Kokomo Mall (49T10-1109-TA-00056) 9/16/11 217 4/20/12 (Wentworth) 838 8/6/14 (Fisher) 1065
Clark Co. v. DLGF (39T10-1102-TA-00009) 2/7/11 350 1/23/12 (Wentworth) 884 6/25/14 (Wentworth) 1234
Speedway Pub.Lib. v. DLGF (49T10-1103-TA-22) 3/17/11 343 2/13/12 (Wentworth) 862 6/24/14 (Fisher) 1195
Housing Ptn. v. Barth.Co. (49T10-1005-TA-23) 5/21/10 543 11/15/11 (Wentworth) 934 6/6/14 (Wentworth) 1477
Idris v. Marion Co.Ass. (49T10-1108-TA-49) 8/3/11 331 6/11/12 (Wentworth) 723 6/4/14 (Fisher) 1036
McKeeman v. Stueben Co.Ass. (02T10-1104-TA-31) 4/22/11 179 10/18/11 (Wentworth) 953 5/28/14 (Fisher) 1132
Hamilton Co.Ass. v. SPD Realty (49T10-1104-TA-28) 4/13/11 216 11/15/11 (Wentworth) 924 5/27/14 (Wentworth) 1140
Van Buren Twp. v. DLGF (49T10-1104-TA-27) 4/11/11 192 10/20/11 (Wentworth) 939 5/16/14 (Wentworth) 1131
Hoosier Roll Shop v. IDOR (49T10-1104-TA-29) 4/21/11 386 5/11/12 (Fisher) 733 5/14/14 (Fisher) 1119
Tannins v. IDOR (49T10-1303-SC-45) 3/22/13 294 1/10/14 (Wentworth) 80 3/31/14 (Wentworth) 374
Frat.Order Eagles v. Morgan Co. (49T10-1201-TA-4) 1/20/12 279 10/25/12 (Wentworth) 509 3/18/14 (Wentworth) 788
Thorsness v. Porter Co.Ass. (49T10-1102-TA-14) 2/10/11 183 8/12/11 (Wentworth) 895 1/23/14 (Wentworth) 1078
AVERAGES (in days)   285   784   1067

The left column in the table links to each opinion and its case docket. Where the oral arguments have been video-archived, links are included.

The final row of the table shows the averages:

Compare this to the statistics for the Supreme Court's first quarter:During the first nine months of 2014, Judge Wentworth has issued 8 final opinions, and Sr. Judge Fisher has issued six final opinions. However, Judge Wentworth conducted all but one of the 14 oral arguments or hearings, meaning that 5 of Sr. Judge Fisher's opinions were based on hearings conducted by Judge Wentworth. Not shown on the table are 6 non-final opinions issued by Judge Wentworth in 2014, including this one issued August 29, dealing with a motion to strike 4 exhibits, and three non-dispositive rulings relating to a single case, filed in 2010 (Popovich).

The Annual Reports of the Tax Court, dating back to 2004, are located here. Each is two pages in length and distinguishes between final and non-dispositive written decisions. Each lists the carryover cases from the preceding year, and the new cases filed in the year covered by the Report. Using this information the ILB has created three charts.

Case backlog from 2004 to the start of 2014:

New cases filed from 2004 to the start of 2014:

Final opinions (decisions on merits) filed from 2004 to the start of 2014:

Notable from the three charts is that while the number of new cases filed has gone down starting in 2011, the backlog has soared during the same period. Also notable is that, beginning in 2011, when there are effectively two tax court judges, the number of decisions on merits issued each year has been less than that of previous years, when there was only one tax court judge.

The current staffing of the Tax Court, according to a 2012 budget request transmittal letter from Judge Wentworth, includes:

Judge Fisher served as Tax Court judge from the court's creation in 1986 until his replacement by Judge Wentworth, who was appointed by Governor Daniels on December 22, 2010. Since that time, Judge Fisher has served the Tax Court as a Senior Judge. Judge Wentworth is up for retention at the general election this November. The voters will be asked whether she should be retained for a 10-year term.

Finally, the ILB has assembled a list of the hearings of the Tax Court already held or set for a future date in 2014.

Hearings of the Tax Court in 2014

Tax Court hearings are recorded on the Court calendar, which was my initial source in preparing this list. I have added the date the appeal was initially filed with the Tax Court. In those instances where there has been a ruling subsequent to the hearing, I have so indicated with a link to the opinion. Hearings are in the Statehouse unless otherwise indicated (In 2014 only one case has been heard outside the Statehouse). 19 hearings have been set or scheduled in 2014 as of this writing.

January, 2014

  • Jan. 10, 2014 Tannins of Indianapolis, LLC v. Indiana Dep't of State Revenue (49T10-1303-SC-45) This is a small claims trial. [Filed 4/10/13]

  • Jan. 17, 2014 Orbitz, LLC v. Indiana Dep't of State Revenue (49T10-0903-TA-10) This is a hearing on the parties' motions for summary judgment. [Filed 4/23/09]

  • Jan. 27, 2014 Miller Pipeline Corp. v. Indiana Dep't of State Revenue (49T10-1012-TA-64) The taxpayer challenges whether sales tax is owed on certain items used in its business operations. Senior Judge Thomas G. Fisher, presiding. [Filed 1/6/11]

  • Jan. 28, 2014 Pinnacle Entertainment, Inc. v. Indiana Dep't of State Revenue (49T10-1206-TA-34) This is a hearing on a partial motion for summary judgment. Senior Judge Thomas G. Fisher, presiding. [Filed 6/18/12]
February, 2014

  • Feb. 5, 2014 Washington Township Assessor, et. al. v. Verizon Data Services, Inc. (49T10-1102-TA-13) Petitioners challenge whether the Indiana Board of Tax Review erred in granting summary judgment to Respondent because the Property Tax Assessment Board of Appeals failed to timely issue a final determination on Respondent's personal property tax appeal thereby making the Respondent's self-reported assessment was final. [Filed 2/24/11]

  • Feb. 14, 2014 Crystal Flash Petroleum, LLC v. Indiana Dep't of State Revenue (49T10-1104-TA-25) This is a hearing on the Respondent's Motion for Partial Summary Judgment. [Filed 4/12/11]

  • Feb. 27, 2014 RDM Sales & Service, Inc. v. Indiana Dep't of State Revenue (82T10-1001-TA-3) This is a hearing on the parties' motions for summary judgment. [Filed 3/24/10]
March, 2014

  • March 6, 2014 Larry G. Jones and Sharon F. Jones v. Jefferson Co. Assessor (39T10-1308-TA-68) Taxpayers challenge whether the Indiana Board of Tax Review erred in denying their 2008/2009 real property assessment appeals. Location: Jefferson County Courthouse, Madison, IN. [Filed 9/9/13]

  • March 20, 2014 Fresenius USA Marketing, Inc. v. Indiana Dep't of State Revenue (49T10-1008-TA-45) This is a hearing on the parties' motions for summary judgment. [Filed 10/21/10]
April 2014

  • April 7, 2014 Paul J. Elmer & Carol A. N. Elmer v. Ind. Dep't of State Revenue (49T10-1110-TA-64) This is a hearing on the Respondent's Motion for Summary Judgment. Senior Judge Thomas G. Fisher, presiding. [Filed 10/31/11]
May, 2014

  • May 8, 2014 West Ohio II, LLC v. Marion Co. Assessor, et. al. (49T10-1404-TA-9) This is a hearing on Petitioner's Petition to Enjoin Collection of Tax. [Filed 4/14/4]

  • May 8, 2014 Washington Park Cemetery Assoc., Inc. v. Marion Co. Assessor, et. al. (49T10-1404-TA-10) This is a hearing on Petitioner's Petition to Enjoin Collection of Tax. [Filed 4/29/14]

  • May 23, 2014 Spencer Co. Assessor, et. al. v. AK Steel Corp. (49T10-1306-TA-57) This is a hearing on the Respondent's motion for summary judgment. [Filed 7/3/13]

  • May 29, 2014 Kathryn Gillette v. Brown Co. Assessor (49T10-1305-TA-53) This is an oral argument involving whether the Indiana Board of Tax Review erred when it determined that Petitioner's submission of insurance values on her property did not establish its market value-in-use.[Filed 5/29/13]
June , 2014

  • June 19, 2014 Property Development Co. Four, LLC v. Grant Co. Assessor (49T10-1401-TA-3) The taxpayer challenges whether the Indiana Board of Tax Review erred when it determined that an Assessor could reassess property retroactively under Indiana Code § 6-1.1-9-5. [Filed 1/31/14]
July 2014
  • July 31, 2014 Popovich v. IDOR (49T10-1010-TA-53) This is a hearing on Petitioner's Motion for Trial Rule 37 Sanctions. [Filed 10/4/10]
August 2014 (none)

September, 2014

  • Sept. 5, 2015 Hamilton Southeastern Utilities, Inc. v. Ind. Dep't of State Revenue (49T10-1210-TA-68) This is a hearing on the Parties' motions for summary judgment and Petitioner's motion to strike a portion of Respondent's designated evidence. [Filed 10/29/12]

  • Sept. 25, 2014 Ind. Dep't State Revenue, Inheritance Tax Division v. Estate of Janice Hamblin (49T10-1403-TA-6) The Department of Revenue, Inheritance Tax Division challenges whether the courty court erred in determining that the annuity interests transferred by the decedent via a trust, could be valued as though they were life estates. Senior Judge Thomas G. Fisher presiding. [Filed 3/11/14]
October, 2014

  • Oct. 9, 2014 Pulte Homes of Indiana, LLC v. Hendricks County Assessor (49T10-1302-TA-11) The Taxpayer challenges whether the Board erred in dismissing taxpayer's appeal on the basis that the issue raised by taxpayer on its Form 133 (that common areas of developments have a zero value) was not an objective error, but rather a subjective error which necessitated the filing of a Form 131. [Filed 2/11/13]
November, 2014 (none yet)

December, 2014 (none yet)

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Courts - Blackford Circuit Court admonishes attorney for not wearing socks

Here it is, not to be missed, a 3-page "Order directing proper attire beworn by Todd A. Glickfield," signed by Judge Dean A. Young, and dated Aug. 25, 2014.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Ind. Trial Ct. Decisions

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

For publication opinions today (0):

NFP civil opinions today (1):

In Re the Matter of Z.G., J.C., and H.H.: Children Alleged to Be Children in Need of Services S.H. (Mother) & K.G. (Father of Z.G.) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (0):

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending August 29, 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 29, 2014. It is two pages (and 22 cases) long.

Three transfers were granted this week:

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - 7th Circuit rules Indiana right-to-work law is not unconstitutional [Revised]

Here is the first report, from ABC and WRTV6.

The Indiana Supreme Court is considering the question on Thursday.

Here is the 59-page, 2-1 opinion in Sweeney v. Pence (ND Ind., Simon). Judge Tinder writes:

Plaintiff‐Appellants, members and officers of the International Union of Operating Engineers, Local 150, AFL‐CIO (“the Union”) appeal the district court’s dismissal of their suit, arguing that the Indiana Right to Work Act violates their rights under the United States Constitution and is preempted by federal labor legislation. Because the legislation is not preempted by the scheme of federal labor law and does not violate any constitutional rights, we affirm the district court’s dismissal of the suit.
Chief Judge Wood's dissent begins on p. 32:
Today’s decision is either incorrect or it lays bare an unconstitutional confiscation perpetuated by our current system of labor law. In my view, the better view is the former: the majority has simply misunderstood the federal statutory scheme, taken as a whole. The plain language of section 14(b) of the National Labor Relations Act (NLRA) does not support such sweeping force for Indiana’s Right to Work law. IND. CODE § 22‐6‐6. No ruling of the Supreme Court has gone this far, and the legislative history of section 14(b) (for those who consider it relevant at all) is inconclusive. Even if, however, one thought that there were some ambiguity in the NLRA, the principle of constitutional avoidance provides a powerful reason to reject the majority’s holding. I would find sections 8(2) and 8(3) of Indiana’s statute, Ind. Code § 22‐6‐6‐8(2), (3), preempted by federal statute. I therefore respectfully dissent.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Marion County Small Claims Courts [Updated]

The Indiana Supreme Court has this morning released the July 2014 Final Report prepared by the National Center for State Courts on the Marion County small claims court. The Report recommends (see p. 23) that the small claims courts transition into a unified section within the Civil Division of the Superior Court.

The Report is located on this Courts webpage along with earlier reports and recommendations.

The ILB has a lengthy list of earlier posts on this topic, dating back to 2004. See particularly this July 14, 2014 ILB post, where the ILB asked some questions of an individual who is very well-attuned to Marion County politics, including:

ILB Q: Marion county legislators of both parties appear to be totally against reforming our small claims court system. That does not bode well for any change. Can you tell me why there is such total resistance to legislative change, including merging the 9 small claims courts into the county court system?
[Updated at 10:15 AM] The Indiana Courts have now released this announcement about the new report:
A national courts consultant recommends changes to the Marion County Small Claims Courts. The National Center for State Courts (NCSC) submitted a report to Indiana outlining the need to transition the small claims courts into a unified section within the civil division of the superior courts.

The NCSC report is the second report in recent years recommending changes to the structure of the small claims system. The report is available online at http://www.in.gov/judiciary/3844.htm. In May 2012, the Task Force on the Marion County Small Claims Courts made similar recommendations. Those study results can also be found online.

This NCSC study was prepared at the request of the Marion County Circuit Court and funded by a grant from the Indiana Supreme Court. Marion County Circuit Court Judge Louis Rosenberg stated that the NCSC report together with the earlier task force study detail a “reliable factual basis for identifying the shortcomings of the present system.”

The NCSC report:

· Provides a statistical profile of the small claims system with charts and tables featuring how the system is financed and how it manages caseload

· Details a principal inefficiency of the current system in mismatching of resources with caseloads

· Notes that local revenues from filing fees have not kept pace with court expenditures

Court of Appeals Judge John G. Baker, co-chair of the Task Force on the Marion County Small Claims Court, said, “every organization or group studying this matter has come to the same conclusion. The flexibility and responsiveness of the proposed changes will better serve all of the people in Marion County.”

Incorporating the township courts into a Small Claims Division of the Marion County Superior Court requires new legislation. The Supreme Court has submitted the NCSC report to leadership in the General Assembly along with the Supreme Court’s recommendations for implementation of reforms to the system.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Courts

Ind. Courts - "Purdue rebuffed on points of lawsuit"

Updating a long list of earlier ILB stories relating to the dispute between Purdue and Michael Wartell, Rebecca S. Green had this long story Aug. 30th in the Fort Wayne Journal Gazette. It begins:

In its request to have a judge reconsider whether it has to provide a copy of a report to former IPFW Chancellor Mike Wartell, Purdue University asked the court to review documents it hadn't made available before.

On Thursday, a U.S. District Court judge ruled that, not only would the court not consider those additional documents that were previously unavailable to the magistrate who made the ruling on the report, but again ruled that the report in question was not protected by attorney-client privilege.

In July, U.S. District Magistrate Judge Andrew P. Rodovich ruled Purdue University could not claim a report generated by attorney John C. Trimble hired to investigate Wartell's forced retirement in 2011 was protected by attorney-client privilege.

Rodovich's ruling came after the Indiana Court of Appeals found the same thing in connection to the report in a state-level case filed by Wartell in Tippecanoe County.

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 Córdova 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 most recent ruling, issued late Thursday by U.S. District Judge Robert L. Miller Jr., the court said again the document should be turned over to Wartell and found that Trimble did not disclose any attorney-client relationship with the university.

“Tossing Mr. Trimble at least in the direction of the bus, Purdue argues that the magistrate judge let (Trimble) through his omission, waive the attorney-client privilege,” Miller wrote. ­

“(T)hat Mr. Trimble didn't do so was evidence that he was acting merely as an investigator, rather than as Purdue's attorney.”

In their partial appeal of Rodovich's ruling, Purdue's attorneys wanted the court to consider a number of documents previously unavailable to Rodovich when he made his July ruling. Miller ruled that those documents were not to be considered in the appeal.

An appeal of the state case is pending before the Indiana Supreme Court.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Courts

Ind. Law - "Lake, Porter law enforcement remain grounded in use of drones"

From a story today in the Gary Post-Tribune - some quotes:

A new Indiana law became effective July 1, requiring law enforcement agencies to obtain a search warrant before using a drone to collect evidence.

But there’s not much reason to think the law, or the need for a search warrant, will be an issue in Northwest Indiana any time soon.

None of more than half-dozen area police departments contacted by the Post-Tribune said it owned drones. And many added there was no plan to obtain one in the future.

Lake County Sheriff John Buncich described the purchase of a drone “cost prohibitive” and said his department has “no plans in the future to purchase.”

In Porter County, spokesman Sgt. Larry LaFlower said, “Our department doesn’t have a drone and we currently have no plans of getting one.”

Not even the local FBI office has a unmanned aircraft to use for surveillance. “Nope,” FBI Special Supervisory Agent Robert Ramsey said. * * *

Porter County Prosecutor Brian Gensel noted that while drones may eventually become standard gear for law enforcement, he hopes police first establish protocol for their use. “They could be legitimately used over a scene,” he said, suggesting that a situation involving a SWAT team might benefit from an aerial view. “It’s inevitable, you see them at fairs now. Often the development of technology gets ahead of the usage, but I hope expect that before police utilize drones they would develop protocols.”

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Law

Ind. Gov't. - "Lawmaker punished for lapse Loses leadership post over nursing homes"

This may have been the biggest story published while the ILB was on mini-vacation late last week. Here is Niki Kelly's report from the Fort Wayne Journal Gazette:

INDIANAPOLIS – House Speaker Brian Bosma on Friday said he is removing state Rep. Eric Turner from the House Republican leadership team and chastised him for not staying out of a legislative debate he had a major financial stake in.

In the spring, Turner, R-Cicero, tried to sway his colleagues in a private House Republican caucus against a moratorium on new nursing homes. The bill died in the waning hours of the legislature.

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

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

A House Ethics Committee review found Turner did not break the rules, which say a member with a conflict of interest cannot vote on or sponsor legislation affecting him or her personally. He did neither.

Since then, the AP reported that a company that was part of the ethics investigation was sold to an Ohio company as part of a $2.3 billion deal.

“Given the recently disclosed magnitude of Rep. Turner’s personal and family financial interest in the outcome of the nursing home moratorium debate, any involvement in the decision-making process, whether in public debate or through private discussions with fellow elected officials, presented an irreconcilable conflict,” Bosma said.

“Rep. Turner should have recused himself entirely from influencing the matter in any way given the personal financial stake involved.”

Bosma said the House Ethics Committee reached the correct conclusion under the current law but the process revealed significant gaps that must be addressed.

He plans to present a comprehensive ethics bill to address many of these issues during the 2015 session.

Bosma also said he decided weeks ago that Turner would not be part of leadership when the House reconvenes in November. Turner was House speaker pro tem.

“Calls for resignation or removal at this point mean little, as the General Assembly is officially adjourned until after the November election,” Bosma said. “My greatest concern is restoring the confidence of the public in their elected officials.”

ILB: The concept outlined in the highlighted quotes from Speaker Bosma could form a centerpoint of the new ethics law.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Government

Ind. Gov't. - "Eight ways Indiana could improve voter turnout"

Dan Carden reported over the weekend in the NWI Times in a story that begins:

Indiana's 58 percent voter turnout in the 2012 presidential election was among the worst in the country. Just 11 states saw fewer eligible voters cast a ballot.

Most nearby states did much better. Minnesota's 76.1-percent turnout was highest in the nation, followed by Wisconsin at 73 percent. Iowa pulled in 70 percent, Michigan and Ohio both had 65 percent and Illinois' turnout was 59 percent.

Kentucky was slightly worse than Indiana at 55.9 percent.

States with the highest voter turnout tended to employ a variety of tools aimed at encouraging residents to exercise the right to vote.

Here are some practices used by other states that could result in higher Hoosier turnout if adopted by Indiana lawmakers:

See the story!

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Government

Ind. Gov't. - More on: Controversy about Indiana public employee salary databases

Updating this lengthy ILB entry from Aug. 19th, Michael Austen reported Aug. 27th in the Indianapolis Star:

Indiana law gives you the right to know how much public employees make.

A quick database search on the Indiana Gateway for Government Units is all it takes to see just how much money every teacher, police officer and city council member brought home last year.

Right now, the database includes doctors and staff at county hospitals. But the Indiana Hospital Association is trying to change that.

County hospitals say they're put at a disadvantage when they have to make doctor salaries publicly available, said Spence Grover, vice president of IHA. Doing so gives private hospitals they compete with access to internal information from their publicly owned competitors, but the reverse isn't true. * * *

Although they've been working toward these changes since the beginning of the year, the issue has flared up recently after IndyStar.com published a list of the 20 highest paid public employees in Indiana. Six doctors from hospitals in Dearborn and Daviess counties were on the list, and the best paid among them brought in $768,588 last year.

Most hospitals didn't disclose salaries at all. So there could be higher paid doctors at any of the public hospitals that didn't file required forms with the state.

An advisory opinion issued this month by Attorney General Greg Zoeller's office confirms that the law does require county hospitals to report employee compensation to the state. It leaves unanswered the question of whether the state can keep that information to itself and prevent its public release.

That still needs to be settled by the State Board of Accounts, the agency charged with collecting compensation data for every unit of government in Indiana.

The attorney general's opinion was issued at the State Board of Accounts' request and after receiving input from the hospital association, said Bryan Corbin, a spokesperson for Zoeller's office.

Paul Joyce, state examiner with the Board of Accounts, said he wants to ensure the law is interpreted and applied the same way to all public hospitals. Right now, it isn't.

This year, fewer than half the state's county hospitals filed compensation disclosure forms with the state.

"My goal," Joyce said, "is 100 percent compliance."

That may prove harder than it sounds. In this situation, the state is powerless to enforce the law. * * *

It would take legislation to create a new method for enforcing the law, but there are other issues at stake here, including accountability and access to public records.

Although they may not be units of government in the same way state agencies or city councils are, county hospitals are still accountable to the people of the state, even if they don't receive money generated by taxes, said Steve Key, executive director of the Hoosier State Press Association.

Key said the compensation should be reported to the state and made publicly available upon request.

By January, when the compensation disclosure forms are due, Joyce said he and the board hope to be done reviewing their options. That's when they should know whether or not they'll be publishing county hospital salaries online next year.

Until then, the data is out there — at least for the 12 county hospitals that reported compensation.

ILB: See also this Aug. 22nd NY Times story by Alina Tugend headed "Secrecy About Salaries May Be on the Wane."

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Indiana Government

Ind. Decisions - "LaPorte County judge denies prisoner's request for lethal injection"

Stan Maddux reported last week for WSBT, South Bend:

LAPORTE COUNTY, Ind. - An Indiana State Prison inmate serving 95 years for an Elkhart County murder wants to be put to death, but a judge Monday turned down his request.

Walter Leach, 61, is still hoping the governor or another high ranking state government official will grant his wish to be put on death row.

La Porte Circuit Court Judge Tom Alevizos denied the request by Leach for lethal injection. In his August 20 petition before the court, Leach asked to be put to death claiming Alevizos has authority to rule on his request because the Michigan City prison is in La Porte County.

No specific reason was given by Leach in his petition for wanting to be put to death. However, the request follows several unsuccessful attempts to have his murder conviction overturned, according to court records.

Alevizos ruled he cannot assume jurisdiction over Leach's request because the offender did not exhaust all of his options for pursuing his desire to die within the Indiana Department of Corrections.

And, even if all of his options within the DOC were exhausted, Alevizos said no law exists giving the court permission to grant such a request.

Leach was convicted of the July 4, 1995 slaying of Howard VanZant in Nappanee. * * *

According to court documents, Leach also filed his request for lethal injection with the offices of Gov. Mike Pence and Indiana Attorney General Greg Zoeller and Indiana State Prison Superintendent Bill Wilson.

Posted by Marcia Oddi on Tuesday, September 02, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - "Gary courthouse to be closed ‘until further notice’ "

That is the headline to this Aug. 29th story by Carrie Napoleon in the Gary Post-Tribune. Some quotes:

GARY — The Lake County Courthouse in Gary will be closed indefinitely following a small fire Thursday that damaged a key electrical component.

Lake County Commissioner Michael Repay, D-Hammond, said Friday the minimal smoke issues from the fire have been repaired, but a vital component of the electrical system has been destroyed.

“The component, a switch gear, has a long lead time for production and will cause the Gary Courthouse to be closed until further notice,” Repay said in a press release.

The story goes on with details of relocations of various court offices, where to file, etc. This story by Rob Earnshaw published the following day in the Post-Tribune gives more details about temporary relocations.

Posted by Marcia Oddi on Tuesday, September 02, 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 9/1/14):

Thursday, Sept. 4

Next week's oral arguments before the Supreme Court (week of 9/8/14):

Webcasts of Supreme Court oral arguments are available here.


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

Thursday, Sept. 4

Next week's oral arguments before the Court of Appeals (week of 9/8/14):

Friday, September 12

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 Tuesday, September 02, 2014
Posted to Upcoming Oral Arguments

Monday, September 01, 2014

Ind. Decisions - 7th Circuit decides three Indiana cases Aug. 29th

In U.S. v. Gonzalez, et al (ND Ind., Lozano), a 14-page opinion, Judge Bauer writes:

Our circuit is familiar with appeals from convicted gang members of the Almighty Latin Kings Nation. This appeal is a consolidation of four cases of former Latin Kings gang members who were indicted, prosecuted, and sentenced in the Northern District of Indiana. The indictment included twenty-three defendants: one defendant went to trial, twenty-one pleaded guilty, and one was never apprehended. The group was part of a major drug trafficking ring and linked to nineteen homicides. After the twenty-two convictions, four defendants filed appeals. * * *

We AFFIRM Anaya’s sentence in part and REMAND for the LIMITED PURPOSE of correcting the Judgment. We DISMISS the appeals of Gonzalez, Bernal, and Reyes. Accordingly, we GRANT the motions filed by counsel for Gonzalez and Bernal.

In Druco Restaurants v. Steak N Shake (SD Ind., McKinney), a 16-page opinion, Judge Rovner writes:
At issue in this appeal is whether a franchisor may compel several of its franchisees to engage in nonbinding arbitration of diversity claims that the franchisees brought in federal court. The district court refused to stay the franchisees’ lawsuits and declined to compel arbitration. We affirm. * * *

The district court correctly denied Steak n Shake’s motions to stay the pending litigation and to compel arbitration. Because we conclude that the district court was correct in finding that the arbitration clauses are illusory and unenforceable under Indiana law, we need not address whether the disputes were within the scope of the arbitration agreements or whether nonbinding arbitration fits within the definition of arbitration under the FAA.

In Scrogham v. Colvin (SD Ind., Pratt), a 34-page opinion, Judge Ripple writes:
Kenneth Owen Scrogham applied for disability benefits under the Social Security Act, submitting that a variety of medical conditions—including degenerative discs, spinal stenosis, sleep apnea, hypertension, arthritis, atrial fibrillation and restless leg syndrome—constituted a qualifying disability. After his application was denied, Mr. Scrogham participated in a hearing before an administrative law judge (“ALJ”) for the Social Security Administration (“Administration”). The ALJ denied Mr. Scrogham’s application for benefits, and the Administration’s Appeals Council denied his request for review. Accordingly, Mr. Scrogham filed a complaint in the United States District Court for the Southern District of Indiana, seeking judicial review of the ALJ’s decision. The district court affirmed the denial of benefits, holding that the ALJ did not err in giving less weight to the opinion of a treating physician than to the opinions of nontreating physicians, that the ALJ permissibly found Mr. Scrogham not to be credible and that the ALJ’s decision otherwise was supported by substantial evidence. Mr. Scrogham timely appealed.

We now reverse the judgment of the district court and remand for further proceedings. In our view, the ALJ’s methodology was flawed in several respects. The ALJ impermissibly ignored a line of evidence demonstrating the progressive nature of Mr. Scrogham’s degenerative disc disease and arthritis. As a result, the ALJ inappropriately undervalued the opinions of Mr. Scrogham’s treating physicians, whose longitudinal view of Mr. Scrogham’s ailments should have factored prominently into the ALJ’s assessment of his disability status. Second, even if we confined our review of the record to the snapshots of evidence that the ALJ considered, we do not think that this limited evidence builds the required logical bridge to her conclusions. Specifically, the ALJ seems to have misapprehended or at least to have considered only partially some of the evidence about Mr. Scrogham’s daily activities, rehabilitation efforts and physicians’ evaluations. This lapse affected both the ALJ’s credibility determination and her residual functional capacity assessment. Because the ALJ’s opinion reflects a flawed evaluation of the record evidence, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

ILB: Re the disability opinion above, see also this post from Aug. 21st, headed "Posner opinion takes aim at denial of disability benefits; is it a 7th Circuit trend?"

Posted by Marcia Oddi on Monday, September 01, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 4 Aug. 29th (and 12 NFP)

For publication opinions today (4):

In David Hooker v. Shari Hooker , a 7-page opinion involving a pro se incarcerated appellant-petitioner, Judge Riley concludes:

Based on the foregoing, we conclude that the trial court did not abuse its discretion by reducing David’s child support payment nor did the trial court violate David’s due process rights.
In C.H. v. State of Indiana, an 18-page opinion, Judge Pyle writes:
First, because the officer had reasonable suspicion and his actions were reasonable under the totality of the circumstances, we conclude that C.H.’s federal and state constitutional rights were not violated and that the identification testimony was properly admitted into evidence. In regard to C.H.’s double jeopardy claim, we conclude there is a reasonable possibility that the State used the same evidence to support both adjudications, and we remand to the juvenile court to vacate C.H.’s adjudication with the less severe penal consequence. Lastly, because C.H. did not object to any aspect of restitution and invited any error that may have occurred with the restitution order, we will not review his restitution challenge.
In Ronald DeWayne Thompson v. State of Indiana , an 11-page opinion, Judge Baker writes:
Appellant-defendant Ronald Dewayne Thompson appeals his convictions for Rape, a class A felony, and Criminal Deviate Conduct, a class B felony. More particularly, Thompson contends that the trial court erred when it admitted evidence that Thompson was a suspect in another sexual assault case. Additionally, Thompson argues that the State’s request to introduce evidence under Indiana Evidence Rule 404(b) did not provide reasonable notice as required by that rule and lack of such notice was not excused for good cause. Finding that the evidence was inadmissible under Evidence Rule 404(b) and that it was prejudicial, we reverse and remand for a new trial.
In Thomas D. Dillman v. State of Indiana , a 7-page opinion, Judge Pyle concludes:
In light of the above factors, we conclude that, while the trial court erred, its error did not fit the fundamental error exception to waiver. Accordingly, we conclude that Dillman waived his argument by failing to appeal the trial court’s November 23 order. As a result, he was not able to subsequently attack the trial court’s order collaterally through his motion to release his cash bond, and the trial court properly denied his motion.
NFP civil opinions today (2):

Julianna Eagan, formerly Julianna Paciorkowski v. Christopher Paciorkowski (NFP)

Charles E. Justise, Sr. v. Indiana Department of Correction (NFP)

NFP criminal opinions today (10):

Julius J. Rice v. State of Indiana (NFP)

John Palatas v. State of Indiana (NFP)

Calvin Turner v. State of Indiana (NFP)

Kalan Murphy v. State of Indiana (NFP)

Bruce Johnson-El v. State of Indiana (NFP)

Herman Gehl, II v. State of Indiana (NFP)

Colby R. McKnelly v. State of Indiana (NFP)

Quenton D. Davis v. State of Indiana (NFP)

Jeffrey Elkins v. State of Indiana (NFP)

Johnnylee Sims v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, September 01, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court issues two Aug. 29th

In Gary Community School Corporation v. Indiana Department of Local Government Finance, a 12-page opinion, Judge Wentworth writes:

This case concerns the Indiana Department of Local Government Finance’s (DLGF) reduction of the Gary Community School Corporation’s exempt debt service fund levy for the 2011 budget year. * * *

In this case, the DLGF’s reduction of the School Corporation’s exempt debt service fund levy is beyond the scope of its authority and unsupported by substantial evidence. Accordingly, the Court REVERSES the DLGF’s final determination and REMANDS the matter for action consistent with this opinion.

In Gary Community School Corporation v. Indiana Department of Local Government Finance, a 5-page opinion, Judge Wentworth writes:

This matter concerns the Indiana Department of Local Government Finance’s (DLGF) Motion to Strike four exhibits that were submitted to the Court in support of the Gary Community School Corporation’s (School Corporation) original tax appeal. The Court denies the Motion in part and grants it in part.

Posted by Marcia Oddi on Monday, September 01, 2014
Posted to Ind. Tax Ct. Decisions