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Friday, October 31, 2014

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

Continuing the ILB's new occasional Friday afternoon feature, which began with this post on Sept. 26, here is a checklist of significant ILB posts from the past three weeks you may have missed, or forgotten.

Posted by Marcia Oddi on Friday, October 31, 2014
Posted to Essential ILB Posts

Law - "Notre Dame shifts GLBT attitude" in some areas

The South Bend Tribune has a lengthy story today by Margaret Fosmoe. A few quotes:

SOUTH BEND — Two years ago, the University of Notre Dame agreed to provide more support and services for gay, lesbian, bisexual and transgender students, including creating a university-recognized student organization.

Last year, after senior tennis player Matt Dooley came out as gay, athletic director Jack Swarbrick and members from every Fighting Irish athletic team joined together to create a video for the “You Can Play” organization, urging acceptance of GLBT student athletes.

This month, university administrators announced that, while adhering to a Catholic view of marriage, Notre Dame would recognize Indiana civil law and extend benefits to same-sex spouses of university employees.

And today and Saturday, Notre Dame will host the “Gay in Christ: Dimensions of Fidelity” conference, about ministering to GLBT Catholics. A news release from the university says the conference is to explore “pastoral strategies for Catholic parishioners who regard themselves as non-heterosexual, but who accept Catholic Church teaching on marriage and sexuality.”

Some longtime observers say the moves in recent years represent a changing landscape at the nation’s pre-eminent Catholic university, and on an issue that remains divisive among many Catholics.

The changes aren’t just happening at Notre Dame.

“Over the past decade and a half, a number of major Catholic universities have become much more inclusive toward GLBT students and employees,” said J. Patrick Hornbeck II, chair of the theology department at Fordham University. “Most institutions are doing exactly what Notre Dame is doing.” * * *

Not all of the moves have been well-received. The university’s decision to extend benefits to same-sex spouses of employees drew criticism from the Rev. Kevin Rhoades, bishop of the Catholic Diocese of Fort Wayne-South Bend. * * *

Meanwhile, Notre Dame’s leadership has remained steadfast on the issue of providing employees access to contraceptives.

The university went to court to challenge the federal Affordable Care Act’s mandate that all employers, including religious institutions, must provide contraceptive coverage as a health care benefit. An appeals court denied the university a preliminary injunction from complying with the mandate. The university is appealing the matter to the U.S. Supreme Court.

Catholic Church stances don’t always fall neatly in the same liberal/conservative boxes as political parties, said Hornbeck, the Fordham scholar. He doesn’t see as incongruent a gradual shift on GLBT issues and firm opposition to the contraceptive mandate.

Posted by Marcia Oddi on Friday, October 31, 2014
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 7 today (and 5 NFP)

For publication opinions today (7):

In Michael Dwain Neal v. Amanda Lee Austin, a 10-page opinion, Judge Robb writes:

Michael Dwain Neal (“Father”) appeals the trial court’s grant of Amanda Austin’s (“Mother”) petition for post-secondary education expenses on behalf of their adult child, A.N. Father raises two issues for our review: (1) as a matter of first impression, whether the trial court had authority under Indiana Code section 31-16-6-6 to issue an order for payment of educational support for a child who had reached the age of nineteen, where the parties’ original child support order was issued in August of 2000 but the most recent order concerning child support was issued after June 30, 2012; and (2) whether the amount of post-secondary education support ordered by the trial court was an abuse of discretion. Concluding the trial court did not have authority to issue an order for educational support, we reverse. * * *

We conclude the trial court did not have authority under Indiana Code section 31-16-6-6 to issue an order for educational support for a child who was at least nineteen years of age where the parties’ most recent order concerning child support was issued after June 30, 2012. Therefore, we reverse.

In Ed Blinn v. Mark Dyer, a 5-page opinion, Judge Bailey writes:
Ed Blinn, Jr., doing business as Blinn Auto Sales (“Blinn”), appeals the small claims court’s denial of his motion to correct error, which challenged the court’s entry of judgment and award of $1,800 in damages to Mark Dyer (“Dyer”) for money Dyer paid under a layaway plan for purchase of a motorcycle from Blinn.

Concluding sua sponte that Blinn’s appeal is untimely, we dismiss. * * *

Our review of the record does not reveal that any of the listed exceptions in Trial Rule 53.3(B) or (D) apply, and Blinn’s dilatory conduct—waiting until several months after the deemed denial of the motion to correct error—did not serve the interests of orderly and speedy resolution of this appeal.

In Michael Kent Smith v. Thomas L. Taulman, II et. al., a 29-page opinion, Judge Najam writes:
The Indiana Supreme Court recently reaffirmed that Indiana’s summary judgment standards establish a “high bar” for summary judgment movants to clear. Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). “In particular, while federal practice permits the moving party to merely show that the party carrying the burden of proof [at trial] lacks evidence on a necessary element, we impose a more onerous burden: to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). In this summary judgment appeal, we consider the plaintiff-nonmovant’s personal claims as well as his direct and derivative shareholder claims against the defendants-movants. After determining whether the trial court erred when it entered summary judgment despite pending discovery, we assess whether the summary judgment movants designated evidence to either affirmatively negate an element of the nonmovant’s remaining claims or to establish all of the elements of an affirmative defense. Where they have done so, we consider whether the nonmovant designated evidence to establish a genuine issue of material fact to preclude the entry of summary judgment. * * *

Conclusion. We hold that the trial court abused its discretion when it denied Kent’s motion to compel. As such, we reverse the trial court’s entry of summary judgment for the Appellees on Kent’s claim that Taulman had breached his fiduciary duties to Kent at the December 21, 2009, meeting and on Kent’s fraud claims against Taulman and the Employees.

As to Kent’s other claims, we hold that the Appellees are entitled to judgment as a matter of law on Kent’s defamation claim against Taulman and on Kent’s claim that Taulman breached a fiduciary duty when he fired Kent. We also hold that the Appellees are entitled to judgment as a matter of law on Kent’s claims that the Employees breached their fiduciary duties. However, we hold that the Appellees failed to designate evidence to negate at least one element of Kent’s shareholder derivative claims. Thus, we affirm in part, reverse in part, and remand for further proceedings.

In Eric Cox and Pea Cocks Corp. d/b/a Cox's Pub v. Mayerstein-Burnell Co., Inc. d/b/a MBAH Insurance and Jeff Clute

John R. Vissing, and Vissing, Grannon & Elsont, Llc (f/k/a John R. Vissing Llc) v. Clark County Board of Aviation et. al.

J.H. v. St. Vincent Hospital and Health Care Center, Inc.

Nicholas Breedlove v. State of Indiana

NFP civil opinions today (2):

M.D. v. R.M. (NFP)

Sally Applegate-Rodeman and Leslie M. Rodeman v. JDK, Llc d/b/a Livrite Fitness (NFP)

NFP criminal opinions today (3):

Richard Reeves v. State of Indiana (NFP)

Thomas Boswell v. State of Indiana (NFP)

Gregory Green v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 31, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - En banc hearing set by 7th Circuit for Indiana prisoner appeal

The Aug. 1st 7th Circuit opinion by Judge Easterbook in the case of Bruce Carneil Webster v. Warden John F. Caraway (ILB summary here) has been withdrawn, per this order issued Oct. 29:

The petition for rehearing en banc is granted. The opinion and judgment entered by the panel are vacated. Oral argument will be heard on a date to be set by further order.

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

Ind. Courts - Professor Frank Sullivan Publishes a Candid, Insightful Article on Indiana Constitutional Law

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

A few months ago, my colleague Professor Frank Sullivan (he prefer not to be called “Justice” or, worse yet, “Honorable/ret.”) told me he had written an article on Indiana Constitutional law. Because of his largely less than enthusiastic view of separate, expansive protections under our state charter during his 19 years on the bench, I was skeptical and immediately asked if the article was one page long.

Boy, was I in for a surprise. The 40-page article, which was recently published in the Indiana Law Review, is a must-read for any lawyer who ever plans to raise an issue of Indiana constitutional law and for judges who confront such issues. With a focus on the Shepard-Dickson-Sullivan-Boehm-Rucker court of 1999-2010, the Article is packed with insight about specific areas of the law, important doctrines, significant cases, and the justices’ approaches not only to Indiana constitutional law but their broader work as judges.

Parts I and II offer a brief history of the “Renaissance” of the Indiana Constitution, including Professor Sullivan’s partial defense of “lock-stepism,” i.e., the interpretation of “parallel state and federal constitutional provisions in accordance with federal constitutional analysis,” which critics contend “fails to recognize the independence significant of state constitutions.” Professor Sullivan offers the example of Article 1, Section 11 of the Indiana Constitution, which mirrors the text of the Fourth Amendment but has been interpreted differently. Then-Justice Sullivan dissented in favor of mirror approach shortly after joining the court but a decade later joined a unanimous court in finding a violation of Section 11 for a warrantless search of trash, something clearly allowed under U.S. Supreme Court’s Fourth Amendment jurisprudence. He candidly admits that his “voting record in this regard is not consistent.”

Part III of the Article is an important survey of the Darlington avoidance rule, i.e., “examples of the Court avoiding state constitutional questions and deciding cases on non-constitutional grounds” whenever possible. It includes a discussion of ripeness and standing under the Indiana Constitution, which differs markedly from what litigants face in federal court.

Part IV surveys significant tort cases. It begins that “[w]illing legislatures in many states have enacted statutory limitations on common law rights to recover damages in tort. In turn, those interested in preserving such rights—consumer groups, labor unions, and lawyers who represent injured persons—have looked to state constitutions for refuge.” The section discusses several cases, including McIntosh v. Melroe Co., a 3-2 opinion upholding the ten-year statute of repose provision in the Indiana Products Liability Act, rejecting challenges under the Right to Remedy and the Equal Privileges and Immunities Clauses. Professor Sullivan writes:

Justice Dickson, joined by Justice Rucker, wrote a stirring dissent that begins with what I find to be the most memorable assertion of judicial authority written by any member of the Court during my tenure: This case presented us with an opportunity to restore to Indiana’s jurisprudence important principles of our state constitution. By doing so, we could have vividly exemplified the Rule of Law notwithstanding the allure of pragmatic commercial interests.
With only those two justices remaining on the Court (but likely to leave fairly soon), might we expect the issue in Melroe to resurface?

The final section of the article includes a summary of five notable decisions, beyond those discussed previously, penned by Sullivan and each of his four colleagues. (Because his “body of work defies limitation to that number,” Justice Dickson gets eight.) Some highlights about the two remaining justices include:

“Putting ideology aside altogether, Justice Dickson’s constitutional jurisprudence reflects at times a particularly robust attitude toward the judicial review for constitutionality of the acts and actions of the political branches. His opinions discussed above striking the state’s property tax assessment regulations and calling for invalidation of the products liability statute of repose are apt but by no means exclusive exemplars of my point. (As to the ideology that his opinions reflect, well, I would say that some are conservative and some are liberal.) And even more than that, much of his work has fearlessly blazed entirely new paths of constitutional analysis.”

“One of the unwritten but inviolable rules of the Indiana Supreme Court during my tenure was that in every initial discussion of every case, the junior most justice always voted first, saying whatever he (or, in Justice Selby’s case, she) wanted to about the case. For a longer period than any other justice in state history, Justice Robert D. Rucker was the junior-most justice. And the funny thing is that I can never remember a single instance in that nearly-eleven years that Justice Rucker asked for a pass; he never once was not prepared. The same for oral argument; Justice Rucker was always prepared, invariably the best prepared. And even more than that, I have never known a judge better able to compartmentalize principle and ideology.”

The final opinion discussed is one in which the Indiana Supreme Court took a different approach from most other courts in finding that requiring sex offender registration for crimes committed before creation of the registry was retroactive punishment forbidden by Article 1, Section 24 (prohibition on ex post facto laws). The Wallace opinion has been well-received nationally since: “Justice Rucker’s opinion has been cited by courts in ten states and one federal circuit outside Indiana and an uncommon number of law review articles that praised it for its thoughtful analysis.”
________________

ILB Comment: I'd like to add one additional quote, from p. 25 of Prof. Sullivan's article:

The state constitutional jurisprudence of Justice Brent E. Dickson warrants an article (if not a book) of its own and I hope that a keen observer of Indiana constitutional law like Jon Laramore or Professor Joel Schumm — or perhaps one of Justice Dickson’s fabulously capable law clerks like Michael DeBoer, Andrea Kochert, or Maggie Smith — will compile one someday. But there is one really important thing to understand about constitutional adjudication before discussing Justice Dickson’s contributions any further. And that is the distinction between judicial activism and ideology.

Posted by Marcia Oddi on Friday, October 31, 2014
Posted to Schumm - Commentary

Ind. Courts - More on: Abortion law challenge to be heard this afternoon before federal Judge Magnus-Stinson

Here is the Indianapolis Star coverage today of yesterday's hearing on the constitutionality of certain provisions of SEA 371-2013. Some quotes from the story by Kristine Guerra:

The American Civil Liberties Union of Indiana filed the lawsuit on behalf of Planned Parenthood of Indiana and Kentucky, alleging that Senate Enrolled Act 371 is unconstitutional and places an unjustifiable burden on one facility. The legislation, approved in 2013 by large majorities of the Indiana Senate and the House, changed the definition of "abortion clinic" to include facilities that don't perform surgeries but provide the abortion pill mifepristone to terminate a pregnancy.

That means the Lafayette clinic, the only facility affected by the law, needs to follow the same physical requirements as clinics that provide surgical abortion procedures. These include scrub, procedure and recovery rooms. The law doesn't apply to offices of private physicians providing the same medication.

Ken Falk, legal director of the ACLU of Indiana, said the regulations are irrational and would result in unnecessary costs for rooms that will not be used in the first place. The law does not require the Lafayette clinic to have a doctor who can perform surgical abortions, Falk said, yet it demands the facility to have the physical requirements for surgical procedures.

"You'll have a building that is surgically equipped but doesn't provide or doesn't have to provide surgical procedures," Falk said during the hearing. "The state's ground for imposing certain requirements is feeble at best."

He said, for example, if a doctor buys the Lafayette facility, it then would become a physician's clinic that's no longer subject to the same regulations, "but it's still doing the same thing."

"We're talking about an office that is exactly the same," Falk said, adding that it doesn't make sense to "regulate identical offices differently." * * *

Thomas Fisher, solicitor general for the Office of the Indiana Attorney General which represents the state, said during the hearing that Planned Parenthood has not provided any statistical proof that shows a large number of women will lose access to abortion because of the law.

Fisher said the statute requires the Lafayette facility to be "minimally prepared" in case a woman who was prescribed the abortion pill comes back to the clinic with emergency complications. The facility needs to have a physical setting "that would facilitate what might be needed if a physician decides right then and there" to perform a procedure, Fisher said.

He said the law does not call for "overwhelming reconstruction efforts" and only requires "marginal changes," such as adding a sink.

"That's all this is about," Fisher said.

He added that Planned Parenthood does tell women to come to the clinic right away for any complications.

Falk said there's no evidence that any woman has ever returned to the Lafayette clinic for any complications. Planned Parenthood also said in court documents that the abortion pill is only a miniscule portion of the Lafayette clinic's prescription practices. For the year ending July 1, 2013, 54 women were prescribed mifepristone. Other medications, mostly contraceptives, were prescribed more than 10,000 times during the same time period.

However, the state argued that the "legislature may constitutionally regulate nonsurgical abortion clinics differently from physicians' offices," according to a statement from the attorney general's office.

"The people's elected representatives in the Legislature made a policy decision in 2013 regarding the physical facilities requirements for nonsurgical abortion clinics, and the State contends the Legislature had that policy-making authority," Indiana Attorney General Greg Zoeller said in a statement.

Magnus-Stinson in November issued a preliminary injunction blocking the law from going into effect on Jan. 1. Because the injunction remains in effect, Planned Parenthood has not looked into how much such a renovation would cost, Falk said.

ILB: Here is the Attorney General's complete news release, which also includes the following explanations/disclaimers, the first of which has been included frequently over the past year or so; the second, one that I have not noticed before:
As the lawyers for state government, the Indiana Attorney General’s Office has a duty to defend the state laws the Legislature passed from lawsuits plaintiffs’ lawyers file. * * *

Defense of the statute is assigned to an in-house salaried attorney in the Attorney General’s Office, under the office’s general budget approved by the Legislature in advance. Indiana Solicitor General Thomas M. Fisher of the AG’s Office argued for the government defendants today.

Posted by Marcia Oddi on Friday, October 31, 2014
Posted to Indiana Courts

Thursday, October 30, 2014

Ind. Courts - Abortion law challenge to be heard this afternoon before federal Judge Magnus-Stinson

For background, start with this Nov. 26, 2013 ILB entry, including the order granting a preliminary injunction enjoining enforcement of IC 16-18-2-15(a)(2) against the Lafayette Planned Parenthood clinic.

Kristine Guerra of the Indianapolis Star reports this morning that:

A lawsuit challenging an Indiana law that redefines abortion clinics is scheduled for oral arguments Thursday afternoon in federal court.

The American Civil Liberties Union of Indiana filed the lawsuit on behalf of Planned Parenthood of Indiana and Kentucky, alleging that Senate Enrolled Act 371 is a violation of the Fourth Amendment. The legislation, which was approved in 2013 by large majorities of the Senate and the House, changed the definition of "abortion clinic" to include facilities that don't perform surgeries but provide the abortion pill mifepristone to terminate pregnancy.

The bill requires clinics that offer only nonsurgical abortion procedures to [sic.] follow the same physical standards as clinics that provide surgical procedures. These include scrub, procedure and recovery rooms. * * *

A Planned Parenthood clinic in Lafayette is the only facility affected by the law, which does not apply to private physicians that provide the same medication. The Lafayette clinic is the only one in Indiana that only offers nonsurgical abortion procedures.

Planned Parenthood also said in court documents that the abortion pill is only a miniscule portion of the Lafayette clinic's prescription practices. For the year ending July 1, 2013, 54 women were prescribed mifepristone. Other medications, mostly contraceptives, were prescribed more than 10,000 times during the same time period.

Oral arguments are scheduled to start at 1 p.m. in the U.S. District Court for the Southern District of Indiana.

Posted by Marcia Oddi on Thursday, October 30, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In M.J. v. State of Indiana, a 7-page opinion, Sr. Judge Darden writes:

M.J. appeals his adjudication as a delinquent child for committing resisting law enforcement as a Class A misdemeanor if committed by an adult.

We reverse M.J.’s adjudication and vacate the February 19, 2014, dispositional orders in Cause Numbers 49D09-1206-JD-1621 (CN 1621), 49D09-1209-JD-2393 (CN 2393), and 49D09-1305-JD-1286 (CN 1286), which modified prior orders and include suspended commitments to the Indiana Department of Correction.

The sole issue for our review is whether there is sufficient evidence to support M.J.’s adjudication as a delinquent child. * * *

Here, as in Gaddie and Griffin, none of M.J.’s actions suggested there was any criminal activity afoot. Without evidence demonstrating grounds for detention, we reverse M.J.’s adjudication as a delinquent. We also vacate the February 19, 2014 dispositional orders entered in CN678-098s 1621, 2393, and 1286.

NFP civil opinions today (1):

Letitia Kurabara v. Creative Real Estate Property Management (NFP)

NFP criminal opinions today (3):

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

Christopher Hopkins v. State of Indiana (NFP)

E.I. v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 30, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides two today

In Wayne A. Campbell v. State of Indiana, a 9-page, 5-0 opinion in an appeal from a pro se defendant, Justice Rucker writes:

Defendant was convicted following a jury trial during which the jury was given a supplemental jury instruction on the definition of “intentionally” after deliberations had begun. Some years later, defendant petitioned for post-conviction relief alleging ineffective assistance of trial counsel, in part, for counsel’s failure to object to the instruction. The post-conviction court denied relief. And finding no error we affirm.
In Anthony Hollowell v. State of Indiana, a 10-page, 5-0 opinion in an appeal from a pro se defendant, Justice Rucker writes:
From time to time a case is presented to us that neither implicates this Court’s law-giving function, nor involves compelling issues of great public interest. This is such a case. But we elect to address the merits under the general heading of “doing substantial justice.” Here, despite a pro se petitioner’s best efforts, his attempt to appeal the denial of his petition for post-conviction relief went awry and the Court of Appeals dismissed the appeal. We grant transfer and affirm the judgment of the post-conviction court.

Posted by Marcia Oddi on Thursday, October 30, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Supreme Court to hear arguments in dispute between state, IBM over canceled contract"

The oral argument is this morning at 9 AM. You may watch it here. Only four justices will hear the case; J.Massa has recused.

From an AP story this morning:

The court will hear oral arguments Thursday in the legal battle stemming from a 2006 contract that Indiana awarded the Armonk, New York-based company to automate much of the state welfare system.

Then-Gov. Mitch Daniels canceled the $1.3 billion contract in 2009 following complaints from welfare system applicants about long wait times, lost documents and improper rejections.

The two sides sued each other, and a Marion County judge awarded IBM $52 million in 2012.

The state appeals court in February found IBM failed to deliver its part of the deal, but ruled it was still entitled to nearly $50 million in fees.

Posted by Marcia Oddi on Thursday, October 30, 2014
Posted to Upcoming Oral Arguments

Wednesday, October 29, 2014

Ind. Gov't. - "Audit finds state child protection agency spent $627k on late fees"

From Dan Carden, this story posted this afternoon on the NWI Times website. Some quotes:

INDIANAPOLIS | The perennially cash-strapped Department of Child Services paid $627,168.82 in late fees to vendors during the 2011-13 budget years, a state audit released Tuesday shows.

Under Indiana law, state agencies are required to pay a 1 percent per month penalty when the agency fails to pay for contracted goods or services within 35 days of receiving them.

DCS racked up late fees amounting to $330,525.61 during the 2011 budget year, $115,314.63 in 2012 and $181,328.58 in 2013, according to the audit.

Agency appropriations totaled $941 million in 2011 and $793 million in both 2012 and 2013.

Rick Peterson, chief financial officer at the child protection agency, said the rash of late payments primarily was due to DCS taking over the Family and Children Fund from local governments in 2009.

That money is spent on out-of-home care for abused or neglected children, community-based family and support services, family preservation services and family reunification services, according to DCS.

Peterson said the agency recently implemented a vendor payment website to reduce invoice processing time. The website also has minimized incomplete or erroneous billings by DCS vendors, which Peterson said contributed to the high number of late payments.

As a result, he noted, DCS paid just $65,886 in late fees during the 2014 budget year, which ended June 30.

That still was the highest late fee total for any state agency and comprised 27 percent of the $240,668.14 in state tax dollars spent on late payment penalties last year, according to the state auditor's office.

The Times story includes a link to the DCS audit by the State Board of Accounts.

[More]
Sandra Chapman of of WTHR 13 reported in May of 2012 that the Indiana agencies who are the worst offenders are: "The Department of Child Services with more than a half million in late fees. The Indiana Department of Transportation with nearly a half million in late fees and FSSA Medicaid with more than a quarter of a million dollars in late fees."

Posted by Marcia Oddi on Wednesday, October 29, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Gary Lamb v. Mid Indiana Service Company, Inc., B2 Contractors, LLC, C&M Wrecking Inc., and C&M Trucking & Excavating Inc., a 7-page opinion, Sr. Judge Sharpnack writes:

Gary Lamb, while working for Kingdom Electric, a subcontractor together with others of Mid Indiana Service Company, Inc., the general contractor for a construction project, sustained injuries when a trench partially collapsed. Lamb sued Mid Indiana and others to recover damages for his injuries. Mid Indiana moved for summary judgment and Lamb responded. Both parties designated evidence. The trial court granted summary judgment and entered final judgment for Mid Indiana. Lamb appeals. We reverse and remand.

The issue presented is whether there are any genuine issues of material fact shown in the designated evidence which preclude summary judgment for Mid Indiana. * * *

Here, although the general contractor may not have assumed responsibility for providing a safe work place for all subcontractors, by its actions through Conarro it created a condition in the work place that posed an unreasonable risk of harm to Lamb. Thus, there are genuine issues of material fact that preclude summary judgment for Mid Indiana.

In Robert A. Masters v. Leah Masters, a 7-page opinion, Judge Najam writes:
In this contentious dissolution action, the parties submitted to arbitration pursuant to the Family Law Arbitration Act, Indiana Code Sections 34-57-5-1 to -13. After several hearings, the arbitrator entered numerous findings of fact and conclusions of law, and the trial court reduced the arbitrator’s findings and conclusions to judgment accordingly. See Ind. Code § 34-57-5-7 (2014). In her findings and conclusions, the arbitrator, among other things, dissolved the marriage of Robert A. Masters (“Husband”) and Leah Masters (“Wife”); valued and distributed the vast majority of the marital assets; resolved questions of child custody, support, and parenting time; and determined the parties’ respective incomes, whether actual or imputed. In particular, the arbitrator found that Husband had an annual income of $80,000; that he must immediately pay $17,735 in back child support; that he must pay to Wife $23,965.05 in cash within 100 days of the arbitrator’s order to equalize the parties’ marital assets; that he must replenish $51,000 in the parties’ bank accounts; and that he should be awarded $93,843 in the valued portion of the marital estate. The arbitrator then ordered Husband to pay $95,000 of Wife’s attorney’s fees.

On appeal, Husband challenges only the arbitrator’s finding that he pay $95,000 of Wife’s attorney’s fees. We hold that the arbitrator’s finding is clearly erroneous because it does not consider Husband’s ability to pay Wife’s attorney’s fees in light of his earnings, living expenses, and valued assets, or in light of the other obligations the arbitrator imposed on Husband. Further, we reject Wife’s arguments on cross-appeal as well as each party’s request under Appellate Rule 66(E) for appellate attorney’s fees. * * *

In sum, the arbitrator’s order that Husband pay $95,000 to Wife for her attorney’s fees is clearly erroneous. As such, we reverse and remand on that issue. We reject Wife’s arguments on cross-appeal as well as each side’s request for appellate attorney’s fees under Appellate Rule 66(E).

In Tom Seeber v. General Fire and Casualty Company, Indiana Insurance Company, and Peerless Indemnity Insurance Company, an 18-page opinion, Judge Bradford writes:
In the fall of 2008, Appellant-Plaintiff Tom Seeber owned a commercial building located on North College Avenue in Bloomington (the “Building”). The Building was leased to Harry and Karen Kidwell, who operated Delilah’s Pet Shop. On November 3, 2008, the Building was destroyed by fire and determined to be a total loss. At the time of the fire, Seeber had an insurance policy for the Building that was issued by Appellee-Defendant General Fire and Casualty Company (“General Fire & Casualty”). The Kidwells had an insurance policy relating to their interests in the Building that was issued by Appellees-Defendants Indiana Insurance Company and Peerless Indemnity Insurance Company (collectively, “Indiana Insurance”). As a result of the fire, General Fire & Casualty and Indiana Insurance (collectively, “the Insurance Companies”) agreed that the actual cash value of the Building was $512,418.12 and the replacement cost was $650,812.70. The Insurance Companies thereafter collectively paid Seeber the full $512,418.12 actual cash value of the building.

Seeber subsequently claimed that he was entitled to receive the full $650,812.70 replacement cost of the building. Seeber filed a complaint for declaratory judgment on November 1, 2010, asking the trial court to interpret his rights under the relevant insurance policies. On December 30, 2013, Seeber filed a motion for summary judgment, along with designated evidence and a memorandum in support of his motion. Also on December 30, 2013, General Fire & Casualty and Indiana Insurance each filed motions for summary judgment, designated evidence, and supporting memoranda. The trial court conducted a hearing on all outstanding motions on March 21, 2014. On April 17, 2014, the trial court entered an order denying Seeber’s motion for summary judgment and granting summary judgment in favor of the Insurance Companies.

On appeal, Seeber contends that the trial court erred in denying his request for summary judgment and in granting summary judgment in favor of the Insurance Companies. Seeber specifically claims that the Insurance Companies were not entitled to an award of summary judgment because, under the applicable policy language, he was entitled to recover $650,812.70, the replacement cost of the building that was destroyed by fire. Concluding that the trial court properly denied Seeber’s request for summary judgment and granted summary judgment in favor of the Insurance Companies, we affirm.

NFP civil opinions today (2):

Auto-Owners Insurance Company v. Edward Foster (NFP)

Brent Wroblewski and Gretchen Wroblewski v. Angelo G. Valle (NFP)

NFP criminal opinions today (5):

Joel McGee v. State of Indiana (NFP)

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

Alvin Donald Grisby v. State of Indiana (NFP)

James M. Burton v. State of Indiana (NFP)

Jeremy J. Turner v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 29, 2014
Posted to Ind. App.Ct. Decisions

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

In Marshall Welton v. Shani Anderson (SD Ind., Magnus-Stinson), a 10-page opinion, Judge Bauer writes:

Marshall Welton (“Welton”) sued police officer Shani Anderson, the National Bank of Indianapolis, and George Keely (collectively the “Appellees”) under 42 U.S.C. § 1983, claiming that they engaged in a malicious prosecution against him in violation of the Fourth and Fourteenth Amendments and Indiana state law. Appellees moved to dismiss Welton’s federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted Appellees’motion and, after declining to exercise supplemental jurisdiction over Welton’s remaining state law claims, dismissed the suit. Welton challenges this ruling on appeal, asserting his claims were improperly dismissed. For the reasons that follow, we affirm the district court’s dismissal.

Dismissal was appropriate because Welton never presented a viable constitutional violation in support of his § 1983 malicious prosecution claim. Therefore, the district court’s grant of the defendants’ motions to dismiss is AFFIRMED.

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

Courts - "Campaign Spending On State Judicial Elections"

That is the title of today's Diane Rehm Show on NPR, which just concluded, but you will be able to listen to it here shortly. One of the guests was Indiana's Jim Bopp.

Posted by Marcia Oddi on Wednesday, October 29, 2014
Posted to Courts in general

Courts - Plaintiffs' attorneys writing big checks to defeat Illinois justice up for retention

From the St. Louis Post-Dispatch, a long story by Paul Hampel about a judicial retention election in our neighboring state of Illinois. Some quotes:

Ten years after Lloyd Karmeier was elected to the Illinois Supreme Court in a particularly contentious and expensive race, he is facing strong opposition in his run for retention.

As in 2004, plaintiffs’ attorneys are writing big checks to try to defeat Karmeier — about $1.8 million in the past two weeks, according to campaign finance reports.

That includes $1.2 million from attorneys associated with Korein Tillery LLC. The money has funded frequent attack ads on TV. In 2004, the St. Louis-based firm contributed tens of thousands to Karmeier’s opponent in the partisan race in the court’s 5th District, covering 37 counties.

Karmeier, a Republican of Nashville, Ill., defeated then-Appellate Judge Gordon Maag, a Democrat of Glen Carbon. Together they raised $9.3 million, with business groups backing Karmeier and trial lawyers supporting Maag.

To keep the job, Karmeier needs approval of 60 percent of the voters next Tuesday.

As of Tuesday, his campaign had raised approximately $151,000. * * *

That firm stands to collect $1.7 billion in legal fees in a class-action suit against Philip Morris, a case that is under appeal before the Supreme Court. A Madison County judge issued a $10.1 billion judgment against the company in 2003, finding that it falsely advertised its “light” cigarettes as safer. The verdict was reversed in 2005 by the state Supreme Court and has found its way back on appeal.

[More] See also this Oct. 27th NY Times column by Joe Nocera, headed "Are Our Courts for Sale?."

Posted by Marcia Oddi on Wednesday, October 29, 2014
Posted to Courts in general

Ind. Gov't. - "Lobbyists, Bearing Gifts, Pursue Attorneys General"

Supplementing this ILB post from Monday headed "Florida Attorney General active in faraway court fights" quoting a long Miami Herald story about the politicization of state attorneys general offices and the use of amicus briefs to promote political agendas, the NY Times today has a very long story by Eric Lipton titled "Lobbyists, Bearing Gifts, Pursue Attorneys General." Apparently it is the first in a series, as a subhead reads:

Courting Favor. Articles in this series will examine the explosion in lobbying of state attorneys general by corporate interests and the millions in campaign donations they now provide.
Today's story is accompanied by many attachments, introduced by: "Here is a look at some of the organizations and players that are part of the fast-growing and largely secretive world of lobbying state attorneys general."

The NY Times summarizes the article: GIFTS RULES AND STATE AGS. NYT. “Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators, an investigation by The New York Times has found.”

Posted by Marcia Oddi on Wednesday, October 29, 2014
Posted to Indiana Government

Ind. Decisions - "Appeals court clears way for Broad Ripple development" Why is this NFP?

Good Earth Natural Foods, and Patrick Skowronek v. Metropolitan Development Commission, City of Indianapolis and Broad Ripple Associates, Llc. (NFP), decided yesterday by the Court of Appeals, is the subject of several stories today, including this one from WISHTV8. From the story:

[The opinion] upholds the dismissal of a lawsuit brought by Good Earth Natural Foods and nearby resident Patrick Skowronek, who filed an appeal in March over the granting of a zoning change to the project last year. The appeal was dismissed by a Marion County judge over the summer because required paperwork wasn’t submitted by court-imposed deadlines.

The appeals court concurred with that decision on Tuesday, clearing the way for demolition by Indianapolis-based Browning Investments to begin.

The $30 million development has drawn criticism from some Broad Ripple residents and nearby business owners as being out of character with the neighborhood. It includes 120 apartments, a four-story parking garage and a grocery store — at one time believed to be a Whole Foods, though that’s not certain now. The project would be backed by Tax Increment Finance District funding. Developers have argued it will spur further economic development and revitalize the area.

Skowronek, and others living in apartments just east of 64th Street and College Avenue near the canal are in the path of the project, and were issued notices of lease termination in August. They have until Oct. 31 to move out.

As the news reports attest, this decision was a matter of public interest. Further, the Court itself had decided the issues warranted oral argument:
Oral argument was conducted on October 1, 2014. We thank counsel for the helpful discussion of the issues presented in this case.

Posted by Marcia Oddi on Wednesday, October 29, 2014
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Tuesday, October 28, 2014

Ind. Decisions - Supreme Court decides one today

In Michael E. Lyons, Individually; Denita L. Lyons, Individually et. al. v. Richmond Community School Corporation D/B/A Richmond High School; Joe Spicer et. al., a 13-page, 5-0 opinion, Justice Massa writes:

The parents of a child who choked to death during lunchtime in a high school cafeteria sued the school and several administrators. The trial court granted defendants’ motion for summary judgment. We reverse. * * *

The Lyonses assert the trial court erred by granting RCSC’s motion for summary judgment on the issue of their compliance with the ITCA notice requirement. The ITCA bars tort claims against political subdivisions like RCSC unless the plaintiffs file a Notice of Tort Claim within 7 180 days “after the loss occurred.” Ind. Code § 34-13-3-8(a) (2008). Here, Megan’s death occurred on January 10, 2009, but the Lyonses filed their Notice of Tort Claim on January 11, 2010—long after the 180-day time period had ended. The Lyonses, however, argue their noncompliance should be excused under one of three alternative theories: substantial compliance, the discovery rule, or fraudulent concealment.

A. Substantial Compliance

As to the first of these, substantial compliance, we agree with the Court of Appeals that “substantial compliance cannot exist ‘when the claimant took no steps whatsoever to comply with the notice statute.’”* * *

B. The Discovery Rule

As to the discovery rule, we again find ourselves in agreement with the panel below. * * *

C. Fraudulent Concealment

Finally, the Lyonses argue the defendants should be estopped from asserting their ITCA notice defense because they fraudulently concealed the existence of the Lyonses’ claims. “Fraudulent concealment is an equitable doctrine that operates to estop a defendant from asserting the statute of limitations as a bar to a claim whenever the defendant . . . ‘has, either by deception or by a violation of duty, concealed from the plaintiff material facts thereby preventing the plaintiff from discovering a potential cause of action.’” [cites omitted] In such cases, equity will toll the commencement of the applicable time limitation until such time as the plaintiff discovers, or in the exercise of ordinary diligence should discover, the existence of the cause of action. * * *

1. Active Fraudulent Concealment

* * * Based upon that record, a factfinder could reasonably find the defendants committed active fraudulent concealment. [cite omitted] Thus, the trial court erred by granting the defendants’ motion for summary judgment on this issue.

2. Passive Fraudulent Concealment

Passive fraudulent concealment requires (1) a relationship between the parties such that the defendant has a duty to disclose the alleged wrongful act to the plaintiff and (2) a breach of that duty. * * *

Finally, although we are sympathetic to the Lyonses’ public policy arguments, we must decline their invitation to establish a completely new legal duty here. But we encourage our General Assembly, charged with making policy for our state, to consider this issue carefully. It may be that, in this age of near-universal and compulsory education, when our schools provide myriad counselling, physical therapy, recreation, and special needs assistance for our children, they should be required to disclose vital information about a student to the persons most intimately concerned—the student’s parents. * * *

Conclusion

We remand this case to the trial court for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, October 28, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Public Access Counselor opinion raises the question: Do we have "secret dockets" in Marion County?

Court Times, a publication of the Indiana Courts, has posted a June 26, 2014 article by Ruth Reichard titled "Sealing Court Records: The How and the Why (Not)."

"Trial courts sometimes find themselves presented with a motion to seal the case records," the author writes, but "once a case has been filed, what can a judge do? Can we 'put the toothpaste back into the tube?'" The article continues:

The default answer to this question is “no—not easily.” After all, Article 1, Section 12 of the Indiana Constitution states in pertinent part that “All courts shall be open . . .” The first section of Indiana’s Access to Public Records law, at Ind. Code 5-14-3-1, likewise contains a strong, unequivocal statement that “it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Further, the statute “shall be liberally construed to implement this policy and place[s] the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record . . .” Nevertheless, section 5.5 of the statute does offer a legal means by which courts can seal records. [ILB - access IC 5-14-3, the Access to Public Records Act (APRA), here]

So, assuming that a party has properly filed a motion to seal the case records under Ind. Code 5-14-3-5.5, can a judge simply decide it has merit and grant the motion without a hearing?

No. The court must hold a public hearing—at which the judge must consider any testimony and written briefs submitted by members of the general public, as well as the parties—the court must also post notice of the hearing in the courthouse. At the hearing, the person asking to seal the records must prove by a preponderance of the evidence that the need for the extreme remedy of secrecy outweighs the public policy of open records. * * *

If, after holding a hearing, the judge decides to seal all or part of the record, the order must contain findings of fact and conclusions of law. Finally, the statute also requires that the records be “unsealed” at the earliest possible time once the circumstances necessitating secrecy no longer exist.

Yesterday the ILB read an Oct. 24, 2014 advisory opinion from Public Access Counselor (PAC) Luke Brett, Re: Formal Complaint 14-FC-221; Alleged Violation of the Access to Public Records Act (“APRA”) by the Marion County Clerk."

The complaint, filed by George W. Pendygraft, was that the Marion County Clerk had violated the Access to Public Records Act (“APRA”), Ind. Code § 5-14-3, by failing to provide "a copy of the case file in a named lawsuit filed in Marion County Superior Court 4." However, as the PAC writes in the opinion, "the records you sought had been sealed by the Court and the file was not disclosable public record. * * * [The Court] entered an order on September 4, 2014 sealing the records in question. The issue as I see it is whether the Court properly sealed the records under the Access to Public Records Act." [The ILB has added some boldface emphasis in this and subsequent quotations from the PAC order.]

From the PAC opinion:

The Access to Public Records Act addresses how and under what circumstances a court may seal a public record. Ind. Code § 5-14-3-5.5 states:
(a)This section applies to a judicial public record.
(b) As used in this section, "judicial public record" does not include a record submitted to a court for the sole purpose of determining whether the record should be sealed.
(c) Before a court may seal a public record not declared confidential under section 4(a) of this chapter, it must hold a hearing at a date and time established by the court. Notice of the hearing shall be posted at a place designated for posting notices in the courthouse. * * *
Clearly the discretion to seal a record lies with the presiding Judge; however, it is also clear the procedures enumerated in subsection 5.5 must be followed. According to the Court’s order in 49D04-1312-PL-045851, the parties appeared for a status conference at which time the co-Defendant made an oral motion to the Court to seal the records in the case. It does not appear any notice of the proceeding was given and the public did not have an opportunity to testify or file a brief.

The obligation to hold such a hearing is on the presiding Judge. I spoke with the Honorable Cynthia Ayers, Judge of the Marion County Superior Court 4 and she indicated her decision to not hold a hearing was based on her decision confidential attorney-client communication was scattered amongst the documents. Because that kind of communication is declared confidential by several Indiana authorities, she sealed all the records in the case. Furthermore, she feared a hearing would compromise the integrity of the privilege as attorneys may have to give testimony regarding the communication itself.

You clearly disagree with the Judge’s determination; however, that is a matter of law and under the jurisdiction of the court. There are alternative appellate remedies if you take exception with her ruling and choose to intervene, however, none of those remedies may be issued by the Indiana Public Access Counselor.

Some background. In 2006 the ILB has a number of posts about an Orange County casino situation where the judge sealed an entire lawsuit, including the docket itself, for nearly two months. In a June 20, 2006 post, the ILB wrote:
This is a matter of enormous local, and indeed, state-wide interest. I'm told that reporters were even unable to confirm last week that a suit had been filed. Although the ILB has had a number of entities about 'secret dockets' in other states, apparently we do have some in Indiana also.
From an Aug. 1, 2006 post, quoting a story by Roger Moon in the Bedford Times-Mail:
PAOLI - Court documents involving two Orange County casino lawsuits were made available for public review in a decision that came this morning in Orange Circuit Court.

Orange Circuit Court Judge Larry Blanton had sealed the records in early June.

He said today, “I took the unusual and unprecedented action for a variety of reasons.” One reason, Blanton said, was to allow him more time to research the law. He said, “I acted with an overabundance of caution.” * * *

At the parties' request, the documents were sealed, meaning closed to the public. Lauth and Cook have agreed not to discuss the lawsuits publicly.

Steve Ferguson, chairman of the Bloomington-based Cook Group, Inc., said after the hearing, “Of course, you would like to keep this kind of dispute between the two parties, but we clearly understand what the law says.”

Today's ruling came after attorneys for newspapers argued that the records should be made public and that neither Cook nor Lauth representatives had met the burden of proof on why the cases should remain sealed.

Angela Parker, an attorney representing a number of newspapers, including the Times-Mail and its sister newspaper, the Herald-Times of Bloomington, said in court, “The public wasn't informed and didn't know why (the cases were sealed). The need to speculate put the public at a disadvantage.”

Arguments for opening the case also were presented by the Indiana Attorney General's office. Attorney General Steve Carter, in a statement released over the weekend, said, “Judicial proceedings regarding gambling should be subject to public observance and review. The public's interests are likely to be impacted by litigation between these two private entities. Any time there is government involvement with respect to the gambling industry, it should be subject to heightened public scrutiny.”

Back to the Marion County case. According to the Oct. 24, 2014 PAC opinion, the judge "sealed all the records in the case." The PAC opinion does not give the name of the case. At one point on p. 2 a reference is made to "the Court’s order in 49D04-1312-PL-045851," but the ILB has been unable to locate any cases that matched this search criteria.

Is this an example of a secret docket in a Marion County court? Or is there another explanation?

Posted by Marcia Oddi on Tuesday, October 28, 2014
Posted to Indiana Courts | Indiana Government

Ind. Law - "Gay marriage blazing trails for insurers: Employers struggling for guidance"

The Sunday Fort Wayne Journal Gazette has this lengthy story by Sherry Slater, some quotes:

Since Oct. 6, when the U.S. Supreme Court declined to review lower court rulings that allowed gay and lesbian unions, some employers have been scrambling for guidance on whether they have to offer identical benefits to same-sex spouses as they do to opposite-sex ones.

Lawyers, insurance companies and other advisers are studying the legalities and loopholes as they field anxious phone calls from clients.

At least one major insurance company providing coverage in the region has declared a special sign-up period for husbands and wives of gay and lesbian policyholders.

“I’m knee-deep in same-sex stuff,” said Tom Markle, an employee benefits attorney and partner with local firm Barrett & McNagny. “Some very large organizations are almost freaking out right now.”

Do they have to offer coverage to same-sex couples? The answer: It depends.

Markle wants to set the record straight on one misconception: The federal government is not making employers provide health insurance and other benefits to same-sex spouses.

“The federal law doesn’t require coverage of any spouse for any reason to begin with,” he said.

Most employers offer health care insurance and other benefits to full-time employees as a way to attract talented workers. But that, he said, is optional.

Defining terms

If an employer chooses to offer health insurance to employees and their spouses, even then, it might not have to cover same-sex spouses.

It depends on whether the employer has a fully insured health plan or a self-funded one.

Fully insured plans place the risk of offering coverage on insurance companies, which charge a per-employee premium that varies depending on the size of the workforce and its previous insurance usage.

Most smaller companies – those with fewer than 200 workers – have fully insured plans.

Self-funded plans place the risk on the employer, which sets aside the amount of money it would have paid in premiums and instead uses that money to pay the covered portion of hospital and doctor bills.

This option, which is more popular with large companies, represents about 55 percent of workers with health insurance, according to data from Employee Benefit Research Institute, a nonprofit, nonpartisan research institute based in Washington.

Many self-insured plans hire an insurance company or other outside firm to handle the plan’s paperwork. Local examples of these third-party administrators include Employee Plans LLC, a subsidiary of Old National Insurance, and Pro-Claim Plus Inc.

Because those company names often appear on health insurance-related paperwork, some workers don’t even realize their employer has a self-funded plan, Markle said.

That is just the start. Keep reading the very long story here.

Posted by Marcia Oddi on Tuesday, October 28, 2014
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

For publication opinions today (5):

In Lbm Realty, Llc, d/b/a Summer Place Apartments, an Indiana Corporation v. Hillary Mannia, an Indiana Resident, a 27-page opinion, Chief Judge Vaidik writes:

Following a fire in an apartment building owned by LBM Realty LLC d/b/a Summer Place Apartments (LBM), LBM’s insurance company Greater New York Mutual Insurance Company (Insurer) filed an insurance subrogation action in LBM’s name against LBM’s tenant, Hillary Mannia. Mannia filed for summary judgment, urging the trial court to adopt a no-subrogation rule—citing Sutton v. Jondahl, 532 P.2d 478 (Okla. Ct. App. 1975), and its progeny as support—which would preclude LBM’s complaint against her. The trial court granted summary judgment in favor of Mannia, and LBM now appeals. We find that Indiana law supports a largely case-by-case approach to subrogation actions by a landlord’s insurer against a tenant and, therefore, does not preclude LBM from pursuing its claims against Mannia, at least with respect to damage to the leased premises. Accordingly, we affirm in part, reverse in part, and remand with instructions. * * *

In sum, the trial court should analyze all relevant and admissible evidence in order to determine the parties’ expectations and should weigh and balance the equities of the case—as well as addressing the issue of Mannia’s negligence—in order to determine Mannia’s liability for the damage to the leased premises.

In In Re the Adoption of: I.B. and W.B., (Minor Children) and B.B. v. B.C. & J.L., and The Indiana Department of Child Services, a 13-page opinion, Judge Friedlander writes:
Appellant, the paternal grandmother of I.B. and W.B., appeals the grant of maternal grandmother and her fiancé’s (collectively referred to as Adoptive Parents) petitions to adopt I.B. and W.B. * * *

The sum of Appellant’s claim appears to be that DCS’s failure to fully investigate placement with her resulted in a denial of due process. She provides no relevant authority in support, and we find her vague assertion of a due process violation unavailing.

In Paul Allen Decker v. State of Indiana , a 16-page opinion, Judge Brown writes:
On December 3, 2012, Bloomington Police Detective Brandon LaPossa was advised by his sergeant that the library had called and said a male was looking at child pornography. Detective LaPossa went to the library and met with Dana Geldof, a security guard at the library. Geldof informed Detective LaPossa that there was a male looking at pictures of child pornography. Geldof identified computer number thirty-four as the computer where the person was sitting. At this point, Decker was sitting at a table just across from the computer. * * *

Detective LaPossa looked at the computer screen and observed several images of different aged children in diapers posed in different positions, some of which Detective LaPossa thought were sexual positions, and that there were “at least probably thirty” images. Id. at 13. He testified that the children were “anywhere from an infant to approximately twelve years old,” and “[s]ome of them looked family and some of them looked like they were specifically posed in a certain way.” Id. at 19. During cross-examination, when asked whether he interpreted the photos at the library as being posed in sexual positions, he answered “[s]ome of them, I did, yes, ma’am.” Id. at 51.

Based upon the record, we conclude that Detective LaPossa had probable cause to arrest Decker. Accordingly, we cannot say that the trial court erred in denying Decker’s motion to suppress.

In Arthur Dale Miller v. State of Indiana, a 9-page opinion, Judge Pyle writes:
This case is a reminder that we will not allow a defendant to have two bites at the proverbial appellate apple, especially when it happens with the assistance of a trial court that should have dismissed the underlying motion for lack of jurisdiction.

Arthur Dale Miller (“Miller”) previously initiated an appeal of the trial court’s denial of his motion to hold the Jay County Sheriff in contempt for failing to transport him to the Department of Correction within five days of his sentencing. Our Court dismissed his appeal based on his failure to properly serve the proper party with his notice of appeal. Miller then sought to set aside the order denying his contempt motion and to have the trial court re-enter a judgment on his contempt motion so that he could re-appeal the trial court’s order. The trial court granted Miller’s request, and Miller now attempts to re-appeal the denial of his contempt motion.

Because we find that the trial court did not have jurisdiction to rule on Miller’s contempt motion based on Miller’s lack of standing and because Miller’s challenge was nevertheless rendered moot when he was transferred to the Department of Correction, we dismiss this appeal.

In Jason D. Swallow v. State of Indiana, a 10-page opinion, Judge May writes:
Jason D. Swallow appeals his conviction of murder. He raises four issues on appeal:
1. Whether a special prosecutor should have been appointed when Swallow’s public defender withdrew as counsel and became employed by the Wayne County Prosecutor;
2. Whether permitting the jury to hear Swallow’s recorded statement that he was a drug dealer violated Indiana Evidence Rule 404(b);
3. Whether Swallow’s conviction is supported by sufficient evidence; and
4. Whether his sixty year sentence is inappropriate. * * *

As no confidential information Dean obtained was shared with the prosecutor’s office, the trial court did not err in denying the motion to appoint a special prosecutor. * * *

The trial court did not err in admitting Swallow’s statement. See Embry v. State, 923 N.E.2d 1, 10 (Ind. Ct. App. 2010) (probative value of uncharged misconduct was not so substantially outweighed by its potential for unfair prejudice that it should have been excluded under Rule 403 when trial court gave a limiting instruction and admonished the jury that the defendant’s prior misconduct was not admitted to demonstrate character or prove action in conformity therewith), trans. denied. * * *

The trial court was not obliged to appoint a special prosecutor, admitting Swallow’s statement he was a drug dealer was not error, there was sufficient evidence to support the conviction, and Swallow’s sentence was appropriate. We accordingly affirm.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relantionship of : G.B,, D.B., Li.B., C.B., & Z.B., Minor Children and L.B., Father v. The Indiana Department of Child Services (NFP)

In Re the Marriage of Reba M. Dunagan and Joseph Dunagan, Joseph Dunagan v. Reba Michele Dunagan (Clinkenbeard) (NFP)

Good Earth Natural Foods, and Patrick Skowronek v. Metropolitan Development Commission, City of Indianapolis and Broad Ripple Associates, Llc. (NFP)

NFP criminal opinions today (4):

Harry H. Robertson v. State of Indiana (NFP)

Antonio Manuel v. State of Indiana (NFP)

Remington Diaz v. State of Indiana (NFP)

Jeffrey R. Hill v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 28, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts a second Indiana opinion from Oct. 27th

In Frederick V. Greene v. U.S. Dept. of Education (ND Ind., Van Bokkelen), a 5-page opinion, Judge Posner writes:

This appeal requires us to decide what is needed to make a counterclaim compulsory. The plaintiff, Frederick Greene, appeals from a judgment direct-ing him to repay his student loan debt to the federal De-partment of Education. The judgment is based on a counterclaim filed by the Department to Greene’s complaint, which sought to enjoin the Department from collecting his student debt by garnishment of his wages or any other measure. The judge ruled that the Department’s counterclaim seeking a judgment ordering Greene to repay the debt was not barred, either as a compulsory counterclaim in a previous litigation or by res judicata or collateral estoppel. * * *

We therefore agree with the district court that the Department’s counterclaim is not barred. As for Greene’s alternative grounds for barring the Department’s claim for repayment of his student loans — res judicata and collateral es-toppel — they fall with his compulsory-counterclaim argument.

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

Ind. Courts - Noble County Courthouse marks its 125th anniversary

From a column Oct. 26th by Terry Housholder in the Kendallville KPC News:

The 125th anniversary of the dedication of the majestic Noble County Courthouse, which towers over the town of Albion, was marked last week without fanfare.

The courthouse was designed by renowned architect Edward Oscar Fallis. The cornerstone for the Romanesque structure was laid on May 29, 1888, and the dedication took place on Oct. 15, 1889.

Among the speakers at the dedication was 35-year-old attorney Thomas Riley Marshall of Columbia City, who later rose to national political prominence. Marshall, a Democrat, served as Indiana governor from 1909-1913, and was vice president of the United States from 1913-1921 under President Woodrow Wilson.

Here, via Wikipedia, is a photo of the Noble County Courthouse.

Posted by Marcia Oddi on Tuesday, October 28, 2014
Posted to Courts in general

Ind. Gov't. - "Two new services for obtaining digital records at the Allen County recorder's office."

Some quotes from the story by Vivian Sade in the Fort Wayne Journal Gazette:

Allen County Commissioners agreed Friday to add two new services for obtaining digital records at the county recorder's office.

The new services will hopefully increase the number of users by offering a lesser monthly subscription price than in the past for online document retrieval services, said Chief Deputy Recorder Anita Mather.

The recorder's office has records dating back to 1816 and provides access to numerous types of documents, including home deeds and mortgages, military discharges, property plats and title insurance.

Before the new services were offered, the minimum subscriber service was $50 a month for up to 250 minutes of use.

The new $25 subscription is designed for patrons who use the services up to for up to 100 minutes a month, Mather said.

The less expensive subscription should attract those who use the services on a regular basis, but do not need the larger subscription, she said.

“Attorneys would be a good example,” she said.

The move should also increase revenue about $5,000 annually, from $70,000 to $75,000, Mather said.

The second new service is targeted toward any company that wishes to purchase multiple subscriptions.

Subscribers can now add additional subscriptions for $100 a month.

“Before they had to pay the regular price of $250 for the unlimited service and for each add-on, so now if they want to add a second (subscription), they will pay $350 instead of $500,” Mather said.

Title companies are an example of the type of patron who frequently uses the unlimited-minutes service and utilizes more than one subscription, she said.

The Allen County Recorder's Office also has:
... an on-demand service designed for occasional users. Users pay $5.95 per search and 75 cents per page for each document PRINTED. Documents can be viewed at no charge. No user agreement is required and there is no recurring expense other than search and document charges.

Posted by Marcia Oddi on Tuesday, October 28, 2014
Posted to Indiana Government

Ind. Gov't. - Quarantine and infectious disease in Indiana at the end of the 19th century

One of my prize possessions is a copy of The Hoosier Health Officer, A Biography of Dr. John N. Hurty. Hurty was Secretary of the Indiana State Board of Health from 1896 until about 1922.

The book quickly reminds one that it is not that long ago that the control of infectious disease was one of the most basic functions of Indiana government. Here are a few quotes from p. 81 of the volume:

Diphtheria had been epidemic in all parts of the State for two or three years when Hurty came into office. He threw himself into the fight with a zeal for health which had never been seen before in Indiana. There are so many tales to tell of his efforts to stamp out the disease that it is hard to choose a particular one as being the most interesting. We shall let him tell of his experiences at West Baden and French Lick (Indianapolis News, Sept. 15, 1896):
J.N. Hurty, secretary of the State Board of Health, reached home this morning after an experience with a diphtheria epidemic in Orange county. He found a telegram awaiting him from Mitchell, also at once, as the disease bad broken out there. The telegram was from the clerk and auditor of the county.

"The towns of West Baden and French Lick have been quarantined against this district. A proclamation has been declared enforcing the strictest of quarantine and sanitary regulations. There are, or have been seventy-five cases in the district and twenty deaths, but I believe the cases will now be controlled. Supplies of disinfectants, antitoxin and other things needed have been left where they can be had. Filth and an utter disregard of sanitary regulation as to carding houses, public funerals, etc. are causes of this epidemic, and it would be better for the whole community if some of the worst infected places could be destroyed by fire."

In his struggle to find ways of stopping the dread disease he made great effort to find the best methods of quarantine and isolation. It was comparatively easy to say what should be done but very hard in those times to get quarantine enforced. In particular it was hard to get the doctors themselves to understand what was needed. Many of the physicians of that time had never been to a real medical school and by far the most of them had never had any sort of course in bacteriology. It was customary in those times for the physician to carry in his pocket a metal tongue depressor which folded up like a knife, and was used on one patient after another without any sort of adequate disinfection. There was much derision when Hurty advocated that the doctors provide themselves with little wooden paddles or tongue depressors which were to be burned after being used once. * * *

The State Board of Health made a set of rules which required that the physicians should provide themselves with a gown which they would wear when visiting an infectious case such as diphtheria, scarlet fever or smallpox. Explicit directions were set out as follows (Ind. Med. J. 15 : 231-233):

Rule 1. When visiting patients known to be sick with smallpox, scarlet fever, diphtheria or other contagious disease, physicians shall clothe themselves in a specially provided clean lined duster, oil cloth or rubber coat, and a tight-fitting cap made of silk, linen, oil cloth or rubber. The cap shall well cover the hair. Before leaving the house, physicians shall cleanse hands and face with antiseptic soap and water, and use a disinfectant upon hands and face. The coat, cap, antiseptic soap, bottle of disinfectant, etc. shall be carried in a special glazed leather valise, together with a pad of cotton, which is to be kept wet with formaldehyde.
This requirement was met with much resistance by the physicians. The members of the Shelby County Medical Society (Ind. Med. J. 15: 297-298) were very outspoken in their criticism.

Posted by Marcia Oddi on Tuesday, October 28, 2014
Posted to Indiana Government

Monday, October 27, 2014

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

In USA v. Trevor Hinds (SD Ind., Pratt), a 19-page opinion, Judge Kanne writes:

Defendant-Appellant Trevor Hinds appeals the district court’s imposition of a two-level sentencing enhancement for production or trafficking under U.S.S.G. § 2B1.1(b)(11)(B)(i), as well as two special conditions of his supervised release: one requiring him to pay a portion of his court-ordered substance abuse treatment and drug testing and the other requiring him to submit to suspicionless searches and seizures. For the reasons set forth below, we affirm the twolevel enhancement but vacate the two special conditions at issue. Accordingly, we remand for re-sentencing.

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

Courts - More on "Pennsylvania Supreme Court Justice McCaffery Suspended over Porn Emails "

Updating this ILB post from Oct. 22, the Indiana Pennsylvania Gazette is reporting, in an AP story by Mark Scolforo and Marc Levy, that:

HARRISBURG, Pa. (AP) — A Pennsylvania Supreme Court justice caught up in a government porn email scandal stepped down Monday after nearly eight years on the state's highest court, and a judicial ethics board said it would drop its investigation of him as a result.

Justice Seamus McCaffery also agreed not to seek senior judge status or seek elective judicial office again, the Judicial Conduct Board said.

The panel said it would end its investigation of McCaffery on a number of matters because the most serious sanctions possible were his removal from office and a prohibition against him holding future judicial office.

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Courts in general

Courts - "Op-Ed: A Call to Expose the Unnecessary Secrets of the Supreme Court"

Prof. Rick Hasen had an op-ed in the National Law Journal this weekend that ended with four recommendations for the SCOTUS (emphasis by ILB):

First, the court should publicly announce when it makes a change in a previously published opinion. It remains, in Chief Justice John Marshall’s words, the province and duty of the judicial branch to say what the law is. But this rule presupposes we all have access to the judiciary’s pronouncement of what the law is.

Second, publicly announce the court’s schedule and release of opinions in advance. Why should it be a secret whether and when the court is going to announce opinions? The California Supreme Court, for example, gives notice of forthcoming filings before they are issued, so that the news media and public can be prepared for coverage.

The same goes for court orders. Their timing is not a matter of national security. When everyone was waiting a few weeks ago for the Supreme Court to announce whether it would hear the same-sex marriage cases, there was no public indication of the release date (it came a few days after the justices met in conference). I posted on my blog a rumor of the release time, a rumor that turned out to be correct, but I was criticized for discussing such information.

Third, make all briefs and filings in the case available on the court’s website and keep the site functional and up to date. Many appellate courts have websites that allow easy access to party briefs and other documents. The Supreme Court’s website does not. Even after a recent revamp, it is barely searchable, with search results sometimes appearing in random order. To find key documents in a court case, one must turn to private sources such as the website of the American Bar Association or to SCOTUSblog.

None of this material is secret, and no one should have to go on a treasure hunt for key documents in cases of national importance.

Finally, make all information released to the Supreme Court press corps available to all of the public. Ginsburg deserves praise for announcing the change in her Texas voter identification dissent. But one searches the court’s website in vain for her announcement. Instead, the announcement ironically was sent only to some members of the press corps.

These basic steps toward transparency would allow the public to better understand the court’s important work, and end practices that serve no purpose other than to unduly mystify the public.

See also the Oct. 24th ILB post, "SCOTUS Edits a Dissent, and Admits It."

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Re the Adoption of K.W.: M.W. v. S.L. and T.L.

Richard I. Spiece Sales Co., Inc. d/b/a Spiece Sales Co., Inc. v. Levi Strauss North America

David T. Hays and Amanda G. Hays v. Deborah J. Wise

NFP civil opinions today (0):

NFP criminal opinions today (7):

Juaquin Diaz-Delreal v. State of Indiana (NFP)

Uriah Booker v. State of Indiana (NFP)

Roy Lee McGraw v. State of Indiana (NFP)

Pepper M. Glisson v. State of Indiana (NFP)

Mark Bender v. State of Indiana (NFP)

Shelley L. King v. State of Indiana (NFP)

Trevin Hornbeak v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - Indianapolis Star reporting/editing errors continue [Updated]

For example, in today's Indianapolis Star in a story about the Marion County prosecutor race between Terry Curry and Duane Merchant, the headline has "Duanne". But that is not the most egregious error, in the body of the story by Kristine Guerra is this paragraph:

"We came into office at a time when morale at the prosecutor's office and its public image were at an all-time low," said Curry, who won the race in 2010 over Republican Mark Mazza. "We've made specific commitments in what we're going to do."
As a reader wrote:
I noticed the errors in the print edition and as of a few minutes ago, they were still in the online edition. I realize the reporter isn't responsible for the misspelling in the headline, but as the courts and law reporter for the Indy Star, you'd think she'd know how to spell the name of Indiana Supreme Court Justice Mark Massa.
[Updated at 6:00 PM] It appears that at 3:56 PM. the errors in the online version (but of course not this morning's printed version) were corrected. Unlike some other papers*, the Star does not note subsequent corrections at the bottom of the story.
________
*For instance, this Oct. 17th NYT story has several corrections noted at the end, including:
Correction: October 17, 2014
An earlier version of a map with this article misspelled the name of a senator for New Hampshire. She is Jeanne Shaheen, not Shasheen.

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Indiana Law

Ind. Decisions - "Appellate court: Man's local sentence can't be tied to another county"

David G. Taylor v. State, an Oct. 22nd NFP Court of Appeals opinion with a pro se appellant, that concluded:

The trial court’s consecutive sentencing order is facially erroneous, under the statute in existence at the time of Taylor’s sentencing, and must be corrected. We reverse and remand for correction of the sentencing order in accordance with this opinion.
is the subject of a story today in the Anderson Herald Bulletin:

INDIANAPOLIS -- The sentencing of a convicted robber will return to a Madison County court in a case that goes back 30 years.

The Indiana Court of Appeals ruled last week that David Taylor’s sentence from 1984 could not be tied to another county’s case. Now, Madison Circuit Court will have to sentence him again.

Taylor, then 26, was found guilty by a Madison County jury for one count of felony robbery and one count of felony conspiracy to commit robbery.

On April 10, 1984, Taylor committed a robbery in Madison County at 1:22 a.m. At 4:30 a.m. that same day, he committed another robbery in Johnson County in which he and an accomplice abducted two women and assaulted them.

In Johnson County, Taylor was found guilty of armed robbery, rape, criminal deviate conduct and two counts of criminal confinement. He received an aggregate sentence of 175 years in prison for that case, including a 30-year habitual offender sentence.

He has a scheduled prison release date of 2094. Taylor, now 56, has appealed the sentences previously.

In the recent Madison County appeal, Taylor’s original sentence had been set up to run consecutively “to any other sentences that the defendant may have received or may receive from any other county.”

The appellate court found that Taylor should not have been sentenced in connection to another court’s action, saying the Madison County sentence was illegal and must be “completely excised.”

The case has been sent back to be corrected through Madison Circuit Court.

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Ind. App.Ct. Decisions

Courts - "National money flows into Montana Supreme Court race"

From the Missoulian, dateline Helena, Mike Dennison reports in a long story:

Outside money has been pouring in to influence Montana’s Supreme Court race between Justice Mike Wheat and challenger Lawrence VanDyke – and political observers say Montanans might as well get used to it.

“You’re going to see (national money) keep trickling down to local races,” says Montana State University political scientist David Parker, because they can have a big impact in what he calls “low-information environments” – where voters aren’t that familiar with the candidates. * * *

The Republican State Leadership Committee, a 12-year-old group based in Washington, D.C., has chosen Montana as one of two states so far where it plans to spend thousands of dollars to elect “conservative” judges.

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Courts in general

Ind. Courts - "Camm seeks $30 million for wrongful conviction"

Baylee Pulliam reports this morning in the Louisville Courier Journal. Some quotes:

Exactly one year after he was exonerated in the murders of his wife and children, David Camm has filed a wrongful conviction claim seeking $30 million.

The claim, filed Friday night, alleges the former Indiana State trooper was "framed" in the fatal shootings of his wife and two children in September 2000. * * *

Among others, the suit names Floyd County, former Prosecutor Stan Faith and former employees — Jacque Vaught, Tony Toran, Mark Henderson and Emily Fessel Miller — and two men Faith had hired to work the crime scene and analyze forensic evidence — Rod Englert and Robert Stites.

The claim also names current Floyd Prosecutor Keith Henderson, deputy Floyd prosecutor Steve Owen, former investigator Wayne Kessinger.

The defendants' investigation and prosecution of Camm for the murders, the claim alleges, were "a gross miscarriage of justice" and resulted in two "unjust convictions and years of wrongful imprisonment" for Camm prior to his acquittal last year.

Here is a copy of the 74-page complaint, filed in the SD Indiana.

The New Albany News & Tribune had a report Oct. 24th, access it here. Some quotes:

He is being represented by the Louisville law firm of Clay Daniel Walton & Adams, PLC.

The 72-page lawsuit filed at New Albany’s Lee Hamilton Federal Building says the “series of events constitutes a gross miscarriage of justice that was not the result of innocent or negligent mistakes, but instead was caused by the deliberate, reckless and egregious misconduct of the defendants.” It goes on to state the misconduct and negligence caused Camm to be falsely arrested, prosecuted and imprisoned.

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 24, 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, October 24, 2014. It is two pages (and 25 cases) long.

Three transfers were granted last week:

Matter of O.R. is the Sept. 25th Supreme Court opinion holding: "[W]e conclude the untimely filing of a Notice of Appeal is not a jurisdictional bar precluding appellate review."

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Indiana Transfer Lists

Ind. Gov't. - "Florida Attorney General active in faraway court fights"

The ILB has had a number of posts on the Indiana Attorney General filing amicus briefs in dozens of cases outside Indiana, including this post from June 23, 2014.

Here is the ILB's inital post on this topic, from July 27, 2009, headed "Who should decide Indiana's position on national legal issues? Who should know?"

This weekend the Miami Herald ran a long story by Michael Van Sickler that begins:

Earlier this year, Florida Attorney General Pam Bondi opposed a ban on certain kinds of semiautomatic weapons.

In Connecticut.

The ban was that state’s response to the 2012 massacre at Sandy Hook Elementary, the deadliest school shooting in U.S. history. Bondi and 21 other attorneys general, most of them Republican, filed a brief that argued the ban was unconstitutional.

Bondi’s office didn’t explain the brief. No news conferences. No press release. Nor did she draw attention to signing briefs challenging other gun measures, including a similar ban on semiautomatic weapons in New York, a federal ban on “straw” purchases of guns and a federal law restricting handgun purchases for those between the ages of 18 and 21.

She signed all of these briefs with colleagues from southern and western states that dominate the Republican Attorneys General Association, a political fundraising organization known as RAGA that has contributed $750,000 to Bondi’s $5.5 million reelection campaign.

Since taking office in 2011, Bondi has adopted RAGA’s priorities, recited talking points and joined members’ legal battles far beyond Florida.

A few more quotes from the long story:
In her bid for reelection, Bondi has focused on a get-tough-on-crime message and her record as a staunch defender of victims’ and states’ rights. But none of these “friend-of-the-court” briefs support that or appear to respond to pressing situations in Florida. * * *

Bondi’s office refused to answer whether she consulted with law enforcement before signing the briefs or how they would make Floridians safer. * * *

Guns aren’t the only topic covered in numerous other briefs — many seemingly unrelated to Florida — that reflect how much big money is expanding the scope of AG offices across the country. Since the 2010 Citizens United Supreme Court decision, super PACs like RAGA and its Democratic counterpart (DAGA) can raise unlimited cash from corporations and unions. In passing contributions along to candidates, the groups are further politicizing an office that had been removed from overt partisanship.

“It never crossed the mind of the Supreme Court how Citizens would affect elected prosecutors,” said James Tierney, director of the National State Attorneys General Program at Columbia Law School. “That’s one of the worse aspects of that decision. We’re just now seeing the impact.” * * *

RAGA is run by an eight-member attorney general executive committee, including Bondi, and a small policy staff in Washington, D.C. They promote a variety of issues, including opposition to gay marriage, medical marijuana and the “federal overreach” of the Environmental Protection Agency, which has inspired a number of briefs against federal attempts to limit pollution from coal-powered utilities and agribusinesses.

Bondi, 48, is the only female Republican attorney general, and the group’s website prominently features photos and videos of her. * * *

Bondi and her cohorts stress many of the same issues: pill mills, human trafficking, federal overreach. They backed Bondi’s opposition to the Affordable Care Act by helping to pay the state’s initial litigation costs of $250,000.

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Indiana Government

Law - Eye-opening NYT story: Must read for attorneys and small business owners

"Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required" is the headline of this front-page Sunday NY Times story by Shaila Dewan. Don't miss reading a word of it. A few quotes:

ARNOLDS PARK, Iowa — For almost 40 years, Carole Hinders has dished out Mexican specialties at her modest cash-only restaurant. For just as long, she deposited the earnings at a small bank branch a block away — until last year, when two tax agents knocked on her door and informed her that they had seized her checking account, almost $33,000.

The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report.

“How can this happen?” Ms. Hinders said in a recent interview. “Who takes your money before they prove that you’ve done anything wrong with it?”

The federal government does.

Using a law designed to catch drug traffickers, racketeers and terrorists by tracking their cash, the government has gone after run-of-the-mill business owners and wage earners without so much as an allegation that they have committed serious crimes. The government can take the money without ever filing a criminal complaint, and the owners are left to prove they are innocent. Many give up. * * *

The I.R.S. is one of several federal agencies that pursue such cases and then refer them to the Justice Department. The Justice Department does not track the total number of cases pursued, the amount of money seized or how many of the cases were related to other crimes, said Peter Carr, a spokesman.

But the Institute for Justice, a Washington-based public interest law firm that is seeking to reform civil forfeiture practices, analyzed structuring data from the I.R.S., which made 639 seizures in 2012, up from 114 in 2005. Only one in five was prosecuted as a criminal structuring case.

The practice has swept up dairy farmers in Maryland, an Army sergeant in Virginia saving for his children’s college education and Ms. Hinders, 67, who has borrowed money, strained her credit cards and taken out a second mortgage to keep her restaurant going.

Their money was seized under an increasingly controversial area of law known as civil asset forfeiture, which allows law enforcement agents to take property they suspect of being tied to crime even if no criminal charges are filed. Law enforcement agencies get to keep a share of whatever is forfeited.

Critics say this incentive has led to the creation of a law enforcement dragnet, with more than 100 multiagency task forces combing through bank reports, looking for accounts to seize. Under the Bank Secrecy Act, banks and other financial institutions must report cash deposits greater than $10,000. But since many criminals are aware of that requirement, banks also are supposed to report any suspicious transactions, including deposit patterns below $10,000. Last year, banks filed more than 700,000 suspicious activity reports. Owners who are caught up in structuring cases often cannot afford to fight. The median amount seized by the I.R.S. was $34,000, according to the Institute for Justice analysis, while legal costs can easily mount to $20,000 or more.

Again, this is just a sample, read the story.

This is not the only ILB post on this IRS forfeiture issue. See this summary of a March 19, 2014 7th Circuit opinion by Judge Hamilton, with a dissent by Judge Sykes. And see this May 2, 2014 ILB post quoting an opinion piece by George Will contending that small business people, mostly immigrants, who run corner groceries and other stores that deal mostly in case, are being targeted by the IRS.

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to General Law Related

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

From Sunday, October 26, 2014:

From Saturday, October 27, 2014:

Posted by Marcia Oddi on Monday, October 27, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/27/14):

Thursday, Oct. 30

Next week's oral arguments before the Supreme Court (week of 11/3/14):

Thursday, Nov. 6

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/27/14):

Wednesday, Oct. 29

Next week's oral arguments before the Court of Appeals (week of 11/3/14):

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, October 27, 2014
Posted to Upcoming Oral Arguments

Sunday, October 26, 2014

Ind. Law - More on: Validity of same-sex marriages resulting from licenses issued during the June "window"

Updating this ILB post from Oct. 15th, a DOJ release dated Oct. 25th, headed "Attorney General Holder Announces Federal Government to Recognize Same-Sex Married Couples in Six Additional States," makes the following statements relevant to Indiana marriages:

In the latest development following the Supreme Court’s decision earlier this month to decline to hear any pending cases regarding same-sex marriage, Attorney General Eric Holder announced Saturday that the federal government will now recognize same-sex married couples in six new states: Alaska, Arizona, Idaho, North Carolina, West Virginia, and Wyoming.

Last week, the Attorney General made a similar announcement with respect to seven other states: Colorado, Indiana, Nevada, Oklahoma, Utah, Virginia and Wisconsin. Saturday’s announcement adds to that list and brings the total number of states where same-sex couples are recognized by the federal government to 32, plus the District of Columbia.

The Attorney General’s announcement means couples married in these states will now qualify for a range of federal benefits, including those administered by the Social Security Administration and Department of Veterans Affairs.

“With each new state where same-sex marriages are legally recognized, our nation moves closer to achieving of full equality for all Americans,” the Attorney General said. “We are acting as quickly as possible with agencies throughout the government to ensure that same-sex married couples in these states receive the fullest array of benefits allowable under federal law.”

In addition, the Attorney General also announced that the Department of Justice has determined it can legally recognize marriages performed in Indiana and Wisconsin this past June. These marriages were performed immediately after federal district courts ruled that those states’ bans on same-sex marriage are unconstitutional, but subsequent developments created confusion about the status of those marriages. Based on the Attorney General’s announcement, however, those couples married during that period will now have their unions recognized by the federal government.

Thanks to this post today from Lyle Denniston of SCOTUSblog.

Posted by Marcia Oddi on Sunday, October 26, 2014
Posted to Indiana Law

Friday, October 24, 2014

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

For publication opinions today (1):

In 219 Kenwood Holdings, LLC v. Properties 2006, LLC, a 7-page opinion, Judge Baker writes:

219 Kenwood Holdings, LLC, (Kenwood) appeals the judgment of the trial court finding that Properties 2006, LLC, (Properties 2006) substantially complied with the requirements of Indiana Code section 6-1.1-25-4.5(e). Subsection (e) requires that the purchaser of property sold at a tax sale notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date. Finding that the trial court did not err in its determination that Properties 2006 substantially complied with the requirements of this statute, we affirm.
NFP civil opinions today (0):

NFP criminal opinions today (2):

Michael C. Wilson v. State of Indiana (NFP)

Rolando L. Diaz v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Incumbent, 2 challengers in contention for judgeship"

The ILB does not blog about every local judicial election, but this story from Rebecca Green of the Fort Wayne Journal Gazette is particularly comprehensive and could serve as a model. The long story begins:

Allen Superior Court Judge Stanley Levine has held onto his seat on the Allen County bench for 16 years, but this year there are two challengers trying to unseat him.

Daniel Borgmann, husband of Allen County Clerk Lisbeth Borgmann, is running, as is James Posey. All three candidates have decades of legal experience. The candidates cannot make promises or pledges as to what they would do in office, and Allen County Superior Court candidates are nonpartisan.

Judge Stanley Levine

The 76-year-old Levine quickly talked about how he ended up on the bench in the first place – with an appointment to replace Judge Vern Sheldon when he retired at the end of 1998. He has since been elected and re-elected to his seat.

Through the appointment process, Levine was vetted by local lawyers, local leaders and an Indiana Supreme Court justice.

“A group of people passed on my qualifications,” he said.

Before he took the bench, Levine practiced law in Allen County for 35 years. In those years, he represented Fort Wayne City Council and served as the president of the Allen County Bar Association.

He identifies no court issues as relevant to the office and said state codes of ethics prohibit candidates from making any promises about what they would do if elected.

In August, Levine drew fire for a series of public statements made at a retirement party for a female court employee. He apologized publicly and said she accepted it.

“I stand on my record in dealing with women as employees, co-workers and litigants,” he said. “It’s been exemplary.”

A lifelong Fort Wayne resident, South Side High School graduate and Air National Guard captain, Levine said he should be allowed to continue in his job.

“Being a good judge is all about what you do and not what you promise,” Levine said. “I bring to the bench sound legal reasoning, wisdom, common sense and a proven history of fairness, honesty and integrity. I think that’s what people want in a judge.”

James Posey

A senior partner and litigator at the local firm Beers, Mallers, Backs & Salin LLP, Posey, 60, said he wants to take his years of experienced gathered in civil law practice and apply it in a way that allows him to serve.

He thinks serving as a judge would be one of the best ways he could contribute to the community.

“It’s time for people to try to think outside the box as to how the judiciary can be used to help communities,” he said.

Posey would like to see the Allen Superior Court establish a “business court,” which would involve only disputes between businesses. Similar courts operate in states surrounding Indiana, he said.

“Businesses can plan better,” he said.

By allowing judges to handle business disputes, such courts help with economic development, he said.

Posey believes his diverse experience as a litigator would benefit him on the bench, having handled all types of cases.

“You are not losing experience, but what you are gaining is someone who has a great deal of energy and passion to want to work at the job,” Posey said.

Prohibited by local rules from spending more than $10,000 to campaign for judge, Posey has been knocking on doors in Allen County. He estimated that by mid-October, he’d visited nearly 3,000 houses.

If he’s elected, he plans to put his worn-out shoes in his chambers to remind him of what it took to get there.

“You’re accountable to the voters,” he said.

Daniel Borgmann

Known locally as a mediator, Borgmann, 63, is a managing partner at the local law firm of Helmke Beams LLP.

He has identified three areas he’d like to tackle if he is elected to the bench: an evening court; helping other judges who have heavier case loads by handling preliminary hearings and other procedural matters; and starting a domestic violence problem-solving court.

“I think it’s time to start a conversation here,” Borgmann said about a domestic violence court. “I know I have to go to eight other judges and convince them, and I’d probably have to go to the Indiana Supreme Court too.”

Along with the Superior Court’s criminal division, which handles domestic violence cases now, Borgmann would probably also need to consult with the Allen County Prosecutor’s Office as well.

Borgmann said he wants to see continuity in how the cases are dealt with. The criminal side of the cases are handled in the criminal division, while family matters are handled in the family relations division.

Borgmann believes perhaps the cases can be streamlined.

“It may not take the criminal division out but could end up in the civil division,” he said.

He acknowledges getting any of those three goals through would be tough and knows he’d have to politic a bit to accomplish them.

Much of his legal work the past few years has been spent mediating – about 1,700 mediations over the past 14 years.

“I think that speaks well about what my peers think of me and my ability, that I think really distinguishes me,” he said.

Borgmann hasn’t campaigned much, he said. He said he has not collected any campaign donations or endorsements.

“Mailings and emails, that’s the vast majority of what I’ve done,” he said.

His wife, a Republican, is running for the county clerk of the courts. While she has no opponent, she has taken out large black billboards with the family name in dark orange letters. The word “clerk” is written underneath the Borgmann name in small letters.

Posted by Marcia Oddi on Friday, October 24, 2014
Posted to Indiana Courts

Ind. Gov't. - "Governor Pence Announces State Partnership with Ancestry.com"

Here is the news release from Gov. Pence:

The State of Indiana, through the Indiana Commission on Public Records (State Archives) has entered into a contract with Ancestry.com to digitize and eventually post online more than 13 million birth certificates, death certificates, and marriage records for access by Hoosiers. These online historical records, those older than 75 years, will start to become available in 2015, with the completion date expected by the State’s Bicentennial in 2016. This will be the largest online collection of the State of Indiana’s materials ever digitized.

“As we head toward the 2016 Bicentennial and celebrate Indiana’s past, this initiative serves not only present-day Hoosiers by improving accessibility to records, but also future Hoosiers as they look back at state history,” Governor Pence said.

This partnership saves the State of Indiana more than $3.2 million—the cost to index, scan, and make accessible the materials, and would have taken the state more than a decade to complete. It also provides another mechanism to both access the records and preserve the remaining originals from excessive use and degradation, and provides an additional copy in case original copies are destroyed.

For the last two years, the Indiana Commission on Public Records has been working with the Indiana State Department of Health’s (ISDH) Vital Records office to achieve this partnership. Both the ISDH and State Archives will receive a copy of the digital images and indexes—ISDH will use its copy to improve service to Hoosiers by streamlining the process of accessing records and providing official copies to citizens, while State Archives will provide access to the records more than 75 years old at its facility. Ancestry.com also will provide access to its members for the historical records when the project is completed.

The birth and death certificates date back to the early 1900s, and the State’s marriage records from 1958 through 2005.

Here is a story in the Fort Wayne Journal Gazette by Dave Gong. The latter part of the story may point to some continuing difficulties, both in access and cost, for those pursuing generalized research.

Posted by Marcia Oddi on Friday, October 24, 2014
Posted to Indiana Government

Courts - "SCOTUS Edits a Dissent, and Admits It"

Unlike the 7th Circuit, and recently, the Indiana Supreme Court, the SCOTUS has in the past not revealed after the fact changes to its opinions. A brief story yesterday by Adam Liptak of the NY Times does not prove the SCOTUS is changing its ways, but that it has in one case:

The Supreme Court on Wednesday made a rare confession: One of its opinions contained an error and has been corrected.

Changes in the court’s opinions after they are issued are common, and some happen years after they are announced. But, with few exceptions, the court has not acknowledged its after-the-fact editing.

The court’s announcement Wednesday concerned a dissent from Justice Ruth Bader Ginsburg issued early Saturday morning that objected to an order from the court allowing Texas to use its strict voter ID law in next month’s election.

Justice Ginsburg mistakenly included photo ID cards issued by the Department of Veterans Affairs among the forms of identification that would no longer be accepted. The error was noted Tuesday by Richard L. Hasen, a law professor at the University of California, Irvine.

A court spokeswoman said that Justice Ginsburg’s assertion about those IDs had been deleted from her dissent and that the justice had also made “small stylistic changes” to her opinion.

Posted by Marcia Oddi on Friday, October 24, 2014
Posted to Courts in general

Ind. Gov't. - "Indiana residents fight city’s home-seizure plan"

Aalia Shaheed of Fox News reports today in a story that begins:

Indiana residents are fighting to save their homes as their local government weighs a sweeping plan to demolish them to make way for new development, in a case critics are calling a “poster child” for the abuse of so-called eminent domain powers.

Charlestown, Ind., Mayor Bob Hall announced his plans earlier this year to demolish more than 350 homes in the city’s Pleasant Ridge neighborhood. The mayor contends the neighborhood is “blighted,” and therefore the city is eligible for state money to buy out the homeowners and tear down their houses.

His office argues the houses, originally bought by the Army in 1940, were meant to be temporary.

But the “temporary” houses remain very much occupied. And many residents are not interested in selling them, at least not for what the government might offer. According to the Institute for Justice, a national group that is aiding residents in their case, the state fund Hall wants to tap offers residents just $6,000 for their houses.

Posted by Marcia Oddi on Friday, October 24, 2014
Posted to Indiana Government

Law - "So Little Paper to Chase in a Law Firm’s New Library"

David W. Dunlap reported yesterday in the NY Times on the shrinking size of law firm libraries. The story focused on the NYC firm Kaye Scholer's recent move:

The law firm Kaye Scholer left a lot behind when it moved this month from 425 Park Avenue in Manhattan, where it had been since 1957, into new quarters at 250 West 55th Street. * * *

Kaye Scholer left something else behind: most of its law library.

Shelves full of uniformly bound legal volumes — beloved of any photographer, videographer or cinematographer who needs a background that instantly proclaims “law office” — are headed to oblivion in the digital era. Kaye Scholer’s library just got there faster because of the exigencies of the move. * * *

Nearly 95 percent of a library that numbered tens of thousands of volumes was discarded. Outdated books were recycled. Updated books were donated. * * *

The new library has about 700 linear feet of shelving in a cheerfully well-illuminated room in the basement — or concourse level — of 250 West 55th Street.

At 425 Park, the library was a two-floor enclave, with accents of wood paneling, at the heart of the firm’s headquarters. There were 10,000 linear feet of shelving. * * *

Those are exactly the books that appeared behind the partners at Friedman, Levy, Goldfarb & Green in a group portrait for a recent advertising supplement, “Super Lawyers.” The photo was taken in the firm’s conference room and library at 250 West 57th Street.

“The answer to your question is that they’re basically decoration,” Ira H. Goldfarb, the senior partner and trial lawyer, said about the books. “They’re an anachronism. We couldn’t give them away if we wanted to.”
Photo
Kaye Scholer's new library, at 250 West 55th Street in September, before the remainder of the library arrived. It has 700 linear feet of shelving, compared with the old library's 10,000 linear feet. Credit Fred R. Conrad/The New York Times

“We have an account with an online library,” he said. “That’s all that’s used.”

ILB: In this August 5th post about the 50 most impressive law school buildings in the world, the ILB noted:
In fact, many of the buildings pictured are in fact THE law library building at the selected school. How long will these enormous areas devoted to collections of printed books remain functional; what will be the conception and role of the "library" in the future? I trust that schools planning new construction are looking at this question and that the ABA has a committee looking at the practicality of its library requirements for law school accreditation, in light of the now nearly total digitization of the law.

Posted by Marcia Oddi on Friday, October 24, 2014
Posted to General Law Related

Thursday, October 23, 2014

Ind. Courts - Judges shall receive "a compensation which shall not be diminished during their continuance in office."

That is a quote from Art. 7, sec. 19 of the Indiana Constitution. The ILB has had a number of posts over the years referencing this language. Grant Circuit Court Judge R. Thomas Hunt won a lawsuit based on this language in 2006. A story at the time reported:

According to court documents, Hunt submitted to the council the proposed budget for his salary, and the council refused to appropriate the funds for the 2006 rate. Hunt said the council went against the state constitution, which says a circuit court judge's salary cannot be reduced while he is in office, and the Blackford judge ruled in Hunt's favor.
Steuben County briefly considered such a move in 2008.

Now the ILB reads that Franklin County was considering such a reduction. John Estridge has the story in the Oct. 22nd Brookville American-Democrat. But it looks like the county will be paying attorney fees to Faegre Baker Daniels rather than reducing judges salaries. Some quotes:

Franklin County Auditor Steve Brack sent out the notices for the executive session. In the reason for the executive session, he put, “This meeting is being held regarding – Judge J. Steven Cox and Judge Clay Kellerman Unlawful Reduction in Supplemental County Salary Lawsuit.”

A letter sent to Jeff Koch, FCC president, from A. Scott Chin, an attorney with Faegre Baker Daniels, gives council a proposed resolution. If council does not agree to the proposed resolution in seven days after receiving the letter, then the judges intend to sue the county.

At issue is a supplement the county pays the two judges as well as the prosecutor and assistant prosecutor. It amounts to as much as $5,000 per year. * * *

It can be reduced from the $5,000 figure if the state gives the judges a raise.

County council did not appropriate any money for the judges or the prosecutors regarding the county’s portion of their pay.

Judges received $139,112 in the 2013-14 year.

Chin cites case law showing the judges cannot receive less in 2014-15 than they received in the previous year.

According to Franklin Circuit Court II Judge Clay Kellerman, making it so the county cannot reduce a judge’s pay is because the judiciary is a separate but equal branch of the government, and it preserves the independence and integrity of the judiciary.

Thus, the county cannot take punitive action against one or more of the judges within the county because of a decision by one or both of the judges. * * *

Counties can only stop the supplement when there is a change in judges or prosecutors, according to auditors from other counties.

“In light of the foregoing, the Judges would accept the following to resolve this matter and avoid the necessity of litigation,” Chin wrote. “The County shall: (1) appropriate and pay the $5,000 supplemental salaries due to each Judge for 2014 as soon as practicable yet in 2014; (2) amend the 2015 budget to appropriate the $5,000 supplemental salaries; and (3) pay the attorneys’ fees and costs the Judges have incurred in being forced to redress the Council’s violation.”

Chin’s letter then sets a deadline and possible action if the demands are not met.

“In the absence of the County’s willingness to accept these terms of settlement, the Judges reserve their rights to bring a lawsuit to remedy the County’s unlawful actions and will additionally seek liquidated damages under Ind. Code 22-2-5-2.

“This offer of compromise to address the Council’s illegal violations shall remain open for seven days following the Council’s receipt of the letter,” the letter continued. “In the absence of the Council’s agreement to these terms within that time period, the Judges shall move forward with a lawsuit.”

ILB: This shows, among other things, the value of the ILB archives.

Posted by Marcia Oddi on Thursday, October 23, 2014
Posted to Indiana Courts | Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 6 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

In the Matter of the Commitment of S.D. v. Adult & Child Mental Health Center, Inc. (NFP)

Sebastian Chapman v. Corizon, LLC (NFP)

NFP criminal opinions today (4):

Gabina Hernandez v. State of Indiana (NFP)

Jassel Lopez v. State of Indiana (NFP)

William Ballentine v. State of Indiana (NFP)

Jonathan Gray v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 23, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, October 22, 2014

Courts - Texas Supreme Court on Electronic Briefs

The Texas Supreme Court has a number of guides relating to elctgronic briefs and e-formatting. Check it out.

Also, see this post from Lawyerist headed "5 Tips For Writing Briefs For Tablets."

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Courts in general

Ind. Gov't. - AG's office answers reporter's questions on funding of state's defense of the marriage law

NUVO today has a long Q&A by reporter Amber Stearns with Bryan Corbin, spokesman for the AG’s office. Some quotes:

It has been just over two weeks since the U.S. Supreme Court rejected Indiana’s cert petition and effectively changed marriage equality in the state. Although the dust has settled and marriage rights are now recognized, Indiana Attorney General Greg Zoeller continues to field criticism and questions about the role his office played in defending the now outdated marriage law and all costs associated with that defense.

Bryan Corbin, spokesman for the AG’s office, took the time to answer specific questions about the role of the Attorney General’s office in one of the most heated debates to travel through the federal court system.

NUVO: You have stated several times that the money spent to defend the state’s traditional marriage statue was within the Attorney General’s budget.

Bryan Corbin: That is correct. The operations of the Attorney General’s Office are funded out of our annual budget of approximately $19 million that the Legislature approved in April 2013 and that funds our legal representation in all our cases.

NUVO: What part of the AG’s budget specifically does this come out of? What is it typically used for?

Corbin: Approximately $17.7 million of our overall budget is for personnel (attorneys, paralegals, law clerks, staff) who constitute state government’s law firm: the Attorney General’s Office. Another $1.2 million is for operating expenses. Together this covers our work representing the State in court in approximately 2,700 civil lawsuits and 1,300 new criminal appeals each year, including the case you asked about.

NUVO: Can you give a specific figure from the budget line item that was spent specifically on the marriage equality fight?

Corbin: As the state government’s lawyer whose budget is determined by the Legislature in advance, we do not track billable hours per case or charge our state government client billable hours like a private law firm would. Individual cases do not have dedicated or individual line items in the budget; we fund our attorneys’ salaries from the personnel budget and all non-salary expenses from the operation budget for all cases. Our in-house salaried attorney who was assigned to this case would have been paid the same salary whether plaintiffs’ lawyers filed this lawsuit or not. * * *

NUVO: You have also stated on several occasions stated that no outside counsel with billable hours was used to defend Indiana’s marriage law.

Corbin: Correct. No outside counsel was used. * * *

NUVO: How many people in the AG’s office were dedicated to this project? Were they exclusive or was the case a part of their regular workload?

Corbin: No one person was devoted “exclusively” to the marriage lawsuit. Solicitor General Thomas M. Fisher was the salaried attorney in our office who entered an appearance in this case, but as noted during the six-month duration of this case he continued to work on his caseload of other, unrelated cases. He was assisted by other AG’s Office staff members, amid their duties in many other cases that constitute our agency caseload.

NUVO: Was all of the work specific to the defense of Indiana’s marriage law specific to the Office of the Solicitor General or was some of the work delegated to different departments?

Corbin: The Solicitor General Division is a division of the Attorney General’s Office, not an office in itself. The Solicitor General was the attorney who entered an appearance in the Baskin litigation, with assistance by others in our office.

ILB: Some other areas that might have been explored: First, there are several other attorneys in the Solicitor General's office, which is headed by Mr. Fisher. Over the past several years, the Solicitor General's office has authored and submitted several dozen amicus briefs in non-Indiana same-sex marriage cases around the country, as well as in the earlier cases argued before the SCOTUS. What proportion of that office's time has been devoted to this issue? Was travel involved?

Second, not touched on in the Q&As trying to get a handle on the AG's budget is that many state agencies must reimburse the AG's office for legal representation. In addition, the AG's office does not represent certain agencies, these agencies have their own legal budgets.

Finally, a look at the state contracts database shows that the AG's office contracts for millions of dollars in legal services from solo attorneys or firms such as former AG Steven Carter, Lewis & Wilkins PC, and Church Church Hittle & Antrim. Are these contracts part of the $19 million?

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Indiana Government

Courts - "Justice, it may be said, may not be blind, but it is sometimes inscrutable."

So concludes Lyle Denniston's story in Constitution Daily, wherein "Denniston, the National Constitution Center’s adviser on constitutional literacy, explains how the Supreme Court’s recent actions without comments in major decisions may appear to be mysterious but are hardly uncommon."

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Courts in general

Courts - "Pennsylvania Supreme Court Justice McCaffery Suspended over Porn Emails "

Well, things appear to be a mess in Pennsylvania's Supreme Court. Just a few short quotes from a long story today, by Angela Couloumbis, in Governing:

The Pennsylvania Supreme Court suspended Justice Seamus P. McCaffery on Monday amid allegations that he sent pornographic e-mails and threatened to entangle a fellow justice in the widening scandal after vowing not to go "down alone."

In a sharply worded order, four of the seven justices, citing an "immediate need" to protect the integrity of the state's courts, suspended McCaffery with pay on "an interim basis" from his $200,205-a-year job.

The court also ordered the state's Judicial Conduct Board to determine within 30 days if there is probable cause to file formal misconduct charges against the justice. The board handles judicial ethics complaints and has launched an investigation into McCaffery's e-mails. * * *

The order followed a tumultuous two weeks for the high court that has included allegations of personal vendettas and stunning accusations. It also marked the latest chapter in a scandal over the sharing of sexually explicit e-mails that started in the Attorney General's Office and spread to the Supreme Court. * * *

McCaffery became the second judge in 21/2 years to be suspended by colleagues. In May 2012, Joan Orie Melvin was suspended after she was indicted on corruption charges. She resigned from the court a year later, after being convicted and shortly before her sentencing.

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Courts in general

Ind. Gov't. - "Public debate Tuesday in Lawrence about gay marriage's legality in Kansas" features Indiana Deputy AG

From the Lawrence Kansas Journal-World, a story by Elliot Hughes that begins:

At public debate Tuesday in Lawrence about gay marriage's legality in Kansas, a local attorney and Indiana's solicitor general predictably shared little common ground. But where they did come to agreement was where future court decisions would come down on the matter.

The consensus: It doesn't look good for states defending same-sex marriage bans.

"I assume that if a state supreme court or a circuit rules in favor of states, that the (U.S.) Supreme Court's hand will be forced, and I'm not optimistic about the state's chances in that event," said Thomas Fisher, who as Indiana's solicitor general argued in vain to preserve his state's ban before the Seventh Circuit Court of Appeals this past summer.

[Fisher] was joined at the Lawrence forum by attorney and Kansas University adjunct faculty member David Brown, as well as about 50 audience members at the Dole Institute of Politics to debate whether gay marriage should be governed by constitutional rights or states' rights. * * *

Brown, who specializes in working with same-sex couples in Kansas, stood in for a sick Roberta Kaplan, who represented Edie Windsor in the landmark United States v. Windsor case that struck down a section of the Defense of Marriage Act in 2013.

[Fisher] repeatedly framed same-sex marriage as an aspect of society that states have the right to regulate. He said states should prefer children to be raised by their biological parents, and that codifying marriage as one man and one woman is a way of encouraging that practice.

But Brown dismissed those arguments, saying plenty of heterosexual couples who are unable to have children, or do not intend to, are still legally allowed to wed. Marriage bans are simply a matter of equality and rights, he argued.

"The definition of marriage is it's a civil contract that entitles you to certain benefits and protections by law. Whether you're a heterosexual couple or a same-sex couple, that doesn't matter. You should be entitled to the same benefits."

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Indiana Government

Ind. Decisions - "Justices overturn pot verdict based on illegal search"

Yesterday's Supreme Court opinion in Jonathan D. Carpenter v. State of Indiana (ILB summary here) is the subject of a story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – The Indiana Supreme Court, finding that Fort Wayne police illegally entered a man’s home in 2012, on Tuesday reversed the marijuana convictions that resulted.

Police violated Jonathan Carpenter’s right against illegal search and seizure after they responded to a dogfight in the yard, the ruling said.

Carpenter already served a two-year prison sentence. * * *

Police and animal control officers arrived at the house in July 2012 after receiving a report of dogs fighting in the yard. A neighbor said the owner wasn’t home and gave the first officer to arrive the owner’s cellphone number.

The animal control officer jumped a 3-foot-high fence to break up the fight. Three of the four dogs were quickly rounded up, but the last dog ran inside the house.

The animal control officer and a Fort Wayne police officer then entered the home and found marijuana plants in a partially closed room.

Police generally must have an exigent or emergency circumstance to enter a home without a warrant.

Carpenter was charged with multiple felonies, as Allen Superior Court Judge Wendy Davis refused to suppress the evidence of the marijuana. The Indiana Court of Appeals agreed.

However, the Indiana Supreme Court said police did not have a reason to enter since objective evidence showed no one was at home, and any threat of danger to the public was slight since the dog was confined in a fenced yard secured by a locked gate.

Further, the police could have simply shut the sliding door through which the dogs gained access.

“The dogs’ aggressive behavior and bloodied appearance simply were not enough to give rise to a reasonable belief that a person was in danger of imminent harm or in need of immediate assistance,” the ruling said, pointing out that the officers could have called the phone number the neighbor had given to contact the owner.

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Ind. Sup.Ct. Decisions

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

ILB Note: Yesterday one posted decision was erroneously labeled NFP on the Court's website; today two NFP opinions were erroneously categorized as for publication.

For publication opinions today (5):

In Margaret Dawson v. Thornton's, Inc. , a 9-page opinion, Judge Brown writes:

The issue on appeal is whether the trial court erred or abused its discretion in not instructing the jury regarding spoliation of evidence. * * *

In Cahoon v. Cummings, the Indiana Supreme Court stated that “[s]poliation of evidence consists of ‘the intentional destruction, mutilation, alteration, or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.’” * * *

The instruction proposed by Dawson was not supported by the admitted evidence. The record reveals that, at some point at least four weeks after the accident, Dawson returned to Thornton’s, inspected the mat, and attempted to take a photograph of the mat using her cell phone, but the photograph was not usable. In addition, while Dawson’s previous counsel sent a letter to Thornton’s requesting the store’s video recording of the incident, no request was made with respect to the mat. Dawson tripped on the mat in Thornton’s on October 22, 2010, and, according to the testimony of the manager at Thornton’s and an interrogatory answer provided by Thornton’s, the mat was replaced in March 2012, over one year and four months after Dawson’s fall.1 During this period, Dawson and her counsel had ample opportunity to inspect and document the condition of the mat upon which she tripped, have an expert inspect the mat, or request that the mat be preserved. Further, Dawson has not made a showing that Thornton’s concealed or suppressed any of the facts or evidence regarding the mat from her. * * *

Based upon the record, we cannot say the trial court erred or abused its discretion in not giving Dawson’s proposed instruction regarding spoliation of evidence or that the substantial rights of Dawson were prejudiced by the court not giving her proposed instruction. ... Additionally, we decline Dawson’s request to recognize an independent cause of action for spoliation of evidence.

In In Re The Paternity of B.J.N. by Next Friend, E.M. v. K.N. and On Consolidated Appeal, In Re the Guardianship of B.J.N., E.M. v. P.C., a 13-page opinion, Judge Baker writes:
This consolidated appeal arises out of two orders issued by the Decatur County Circuit Court (Decatur Court) on April 16, 2013, and November 8, 2013, respectively, and one order issued by the Hendricks County Circuit Court (Hendricks Court) on February 4, 2014. E.M. (Father) raises three issues: (1) whether the Decatur Court erred when it denied his motion to vacate guardianship for lack of jurisdiction; (2) whether the Decatur Court abused its discretion when it issued an order restricting Father’s parenting time without finding that Father posed a risk of harm to his child; and (3) whether the Hendricks Court erred when it dismissed his action and ordered payment of attorney fees. Finding that the Decatur Court had jurisdiction to enter its guardianship order and did not abuse its discretion in ordering restricted parenting time, we affirm the judgment of the Decatur Court. Finding that the Hendricks Court did not err in dismissing Father’s action, but that it erred in awarding attorney fees, we affirm in part and reverse in part the judgment of the Hendricks Court.
In In the Matter of the Termination of the Parent-Child Relationship of: R.A. and S.W. v. The Indiana Department of Child Services, a 19-page, 2-1 opinion, Chief Judge Vaidik writes:
S.W. (“Father”) learned that he was R.A.’s father while incarcerated awaiting trial on a number of criminal charges. R.A. had previously been adjudicated a child in need of services (CHINS), and Father was ordered to participate in a variety of services upon his release. Six months later, however—while Father was still detained pending trial—a petition was filed to terminate his parental rights. At the time of the termination hearings, Father remained in pretrial detention, and his availability to parent R.A. in the future was uncertain. However, Father’s sister was available to care for R.A. and had already begun visiting with R.A. The trial court ultimately terminated Father’s parental rights, and he appeals.

We conclude that a number of the trial court’s findings are not supported by the evidence, and setting those findings aside, we conclude that there is insufficient evidence to support the trial court’s decision to terminate the parent-child relationship. We therefore reverse. * * *

MAY, J. concurs.
FRIEDLANDER, J. dissents with separate opinion [which begins, at p. 16] With but one minor exception, I believe the trial court’s findings are supported by the evidence and that the evidence supports termination of S.W.’s parental rights to R.A. Therefore, I would affirm the trial court’s judgment and respectfully dissent from the majority’s decision to do otherwise. * * *

Our Supreme Court has acknowledged that a trial court may consider past behavior as the best predictor of a parent’s future behavior. See In re E.M., 4 N.E.3d 636 (Ind. 2014). Moreover, in this case I am particularly mindful of one the guiding considerations when called upon to review a termination of parental rights, i.e., that “a trial court need not wait until a child is irreversibly harmed before terminating the parent-child relationship.” In re N.Q., 996 N.E.2d 385, 391 (Ind. Ct. App. 2013). S.W.’s actions and failures to act have foreshadowed what is to come. Moreover, the conclusion that the continued presence of S.W. in R.A.’s life will not be in R.A.’s best interest is supported by the evidence of what S.W. has done, and refused to do, thus far. Upon this basis, I believe the petition to terminate is sustainable on this record, and respectfully dissent from the decision to reverse it.

In JPMorgan Chase Bank, N.A,. v. Claybridge Homeowners Associationi, Inc., v. Deborah M. Walton, et al., a 22-page opinion, Judge Brown writes:
JPMorgan Chase Bank, N.A., (“JPMorgan”) appeals the trial court’s order of January 16, 2014, denying its December 19, 2013 “Combined Motion to Intervene, to Stay January 9, 2014 Sheriff Sale, to Vacate Order of Sale, to Vacate the May 27, 2010 Summary Judgment and Decree of Foreclosure, and Request for Expedited Hearing on Motion.” Appellant’s Appendix at 1. JPMorgan raises three issues, which we consolidate and restate as whether the court erred in denying its motion. We reverse and remand. * * *

Based upon the record and under the circumstances, and keeping in mind that the timeliness requirement should not be employed as a tool to sanction prospective intervenors but to insure the original parties are not prejudiced by an intervenor’s failure to apply sooner, we conclude that the JPMorgan as the prospective intervenor met its burden under Trial Rule 24(A) and that its motion was not untimely. Accordingly, we reverse the trial court’s denial of JPMorgan’s motion to intervene and remand for further proceedings consistent with this opinion.

In Larracuenta R. Panfil v. Ralph E. Fell , a 14-page opinion, Judge Brown writes:
Larracuenta R. Panfil (“Mother”) appeals the trial court’s February 7, 2014 order terminating the obligation of Ralph E. Fell (“Father”) to pay post-secondary educational expenses for K.F. (“Daughter”) and the court’s denial of Mother’s motion to correct errors. Mother raises two issues which we revise and restate as whether the court erred or abused its discretion in entering the February 7, 2014 order and denying her motion to correct errors. We affirm. * * *

In this case, the record reveals that the dissolution decree incorporated an agreement of the parties which established in part that Father would pay for one-third of Daughter’s expenses for her college education. The court later modified its order to condition Father’s educational support obligation on Daughter “maintaining a grade point average of 2.1 and not being placed on probation or being subject to any disciplinary action for violation of school rules or policies.” Appellant’s Appendix at 38. Daughter copied three comments from other students in completing an assignment for an online course. The instructor for the course elected to give Daughter a failing grade for the course rather than report her to the Dean of Students. According to Daughter, the instructor elected this route because Daughter “was doing well in the course and the plagiarism was minimal . . . .” Transcript at 19. Clearly, the F she received was a disciplinary action for plagiarism.

The fact that the instructor and University did not pursue a formal action against Daughter is not dispositive. The court found that Daughter’s behavior was “clearly the type she was put on notice as having the potential to relieve Father of an obligation to contribute to the cost of her college education.” * * *

Daughter was subject to punitive grading in this case. We will not disturb the court’s determination that Daughter was subject to a disciplinary action for the purpose of, or as contemplated by, the court’s July 30, 2012 order.

Based upon the record and Support Guideline 8, and keeping in mind that we place a strong emphasis on trial court discretion in determining child support obligations, we cannot say that the trial court erred or abused its discretion in terminating Father’s educational support obligation related to Daughter. * * *

BRADFORD, J., concurs.
BARNES, J., concurs with separate opinion. [which concludes] Although Father’s apparent exuberance to get out from underneath his support obligation is troublesome, I must agree with the majority that the result is legally mandated, but practically repugnant.

NFP civil opinions today (2):

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

Margaret Walton v. Claybridge Homeowners Association, Inc. (NFP)

NFP criminal opinions today (8):

Michael Huffman v. State of Indiana (NFP)

Benjamin Willis, II v. State of Indiana (NFP)

Christopher Stull v. State of Indiana (NFP)

Richard P. Gorman v. State of Indiana (NFP)

Darcell McCants v. State of Indiana (NFP)

David G. Taylor v. State of Indiana (NFP)

Bryan M. Strickler v. State of Indiana

Bernard E. Harris v. State of Indiana

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Gary Wayne Oswalt v. State of Indiana, a 10-page, 5-0 opinion (including J.Massa concurring in result), Chief Justice Rush writes:

Under Indiana’s “exhaustion rule,” parties may seek appellate review of for-cause challenges to prospective jurors only if they have exhausted their peremptory challenges. But what if they use their last peremptory challenge for its traditional purpose of striking a candidate they consider undesirable, instead of using it to cure the trial court’s refusal to strike an allegedly incompetent one for cause? The State argues that doing so violates the exhaustion rule, thus waiving appellate review. We disagree and hold as a matter of first impression that parties satisfy the exhaustion rule the moment they use their final peremptory challenge—regardless of whom they strike. We also hold that if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury. Our holding preserves the fundamental policy of the exhaustion rule while recognizing the cherished status of peremptory challenges. Here, Defendant preserved appellate review of three for-cause challenges, but because the trial court was within its discretion to deny all of them, we affirm his conviction. * * *

Oswalt satisfied the exhaustion rule and thus preserved appellate review of his motions to strike Jurors 7, 13, and 28 for cause—but he has not carried his burden to show the trial court abused its discretion in denying his motions. We therefore affirm his conviction. On all other grounds, we summarily affirm the decision by the Court of Appeals.

Posted by Marcia Oddi on Wednesday, October 22, 2014
Posted to Ind. Sup.Ct. Decisions

Tuesday, October 21, 2014

Ind. Decsions - 7th Circuit decides one today

In USA v. Roderick Sinclair (ND Ind., Miller), a 23-page opinion, Judge Sykes writes:

Sinclair appealed, raising two issues. First, he argues that the district court violated his Sixth Amendment right to counsel of his choice by denying a continuance to allow his family to hire a private attorney. Second, he challenges the court’s decision not to group the drug and felon-in-possession counts.

We affirm. The Sixth Amendment entitles a criminal defendant to retain counsel of his choice, see United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006), but the trial court has broad discretion in addressing a continuance motion based on the right. The court is entitled to weigh the defendant’s claim against the need to ensure the fair and efficient administration of justice. The judge did that here, and we find no abuse of discretion in his decision to deny the requested continuance.

We also find no error in Sinclair’s sentence. In the ordinary case, the drug and felon-in-possession counts are treated as specific offense characteristics of each other, see U.S.S.G. §§ 2D1.1(b)(1), 2K2.1(b)(6)(B), triggering offense-level enhancements and thus the grouping rule of § 3D1.2(c). But the guidelines specifically provide that enhancements for firearm possession do not apply when the defendant is also convicted of violating § 924(c), which carries a mandatory consecutive sentence. See id. § 2K2.4 cmt. n.4. Because the otherwise applicable offense-characteristic enhancements were not applied here, there was no basis for grouping under § 3D1.2(c).

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

Ind. Decisions - Supreme Court decides one today [Updated]

In Jonathan D. Carpenter v. State of Indiana, a 7-page, 5-0 opinion, Justice Massa writes:

Jonathan Carpenter appeals the admission of evidence recovered from his home after officers entered it without a warrant in pursuit of an aggressive and bloody dog. We are asked to decide whether that entry was reasonable. Because we find it was not, we hold that the search violated Article 1, Section 11 of our Indiana Constitution and thus we reverse the trial court. * * *

Carpenter appealed his conviction, arguing the trial court abused its discretion by admitting the challenged evidence and without it, his conviction lacked sufficient evidentiary support. The Court of Appeals disagreed and affirmed the trial court, concluding exigent circumstances justified the officers’ warrantless entry into Carpenter’s home. Carpenter v. State, 3 N.E.3d 1068, 1071– 73 (Ind. Ct. App. 2014). * * *

Any threat of danger to the outside public was slight; the dog was confined in a fenced yard secured by a locked gate, and the officers could have further prevented the dog’s escape by closing the sliding door. The dogs’ aggressive behavior and bloodied appearance simply were not enough to give rise to a reasonable belief that a person was in danger of imminent harm or in need of immediate assistance. Moreover, the officers did not need to enter to address the situation. They had Carpenter’s phone number, and calling him or his employer to ensure that no one was in the residence would not have been overly burdensome. * * *

Taken together, these factors lead us to conclude the officers’ entry into Carpenter’s home was unreasonable and therefore impermissible under Section 11. Because the warrant was based on the officers’ observations made during their illegal presence inside Carpenter’s home, the admission of evidence recovered pursuant to that warrant was an abuse of discretion. And the State offered no other evidence against Carpenter. Accordingly, we must reverse his convictions.

Our opinion today does not mean that an animal’s condition or behavior could never give rise to reasonable grounds upon which a police officer could enter a residence without a warrant. All we hold is that on these facts, the trial court erred in concluding entry was reasonable without any objective evidence that a person required immediate assistance. Because we have resolved this issue under our Indiana Constitution, we need not consider Carpenter’s claim that the admission of the evidence found in his home violated his rights under the Fourth Amendment to the Federal Constitution.

Conclusion. For the reasons set forth in this opinion, we reverse the trial court.

[Updated at 6:26 PM] If you check the link to today's opinion now you will notice that it now states "Corrected" right under the date line. A check of the docket shows this entry:
ORDER: IT HAS COME TO THE COURT'S ATTENTION THAT THE OPINION HANDED DOWN ON OCTOBER 21, 2014 CONTAINS A TYPOGRAPHICAL ERROR ON PAGE 1.

SPECIFICALLY, ANDREW L. TEEL WAS OMITTED FROM THE LIST OF "ATTORNEYS FOR APPELLANT." THIS INADVERTENT ERROR WAS CORRECTED IN A REVISED OPINION THAT WAS DELIVERED TO THE CLERK WITH THIS NOTICE. NO OTHER CHANGES WERE MADE TO THE OPINION, AND NEITHER THE CORRECTED OPINION NOR THIS NOTICE ALTER THE DUE DATE FOR A PETITION FOR REHEARING.

THE CLERK IS DIRECTED TO (1) ENTER THIS NOTICE OF CHANGE ON THE CHRONOLOGICAL CASE SUMMARY; (2) SERVE ALL COUNSEL OF RECORD WITH A COPY OF THE CORRECTED OPINION AND THIS NOTICE; (3) MAKE ARRANGEMENTS FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE AND POSTING THE CORRECTED OPINION IN ITS PLACE; AND (4) SEND A COPY OF THIS NOTICE TO THOMSON/REUTERS, LEXISNEXIS, AND WOLTERS KLUWER.

MARK S. MASSA, JUSTICE (ORDER REC'D ON 10/21/14 @ 3:21 PM) ENTERED 10/21/14

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Two disciplinary rulings filed yesterday by the Supreme Court

From In re Charles E. Cohen, a 2-page, 5-0 order:

Respondent has been an attorney since 1993 and was admitted as a patent attorney by the United States Patent and Trademark Office in 2000. Respondent was employed by Eli Lilly and Company ("Lilly") from 1999 through 2009. Respondent had a duty to protect Lilly's intellectual property and preserve Lilly's confidences. In 2009, as Respondent prepared to leave his employment with Lilly, he copied documents and forms onto a disk. A Lilly administrative assistant made a copy of the disc and gave both discs to Respondent. The information on the discs ("CD Data") was property of Lilly and was considered by Lilly to be confidential. Respondent took the CD Data from Lilly's premises and retained it, knowing that he was not authorized to possess or control the CD Data after he left Lilly.

Aggravating and mitigating facts. The parties cite the following fact in aggravation: Respondent was aware that the duty of a patent lawyer is to protect the intellectual property of the client. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with both Lilly and the Commission in their investigations; (3) Respondent had no intent to harm the client; (4) he returned the CD Data to Lilly upon request and did not intend to share it with third parties; (5) Respondent believes that the information regarding Lilly's products on the discs was either already in the public domain or would become public in the near future; (6) Respondent has expressed that the breach of his employment agreement was not intentional, yet he takes full responsibility for and regrets his actions; and (7) Respondent's misconduct resulted in the revocation of a substantial severance payment from Lilly. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 90 days, beginning December 1, 2014.

From In re Marietto V. Massillamany, a 2-page, 5-0 order:
Respondent was admitted to practice in Indiana in May 2004. The bar application asked for full disclosure of both criminal convictions and accusations of violations of the law. In 2000, he had been convicted of operating a vehicle with a BAC equivalent between 0.08 and 0.25, a class C misdemeanor. He reported this conviction on his 2003 bar application. He had also been charged in 1996 with Minor in a Tavern, a class C misdemeanor, which was resolved through a pre-trial diversion agreement. Respondent did not report this charge in his initial 2003 application nor in a renewed application.

In 2010, Respondent pled guilty to operating a vehicle while intoxicated ("OWI") endangering a person, a class A misdemeanor, for which he received an agreed public reprimand. See Matter of Massillamany, 946 N.E.2d 581 (Ind. 2011). Based on an incident on or about July 11, 2013, Respondent was charged with OWI with a prior conviction within five years, a class D felony. He self-reported this incident to the Commission on July 17, 2013. He pled guilty on April 9, 2014, and promptly notified the Commission of this conviction. * * *

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, beginning December 1, 2014, with 120 days actively served and the remainder stayed subject to completion of at least three years of probation under a JLAP long-term monitoring agreement.

Here is a July 13, 2013 ILB post on Mr. Massillamany, as well as one from Dec. 18, 2010 and one from April 21, 2010.

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Gary A. Gallien v. State of Indiana , an 18-page, 2-1 opinion, Judge Mathias writes:

Gary Gallien appeals the post-conviction court’s denial of his petition for post-conviction relief.

Gallien raises one issue, which we restate as whether he was denied the effective assistance of appellate counsel. * * *

We conclude that the post-conviction court’s denial of Gallien’s petition for post-conviction relief was clearly erroneous. Gallien’s appellate counsel was ineffective for failing to raise an argument regarding the consecutive sentencing limitation of Indiana Code Section 35-50-1-2. We reverse and remand for resentencing.

BROWN, J., concurs.
BRADFORD, J., dissents with opinion [which begins, at p. 13, and which concludes]
In the instant matter, Gallien and his companions broke into a Goodwill store in Floyds Knobs and stole money and a moving dolly. Gallien and his companions then drove over four miles to a tavern in Galena. After arriving at the tavern, Gallien and his companions broke into the tavern and stole an automated teller machine, a change machine, and additional money. These facts, similar to the facts presented in Reynolds, depict two completely separate thefts. Notably, this is not a situation where Gallien and his companions broke into neighboring houses or businesses. Instead, this is a situation where Gallien and his companions committed one robbery, drove to another location over four miles away from the first location, and committed a second robbery. Based on these facts, I do not believe that there was a reasonable probability that a reviewing panel of this court would have accepted the argument that Gallien’s actions constituted a single episode of criminal conduct. As such, I would conclude that Gallien failed to demonstrate prejudice, i.e., a reasonable probability that but for counsel’s errors the result of the proceeding would have been different. I would therefore conclude that the trial court’s determination that Gallien failed to prove that he suffered ineffective assistance of appellate counsel was not clearly erroneous and would vote to affirm the judgment of the post-conviction court.

In Georon Harris v. State of Indiana, an 8-page opinion, Judge Bradford writes:
Fort Wayne police responded to a dispatch of an armed individual who had pointed a gun at a female and located Appellant-Defendant Georon Harris, who matched the description in the dispatch, sitting in front of an apartment at 810 Oaklawn Court (“the Apartment”). As two police officers approached, they saw Harris remove a black handgun from his waistband, open the front door of the Apartment, place the gun on the floor just inside the door, and close the door. The officers could not see into the Apartment. After securing Harris, one of the officers opened the Apartment’s door, reached inside, and retrieved the handgun from the floor. The State charged Harris with Class A misdemeanor carrying a handgun without a permit. Harris filed a motion to suppress the gun, which motion the trial court denied. Following trial, a jury found Harris guilty as charged, and the trial court sentenced him to 210 days of incarceration.

Harris contends that the entry into the Apartment to retrieve the gun violated his rights pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution. This case calls upon us to examine the question of under what circumstances the presence of a firearm in the vicinity obviates the need to obtain a search warrant in order to seize it from a residence. Under the circumstances of this case, we conclude that the State has established that exigent circumstances relieved it of the need to obtain a search warrant. We also conclude that the seizure of the gun from the Apartment was reasonable pursuant to the Indiana Constitution.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Loren Mack v. State of Indiana (NFP)

Fredrick Dabner v. State of Indiana (NFP)

Ronnie Jackson v. State of Indiana (NFP)

Derrick Runell Woods v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Elkhart teens appeal convictions in death of accomplice" [Updated Twice]

Madeline Buckley of the South Bend Tribune reported yesterday:

INDIANAPOLIS — Three Elkhart teenagers who are fighting felony murder convictions and sentences in the shooting death of their friend have asked the Indiana Supreme Court to review the case.

The teenagers, popularly known as the 'Elkhart Four,' are serving decades in prison in connection with a burglary that resulted in the death of a friend and accomplice in the burglary. * * *

Layman, Sharp and Sparks appealed their convictions and sentences, and won a partial victory in September. The Indiana Appeals Court upheld the convictions, but ruled the sentences were too harsh.

The court ordered the judge to suspend 10 years of Layman's and Spark's sentences and five years of Sharp's, meaning the teenagers would only serve 45 years.

But the three defendants have asked the Indiana Supreme Court to take this case. They filed petitions to transfer the case last week.

ILB: The ILB has had many posts on the "Elkhart Four," here is a list.

The ILB hopes to post the transfer petitions of the defendants, plus the State's responses. In addition, I'm told two amicus briefs have been filed.

For starts, here is appellant Blake Layman's petition to transfer.

[Updated at 1:36 PM] Here are additional documents:

[Updated on Oct. 22nd] Here is the second amicus brief:

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Indiana Courts

Ind. Decisions - One Indiana opinion yesterday from 7th Circuit

In USA v. Kenneth Schmitt (SD Ind., Young), a 26-page opinion, Judge Williams writes:

Law enforcement officers found drugs and an assault rifle in Kenneth Schmitt’s home while executing a warrant for his arrest. Because they were found in plain view in the course of conducting a reasonable pro-tective sweep, the district court did not err in denying Schmitt’s motion to suppress evidence of the firearm. Nor did the district court err in allowing much of the drug evi-dence that was admitted against Schmitt at trial, including his conviction record for possessing marijuana with the in-tent to distribute it. However, the district court should not have admitted Schmitt’s conviction for possession of meth-amphetamine since Schmitt did not open the door to that ev-idence and it was not relevant at trial except to impeach the government’s own witness who claimed during direct exam-ination that the methamphetamine belonged to him. But the error was harmless because the government’s case would not have been substantially less persuasive without it. Final-ly, the district court did not err in enhancing Schmitt’s base offense level after concluding that he possessed the firearm in connection with the sale of drugs or in finding that Schmitt’s eleventh-hour decision to admit guilt—after he was convicted—was insufficient to qualify him for a reduc-tion in his offense level for accepting responsibility. There-fore, we affirm Schmitt’s conviction and sentence.

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

Courts - "SCOTUS Will Consider Police Searches of Hotel Registries"

Adam Liptak reports here in the NYTimes. The story begins:

The Supreme Court on Monday agreed to decide whether the police in Los Angeles may inspect hotel and motel guest registries without permission from a judge.

Dozens of cities, including Atlanta, Denver and Seattle, allow such searches, which law enforcement officials say help them catch fugitives and fight prostitution and drug dealing.

A group of motel owners challenged the law. They said they were not troubled by its requirement that they keep records about their guests. But they objected to a second part of the ordinance, requiring that the records “be made available to any officer of the Los Angeles Police Department for inspection.”

The city said this means the police may look at the records at any time without the owners’ consent or a search warrant.

[More] David G. Savage has a story here in the LA Times that notes:
The case could yield an important constitutional ruling on the government's power to check private business records without a search warrant. The issue is being fought out in a different context in the dispute over the government's power to collect private phone records to search for possible terrorist plots.

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Courts in general

Ind. Courts - "Veterans Treatment Court great for LaPorte County"

Yesterday the ILB reported plans for a veterans court in Marion County. Here is a letter, published in the Michigan City News-Dispatch, from Kurt R. Earnst is a LaPorte-based attorney, on that county's newest court:

Last year I was asked to serve as the public defender's representative on the La Porte County Veterans Treatment Court Team. Since that time, the team led by Judge Jennifer Koethe has developed a plan and received provisional certification for the La Porte County Veterans Treatment Court. The court began receiving participants on April 29 and has now passed its 90-day mark.

As a criminal defense attorney who has been practicing in La Porte County for 18 years, it is fair to say that this court is unlike any other court that I have ever participated in. Before each court session, the Treatment Court Team (consisting of myself, the prosecutor, a Veterans Justice Outreach Specialist from the VA, the County Veterans Service Officer, treatment professionals, law enforcement officers and a case manager) meets and evaluates potential candidates for the program and discusses the progress of existing candidates in the program. Each court session begins with the Pledge of Allegiance and volunteer veterans mentors are scattered throughout the audience, ready to assist fellow veterans. Judge Koethe calls each participant and the participant's assigned mentors up to the podium to discuss the participant's progress in the program.

The program is designed to help veterans in the criminal justice system with issues related to their military service. Those issues usually involve alcohol abuse, substance abuse or anger issues related to post-traumatic stress disorder. The program uses intensive judicial monitoring and links eligible veterans with individually-tailored programs and services. Each participant is assigned one or more volunteer veteran mentors. These mentors are pillars in the community and continue to serve their fellow veterans by providing friendship, encouragement and support. * * *

According to the La Porte County Sheriff's Department, it costs taxpayers $28 per day to house a person in the La Porte County Jail. The cost is approximately $54 per day if the Department of Corrections houses the same person. As a result, this program can save taxpayers a range from $10,000 to $19,710 per participant, per year. Currently the program has six participants, which means it is on track to save the county between $60,000 and $118,260 for these participants alone. The program is set up to assist 20 participants at a time. At maximum capacity we could see a taxpayer savings per year between $200,000 and $394,200.

Additionally, the only funding for the program came as a result of a grant obtained by Judge Koethe from the Indiana Supreme Court for $40,000 for training, equipment and other start-up costs involved in the certification process. All mentors serve on a volunteer basis after receiving training.

We have only just begun to identify our veterans in the criminal justice system with many returning from multiple tours in Iraq an Afghanistan with the scars of war. At a time when 22 veterans per day are committing suicide and the honorable men and women who have served their country to protect our freedom are ending up in the criminal justice system, it is truly remarkable that we have a program in our county that can save our veterans and the taxpayers so much. I feel truly honored to be a part of this program.

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Indiana Courts

Environment - "Poultry manure piles targets of complaints"

Seth Slabaugh reports today in the Muncie Star-Press in a story that begins:

MUNCIE – The Indiana state chemist's office has been busy investigating complaints about piles of chicken and turkey manure since the adoption of a new manure-staging rule took full effect in 2013.

The office has responded to at least 15 complaints in the past year, some of which resulted in fines or warnings in the case of first offenders.

To Barbara Sha Cox of Indiana CAFO Watch, the piles of manure, which are spread on farm fields as fertilizer, are no laughing matter.

"Any time there is not a berm of dirt around the manure or the pile is not covered, there is the potential for runoff to our streams and rivers," Cox said. "We have rules and yet some of our farmers continue to violate the rules even to the point of staging near a river with a slope. As a fourth-generation farm family, I am amazed at the lack of stewardship by some farmers."

In March, Cox filed a complaint about a manure pile on Ind. 1 between Hagerstown and U.S. 36 in Randolph County.

On March 17, state pesticide investigator Elizabeth Carter found the pile, which had been there since Jan. 10. It was not bermed or covered.

More from the story:
Air pollution is another concern to neighbors.

"The dust that blows off the piles has many pathogens," Cox said. "The smell is awful and to subject neighbors having to live with this near their homes is not responsible farming. Farming should not have elevated rights over the health, well-being and quality of life of people who have lived in the area for years. People who sent in the complaints ... understand that clean water gives us life."

Responding to another complaint from Cox, the pesticide investigator found another un-bermed, uncovered manure pile from Ohio just east of Fountain City, home of the historic Levi Coffin House in Wayne County, on March 17. * * *

Elsewhere in Indiana, farmers were warned or fined for piling turkey manure too close to a public road; too close to a house; failing to apply two manure piles to fields within 90 days; failing to install a tarp or barrier around piles; transporting chicken manure without a license; and piling manure too close to two houses.

The Star Press first received a complaint about Ohio chicken manure 10 years ago this month from Mark and Karen Rees, Dunkirk, who were forced to spray Raid and run a vacuum cleaner daily to control an infestation of beetles they believe came from a manure pile. A farmer acknowledged the bugs probably came from the manure and apologized.

A Ball State biology professor who examined a jar of the bugs believed they were darkling beetles, a native of Africa and a widespread pest in the U.S. poultry industry.

Bug complaints from households near manure piles originating in Ohio are common, the Indiana Department of Environmental Management told The Star Press.

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Environment

Ind. Gov't. - "Panel punts on ethics changes: No action taken; witnesses discuss interest conflicts"

That is the headline to Niki Kelly's story this morning in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – Five House members heard testimony Monday about possible changes to ethics laws for legislators. But they won’t be recommending any solutions.

Instead, the House Ethics Committee will simply summarize the testimony and forward it to legislative leaders for possible action in the 2015 General Assembly. The Senate Ethics Committee also did not participate.

One area that was pinpointed was conflict of interest.

“This is one of the most interesting ethical issues that we all face as public officials because it’s so gray,” said Peggy Kerns, head of the Center for Ethics in Government at the National Conference of State Legislatures. “So much of it is based on your own standards and values.”

She presented material to the group regarding Indiana’s law compared with other states.

Kerns said the backgrounds and the experience that lawmakers bring is important – especially in a part-time citizen legislature.

“But there is a fine line between advocating for a personal position and advocating for a subject area,” she said. * * *

Julia Vaughn, policy director for Common Cause Indiana, said lawmakers considering ethics reform need to adjust the law so that there is some difference between providing expertise and engaging in advocacy.

“Lobbying for the passage or defeat of legislation is a very different thing, particularly when a member has disclosed a conflict,” she said. “You all know the difference.”

Some other changes Vaughn suggested include:

•Adding a preamble to the code of ethics telling the public lawmakers will ensure the public interest is protected.

•Prohibiting any members from using their position for private gain for themselves, their immediate family or business partner.

•Posting Statements of Economic Interests online, and make them searchable. The Indiana House has posted them for years but the Indiana Senate does not.

•Requiring disclosure of any personal or business relationship between legislator and lobbyist.

•Adding the disclosure of real property interests to the economic statement.

•Allowing the public to file ethics complaints and adding a secondary ethics commission or board so that there is an independent prong to lawmakers investigating their colleagues.

•Adding or increasing penalties for late, incomplete or erroneous filings.

Yesterday's meeting of the House Ethics Committee was little publicized. However, Tony Cook's story today in the Indianapolis Star begins:
Perhaps the most notable thing about Monday’s meeting of the House Ethics Committee on possible ethics reforms was the number of people who showed up to voice concerns and make suggestions.

Three.

And two of those were former lawmakers.

The meeting at the Statehouse was supposed to give the public an opportunity to weigh in on state ethics reform – something House Speaker Brian Bosma has said Republicans will prioritize during the upcoming legislative session.

The meeting grew out of the ethics controversy surrounding Rep. Eric Turner’s role in killing legislation that would have hurt his family’s nursing home development business. Turner has since announced that he will resign if he wins re-election in November.

But for all the complaints one hears about such behavior, the response at Monday’s ethics meeting was less than robust.

From Dan Carden's story today in the NWI Times:
Experts advised the House Ethics Committee on Monday that Indiana needs to update its public disclosure requirements for state lawmakers.

The panel is assessing the Legislature's ethical standards ahead of proposals expected in the 2015 session requiring lawmakers more fully disclose their economic interests and any conflicts of interest.

The review follows allegations that state Rep. Eric Turner, R-Cicero, improperly lobbied House Republicans in a private meeting to vote against a measure that would have financially harmed his family business.

Julia Vaughn, policy director for Common Cause Indiana, said the business world has changed greatly in the two decades since the General Assembly's economic disclosure form was last updated and items like subsidiary businesses or holding companies now ought to be reported.

"Transparency is an important piece of this and I think simply updating the Statement of Economic Interests to reflect today's business practices, and to be inclusive of the financial relationships that part-time legislators can have in the real world, will go a long way to making clear any conflicts of interest that might exist," Vaughn said.

Other states require more information from legislators than Indiana does, observed Peggy Kerns, ethics director at the National Conference of State Legislatures.

She suggested Hoosier lawmakers may want to look at requiring representatives and senators disclose all real estate they own and any personal connections to Statehouse lobbyists, reveal all sources of income for themselves and their immediate family members, along with publishing that material online.

House Speaker Brian Bosma, R-Indianapolis, said last week he is committed to improving transparency to safeguard the public's trust and plans to work with Democrats to enact meaningful ethics reforms.

Posted by Marcia Oddi on Tuesday, October 21, 2014
Posted to Indiana Government

Monday, October 20, 2014

Courts - The SCOTUS has gone to the dogs!

Not to be missed! Last Week Tonight with John Oliver on YouTube. The intro:

Cameras aren’t allowed in the Supreme Court, so most coverage of our most important cases looks like garbage. We fixed that problem with real animals and fake paws.
Absolutely hilarious.

And it also provides this footage for you to do your own Supreme Court reenactments of your favorite cases.

Posted by Marcia Oddi on Monday, October 20, 2014
Posted to Courts in general

Ind. Courts - "Millions forfeit in ND Ind. drug plea deal" In Nev. federal court, some forfeitures under seal

Rebecca S. Green reported this Sat., Oct. 18th in the Fort Wayne Journal Gazette:

The wine collection goes to the government, as do the $3,999 home theater system and the expansive Cherry Hill house where it all was kept.

On Friday, Michael Fabini, 35, filed a guilty plea in U.S. District Court, admitting to two counts of a 44-count indictment pending against him accusing him of being a part of one of the area’s largest drug trafficking conspiracies.

As part of his plea agreement to one of the drug trafficking conspiracy charges and a count of engaging in a monetary transaction in property derived from drug trafficking, Fabini will be sentenced to 14 years in federal prison, according to court documents. * * *

And along with the house, the wine collection, furniture, a commercial-grade lawn mower and other items, Fabini must forfeit money held for his wife and children in brokerage accounts, according to court documents.

He must also forfeit a monetary judgment of $5 million, the “proceeds of the conspiracy,” according to court documents.

ILB: That seems to be the current norm under the federal civil asset forfeiture law. But the Las Vegas Review-Journal has a more surprising story, also on Saturday, reported by Jeff German. The headline: "Vegas prosecutors used ‘super seal’ to hide fortune seized from gamblers." The long story begins:
Calling their conduct “constitutionally abhorrent,” a federal judge recently chided government prosecutors for working in secret to keep millions of dollars in cash and assets seized from a Las Vegas gambler and his family in a decadelong bookmaking investigation.

In his 31-page opinion, U.S. Magistrate Judge Cam Ferenbach cast light on the little-known court process that allowed the government to file civil forfeiture actions against Glen Cobb, his 82-year-old parents and his stepdaughter under “super seal” with no notice to anyone — not even the family it targeted.

Government documents filed under super seal, a procedure overseen by the federal clerk’s office, are stored in the court’s vault and not loaded into the electronic case management system. The documents remain secret from the public and opposing parties.

Ferenbach said prosecutors sought a level of secrecy normally reserved for cases that threaten public safety or national security.

“This is unacceptable,” Ferenbach wrote in court papers only recently made public. “Relying on various sealed and super-sealed filings, the government asks the court to rule against private citizens, allow the deprivation of their property and deny them a process to redress possible violations of their constitutional rights through a secret government action that provides no notice or opportunity to be heard.

“Saying that this would offend the Constitution is an understatement. It is constitutionally abhorrent.”

The ILB can't locate the magistrate's opinion. But the long Review-Journal story is certainly worth reading.

Posted by Marcia Oddi on Monday, October 20, 2014
Posted to Indiana Courts

Law - "Some States' Medical-Waste Rules Complicate Ebola Fight" [Updated]

That is the heading of this story in Governing by Monte Morin of McClatchy News that begins:

Protective gloves, gowns, masks and booties are donned and doffed by all who approach the patient's bedside and then discarded. Disposable medical instruments, packaging, bed linens, cups, plates, tissues, towels, pillowcases and anything that is used to clean up after the patient must be thrown away.

Even curtains, privacy screens and mattresses eventually must be treated as contaminated medical waste and disposed of.

Dealing with this collection of pathogen-filled debris without triggering new infections is a legal and logistical challenge for every U.S. hospital now preparing for a potential visit by the virus.

In California and other states, it is an even worse waste-management nightmare.

Though the U.S. Centers for Disease Control and Prevention recommend autoclaving (a form of sterilizing) or incinerating the waste as a surefire means of destroying the microbes, burning infected waste is effectively prohibited in California and banned in at least seven other states.

"Storage, transportation and disposal of this waste will be a major problem," California Hospital Assn. President C. Duane Dauner warned Sen. Barbara Boxer in a letter.

Even some states that normally permit incineration are throwing up barriers to Ebola waste.

In Missouri, the state attorney general has sought to bar Ebola-contaminated debris from a St. Louis incinerator operated by Stericycle Inc., the nation's largest medical waste disposal company.

Because of restrictions on burning, California hospital representatives say their only option appears to be trucking the waste over public highways and incinerating it in another state -- a prospect that makes some environmental advocates uneasy.

There is much more in the story.

[Updated at 3:25 PM] Here is a link to an excellent 15-minute Rachel Maddow feature last week on medical waste treatment technology for Ebola waste.

Posted by Marcia Oddi on Monday, October 20, 2014
Posted to General Law Related

Ind. Gov't. - "The problems at the BMV stretch back at least to 2004, when the state moved to a new system for crafting and administering fees"

That is a take-away from this AP story this weekend by Tom LoBianco. More from the story:

Lawyers for the embattled Bureau of Motor Vehicles are speaking out this week in the ongoing legal battles over overcharges by the state agency.

Attorneys from Indianapolis firm Bingham Greenebaum Doll, retained by the state in February, say BMV officials are doing everything they can to identify – and fix – problems with drivers' fees.

But Wayne Turner and Carl Hayes, the pair working on the BMV suit, said Tuesday in an interview that their efforts are being stifled by plaintiffs trying to lock them up in court battles.

The BMV has been embroiled in problems since it was uncovered last year that the agency had overcharged for driver's licenses. Since then, other agencywide fee-​related problems have been discovered.

Gov. Mike Pence ordered an outside audit of the agency this month after state workers discovered $29 million in over­charges on excise taxes.

Irwin Levin, who is leading the latest BMV lawsuit against the state, has argued that the overcharges are part of a systemic problem inside an agency that was seeking to make ends meet during budget struggles. In court filings, Levin has also argued the state is dragging its feet in providing critical information.

Posted by Marcia Oddi on Monday, October 20, 2014
Posted to Indiana Government

Ind. Gov't. - Ball State writes off $12.6 million from scam

Updating this Oct. 14th ILB post, yesterday Seth Slabaugh had a long story in the Muncie Star-Press that began:

RICHMOND – A report released Friday by a former federal prosecutor who investigated the Ball State University investment scandal does not include what everybody wants to know:

How did a lone employee, Gale Prizevoits, the former director of cash and investments, invest $13.165 million with two criminals without the knowledge of anyone else at the university?

"There was not a detailed, play-by-play report about what transpired and how these investment frauds were accomplished," Indianapolis attorney Rick Hall, chairman of the BSU board of trustees, told The Star Press on Friday, after he and President Paul Ferguson appeared before the State Budget Committee.

"That information was reviewed by (CPA firm) Crowe Horwath and (former U.S. Attorney) Deborah Daniels," he said, "and we will provide information in that regard to prosecutors, and they will make a decision as to who should be prosecuted."

Hall told the State Budget Committee, meeting in Richmond, that the university doesn't expect to recover any more than half a million dollars of the investments made with two perpetrators of securities fraud, one from Bronx, N.Y., and one from Boynton Beach, Fla. Both pleaded guilty to federal charges.

Posted by Marcia Oddi on Monday, October 20, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 2 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (2):

Scott Neal v. State of Indiana (NFP)

Larry D. Best, JR. v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 20, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 17, 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, October 17, 2014. It is two pages (and 23 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, October 20, 2014
Posted to Indiana Transfer Lists

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

From Sunday, October 19, 2014:

From Saturday, October 18, 2014:

Posted by Marcia Oddi on Monday, October 20, 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 10/20/14):

Thursday, Oct. 23

Next week's oral arguments before the Supreme Court (week of 10/27/14):

Thursday, Oct. 30

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/20/14):

Monday, October 20

Tuesday, October 21

Wednesday, October 22

Thursday, October 23

Next week's oral arguments before the Court of Appeals (week of 10/27/14):

Wednesday, Oct. 29

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, October 20, 2014
Posted to Upcoming Oral Arguments

Saturday, October 18, 2014

Ind. Courts - "Don’t retain Massa on state court" say letter today in the IndyStar

You can read the letter yourself here. It appears in today's Indianapolis Star. The letter ends:

As general counsel to former Gov. Mitch Daniels, Massa rubberstamped a $2 million deal with a large out-of-state law firm, for a long shot appeal of two issues in the Chrysler bailout. He also voted to suspend for three years a bright Republican lawyer who exposed the above; other exploitive patterns in the legal profession; and a value system often driving them.

Gordon Dempsey, Indianapolis

In order to provide some context, the ILB looked up "Gordon Dempsey, Indiana."

Dempsey is referencing himself in the last sentence. Dempsey was suspended for 3 years, without automatic reinstatement, on May 2, 2013. Here is the Supreme Court's ruling. Here is the ILB post reporting the ruling from May 7, 2013.

Here is a $$$ IndyStar story by Tim Evans from May 7, 2013, mostly behind a paywall, but this partial paragraph begins:

A disciplinary order posted Tuesday on the Supreme Court website said:

"Respondent's history of unethical litigation practices, his continued attacks on those involved in the bankruptcy and foreclosure actions and in this disciplinary proceeding, the virulent bigotry he has manifested in these proceedings, and his lack of any insight into his misconduct suggest that disbarment may be ...

The entire disciplinary decision is worth reading. Finally, here is Dempsey's listing on the Indiana Roll of Attorneys, saying he is suspended.

Posted by Marcia Oddi on Saturday, October 18, 2014
Posted to Indiana Courts

Friday, October 17, 2014

Ind. Courts - "Hidden camera investigation prompts rule change"

The proposed "Scott" amendment to the Marion County Local Rules, filed by Circuit Judge Louis Rosenberg on Oct. 16, would strike the current rule, which allows a judge to charge "a reasonable fee for weddings," and specifies that the fee for weddings performed on the court premises during regular office hours shall be $80, but is otherwise silent.

The proposed new rule would state that a judge may perform a wedding on court premises as a free service to the public at any time. A judge may perform a "paid wedding" off premises, so long as it is not during regular office hours. The proposal then details the requisite conduct of the judge and staff in either event.

The public may comment on the proposal through Nov. 30th.

As Kara Kenney reported last evening
at WRTV6:

Marion County is considering new rules for its small claims courts in direct response to a Call 6 hidden camera investigation into a judge using public resources to promote her private wedding business.

Michelle Scott resigned her Center Township position after Call 6 Investigator Kara Kenney found government workers at the City County Building, both in the small claims court office and the CCB information desk, handing out Scott’s private wedding business cards and directing people to her private office on Market Street.

“I think your series made it clear there was a problem,” said Judge Louis Rosenberg, Marion County Circuit Court and adviser for Marion County Small Claims Courts. “That’s why we acted the way we did.”

Rosenberg and small claims court judges, including Lawrence Township Small Claims Court Judge Clark Rehme, drafted a proposed rule that would impact all nine township small claims courts in Marion County.

The rule would prohibit judges from using public officials or public employees to solicit wedding business for a fee.

“You bringing this to our attention really was a big catalyst to making this rule,” Rehme told Kenney. “One bad apple spoils the whole bunch. I hope this rule helps restore, if not bolster, some more confidence in our positions.”

Rehme said he performs about a dozen weddings a year, and usually only charges a fee if he performs a ceremony on the weekend.

“We’re supposed to be there as a catch-all,” said Rehme. “If you want a nice wedding, feel free to call a wedding planner and get it done.” * * *

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.

“That seemed a little above and beyond,” said Rehme regarding the Scott’s wedding fees.

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Indiana Courts

Ind. Decisions - AG Zoeller is appealing District Court ruling striking down current method of judge selection in Marion Co. Superior Courts

Here is the news release:

Today the Indiana Attorney General’s Office filed notice that the State is appealing a federal court ruling that struck down a state law regarding election of Marion County judicial candidates. On October 9, U.S. District Court Chief Judge Richard L. Young ruled in the Common Cause Indiana case and invalidated Indiana Code 33-33-49-13, a statute the Legislature passed in 2006.

The State defendants are appealing Chief Judge Young’s ruling to the U.S. 7th Circuit Court of Appeals in Chicago. Notice of appeal and the docketing statement were filed today in U.S. District Court and are attached. Chief Judge Young’s ruling remains stayed and will not take effect while the State’s appeal is under consideration by the 7th Circuit.

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Marion County Receives Grant to Open Veteran’s Court"

Will Healey has the story at Indiana Public Media. Some quotes:

Marion County has received a grant from the Department of Justice to set up a veteran’s court to work with veterans who commit minor crimes.

The 3-year grant from the Bureau of Justice Assistance will establish a court that is more focused on intervention than punishment.

Marion Superior Court Judge David Certo has been working with Indiana’s Department of Veterans Affairs to identify veterans that commit low-level criminal offenses and work to get them treatment. * * *

Certo said other veteran’s courts, like those in Floyd, Porter, and Allen counties have proven successful. * * *

Certo said he hopes to formally establish the court in January 2015.

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Indiana Courts

Ind. Courts - "Former inmates graduate from embattled Clark Co. drug court program"

Katie Bauer of WAVE3News reported last evening in a story that begins:

JEFFERSONVILLE, IN (WAVE) - After a lawsuit and a state investigation that basically shut it down, the Clark County drug court celebrated some former inmates who completed the program and have now found freedom.

Since the drug court has been under new leadership, they haven't been taking new participants. Those that graduated hope that will change.

Inside a Clark County courtroom on Thursday, sentences weren't handed down instead it was a celebration.

"I still have butterflies, I don't think it is real, it's great I'm excited," said drug court graduate Joelese Ellis. "I'm happy, I feel like tomorrow is a new start. I've got a second chance at life."

Ellis is one of four drug court participants to successfully complete the program and have their charges dismissed.

"It's been really, really hard, but I'm here. I did it," said Ellis.

The drug court first came under fire in early 2014 after a woman was held for five months on what was supposed to be a 48 hour sentence. The Indiana Supreme Court suspended the program after other inmates claimed their rights were violated as well and filed a class action lawsuit. New leadership is in place.

Here is a list of some earlier ILB posts on the Clark County drug court.

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Indiana Courts

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (7):

Dominic Johnson v. State of Indiana (NFP)

Lamonte J. Moore v. Sate of Indiana (NFP)

Anthony Peak JR. v. State of Indiana (NFP)

Jeffrey Ray Shanks, Sr. v. State of Indiana (NFP)

Tony P. Fitts v. State of Indiana (NFP)

Daisy Fletcher v. State of Indiana (NFP)

Thomas Boardman v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Ind. App.Ct. Decisions

Courts - "SCOTUS unsigned orders, stays, and injunctions: No explanations in voter ID, abortion, and gay marriage cases"

Dalhlia Lithwick of Slate has an important article that begins:

In recent weeks, the U.S. Supreme Court has decided—by way of injunction, stay, unsigned order, and wordless denials of cert petition—some of the most urgent social and ideological issues facing the country. We have no opinions to read or dissents to celebrate. Just wordless orders that some things should change while others remain the same. Then loads of scurrying around and headlines. Are we in some persistent state of high-level judicial emergency? Not really, despite the dramatic speed at which Texas abortion clinics close and reopen, or same-sex marriages are on or off, or voter ID is needed and then not needed.

For some reason, we have reached a moment in Supreme Court history at which unsigned, unexplained reasoning is the new black. No more briefing, argument, or opinion-writing. No time. It will all be done via high-frequency radio signaling and colloquies with the voices in our heads. Linda Greenhouse asks the same question another way: “What on earth is the court doing and what—with saying hardly a word—is it telling us?”

Greenhouse's NY Times opinion piece from Oct. 15th begins:
Has there ever been such a crazy opening to a Supreme Court term? One so confoundingly opaque yet mattering so much?

In the space of eight days, the justices managed to touch on American society’s hottest of hot-button issues: same-sex marriage, access to the polls, and finally – inevitably – abortion, and all without actually issuing an opinion. Review denied, stays granted, stays lifted, news-making orders appearing randomly at odd hours from an institution usually so predictable in its schedule that you can set a clock by its yearly calendar. What on earth is the court doing and what – with saying hardly a word – is it telling us?

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Courts in general

Ind. Courts - SD Indiana Court Historical Society Announces 7th Annual CLE

"Murder, Marshals, and Bankruptcy: An Inside Look at the Southern District of Indiana" is the title of the Seventh Annual Court History and Continuing Legal Education Symposium set for November 7, 2014. Get the details, including how to register, here. Registration is $50,: it is 3 hours and 3 CLEs.

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Indiana Courts

Ind. Gov't. - "LaPorte County hires attorney to study Toll Road contract"

Stan Maddux reports today in the South Bend Tribune in an interesting story that begins:

LaPorte County has taken steps aimed at encouraging the state to attempt to take back operations of the Indiana Toll Road or, if it remains under a lease, to provide revenue sharing to counties along the entire stretch of the highway.

The county commissioners on Wednesday hired a law firm specializing in bankruptcy proceedings to investigate if the language in the 75-year lease can be executed for allowing the state to regain daily operations of the Toll Road, which was leased in 2006 to a private operator now in bankruptcy court.

If the operations do not revert back to the state, the attorney will push for revenue sharing for LaPorte and all other counties adjacent to the highway from whatever company assumes the lease or a restructured lease in the future.

LaPorte County attorney Shaw Friedman said the preference of the commissioners is for the state to reassume operations of a highway he called a ''cash cow.'' Friedman said the state would have to ''buy back'' control of the Toll Road for about $2.4 billion to help retire whatever debt the private operator, ITR Concession Co., is responsible for after its bankruptcy proceedings. Its current debt is listed at $6 billion.

Friedman said the state can float a bond issue to finance the ''buyback.''

And, even with such a debt, figures obtained from the Toll Road show annual profits of about $80 million annually from the highway that could be applied toward the debt payments and local infrastructure, Friedman said.

Goldstein & McClintock, of Chicago, will intervene in the bankruptcy proceedings on the county's behalf.

Here is the most interesting part to the ILB, with emphasis added:
Friedman said Mitch Daniels, when he was governor, and others claimed the Toll Road under the 2006 lease would revert back to the state if the vendor declared bankruptcy. Whether that can happen is in dispute with some officials, including those with the Toll Road oversight board, who claim bankruptcy alone is not grounds for ITR Concession to have to relinquish control back to the state.

The Tribune reported Oct. 12 that a Daniels spokesperson directed a reporter to an opinion piece by urban affairs analyst Aaron Renn, who wrote on Urbanophile.com that "Daniels did once say that the state would take responsibility for the road back if the vendor declared bankruptcy. He clearly misspoke on that."

The story doesn't provide a direct link to the Urbanophile post, but here it is, from Sept. 21, 2014. It is headed "Indiana Toll Road Lease Vindicated As Win For Hoosiers As Private Operator Goes Bankrupt."

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Indiana Government

Environment - "County board approves 4,000-hog facility in southern Indiana despite worries of neighbors"

Updating this ILB post from Oct. 13th, the Franklin Daily Journal has an AP story today that begins:

BROWNSTOWN, Indiana — A southern Indiana farmer has won permission from county officials to build a facility housing 4,000 hogs, even though dozens of residents are protesting the plans.

A Jackson County zoning board voted 4-0 to approve the confined feeding operation for a site a couple miles north of the town of Crothersville. The vote about 1:25 a.m. Wednesday followed six hours of public comments before a crowd of more than 100 people who packed a courthouse meeting room, The Tribune of Seymour reported (http://bit.ly/1vzNtVC ).

Many facility opponents told the board they were worried about odors, truck traffic and possible water contamination to wells and the nearby Muscatatuck River from stored manure.

Trina McLain said she had health concerns about the hog facility being about a quarter-mile from her home and that it would harm the quality of life for nearly 500 homes in the vicinity.

"This is a very populated area, and most of these homes will be downwind from this site," she said.

Farmer Kyle Broshears said the hog facility would be built as far as possible from the closest home in the area about 40 miles north of Louisville, Kentucky.

More from the story:
Complaints about Broshears' plans echo those about similar large hog farms around the state. Neighbors of a proposed facility in neighboring Bartholomew County have file a lawsuit seeking to block its construction, while a judge this summer ruled against a lawsuit against four large hog farms in eastern Indiana's Randolph County.

Jackson County zoning board members said the proposal met the county requirements and is in an agricultural zone.

"If these confined feeding operations decrease your property (value), where are the people in Jackson County who live by these who have had their property decreased?" board member Sherry Bridges said. "If I lived by a CAFO and I lost $20,000 on my home, I would be in here jumping up and down on the table."

Posted by Marcia Oddi on Friday, October 17, 2014
Posted to Environment

Thursday, October 16, 2014

Ind. Law - "Social Security snag a headache for Indiana same-sex marriages"

Jill Disis reports this afternoon in the IndyStar - here is a sample from the long story:

Though the Supreme Court’s action on Oct. 6 effectively legalized same-sex marriage indefinitely in Indiana and elsewhere, at least some federal policies haven’t been as quick to catch up.

Carmen Moreno, the communications director for the Social Security Administration’s Chicago office, said the agency is processing as many claims from newly married same-sex couples as possible.

“We remain committed to treating all Americans fairly, with dignity and respect,” she said. “We are bound by the law within the Social Security Act, and we have to respect state laws. We ask for continued patience from the public as we work closely with the Department of Justice to develop policies that are legally sound so we can process more claims.”

The Social Security Administration on Tuesday updated its policy to say it is accepting marriage documents issued to same-sex couples in Indiana for marriages that took place on Oct. 6 or later.

But the update leaves out specific mention of the more than 800 Indiana same-sex couples like Selby and Cox who were married in June.

“They are clearly valid,” said Ken Falk, legal director for the American Civil Liberties Union in Indiana. “I assume the federal government is going to be correcting itself.”

Posted by Marcia Oddi on Thursday, October 16, 2014
Posted to Indiana Law

Ind. Decisions - Supreme Court decides one today

In Indiana State Ethics Commission, Office of Inspector General, and David Thomas, in his Official Capacity as Inspector General v. Patricia Sanchez, a 10-page, 5-0 opinion, Justice Massa writes:

When Patricia Sanchez was fired from her job at the Indiana Department of Workforce Development, she kept several items of state property in her possession. She was charged with theft, but those charges were dismissed. The State initiated an ethics proceeding against her, determined her conduct ran afoul of an administrative rule, and barred her from future State executive branch employment. We are asked to review that adjudication and sanction. Because we find the proceeding was properly before the Commission, there was sufficient evidence to support the Commission’s determination, and the sanction was within the Commission’s discretion, we affirm the Commission’s decision.

Posted by Marcia Oddi on Thursday, October 16, 2014
Posted to Ind. Sup.Ct. Decisions

Law - "Author John Grisham says 'we've gone nuts with this incarceration' of child porn downloaders"

The Sentencing Law Blog today quotes from an interesting UK article headlined "John Grisham: men who watch child porn are not all paedophiles."

Posted by Marcia Oddi on Thursday, October 16, 2014
Posted to General Law Related

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

For publication opinions today (0):

NFP civil opinions today (2):

Crown Capital Solutions v. Miller Pipeline Corp. and Liberty Mutual (NFP)

Douglas W. Zehner v. Pamela S. Zehner (NFP)

NFP criminal opinions today (5):

Paul A. Parsley v. State of Indiana (NFP)

Mark Mikesell v. State of Indiana (NFP)

Marquise McCloud v. State of Indiana (NFP)

Jeremiah J. Mosley v. State of Indiana (NFP)

Gary Marcum v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 16, 2014
Posted to Ind. App.Ct. Decisions

Law - "Same-Sex Marriage States Often Lack Job Protection Laws For Gays"

NPR's Morning Edition this morning has a 3:41 story by Miles O'Bryan that begins:

Wyoming is now among the majority of U.S. states where same sex marriage is legal. But while you can be gay and get married in Wyoming, being gay can also get you fired.
Listen here.

Posted by Marcia Oddi on Thursday, October 16, 2014
Posted to General Law Related

Ind. Gov't. - "General Assembly should bag canned hunting"

From an editorial yesterday in the South Bend Tribune yesterday:

The Indiana General Assembly should oppose the adoption of any new rules regulating fenced-in deer hunting. The Agriculture and Natural Resources study committee this summer voted to send the issue to the full legislature for discussion when it begins its next session.

We’ve long opposed fenced hunting preserves for a variety of reasons, including the fact that they raise the threat of spreading chronic wasting disease and tuberculosis to other deer in the state. Some operations even have specially bred deer — such as those with massive genetically-altered racks — shipped in to attract high-dollar paying clients. There have even been reports of some facilities allowing their clients to kill animals remotely via the Internet.

Critics have argued that fenced hunting doesn’t give animals a fair chance to escape and therefore is unsportsmanlike. We think such actions can’t even be called “hunting.” * * *

Hunting is not a right, it’s a privilege. The sport should be regulated by the proper authorities and take place in open space, not confined to fenced land where animals have no chance of eluding their hunter.

Posted by Marcia Oddi on Thursday, October 16, 2014
Posted to Indiana Government

Ind. Courts - "Conflict of Interest Complaint Targets Spencer Co. Prosecutor"

Kayla Moody reports today in a long story on TriStatehomepage.com. Some quotes:

Senior pictures are a glimpse down memory lane, often a look back at a different time in one's life. Such is the case for two photos circulating around Facebook pages in Spencer County. The photos, depicting convicted felon Michael Ray Cannon and Prosecutor Kelly Corne in her final year of high school, have gone viral among locals.

"They're my senior photos from 1988-1989. I will be 44 next month," said Corne, adding she's tired of seeing negative accusations baring her name circulate Facebook.

It has been 26 since the pictures were taken, most of which Cannon spent inside a prison cell. According to the Indiana Department of Correction, he did hard time for robbery, possession of a controlled substance and escaping jail. He and Corne were high school sweethearts, a story that fueled a letter sent to the Spencer County Circuit Court in May alleging a conflict of interest. '

Corne prosecuted Cannon for possession of methamphetamine in 2012.

"It is hard in a county this small not to run across people that you have prior relationships with. Now, I understand that we dated but, again, that was 26 years ago. We have both moved on with our lives and in very different directions," said Corne. "I do not believe equals a conflict in 2012." * * *

Corne's democratic challenger, Dan Wilkinson, says he's heard about the allegations but adds he isn't putting much stock into the claims.

"In general I would say if there is a conflict or some kind of close relationship with a defendant the best thing to do is to request a special prosecutor ... I'm more focused on the issues that I care and that I hear about, which is the performance of the prosecutor's office," said Wilkinson, pointing to data he used in a recent blog post critical of his opponent.

Tina Motteler, who sent "the letter to the circuit court, says she filed a complaint with the Indiana Supreme Court Disciplinary Commission, which investigates lawyer misconduct."

Posted by Marcia Oddi on Thursday, October 16, 2014
Posted to Indiana Courts

Wednesday, October 15, 2014

Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal - J.Posner: "[W]e have in this case ... a muddle created by the people running the jail"

In Randy Swisher v. Porter County Sheriff's Department (ND Ind., Nuechterlein), a 5-page opinion, Judge Posner writes:

The plaintiff brought this suit un-der 42 U.S.C. § 1983 complaining that while a pretrial de-tainee in a jail in Porter County, Indiana, he was denied medical care for a bullet wound to his abdomen, and other essential medical care, during his nine-month sojourn at the jail. He named as defendants the local sheriff plus jail per-sonnel, including the warden and other officers and the jail’s physician and head nurse. The district court, while fully crediting the plaintiff’s testimony at an evidentiary hearing, dismissed his suit for failure to exhaust administrative rem-edies. 42 U.S.C. § 1997e(a).

There was no record in the jail’s grievance log of the plaintiff’s having filed a grievance. But at the hearing he tes-tified that he’d never received, or been given access to, a copy of the jail’s grievance procedure, though he knew from other inmates of the jail that there was such a procedure and knowing this asked a guard for a grievance form but wasn’t given it.

Indiana requires every correctional facility to have a grievance procedure. Indiana Code § 11-11-1-2. * * *

[T]he magistrate judge credited the plaintiff’s testimony in its entirety. Yet surpris-ingly he ruled that the plaintiff had not exhausted his administrative remedies, because while knowing there was a grievance procedure he never submitted a written grievance. He had given up too soon, the magistrate judge reasoned, by failing to take additional action when his verbal requests for attention to his medical problems had no effect. The magistrate judge thought it enough to require dismissal of the suit that the plaintiff “was not prevented from obtaining a form,” was not “told that no grievance system existed,” and was not told that “he could not ever file a written grievance.”

A dose of common sense would have led the magistrate judge to a different conclusion. If you are an inmate and you speak to senior jail officers up to and including the Warden of the jail and are told not to file a grievance because the officers understand your problem and will resolve it without need for you to invoke the formal grievance procedure and they don’t tell you how to invoke that procedure, you are entitled to assume that you don’t have to file a written grievance. Anyway no one was willing to give the plaintiff a grievance form or even explain the grievance procedure to him, so he couldn’t have filed a written grievance even if he had thought it necessary. And can one imagine the plaintiff’s telling the warden: “you tell me I don’t need to file a grievance but I know better”? * * *

[W]e have in this case, as in Roberts v. Neal, 745 F.3d 232 (7th Cir. 2014), a muddle created by the people running the jail. When a jail official invites noncompliance with a procedure the prisoner is not required to follow the procedure. Curtis v. Timberlake, 436 F.3d 709, 712 (7th Cir. 2005). When jail personnel mislead inmates about how to invoke the procedure the inmates can’t be blamed for failing to invoke it. [Cites omitted]

The judgment in favor of the defendants is reversed and the case remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to Ind. (7th Cir.) Decisions

Ind Decisions - Supreme Court issues one today

In Joseph Wysocki and M. Carmen Wysocki v. Barbara A. Johnson and William T. Johnson, both Individually and as Trustees of the Barbara A. Johnson Living Trust dated 12-17-1996, an 8-page, 5-0 opinion, Chief Justice Rush writes:

Even when a plaintiff proves a predicate crime under the Crime Victims Relief Act (CVRA), the trial court has discretion not to award exemplary damages when it thinks the conduct is not egregious enough to warrant punishment. And when a plaintiff pleads several alternative grounds for relief, the trial court has similar discretion not to impose CVRA liability at all, even when it awards compensatory damages under a different theory. Accordingly, the trial court here acted within its discretion to compensate Plaintiffs for their common-law damages, while also refusing to award attorney fees or exemplary damages under the CVRA. We granted transfer to clarify that point and reiterate several principles about CVRA liability. We affirm the trial court, though for different reasons than the Court of Appeals. * * *

A knowing misrepresentation on a Sales Disclosure Form is an intentional tort. But not every intentional tort is necessarily “so heinous as to require exemplary damages,” Citizens Nat. Bank, 637 N.E.2d at 195, or as to warrant quasi-criminal CVRA liability at all. In other words, not every intentional tortfeasor is a criminal. CVRA liability does not depend on whether the tortfeasor has been charged with or convicted of the CVRA predicate offense, nor even solely on the elements of the CVRA predicate offense. Instead, liability is also a matter of the factfinder’s discretionary judgment of whether the defendant is criminally culpable. When a court does impose CVRA liability, an award of costs and reasonable attorney fees is mandatory by the terms of the statute, even though additional exemplary damages remain discretionary. But when given a choice, the court need not impose CVRA liability when it believes ordinary tort liability will do. The trial court acted well within its discretion to make that judgment in this case, and we affirm its judgment.

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Validity of same-sex marriages resulting from licenses issued during the June "window" [Updated]

Yesterday the ILB issued a post headed "'Scott Walker says state will recognize June same-sex weddings' Is this an issue in Indiana?"

In a post from Sept. 20, the ILB discussed the efforts of the ACLU to obtain federal recognition of the Indiana same-sex marriages that took place during the June window -- June 25th -27th. With the SCOTUS action last week, however, federal recognition is no longer an issue, so long as the marriages are valid.

A memo from a Deputy AG, who is speaking on behalf of Attorney General Zoeller, dated Oct. 13th and sent to all county clerks covers another issue: After obtaining a marriage license during the June 25-27 window, did the same-sex marriage ceremony also have to take place during the window for the union to be valid? The AG says no, in a chart citing the applicable statutes. The requirements are (1) that the marriage occurred within 60 days of the license being issued, and (2) that the marriage was recorded within 30 days thereafter. And (3) that the Clerk recorded the marriage.

These are, of course, the same statutory requirements that apply with any Indiana marriage.

Then the memo continues:

However, one possible legal argument is that the stay granted by the 7th Circuit tolled the statutory deadlines, potentially meaning that the licenses may not be expired, as the order made it appropriate for clerk’s to delay processing licenses while the stay was in effect.
But, it cautions, those couples who obtained a license in June and have not yet used it might be better off obtaining another one, rather than relying on the tolling argument.

See this NWI Times story by Dan Carden for more.

[Updated at 6:18 PM] Apparently the memo from AG Zoeller's office discussed above was too clear. The ILB has now obtained an email headed "Update from Attorney General's Office on Marriage License" written by Bryan Corbin, Public Information Officer:

Members of the Media:

The Indiana Attorney General’s Office on Monday sent a memorandum to county clerks in Indiana’s 92 counties regarding questions that clerks could face in light of recent court rulings that now permit same-sex marriage in Indiana. The memorandum noted there are four steps in the marriage license process: applying for a marriage license from the clerk’s office, solemnizing the marriage within 60 days, returning the signed marriage record to the clerk within 30 days, and the clerk recording the record. Whether a couple’s marriage license is legally valid or not may depend on where a couple stood in the four-step process between the date a court order permitted same sex marriages to begin, June 25, the date that court order was stayed, June 27, and the date the stay was lifted allowing such marriages to resume, Oct. 7. Marriages solemnized during the 2 ½-day window in June where the records were returned to the clerk’s office within 30 days are likely valid, even if the returned marriage record was not immediately recorded by the clerk’s office at that time.

The memorandum noted that to avoid any question about validity, county clerks can suggest that any applicants who obtained licenses in June but did not immediately solemnize marriages or return the records at that time may wish to re-apply for licenses. County clerks have the discretion to offer refunds of licensing fees previously paid for couples who wish to re-apply for licenses and resubmit the paperwork to ensure validity.

County clerks are encouraged to consult their county attorneys or the Attorney General’s Office with respect to all questions bearing on their legal duties to issue marriage licenses.

You can attribute this to me. The Attorney General’s Office’s memo of Monday to clerks is attached, and at this link. [ILB - it is the same memo the ILB linked earlier]

Again, the chart in the earlier AG memo indicates clearly to the ILB that if a couple obtained their license during the window, were married within 60 days of the license being issued, returned their records within 30 days after the wedding, and the clerk's office recorded the marriage, it is valid.

But Corbin now states: "Marriages solemnized during the 2 ½-day window in June where the records were returned to the clerk’s office within 30 days are likely valid, even if the returned marriage record was not immediately recorded by the clerk’s office at that time." In other words, licensed AND married during the window MAY be okay per the AG's office, even if not recorded during the window. That is quite a backtrack, IMHO.

Finally, Marion County Clerk Beth White's webpage has a link to this "Same-Sex Marriage FAQ."

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to Indiana Law

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

For publication opinions today (1):

In Erik Morales v. State of Indiana, an 8-page opinion, Judge Mathias concludes:

Morales has not overcome the presumption that he received the effective assistance of trial counsel. Accordingly, the post-conviction court properly denied Morales’s petition for post-conviction relief.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Hector Laguna v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Regulatory Case in North Carolina Appears to Trouble Supreme Court "

Updating yesterday's ILB post, Adam Liptak of the NY Times has an interesting story today on yesterday's oral argument. Some quotes from the long story:

WASHINGTON — Several justices at Supreme Court arguments on Tuesday sounded troubled over efforts by a North Carolina dental board to drive unlicensed teeth-whitening services out of business.

“The object of the antitrust laws is to prevent private individuals who compete with each other in business from getting together and making agreements,” Justice Stephen G. Breyer said. “That kind of interest seems present here.”

As the argument progressed, though, some justices seemed to grow frustrated with the case, musing about how hard it would be to rule against the dental board without also upending professional regulation in other fields.

“It seems to lead to a case-by-case, state-by-state, board-by-board inquiry by the federal courts as to whether the members of a regulatory body are really serving the public interest or whether they have been captured by some special interest,” Justice Samuel A. Alito Jr. said.

The case, North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13-534, illustrated a common worry for the justices — that the resolution of the dispute will have negative consequences in other cases. * * *

Justice Anthony M. Kennedy also appeared to be troubled by the apparent conflict of interest. “If the board says we think what’s good for dentistry is good for North Carolina,” he said, “our cases say that’s not enough because you’re pursuing your self-interest.”

Mr. Mooppan cautioned the justices not to disrupt “the most traditional way of regulating the professions that states have historically used and have consistently used for a long time.”

A supporting brief from the American Medical Association and several other medical groups said that a ruling against the dental board would discourage doctors from serving on professional boards and disrupt a “150-year tradition.” Several bar associations filed a brief making similar points on behalf of lawyers.

Justice Antonin Scalia said a ruling against the board could also threaten judges. “What do you do about a state Supreme Court that sets the ethics rules for the legal profession, including what constitutes the unauthorized practice of law?” he asked.

Justice Breyer said he would draw the line at neurologists, allowing them to decide who can practice brain surgery. “I don’t want a group of bureaucrats deciding that,” he said. “I would like brain surgeons to decide that.”

On this point, at least, Justice Scalia agreed. “I want a neurologist to decide it,” he said.

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to Courts in general

Ind. Law - "Charged with OWI? These Indiana lawyers can help"

Kristine Guerra today in the Indianapolis Star has a story highlighting seven Indiana attorneys:

... who specialize on criminal defense, particularly on OWI (operating while intoxicated) or OVWI (operating a vehicle while intoxicated). This list is based on ratings by superlawyers.com. The website's selection is based on peer nominations and evaluations by practice area. This list is neither comprehensive nor exclusive.
More from the story:
In Indiana, if you're charged with an OWI for the first time, you're looking at a jail sentence of up to a year and a maximum $5,000 fine.

If you're charged for the third time, you're looking at up to three years in jail and a maximum fine of $10,000. Or let's say you seriously injured or killed someone. You're facing a Level 5 or 6 felony and up to six years in prison.

So, the first question you might want answered is: Who can defend me? * * *

The second question you might want to ask is: How much will it cost me? The short answer: It depends.

If it's your first-time offense, nobody got hurt and you didn't drive away, expect to spend at least $2,000, Indianapolis OWI attorney John Tompkins said.

"If you're spending less than $1,000, that is a huge red flag on the quality of representation you will get," he said. "You're better off with a public defender who has some experience with the court you're appearing in."

If you're case is more complicated, expect to pay in the double digits for good representation. Let's say a serious injury is involved and you've had multiple prior offenses, or you had illegal drugs in the car, or a controlled substance was found in your system, you're looking at $7,500 to $10,000 or more in attorney fees.

That's because the more complex a case is, the more time an attorney has to spend investigating, which includes blood analysis, discovery and more.

"What you're doing is you're buying a lawyer's time," said Tompkins of Brown Tompkins Lory & Mastrian Attorneys at Law in Indianapolis. "Are we going to spend a few hours examining blood testing or blood draw?"

It's important to note that expensive doesn't always mean better.

Not every private attorney is necessarily better than a public defender, and not everyone who charges $5,000 is really good, said Tompkins, who worked as a public defender before switching to private practice.

In addition to Tomkins, the story highlights (with photos) Kathleen Sweeney, of Sweeney Hayes Attorneys at Law LLC in Indianapolis; Frederick Vaiana and J.J. Paul III, of Voyles Zahn & Paul Attorneys and Counselors at Law in Indianapolis; Patrick Arata, Arata Law Firm in Fort Wayne; Marc Lopez, of Marc Lopez Law Firm in Indianapolis; and Mark Foster, of Foster O'Daniel Hambridge & Lynch, LLP in Evansville.

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to Indiana Law

Law - "Notre Dame offers same-sex couples employee benefits, but other schools aren't there yet"

A story yesterday in the Salt Lake City Deseret News, "compiled by" Mark A. Kellner, reports on Margaret Fosmoe's long Oct. 9th story in the South Bend Tribune headed "Notre Dame, Saint Mary's extend benefits to same-sex spouses." Some quotes:

With same-sex marriage now recognized under Indiana law, the University of Notre Dame and Saint Mary's College will extend benefits to all legally married spouses of employees, including same-sex spouses.

Notre Dame notified employees of the change via email late Wednesday. * * *

"Notre Dame is a Catholic university and endorses a Catholic view of marriage. However, it will follow the relevant civil law and begin to implement this change immediately," the email read. * * *

Saint Mary's, a Catholic women's college, also will follow the law and immediately extend benefits to all legally married spouses of employees, including same-sex spouses, college spokeswoman Gwen O'Brien said Thursday.

The SB Tribune story goes on to report on the positions of Holy Cross College, Ancilla College in Donaldson, Bethel College, affiliated with the Missionary Church, and Goshen College, which is affiliated with the Mennonite Church.

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to General Law Related

Environment - More on "State panel gives preliminary OK for new manure storage rules"

Supplementing earlier ILB posts on the proposed manure pond rule, which was preliminarily adopted by the Indiana Environmental Rules Board on Sept. 10th, AgriNews yesterday had a long AP story about last month's action.

Posted by Marcia Oddi on Wednesday, October 15, 2014
Posted to Environment

Tuesday, October 14, 2014

Ind. Gov't. - More on: "Bosma not talking about gay marriage now"

That heading is from an Oct. 7th ILB post. But this evening Dan Carden reports in the NWI Times:

The most controversial issue of the 2014 legislative session will not even be up for debate next year.

House Speaker Brian Bosma, R-Indianapolis, declared Tuesday the Republican-controlled chamber will not consider House Joint Resolution 3, a proposal to add the state's ban on gay marriage to the Indiana Constitution.

"Until the United States Supreme Court draws a different conclusion, I'd say it's dead," Bosma said. * * *

Bosma said he has heard from at least one lawmaker now interested in enacting a "religious freedom" amendment guaranteeing churches and business owners could deny access to Hoosiers they object to serving on religious grounds.

He said that is not a priority for him and is unsure whether it's even needed.

"It's a difficult issue. I really don't have an opinion on it yet, other than I'm sure it's an issue that someone will bring forward in the coming session," Bosma said. "We'll just have to talk about it and decide if it's the right thing for our state or not."

Unlike states where businesses have been fined for firing gay employees or refusing to serve gay customers, Indiana law does not prohibit discrimination based on sexual orientation.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Indiana Government

Ind. Courts - State-certified court interpreter charged in Lake Superior Court with forgery, theft and official misconduct

A long story posted late this afternoon at the Gary Post-Tribune website begins:

A state-certified court interpreter has been charged in Lake Superior Court with forgery, theft and official misconduct for allegedly shaking down clients and dismissing cases in Hammond City Court without authority.

Elsa Melgarejo, 39, of Highland, was charged with taking $900 from six Spanish-speaking clients and filing documents in Hammond City Court that purported to dispose of five of the six cases between January 2012 and December 2013.

The clients told Hammond police Detective Mark Detterline that they gave Melgarejo money, at her direction, to have their cases disposed. One 41-year-old Hammond woman told police that Melgarejo said she could pay a $100 fine and wouldn’t have to go to court on charges of driving without a valid license and without financial responsibility. About two weeks later, the woman told police she met Melgarejo at a fruit market and gave her $160 in cash. She asked Melgarejo for a receipt because she didn’t want any problems, and Melgarejo told her it was all taken care of and there wouldn’t be any problems, court records state.

After additional examples, the story continues:
Hammond City Judge Jeffrey Harkin said Melgarejo had no authority to accept money in any of the cases and made unauthorized docket entries showing that cases were dismissed, court records state.

Melgarejo, who also translated in Lake Superior Court-Criminal Division courtrooms in Crown Point, was certified through the Indiana Supreme Court as a Spanish interpreter, according to the State Court Administration website.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Indiana Courts

Ind. Courts - More on: "Judge resigns following Call 6 Investigation into wedding business"

Updating this ILB post from Sept. 16, quoting Kara Kenney of WRTV Ch. 6, this afternoon Kenny has a story headed "Attorney Brenda Roper takes over for embattled Judge Michelle Scott." Some quotes:

Indianapolis Attorney Brenda Roper will fill the vacancy left by Judge Michelle Scott, who resigned her position with Center Township Small Claims Court, Call 6 Investigator Kara Kenney reported.

Marion County Democratic Party chairman Joel Miller said Roper was the only candidate who filed paperwork within the 72 hour period for the position.

Tuesday at 5:30 p.m., democratic precinct committeemen from Center Township will meet to formally approve Roper taking the job, Miller said.

Scott’s last day in office was October 3. * * *

Scott was defeated in the primary by attorney Brenda Roper, and Scott’s last day would have been Dec. 31.

Roper will fill Scott’s vacancy until January 1, and after that the winner of the Nov. 4 election will take over—either Roper or challenger, Republican candidate Kevin Green.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending October 10, 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, October 10, 2014. It is one page (and 1 case) long.

No transfers were granted last week.

A transfer previously granted was vacated, in the case of State Board of Funeral and Cemetery Service v. Settlers Life Insurance Company. See this Oct. 8th ILB post for more details.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Indiana Transfer Lists

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):

Brandon Earthman v. State of Indiana (NFP)

George Nichols v. State of Indiana (NFP)

Segun Rasaki v. State of Indiana (NFP)

Christopher Kimbrell v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Scott Walker says state will recognize June same-sex weddings" Is this an issue in Indiana?

Jacob Stein reports in the Milwaukee Journal-Sentinel:

Madison — The roughly 500 same-sex couples who married in June will have their partnerships recognized by the State of Wisconsin and some couples will be able to amend past tax returns, Gov. Scott Walker's administration ordered Monday.

The Republican governor, an opponent of same-sex marriage, made his order after the U.S. Supreme Court last week rejected Wisconsin's appeal to reinstate its gay marriage ban.

Walker spokeswoman Laurel Patrick said his administration would now treat same-sex and opposite-sex couples the same for issuing wedding licenses and "determining the rights, protections, obligations or benefits of marriage."

"Per the guidance from the Department of Justice, state agencies will examine and update forms, manuals and other documents consistent with the ruling, and the state will be treating licenses issued in June as valid marriage licenses," Patrick said. * * *

In a question and answer page on its web page, the state Department of Revenue said that going forward, same-sex newlyweds will need to file their taxes as married filing jointly or separately, just as other couples do.

Couples also will be able to file amended tax returns for 2013 and prior years where applicable, according to the agency. That would allow couples to go as far back as amending tax returns filed for the 2010 tax year in April 2011.

But a couple would have had to have been lawfully married during the year they are amending the return, which means they would have had to have been married in another state that recognized same-sex marriage at the time.

The state Revenue Department clarified that it also is ending the practice of treating same-sex couples differently with respect to certain other questions, such as the taxation of a partner's health benefits. * * *

About 500 couples in Wisconsin married between June 6 and 13 — after Crabb's initial ruling but before she issued the stay that halted marriages during the appeals process.

A three-judge panel of the 7th Circuit U.S. Court of Appeals in Chicago upheld Crabb's ruling striking down same-sex marriages as unconstitutional. Van Hollen appealed a month ago to the Supreme Court, which rejected his petition last week.

While the matter remained on appeal, Van Hollen and Walker's administration did not recognize those marriages that took place in June. In response, four of those couples sued last month for that state recognition.

Dupuis said Walker's latest action should help resolve the latest lawsuit.

"We still plan to seek an enforceable agreement or judgment, so we'll have a remedy if they are not good to their word. But I think this does mean things should wind down quickly," he said.

ILB: Hmm. The ILB had assumed that this statement from Governor Pence's counsel also included the couples married during the June "window."

In light of the Wisconsin tax guidance linked above, the ILB has just checked the Ind. Dept of Revenue website for filing guidance for same-sex couples and does not find anything. However, IDOR's Same-Sex Marriage Tax Filing Guidance, issued Nov. 21, 2013, referenced in this March 11, 2014 ILB post, has been removed.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Legal advice costs BSU $170,646"

Seth Slabaugh of the Muncie Star-Press had this long story Oct. 4th. Some quotes:

MUNCIE – An investment scandal has cost Ball State University $170,646 in attorney fees so far, plus another $26,366 in accounting fees.

For legal services provided in July and August, the university paid $19,295 to the Indianapolis law firm Krieg DeVault, where partner Deborah Daniels is leading a review of Ball State investment policies.

Daniels, a former U.S. Attorney, former U.S. Assistant Attorney General and sister of former Gov. Mitch Daniels, hired Crowe Horwath, one of the largest public accounting and consulting firms in the United States, to assist in the review.

Ball State has paid Crowe Horwath $26,366.

"As you know, the board of trustees decided to engage an experienced, independent lawyer to review the events that led to the investment loss and to identify any additional actions the university might take to prevent any re-occurrence," Tom Taylor, vice president for communications at BSU, said in an email. "As this situation involved financial matters, Ms. Daniels recommended that Crowe Horwath be engaged to assist in the collection and analysis of this data."

No date has been set for the completion and public release of Daniels' report.

Since learning of the scandal in the late summer/early fall of 2011, Ball State also has paid about $152,000 to DeFur Voran, a Muncie law firm, for related legal advice.

Ball State this week provided The Star Press copies of the Krieg Devault contract and invoices for legal services that were requested under the Access to Public Records Act in August.

While the obviously redacted attorney invoices released to The Star Press contain the fees and the number of hours and dates worked, they do not include any explanation of what work was performed, such as research, correspondence, telephone conferences, preparation of documents, reviewing documents and attending meetings.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Indiana Government

Ind. Courts - Monroe County's "New mental health court starts next week"

Abby Tonsing reported Oct. 11th in the $$ Bloomington Herald-Times:

Monroe County is creating a mental health court to provide services for offenders with mental health disorders, substance abuse issues, traumatic brain injuries and post-traumatic stress disorder.

The mental health court will be an expansion of the state-certified problem-solving court program, which employs evidence-based approaches to reducing recidivism, and the county’s existing mental health review team.

Changes to Indiana’s criminal code encourage communities to offer treatment and rehabilitation services to low-level offenders through probation and community corrections programs. State grant money will help pay for the pilot program. * * *

According to the Bureau of Justice Statistics, 56 percent of prison inmates have mental health issues, and only one-third of those affected receive treatment, Monroe County Prosecutor Chris Gaal said during a Friday afternoon news conference.

The goal of the program is to keep people mentally stable and out of trouble, while keeping the community safe and use of tax dollars down, Gaal said.

The probation department’s community corrections program received a $64,747 grant from the state to pay for a full-time probation officer and case manager who will handle a mental health court case load. Two local agencies, Centerstone and Amethyst House, received state grants of $83,201 and $25,000, respectively, to provide services to people who will go through the court. An additional $11,799 pays for computer software programs that will help measure the project’s outcomes.

“We want to see our folks getting out, getting back into homes, getting hope and getting back into the community where they belong,” said Linda Grove-Paul, Centerstone’s vice president for recovery and innovation.

The program is a partnership between several local offices and agencies, including the Monroe County Circuit Court, the Monroe County Prosecutor’s Office, the Monroe County Sheriff’s Office and Monroe County Correctional Center, the Monroe County Probation Department, the Monroe County Public Defender’s Office, community mental health provider Centerstone, and addictions recovery program Amethyst House and Indiana University’s traumatic brain injury services in the speech and hearing sciences department.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Indiana Courts

Ind. Courts - St. Joe bar survey "helps voters judge the judges"

From an Oct. 7th editorial in the South Bend Tribune:

The community’s best general assessment of St. Joseph County’s Superior Court judges’ performance — the St. Joseph County Bar Association’s judicial survey — is out. Voters should take the time to peruse it.

St. Joseph is one of only two counties in the state whose Superior Court judges are chosen through a merit selection system, rather than elected by voters. Judges are nominated by a committee of lawyers and citizens, with the final choice made by the governor. Voters then decide every six years whether to retain them. Although there have been calls to change the way our judges are chosen, the merit system has remained in place. In 2009, then-Gov. Mitch Daniels vetoed a bill to force non-partisan election of Superior Court judges, noting that St. Joe County’s merit model is “to be emulated, not discarded.”

Of course, the drawback to the merit system is that voters don’t have much information about the judges who are up for retention to decide whether they’re doing a good job. There’s no campaigning, and judges aren’t forced to defend their records. And the complexity of cases makes comparing judges based on case outcomes problematic.

Which makes the St. Joseph County Bar Association’s annual survey so valuable to voters. Members of the association score the eight Superior Court judges in several categories on a rating scale of 1 to 5. Categories include legal abilities, professionalism and integrity. The survey was posted online Monday.

The St. Joseph Superior Court judges up for a retention vote this year, Jane Woodward Miller, John Marnocha and David Chapleau, scored on average above a 3.5 in all categories. Whether they serve for another six years will be determined by voters. Make your vote a more informed one by viewing the results of the 2014 survey at http://sjcba.org/judicial-survey.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Indiana Courts

Ind. Decisions - "Ruling a victory for transparent government"

Updating yesterday's ILB post quoting an editorial from the Fort Wayne Journal Gazette, here is an editorial from Friday's South Bend Tribune:

The Indiana Supreme Court's ruling that causes of death are public records and must be available at county levels is a decision worth applauding.

That we, as The Tribune's Editorial Board, favor the ruling probably comes as no surprise. As journalists, we vigorously defend the concept of transparency in government. But the unanimous ruling released Tuesday, which reversed the lower courts' decisions, is one that is in the best interests of all Indiana residents.

The lawsuit at the center of this decision was filed after the Vanderburgh County Health Department denied access to cause of death information in 2012, claiming a 2011 state law restricted such information to those who could prove they had a direct interest in it.

But the Indiana Supreme Court ruled that death certificates filed with local health departments are in fact public record, covered under Indiana's Access to Public Records Act.

The high court acknowledged that such public disclosures could be painful for the family and friends of the deceased. It goes on to say that the General Assembly has weighed these competing interests and "concluded that the public interest outweighs the private."

Speaking of the General Assembly, lawmakers would do well to clear up the confusion about cause of death information. There are two contradictory state laws on the books, as revealed by the arguments in this case: One requires health departments to make death certificates available to the public, while the other limits access.

That needs to be tackled in the very near future. Right now, the Indiana Supreme Court has spoken loudly and clearly on the importance of open and transparent government. And that's a good thing for all Hoosiers.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Ind. Sup.Ct. Decisions

Courts - "Does the SCOTUS Want Whiter Teeth?"

The issue, "Whether a state regulatory board, whose members are chosen by dentists, can say that teeth-whitening services must be offered only by dentists, not by day spas or tanning booths (per this earlier ILB post)", will be argued today before the SCOTUS. See also this Sept. 29th ILB post headed " "North Carolina teeth-whitening case could have sweeping implications for other states"." The case is North Carolina State Board of Dental Examiners v. Federal Trade Commission. Indiana signed onto West Virginia’s multistate amicus brief on the merits in support of the petitioner, a brief that had the support of 23 states in total.

Today Noah Feldman has this article at Bloomberg View, that begins:

Ever tried whitening your own teeth? How’d that work out for you? In North Carolina, you probably wouldn’t even have had the option. In the middle of the 2000s, the North Carolina State Board of Dental Examiners systematically hounded non-dentist teeth-whitening operations out of operation -- and effectively blocked the sales of teeth-whitening agents. Now the Supreme Court will decide whether this was an antitrust violation, as the Federal Trade Commission ruled, or whether the board’s status as a quasi-official North Carolina agency means its campaign was out of the commission’s reach.

The facts that gave rise to the case are entertaining -- and highly instructive. North Carolina’s board of dental examiners is the entity created by the state to regulate dentists, and six of its eight members are dentists selected by their peers. (The other members are one civilian and – you guessed it – one dental hygienist.) Pressed by its dentist constituents to do something about the scourge of non-dental whitening procedures that was plaguing Tarheel dentition, the board undertook a multiyear investigation, then issued numerous cease-and-desist letters to non-dental practitioners of the art. By the time its work was done, as an appeals court put it, “the Board successfully expelled non-dentist providers from the North Carolina teeth whitening market.”

The FTC saw this campaign for what it was: classic anticompetitive behavior, in which the states’ dentists were using their licensing arm to chase competitors out of a lucrative business that required no special medical or scientific training. It sanctioned the board; and the U.S. Court of Appeals for the Fourth Circuit upheld its determination.

Posted by Marcia Oddi on Tuesday, October 14, 2014
Posted to Courts in general

Monday, October 13, 2014

Ind. Courts - "Lake County comes to agreement with judges over pay issue"

Carrie Napoleon reported last week in the Gary Post-Tribune:

CROWN POINT — Lake County’s civil court judges in 2015 will get four new employees, more money for juror meals and access to funds generated by court fees, but they will not yet get the employee salary schedule they want.

The Lake County Council in a budget workshop approved a compromise deal with the criminal court judges Tuesday that fulfills the majority of their requests but comes up short on the salary schedule for employees that would guarantee longevity and experience pay increases automatically as workers reach certain milestones.

Court employees will receive the 3 percent across-the-board pay increase for all civil employees approved by the council earlier in the 2015 budget process. It is the first countywide pay increase since 2006.

Council President Ted Bilski, D-Hobart, said he is in favor of the salary schedule and he thinks his fellow council members are as well, but the county does not have the resources in place to make it work.

Along with determining the financial impact of the plan, Bilski said it is necessary for the county to create a full-time human resources department and job descriptions for all county positions so the plan can be implemented throughout county government.

“I know that’s not 100 percent what you are looking for,” Bilski said.

Fellow council members agreed with Bilski.

“We are not prepared to move forward on this right now,” Councilman Eldon Strong, R-Crown Point, said.

Councilman Jerome Prince, D-Gary, attributed the dialogue that has begun on creating a countywide salary schedule to the judges.

“Because of your persistence you opened up a conversation that is important to government as we know it in Lake County,” Prince said, adding what happens in the civil courts could be used as a countywide template.

Posted by Marcia Oddi on Monday, October 13, 2014
Posted to Indiana Courts

Ind. Gov't. - "No moratorium on new CAFOs in Jackson County: Won't emulate neighboring Bartholomew"

That is the headline to this story by Aubrey Woods of the Seymour Tribune (via Ind. Econ. Digest). It begins:

Jackson County farmers interested in building a concentrated animal feeding operation will not face a ban similar to one recently imposed against such farms in Bartholomew County.

Commissioners decided against imposing a moratorium on large livestock operations after discussing the issue with county attorney Susan Bevers.

Bevers said she recently spoke with the attorney working with Bartholomew County commissioners about that county’s one-year moratorium enacted in early September after two farmers requested variances to operate CAFOs.

She said the attorney, Grant Tucker, told her he’s not sure why Bartholomew County’s ban has not been challenged except it was enacted during a time when there were no applications for CAFOs.

“He’s not sure it will stand up to a challenge,” Bevers said during a commissioners meeting Tuesday morning at the courthouse annex.

The moratorium includes new operations or additions to existing operations.

Commissioners President Jerry Hounshel said he asked Bevers to explore the issue after the commissioners’ Sept. 16 meeting.

Posted by Marcia Oddi on Monday, October 13, 2014
Posted to Environment | Indiana Government

Ind. Decisions - "Welcomed clarity: Ruling offers proper access to death certificates"

A Fort Wayne Journal Gazette editorial today praises the Supreme Court decision last week in Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department:

It's amazing, sometimes, the lengths that some public officials will go to keep information from the people they supposedly serve.

The Vanderburgh County Health Department was so determined to withhold death certificates from the public that it took the matter all the way to the Indiana Supreme Court. But unlike the department and two lower courts, the high court actually took the time to read the law as the legislature had intended it to be read.

The instinct to keep deaths as private as possible is understandable. Public information issues may seem less compelling. Unless, as the Hoosier State Press Association's Steve Key noted, an individual needs to check his or her own family history for the propensity of a particular condition or disease. Or unless “communities (want to) check records to see if there's a correlation between cancer deaths and abandoned or closed manufacturing plants or possible contamination of the water supply.”

The need for open-records laws is built on the concept that officials who have the authority to operate secretly may be tempted to do so, and that governments that operate in the open are by nature more worthy of trust.

In a unanimous opinion last week, the Supreme Court ruled that certificates of death filed by doctors, coroners or funeral directors must be treated as public records, available to anyone.

That is, in fact, what Indiana law has specified since at least 1975.

Writing for the court, Justice Mark Massa noted families' natural desire for privacy after a death.

“We are also mindful,” he wrote, “of the importance of open and transparent government to the health of our body politic.”

“Our General Assembly has considered these competing interests and, insofar as we can determine, concluded that the public interest outweighs the private.” As the opinion noted, the legislature has in recent years specifically rejected three attempts to exempt death certificates from the open-records law.

Muddy interpretation of the death-certificate law has not been limited to Vanderburgh County. In Allen County, death-record-access policy appears to have been inconsistent. Health Department Director of Communications John Silcox said Friday the department's attorneys are reviewing its policy on death certificates in light of the ruling.

In Vanderburgh County, officials confused the law on death certificates that must be kept on file and made available in every county with certifications of death. The certifications are separate documents filed with the state that can only be provided to family members or others such as insurers who can show a direct interest in particular deaths.

Though the two documents contain essentially the same information, the Supreme Court noted that the arrangement parallels access to criminal records that are available through counties but not at the state level.

An Evansville court and the state's appellate court also both appear to have simply misread the laws.

The heroes in this case are the Evansville Courier & Press and the HSPA, which pushed the issue, and Indiana Attorney General Greg Zoeller, whose office joined them in arguing to overturn the lower courts' rulings. And, of course, the Supreme Court.

Posted by Marcia Oddi on Monday, October 13, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Law - Ramifications of Indiana's recognition of same-sex marriage explored

"Companies Adapting to Marriage Decision" is the heading to this story by Andy Ober of Inside Indiana Business that reports:

A consultant with Indianapolis-based FirstPerson Benefit Advisors says "language is key" when it comes to businesses adapting to same-sex marriage in Indiana. Katy Stowers says companies need to examine their benefits packages and determine how the term "spouse" is defined. She says companies can still choose to limit benefits to opposite-sex couples. However, Stowers says employee expectations have changed, and such a move could open the door to lawsuits or recruiting challenges. * * *

Multiple Indiana companies already offer benefits to same-sex spouses. Indianapolis-based Eli Lilly and Co. (NYSE: LLY) and Columbus-based Cummins Inc. (NYSE: CMI) have been outspoken opponents of adding an amendment further defining marriage to the Indiana Constitution.

In a statement after the court declined to take up the case, Eli Lilly called continued effort on the issue "disruptive and a waste of time."

Maureen Hayden of CNHI's column Sunday in the Anderson Herald Bulletin was headed "Same-sex marriage supporters turn attention to anti-discrimination rules." Some quotes:
INDIANAPOLIS – Supporters of marriage equality won hearts, minds and votes by framing their message in terms of “Hoosier Hospitality” — and the argument that Indiana prides itself on being welcoming — earlier this year.

Now that Indiana has joined other states in granting full marriage rights to same-sex couples, expect the message to carry over to efforts to convince communities to be welcoming, too, by creating protections for those couples.

Some of the same people who worked to stop Indiana from amending its Constitution to ban same-sex marriage are turning their attention to local rules that bar discrimination based on sexual orientation and gender identity.

Already, a dozen Indiana communities have written such anti-bias protections into human rights ordinances covering employment, housing and public services.

But most communities haven’t. And, unlike 18 other states, neither has the state of Indiana. * * *

Last week, a day after the U.S. Supreme Court cleared the way for same-sex marriage in Indiana by rejecting requests to review lower court decisions, [Chris Paulsen, president of Indiana Equality Action] got a disturbing call.

A woman seeking to wed her same-sex partner of 20 years wanted to keep secret the marriage record in the county clerk’s office. If her employer found out, she said, she’d be fired.

Paulsen could offer little comfort, since the woman isn’t living in one of those protected communities. She could indeed get married, but if she put her wedding picture on her desk the next day, she could be fired and have no legal recourse. * * *

Paulsen’s organization played a critical role in the fight against the ban on same-sex marriage. The group had representatives that sat on the board that oversaw the work of Freedom Indiana, the well-funded coalition of business, community, civil rights and faith leaders that led efforts to convince lawmakers to turn away the amendment.

Now it’s the Indiana Equality Action that’s building a new coalition and tapping an impressive network of supporters and sympathizers.

Paulsen thinks local governments will respond more quickly to a plea for anti-bias laws than the General Assembly, since social conservatives still hold sway in the Republican-controlled Legislature.

She expects the plea for such ordinances will come from community leaders, including church pastors who played an integral role in Freedom Indiana.

“I think local politics are easier because it’s more personal,” Paulsen said. It’s harder for local officials to say ‘no’ to their openly gay neighbors, constituents, family and friends.

Same-sex marriage opponents are gearing up, as well. The American Family Association of Indiana and the Indiana Family Institute have announced plans to intensely lobby for legislation to protect what they call “religious liberty.”

They worry that faith-based businesses and groups who oppose same-sex marriage will be forced to provide services that go against their beliefs.

Paulsen thinks the fear is overblown for at least two reasons. First, some religious exemptions can be built into anti-discrimination laws, she said. Second, same-sex marriage is rapidly becoming part of the norm — even in places where there is a different view of marriage.

She points to the surprising decision last week by University of Notre Dame and its sister institution, St. Mary’s College, to offer married-couple housing and benefits to legally married, same-sex couples.

“It’s the people you don’t expect to come out for equality, that when they do it’s so powerful,” Paulsen said. “Those have been the game-changers.”

Posted by Marcia Oddi on Monday, October 13, 2014
Posted to Indiana Law

Ind. Gov't. - More on "Plan to help retrace state border with Michigan"

On May 30, 2013 Maureen Hayden reported for CNHI in a story that began:

Pushed by its neighbor to the north, Indiana has finally agreed to spend money to find out where the Hoosier state officially begins and Michigan ends.

A new law signed by Gov. Mike Pence is expected to set into motion a five-year, $1 million effort to retrace the official state line that was set by a federal surveyor in 1827.

Most of the wooden posts used to mark the border have long since decayed and never were replaced, leaving residents along the boundary in somewhat of a quandary: They don’t exactly know where the official state line is.

Today, well over a year later, Hayden writes in the Goshen News in a story that begins:
The years-long effort to find out where Indiana begins and Michigan ends is stalled again by a disagreement between the states over money.

Indiana surveyors charged with retracing the 1827 boundary believe they can get the job done for about $1 million. Michigan officials want to spend twice as much — a decision that may stop the work for another year since lawmakers in both states must agree to the added expense.

“I hate to be ramrodded by Michigan,” said John McNamara, an Indiana resident and chairman of the Indiana-Michigan Boundary Line Commission. “We’ve canceled at least two meetings because there’s really nothing to talk about.”

The commission is scheduled to meet again Tuesday. McNamara said he’ll again try to convince the Michiganders that they don’t need to spend $1 million more than what’s budgeted to retrace the 110-mile border.

McNamara, St. Joseph County’s surveyor for 42 years, is part of group of county surveyors who’ve been pushing both states for a decade to “re-monument” the border to clear up disputes.

Several in the group have voluntarily walked what they believe to be the boundary in search of remnants of wooden posts used to mark the border. Most of those posts have decayed and never were replaced.

“Some of these guys are in their 70s and 80s,” said McNamara. “We’d like to see this settled before we retire or die.”

Thanks to decades’ worth of historic records, surveyors generally know where the boundary is. But it’s not exact, which has led to disputes over property, concerns about taxation and sometimes questions of law enforcement jurisdiction.

Posted by Marcia Oddi on Monday, October 13, 2014
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 10/13/14):

Thursday, Oct. 16

Next week's oral arguments before the Supreme Court (week of 10/20/14):

Thursday, Oct. 23

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 10/13/14):

Tuesday, Oct. 14

Next week's oral arguments before the Court of Appeals (week of 10/20/14):

Monday, October 20

Tuesday, October 21

Wednesday, October 22

Thursday, October 23

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, October 13, 2014
Posted to Upcoming Oral Arguments

Friday, October 10, 2014

Ind. Gov't. - "Gay marriage becomes routine in Indiana", but problems with the JTAC Marriage License Database remain

WISH-TV is reporting this evening that gay marriage is "no longer the novelty it was when a court ruling made gay marriage legal for three days in June." More:

Cronley Hurt and Joe Cottrell showed up to get a marriage license Friday. They wanted to get married in June and missed the opportunity. * * *

In three days in June more than 500 same sex couples lined up to get a marriage license in Marion County. About 450 wedding ceremonies were conducted in the City County Building.

This week, fewer than 50 same sex couples have requested marriage licenses here and there is no waiting.

“When the decision came down on Monday we had more members of the press here than we actually had couples,” said Clerk Beth White, “because they finally could say, ‘OK, let’s get married and do it the way we wanted to do it and not the way the courts or others have said we have to do it.”

“It does. It feels normal,” said Megrath. “Marriage is just marriage now.”

ILB: Featured in the story are Cronley Hurt and Joe Cottrell. Recall this ILB post from Wed. headed "'State tweaking marriage license forms to remove gender references' But problems remain." The ILB wrote that: "Although the application forms are now correct, this is only the tip of the iceberg," describing how you could not look up any of the "June window" same-sex marriages in the Marriage License Database unless you knew which member of the couple to look for under "bride" and which one under "groom."

The same applies today, although the applications have been revised to ask for Applicant #1 and Applicant #2. The ILB looked for Cronley Hurt by putting his name in the Marriage License Database search form under "Groom". "Hurt, Cronley" did not turn up. It was only when the ILB searched for his name under "Bride" that he and his spouse showed up in the returns. So the "Applicant 1" and "Applicant 2" names now on the forms is just a cosmetic fix, it does not solve the larger issues affected the database.

Until the database is fixed, the ILB would urge that the "Search Tips" in the right column of the search form be revised to explain how to locate same-sex couples; that if you did not get a return under "Groom," search again under "Bride."

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Indiana Government

Ind. Courts - Still more on: Blackford Circuit Court admonishes attorney for not wearing socks

The ILB's initial post on Sept. 2, which broke the story and included the court order, was picked up and spun endlessly. Today Mishele Wright reports in the $$$ Marion Chronicle-Tribune that:

Todd Glickfield doesn’t have a reason for going barefoot anymore, thanks to a sock company that donated several pairs of socks to the Marion attorney. * * * Altogether he received nine pairs.

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Indiana Courts

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

Continuing the ILB's new Friday afternoon bi-weekly feature, which began with this post on Sept. 26, here is a checklist of significant ILB posts from the past two weeks you may have missed, or forgotten.

Now starts a very busy week:

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Essential ILB Posts

About the ILB - Prof. Schumm receives two prestigious ISBA awards

The ILB is pleased to report Professor Joel M. Schumm, Indiana University Robert H. McKinney School of Law, received two prestigious awards yesterday at the Indiana State Bar Association's Annual Meeting Awards Luncheon.

The awards: The 2014 Presidential Citation Award, and the David Hamacher Public Service Award.

Here is a photo of Prof. Schumm, on the left, receiving the Hamacher award from outgoing ISBA President Jim Dimos.

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to About the Indiana Law Blog | Schumm - Commentary

Courts - "How judges are appointed, elected and forced to retire (if at all) are key themes in this year's ballot measures"

Governing has this national survey article by Liz Farmer. The intro:

A number of states this election season are seeking to change the ways that judges either get their jobs or keep them. From retirement ages to gubernatorial appointments to judicial elections, the changes are driven by politics and practicality. The following is a breakdown of the main themes.

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)

For publication opinions today (1):

In Susan A. Snyder v. Town of Yorktown, Delaware County Surveyor, Delaware County Drainage Board, Randall Miller & Associates, Inc., and Watson Excavating, Inc. , a 16-page opinion, Judge Crone writes:

Susan A. Snyder appeals the trial court’s grant of a motion to dismiss filed by Town of Yorktown, Delaware County Surveyor, and Delaware County Drainage Board (collectively “the Defendants”). The sole dispositive issue presented for our review is whether the trial court erred when it granted the Defendants’ motion to dismiss as to Snyder’s claims for trespass and inverse condemnation. Concluding that the allegations in the complaint fail to establish any set of circumstances under which Snyder would be entitled to relief for trespass, but that her complaint sufficiently states a claim for inverse condemnation, we affirm in part, reverse in part, and remand. * * *

[Trespass] It is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances, and therefore the trial court properly granted the Defendants’ motion to dismiss Snyder’s trespass claim.

[Inverse Condemnation] * * * The process of inverse condemnation allows individuals to be compensated for the loss of property interests taken for public purposes if the government fails to initiate eminent domain proceedings. Green River Motel Mgmt. of Dale, LLC v. State, 957 N.E.2d 640, 644 (Ind. Ct. App. 2011), trans. denied (2012). “If the government takes property but fails to initiate proceedings, Section 32-24-1-16 explicitly allows an owner of property acquired for public use to bring a suit for inverse condemnation to recover money damages.” Murray, 925 N.E.2d at 731. * * *

Determining that it could not “adjudicate the rights to a piece of real estate without joining all interested parties,” the court concluded that dismissal of Snyder’s inverse condemnation claim was appropriate.

Although we acknowledge the logic of the trial court’s reasoning, we conclude that such reasoning has been misapplied here. Significantly, the purpose of joining interested parties in a condemnation proceeding is to protect the rights of those parties, not to shield defendants from potential liability. * * * [O]our supreme court has specifically said that the failure to name all interested parties is not a jurisdictional defect in condemnation actions. * * *

Snyder’s procedural failure to name her mortgagee as a defendant in her complaint is not proper grounds for dismissal of her inverse condemnation claim, and the trial court erred in granting the Defendants’ motion to dismiss on that basis.

NFP civil opinions today (3):

In re The Termination of the Parent-Child Relationship of Jo.N. and Ja.N. (Minor Children) and T.N. (Mother) v. Indiana Department of Child Services (NFP)

John Adams v. CTB, Inc., Individually and d/b/a, Brock Grain Systems (NFP)

In re: The Matter of Supervised Estate of Joseph James Regalado (NFP)

NFP criminal opinions today (9):

Larry Peterson v. State of Indiana (NFP)

Stacy Robey v. State of Indiana (NFP)

Jonathan David Turner v. State of Indiana (NFP)

Nicholas Suding v. State of Indiana (NFP)

Edward Ivy v. State of Indiana (NFP)

Laura Faulkenburg v. State of Indiana (NFP)

Steven Terrell v. State of Indiana (NFP)

Tony A. White v. State of Indiana (NFP)

Alexis Cameron v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - New category: Why is this opinion NFP?

Why is this NFP? The ILB is starting a running list, going forward, of NFP opinions that we feel should be FP, and why. Nominations from readers are invited. Here are the criteria in Indiana Appellate Rule 65:

Rule 65. Opinions And Memorandum Decisions

A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.

Here is the ILB's first nomination, taken from Oct. 9's rulings:
James M. Ross IV v. State (NFP) - This is a reversal, finding the State did not rebut self-defense. Reversing a felony verdict of a jury would always seem to be an issue of "substantial public importance."
COA Conflicts. The ILB is also considering starting a list of For Publication opinions that are in conflict, along with NFP opinions that conflict with, or distinguish themselves from, For Publication opinions, and thus should be FP. The following is an example of the latter:
Larry D. Russell v. State (ILB summary here), was decided by a Court of Appeals panel on June 5th. The decision:
Russell presents a single issue for our review, namely, whether the trial court sentenced Russell as provided in the plea agreement. But our resolution of this issue requires us to address a more fundamental issue sua sponte, namely, whether Russell’s plea agreement is void and unenforceable as a matter of law.

We hold that the sentencing provision in Russell’s plea agreement is contrary to law, and we reverse and remand with instructions.

The case was granted transfer, as reported on the Sept. 19th transfer list.

In an opinion decided three months after Larry D. Russell by a different COA panel on Sept. 12th, Nikki Russell v. State, the Nikki Russell panel, after summarizing the holding and reasoning of the published Larry Russell case, reached the exact opposite conclusion:

The State may have been mistaken that Section 35-50-1-2(c) applied to Nikki’s aggregate sentence, but the State’s mistaken belief does not render the parties’ agreement to limit a sentence to a term of years within the range permitted by law illegal.
The later opinion, which attempts to distinguish the Larry Russell ruling, was classed as Not for Publication by the panel.

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Why is this NFP?

Ind. Law - "Ketzenberger: Same-sex marriage rights good for Indiana business"

John Ketzenberger, president of the Indiana Fiscal Policy Institute, writes today in the Indianapolis Star:

A Bloomberg News story in January led with this: “Indiana’s debate about same-sex marriage was once all about morals. Now it’s about business.”

The story was about seven years late. In fact, some of Indiana’s largest employers were pushing for marriage equality when their best hope was to keep a ban out of the state’s constitution. Cummins Inc. was among the first corporations in the nation to push for marriage equality seven years ago.

In August 2013, the diesel engine maker was joined by Eli Lilly and Co. and WellPoint Inc. to form Freedom Indiana, with a goal of defeating an attempt to amend a ban on same-sex marriage into Indiana’s constitution. Soon companies across the state joined in, and a coordinated effort among many groups supporting marriage equality managed to delay the constitutional question.

This set off a chain reaction that ended this week with Indiana joining the ranks of states granting full legal rights to marriage for same-sex couples, an odyssey that would not have occurred without the early commitment of Cummins, Lilly, WellPoint and other businesses. * * *

Here’s an interesting fact. Cummins was hip to marriage equality well before many Fortune 500 companies, including Lowe’s, Bank of America and Target. A writer for The Guardian in January seemed surprised that Cummins and Lilly had each pledged $100,000 to found Freedom Indiana when other big companies were just coming around on the issue.

It didn’t stop there. Nearly 30 companies, big and small, from across Indiana are listed as Freedom Indiana supporters. Along with Indiana Equality and several legal rights groups, Freedom Indiana turned the momentum, helping Hoosiers understand that marriage equality was a matter of fairness that is good for business.

A statement from the First State Bank of Porter makes it plain. “In addition to being able to attract the most talented employees, we must charge our Indiana legislators with the responsibility of representing all resident constituents, without prejudice or bigotry.”

ILB: And the ILB is pleased to note that the President of the First State Bank of Porter is an old hometown/high school/college friend.

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Indiana Law

Ind. Decisions - "Judge rules Marion County judicial election system unconstitutional"

Following up on yesterday's opinion by federal district Judge Young (ILB post here) is today's Indianapolis Star story by Kristine Guerra and Marisa Kwiatkowski. a few quotes:

Judicial candidates in Marion County aren't elected like everyone else.

The two major political parties conduct primary elections in which they nominate candidates for the exact number of judicial seats to be filled. That means those who get party nominations in the primary are virtually assured of winning in the general election.

That is now likely to change. And the Indiana General Assembly ultimately might have to craft a new system of electing judges. * * *

Julia Vaughn, policy director for Common Cause, applauded the ruling and said judicial selection has been a "cruel joke" on Marion County voters.

"It put party bosses in control of the process," she said. "Voters should be in control of the process to select judges."

The state argued that the current system makes judicial elections more manageable. Marion Superior Court has 36 judges who hear most criminal and civil cases. They serve six-year terms and are elected in two election cycles.

Defendants also raised concerns that turning elections into a "free-for-all" system could lead to intense partisanship and expensive campaigning, and that "including scores of candidates could lead to voter confusion and voter fatigue and the inability of voters to understand what any particular candidate stands for," according to court documents.

Ken Falk, legal director of the ACLU of Indiana, called the reasoning "ridiculous."

"You can't protect the electorate from confusion by having a system where voting doesn't make any difference," he said. * * *

The state has 30 days to file an appeal. Young has issued a stay that will be in effect during that 30-day period. If the state appeals, the stay will remain in effect until a final decision is made by the 7th U.S. Circuit Court of Appeals.

Because of the stay and the fact that the next judicial election won't be until 2018, the state legislature will have four years to figure out how to fix the system, said Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Schumm, appellate court Judge John Baker and former Supreme Court Justice Ted Boehm advocate for Marion County to move to a merit selection system, such as the ones used in Lake and St. Joseph counties.

Under merit selection, a judicial nominating commission made up of lawyers and laypeople interviews applicants and recommends candidates to the governor, who makes the final decision.

Proponents of such a system include the American Judicature Society*, American Bar Association and Indiana State Bar Association.

"I think the selection of judges should be as far removed from the need to raise money as possible," Boehm said. "In a large metropolitan area, it's impractical to know who these judges are and to exercise an intelligent vote."

Baker said there have long been problems with Marion County's "pay-to-play" system, in which the major political parties ask judicial candidates seeking endorsement to pay thousands of dollars to the party.

"I'm glad that somebody had the gumption to challenge it," Baker said, "but now that we know it's wrong, we have to come up with something that's right."

ILB: Unrelated to today's story, but an interesting news item is that the American Judicature Society has announced it is dissolving. The details are on its homepage.

Posted by Marcia Oddi on Friday, October 10, 2014
Posted to Ind Fed D.Ct. Decisions

Thursday, October 09, 2014

Ind. Decisions - Statement of IndyBar re today's Marion County Judicial System Decision

Statement of Indianapolis Bar Association Regarding Marion County Judicial System Decision:

The Indianapolis Bar Association (“IndyBar”) is reviewing Judge Young’s decision holding unconstitutional Marion County’s current system for selecting judges. For more than twenty years, the IndyBar has taken an active interest in the best methods of selecting judges in Marion County. Through its Attorneys for an Independent Bench (AIB) Committee, the IndyBar intends to offer its assistance in crafting a remedy to address the Judge’s decision. Marion County has been well served by its excellent judges over the years, and inclusive engagement of all interested parties in creating a new judicial selection method will ensure that continues.
See this ILB post for today's decision.

Posted by Marcia Oddi on Thursday, October 09, 2014
Posted to Ind Fed D.Ct. Decisions

Law - "Harvard Law Review Claims Copyright Over Legal Citations; Now Challenged By Public Domain Effort"

That is the headline to a fascinating, long article yesterday by Mike Masnick in TechDirt.

Posted by Marcia Oddi on Thursday, October 09, 2014
Posted to General Law Related

Ind. Decisions - ILB cited in today's Marion County judges election opinion

On page 14 of today's opinion in Common Cause v. Indiana, the Court writes:

{T]he electoral scheme set forth in the challenged Statute does not contemplate contested judicial races in the general election.[4]
______________
[4]This point is best exemplified by a recent post from the Indiana Law Blog, dated two months before the general election, which lists the changes in the court assignments to the Marion Superior Court, effective January 1, 2015. Ind. Courts – Changes in Marion County Court Assignments, Indiana Law Blog (Sept. 5, 2014, 4:18 PM), http://indianalawblog.com/archives/ 2014/09/ind_courts_chan_16.html.

Posted by Marcia Oddi on Thursday, October 09, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - District Court rules for plaintiffs in challenge to Marion County judicial elections method [More]

Here is the 19-page opinion by Judge Richard Young.

The Court finds "the challenged Statute severely burdens the right to vote" and:

the Defendants asserted state interests do not justify the challenged Statute. Accordingly, the court finds and declares that Indiana Code § 33-33-49-13(b) is unconstitutional. * * *

Conclusion. Common Cause has successfully established that the challenged Statute, Indiana Code § 33-33-49-13(b), is invalid on its face – i.e., in all its applications. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 200 (2008). Common Cause’s Motion for Summary Judgment (Filing No. 40) is GRANTED, and the Defendants’ Motion for Summary Judgment (Filing No. 57) is DENIED. Defendants are permanently enjoined from enforcing Indiana Code § 33-33-49-13. The court’s ruling is hereby STAYED during the thirty-day period within which the Defendants may file a Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a). If a Notice of Appeal is filed, the court’s ruling is STAYED pending a final determination by the Seventh Circuit Court of Appeals.

ILB: It appears this ruling will not impact the upcoming November Marion County election, but if it holds up on appeal, it will be back to the drawing board for the General Assembly.

[More] For background start with this Nov. 12, 2013 ILB post, which traces the progress of the case since it filing on Nov. 1, 2012.

[Updated at 2:50 PM] From an ACLU of Indiana press release:

Indianapolis -The American Civil Liberties Union of Indiana today prevailed in a lawsuit challenging the state law that governs the process of electing judges in Marion County that created a vague system where each major party nominated half of the judicial candidates resulting in a general "election" where all those running will be victorious. * * *

The law effectively removed real choice from voters and rendered election of judges a mere formality. Under the law, each of the major political parties conducted a primary election at which each party selected exactly half of the seats to be filled in Marion Superior Court. Voters in Marion County who did not cast a ballot in the primary election had absolutely no say in electing judges the Court. Even people who did vote in the primary election had a say in only half of the judgeships. * * *

Chief Judge Young stayed his decision for 30 days, or until after a decision or appeal issues, meaning that the decision will not affect the November, 2014 election.

In addition, the Indianapolis Star has now posted a story on today's ruling.

Posted by Marcia Oddi on Thursday, October 09, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Supreme Court: Causes of death are public record"

The ILB has had a number of posts about the important public access case, Evansville Courier and Press, et al v. Vanderburgh City Health, decided Oct. 7th, beginning at the trial level. See particularly this post from Dec. 9, 2012, and this one from Jan. 30, 2013, as well as this one from May 8, 2014.

Here are some quotes from Leslie Weidenbener's comprehensive StateHouseFile.com story, as published today by the Indianapolis Star:

County records that list a cause of death are open to the public, the Indiana Supreme Court ruled Tuesday.

In a unanimous decision, the court said death certificates maintained by county health departments are subject to the Access to Public Records Act and are not covered by any exemptions.

"The court got it right," said Steve Key, executive director of the Hoosier State Press Association.

"It's a victory for the public because now individuals can either do research to find out about family histories and whether there's a propensity for heart disease or cancer in a family," Key said. "And communities can check records to see if there's a correlation between cancer deaths and abandoned or closed manufacturing plants or possibility contamination of the water supply."

The Indiana Supreme Court overturned lower court decisions in favor of the Vanderburgh County Health Department, which had deemed the records – at least those that list the cause of death – as confidential. It also claimed not to have records to provide because it had no paper copies and instead maintained the information in a computer database.

The Evansville Courier & Press and a Pike County woman sued, claiming the health department's refusal to provide the information violated state law. The paper had for a decade been maintaining a database of all death records, including causes of death.

In a decision written by Justice Mark Massa, the Supreme Court said county health departments have an "unambiguous statutory obligation" to retain a copy of all death certificates. And the justices said the law doesn't distinguish between records that are electronic and those that are paper.

"The essence of the law — that the local health department must collect and maintain death certificates — remains the same regardless of the means used to comply with it," the court said.

The court then ruled that a death certificate – and the cause of death it lists – are subject to the public records act. But the decision also said that the State Department of Health is permitted by law to keep the same records confidential.

Tim Ethridge, editor of the Evansville Courier & Press, said the newspaper is pleased with Tuesday's decision.

"We already have requested the missing block of causes of death from our local health department, which is working with us to make the process work as efficiently as possible for both sides," Ethridge said. "So hopefully our data bases will be updated sooner rather than later, and we can all get back to business as usual."

The decision distinguished between three types of death records. The first is the death certificate, which lists a cause of death and is filed with the county health officials by a doctor or funeral home attendant. Local health officials then use that information to create a permanent record that does not include the cause of death. Finally, the health department must provide a certification of death to anyone with "a direct interest in the matter" for personal or property rights issues.

At issue in the case were the first two types of records.

"We're happy that Justice Massa and the court saw what we saw: That we were disputing two different sets of records," he said. "And the intent of all the legislation dating back to the 1880s was public safety – to make the cause of death available to researchers and others. It makes perfect sense to us that public records should be available to the public."

Posted by Marcia Oddi on Thursday, October 09, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In Stacey D. Cox v. State of Indiana , a 9-page opinion, Judge Najam writes:

Stacey D. Cox appeals her convictions for involuntary manslaughter, as a Class D felony, and operating a child care home without a license, a Class B misdemeanor. She presents two issues for our review, which we consolidate and restate as whether the State presented sufficient evidence that Cox operated a child care home under IC 12-17.2-5-28.6.[1] * * *

Therefore, Cox’s claim is not persuasive. As discussed, the State established that a total of nine children were found in Cox’s home on January 24, and, on the evidence presented, a jury could infer that all nine were not related to Cox. Moreover, in addition to the testimony regarding compensation for the care of C.T., L.T., Duke’s child, and Milem’s child, Cox’s website declared that she charged regular fees for her child care services. Again, “[t]he evidence is sufficient if an inference may reasonably be drawn from it to support the verdict,” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007), and a reasonable jury could infer from the evidence that Cox received regular compensation to care for at least six unrelated children in her home. We affirm her convictions.
__________
[1]Cox’s conviction for involuntary manslaughter also turns on whether she operated a child care home.

NFP civil opinions today (4):

Richard R. Hogshire v. Ursula Hoover (NFP)

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

In Re the Marriage of: John R. Garrett v. Penny L. Brown (NFP)

Dexter Marshall Jr. and US Auto Insurance Company, Inc. v. United Farm Family Mutual Insurance Company (NFP)

NFP criminal opinions today (4):

Antoine McDuffie v. State of Indiana (NFP)

John W. Hayes v. State of Indiana (NFP)

Daryl K. Henderson, Jr. v. State of Indiana (NFP)

James M. Ross IV v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 09, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - Former employee, fired for being a gun owner, sues under statute

Sarah Reese reported in the NWI Times yesterday:

CROWN POINT | A former Lakes of the Four Seasons employee is suing the gated community's property owners association because he claims he was illegally fired for being a gun owner.

Nino Ferlaino, who worked as a seasonal landscaping employee at LOFS for 21 years, says in a lawsuit filed Monday in Lake Circuit Court that he was confronted by a supervisor two days after he told co-workers he is a gun owner.

The supervisor, Doug Weiss, on July 2 asked Ferlaino if it was true he carried a gun, the lawsuit says. Ferlaino claims he replied he owned a gun but did not carry it on him at work.

Weiss told Ferlaino that Weiss had met with the property owners association's board of directors July 1 and that Ferlaino's conversation with his co-workers violated the company's "no tolerance policy," the lawsuit says. Ferlaino says he was fired July 2. * * *

The association violated Indiana's "take your gun to work law," which was amended in 2011, because it required Ferlaino to divulge information about owing a gun and fired him because he's a gun owner, Ferlaino's attorney, Marissa McDermott, said in an email. [ILB: IC 34-28-8, particularly secs. 7 & 8]

The law also forbids most employers from preventing their employees from bringing a gun to work if the firearm is secure in the employee's vehicle, McDermott said.

"The law in question is relatively new and many employers may not know what rights it affords their employees," McDermott wrote.

McDermott said she believes this is the first case of its kind to be filed in Lake County.

Posted by Marcia Oddi on Thursday, October 09, 2014
Posted to Indiana Law

Wednesday, October 08, 2014

Ind. Gov't. - Four counties still not ready to issue same-sex marriage licenses [Updated]

That is according to this WISH-TV story this evening by Nina Criscuolo. According to the story, the hold-outs are Boone, Crawford, Lawrence and Jefferson counties.

Ironically, the Boone County Clerk is the named defendant in the lead lawsuit, Marilyn Rae Baskin and Esther Fuller, et al. v. Penny Bogan, in her official capacity as Boone County Clerk. et al. Some quotes from the story:

“Any time we’re running an election or any other clerk’s duties, it’s a hectic time,” Boone County Clerk Penny Bogan said.

It’s a busy week for Indiana court clerks. Early voting is now underway and the Supreme Court’s action effectively legalizing same-sex marriage adds to the work load.

“I was advised by my county attorney to actually hold off until we have more guidance by the state,” Bogan said. * * *

“I think that most people realize that we don’t want to have couples coming in, applying, and then being turned away again,” Bogan said.

Bogan said she’s waiting for guidance from the attorney general, 7th Circuit Court of Appeal, and most importantly the county attorney.

“I being the lead defendant on the Baskin vs. Bogan, he’s been abrupt [sic.] with everything that comes through and I recognize that he’s my guidance through all this,” Bogan said of the county attorney. * * *

Bogan says she’s not dragging her feet, just waiting for a clear green light.

“I took an oath of office to uphold any laws that come through. That’s not the reason. I just want to make sure everything is good to go,” Bogan said.

24-Hour News 8 did reach out to Boone County Attorney Bob Clutter Wednesday afternoon for comment, by leaving a message at his office, but we did not receive a call back.

Bogan says she hopes to get the go ahead on issuing marriage licenses to same-sex couples by the end of the week. She says she hasn’t had to turn away any gay couples.

[Updated 10/9/14 at 11:45 AM] WISH-TV now reports "All 92 counties in Indiana are now officially issuing same-sex marriage licenses."

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Indiana Government

Ind. Gov't. - Governor Pence advises state agencies in the wake of the SCOTUS action Monday

From the Governor's press office:

Hello Marcia,

Here’s the memo you asked for, which was sent out yesterday [Oct. 7]. The Governor is instructing his agencies to comply with the court order and follow the rule of law just as he did on the other two occasions when a decision regarding the state’s recognition of same-sex marriage was handed down from the courts.

Thanks.

And the memo:
To executive branch agency heads and select general counsels:

The Supreme Court of the United States denied Indiana’s petition to review the 7th Circuit Court of Appeal’s affirmation of the United States District Court’s ruling(s) invalidating IC 31-11-1-1 (a) and (b). Today the 7th Circuit lifted the stay of the District Court’s injunction prohibiting enforcement of Indiana’s statutory ban on same sex marriages.

To ensure that all Indiana executive branch agencies are operating with a common understanding of the law and pursuant to the same management guidance, I issue the following explanation and instructions effective today.

No executive branch agency may deny any state benefit or recognition otherwise available or provided to a married individual because that individual is married to a person of the same sex, whether that individual was married in Indiana or another jurisdiction. Executive branch agencies are to recognize same sex marriages in the same manner as they recognize heterosexual marriages.

All executive branch agencies must take whatever actions are necessary to implement any processes required to comply with the court’s order.

I recognize that every agency operates under different sets of laws, forms, approvals and requirements. You, your general counsels and staff know those better than I. The direction is for each agency to look at its own processes and make changes to implement the law and recognize same sex marriages. If you have any implementation or administrative problems, please call your agency contact in the Governor’s office, or me, if we can help.

Thank you.

Mark

Mark G. Ahearn
General Counsel to Indiana Governor Mike Pence

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Indiana Government

Ind. Law - So, what is going to happen to Indiana's marriage statute?

Our applicable Indiana statute, IC 31-11-1-1 reads:

Sec. 1. (a) Only a female may marry a male. Only a male may marry a female.
(b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.
As added by P.L.1-1997, SEC.3. Amended by P.L.198-1997, SEC.1.
It has been invalidated by federal court decision. So what will happen to it? Will the upcoming General Assembly repeal it and replace it? This is only one of many Indiana statutes impacted. Is a survey being undertaken?

Lee Davidson reported Oct. 6th in the Salt Lake Tribune that "Utah legislators may rewrite state law on gay marriage: From parental rights to terminology, some lawmakers see lots of details to be worked out." The valuable story raises a number of interesting issues.

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Indiana Law

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

For publication opinions today (1):

In Rodney A. Richard v. State of Indiana , a 7-page opinion, Judge Robb writes:

Rodney A. Richard appeals his Class A felony convictions for dealing in cocaine within one thousand feet of a public park and dealing in cocaine within one thousand feet of a family housing complex. Richard raises two issues for our review, which we consolidate and restate as one: whether there was sufficient evidence to support Richard’s convictions. We conclude there was sufficient evidence to convict Richard of dealing in cocaine within one thousand feet of a public park, and we affirm that conviction. We also conclude, however, the State did not offer sufficient evidence to prove Richard committed dealing in cocaine within one thousand feet of a family housing complex. Accordingly, we reverse that conviction as a Class A felony and remand with instructions that the trial court enter a conviction as a Class B felony and resentence Richard on that count. We therefore affirm in part, reverse in part, and remand. * * *

At trial, the State submitted evidence that arguably established that Garden Estates Housing Complex was a family housing complex within one thousand feet of the offense at the time of trial. However, the State failed to submit evidence at trial proving beyond a reasonable doubt that such was true at the time of Richard’s offense, which occurred more than one year earlier.

NFP civil opinions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.J.L. and J.L., Minor Children, and their father, S.L., S.L. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Dominique Burton v. State of Indiana (NFP)

Veldon Thompson v. State of Indiana (NFP)

Glendal Rhoton v. State of Indiana (NFP)

Allen E. Vaughn Jr. v. State of Indiana (NFP)

Frederick L. Freeman v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court vacates transfer in case argued Oct. 2nd

The Supreme Court heard oral argument Oct. 2nd in State Board of Funeral and Cemetery Services v. Settlers Life, a case where transfer had been granted and the Court of Appeals opinion vacated. You can watch it here.

In an order filed Oct. 7th, the Court has decided:

After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported at State Board of Funeral and Cemetery Service v. Settlers Life Insurance Co., 5 N.E.3d 1170 (Ind. Ct. App. 2014), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "State tweaking marriage license forms to remove gender references" But problems remain

Chelsea Schneider reports this morning in the $$$ Evansville Courier & Press:

The day after the Supreme Court’s decision not to review the same-sex marriage cases, the state was making tweaks to its electronic form county clerks use to process marriage licenses, and Gov. Mike Pence’s office sent state agency heads an advisory on complying with the court’s order. * * *

The Indiana State Department of Health planned to update the online version of the forms beginning Tuesday evening, making changes available to county clerks by Wednesday morning, according to Amy Reel, a spokeswoman for the state agency. Additionally, Indiana Attorney General Greg Zoeller’s office has advised clerks who use paper forms to cross out the titles of “husband” and “wife” to make the forms gender neutral, according to an advisory the office issued to clerks in all 92 Indiana counties.

In a memorandum sent by Pence’s general counsel, agency heads were told they needed to recognize same-sex marriages and heterosexual marriages equally.

“No executive branch agency may deny any state benefit or recognition otherwise available or provided to a married individual because that individual is married to a person of the same sex, whether that individual was married in Indiana or another jurisdiction,” according to the memo by Mark Ahearn.

Ahearn also advises state agency heads to take the actions necessary to follow the court’s order. [ILB - I wonder if this is the same memo he sent out in June?]

ILB: Sure enough, this morning the online form is updated, you can now see the changes starting here, where the corrected right column lists "Applicant 1" and "Applicant 2", rather than "Male Applicant" and "Female Applicant" as had been required until today. The earlier form can be seen in this June 26, 2014 ILB post.

Interestingly, although it is reported that the Health Dept. updated the form, the bottom of the new form indicates "The Marriage License e-File application was developed by the Division of State Court Administration's Judicial Technology and Automation Committee and is based on applicable state laws and regulations."

Problems Remain. Although the forms are now correct, this is only the tip of the iceberg. The reason for automating the marriage license application was to create a Marriage License Database. The bottom of the June 26th ILB post gives the example of Jacob R. Miller and Michael C. Bowen, who were the "first same-sex couple to wed in Indy." To look them up in the Indiana Court's Marriage License Database, you have to know which name was "bride" and which was "groom." So if you search for "Miller, Jacob" in the wrong boxes, you get "We're sorry. Your search for "jacob miller" did not return any results." The same likely holds true for any of the other hundreds of licenses issued during the June "window."

Two questions.

  1. Will the June window problem be repaired?

  2. What about Applicant 1 and Applicant 2? Will the same problem exist now if you do not know which member of the couple registered as applicant #1?

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Indiana Government

Ind. Decisions - More on: Indiana issues that may be considered by the SCOTUS; and cases where Indiana is an amicus

In this post from Oct. 3rd, Gannett's Maureen Groppe listed some of the amicus briefs Attorney General Zoeller has joined (i.e. signed but not authored) on behalf of the citizens of the State of Indiana in cases pending before the SCOTUS. But her story did not indicate what position Indiana was supporting in each of the cases. Here is the list from Groppe's story:

Immediately on Oct. 3rd the ILB asked the AG's office for the identity of the specific briefs the AG has signed on to. For instance, here is the list of merit and amicus briefs filed in the teeth-whitening case (North Carolina Board of Dental Examiners v. Federal Trade Commission). Which amicus brief or brief has the State of Indiana joined; what position has the State of Indiana taken in the case?

The ILB has just received this response from Bryan Corbin, Public Information Officer, Office of the Indiana Attorney General [links from SCOTUSblog added by ILB]:

As noted, these are briefs where the AG’s Office as state government’s lawyer on behalf of state government signed onto a multistate brief authored by and filed by another state. We did not author or file directly any of the multistate briefs the Gannett story referenced.As noted in the Gannett story, among the factors the Attorney General’s Office considers in deciding whether to join another state’s amicus brief are whether there is a substantial state government interest, a threat to an Indiana statute, possible preemption of state sovereignty or an issue of separation of powers. The U.S. Supreme Court has encouraged states through their state AG offices to submit amicus briefs in cases of importance to state governments.

Thanks

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Indiana Decisions

Ind. Gov't. - Yesterday proves fenced hunting never really dead

Two good reports today, from Ryan Sabalow of the Indianapolis Star, and from Niki Kelly of the Fort Wayne Journal Gazette.

Some quotes from Sabalow's long story, which is headlined "Will state face another high-fence deer hunting debate?"

A legislative study committee has set the stage for yet another contentious legislative fight next year over high-fence hunting in Indiana.

In an 8-3 vote, the Interim Study Committee on Agriculture and Natural Resources recommended the state legislature in 2015 pass a law that would legalize and set standards for high-fence hunting preserves.

But because this issue has come up before the General Assembly repeatedly in recent years and deadlocks every time, any high-fence legislation faces an uncertain future.

"I think, obviously, it's got an uphill battle," said state Sen. Michael Crider, R-Greenfield, a former Department of Natural Resources law enforcement official who's opposed to high-fence hunting. Crider was one of the three lawmakers to vote against the recommendations.

The committee took no action on any other matters related to chronic wasting disease, including any discussions on banning imported captive deer.

State Rep. Sean Eberhart, R-Shelbyville, said the committee felt state Board of Animal Health officials adequately test and monitor captive deer herds for disease.

"The disease part does not worry me at all," Eberhart said.

This spring, Senate President Pro Tempore David Long called for a summer study session on deer breeding in the wake of an Indianapolis Star investigation of the industry, its practices and the potential for spreading diseases, including CWD.

There's no live test for the disease. Samples from a dead deer must be analyzed to make a diagnosis.

Wildlife officials across the country say there is compelling circumstantial evidence that captive deer farms and hunting preserves have spread disease, as deer are shipped across state lines to be killed in the private preserves and as breeding stock.

CWD, a brain disease specific to animals that is similar to mad cow, is of particular concern. It has been found in 22 states.

The Star's investigation revealed that in half of those states, CWD was found first in a commercial deer operation. While that alone isn't proof of the industry's influence, The Star uncovered several cases in various states where wildlife officials suspected infected farms introduced the disease to the wild.

Some quotes from Kelly's long story, which is headed "Hunting preserve regulations advised."
Lawmakers on an interim study committee voted 8-3 Tuesday to recommend that the General Assembly legalize and regulate high-fenced hunting preserves in the 2015 session.

The specific requirements and logistics of a bill would be hammered out starting in January. Similar attempts have failed in recent years.

Rep. Bill Friend, R-Macy, offered the proposal instead of having the Indiana Department of Natural Resources do another study and come up with its own plan.

“We really need legislation enacted that clarifies the situation we are in,” he said.

The Agriculture and Natural Resources Study Committee heard nearly five hours of testimony recently on the issue of disease in captive deer herds. It’s the latest chapter in the decade-long debate over high-fenced hunting in Indiana. * * *

A lawsuit by several facility owners has been pending for nine years. The Indiana Court of Appeals is weighing whether the DNR has authority over privately held deer.

The case will likely move to the Indiana Supreme Court no matter which way the court rules.

Posted by Marcia Oddi on Wednesday, October 08, 2014
Posted to Indiana Government

Tuesday, October 07, 2014

Ind. Gov't. - Today proves fenced hunting never really dead

A story from Feb. 5, 2014, reported by Niki Kelly of the Fort Wayne Journal Gazette, began:

A move to legalize and regulate high-fenced hunting preserves failed in the Senate Tuesday when it didn't receive enough votes to either be defeated or approved.
This story from April 5, 2013, also by Kelly, began:
Senate President Pro Tem David Long is wading again into the debate over high-fenced deer hunting in Indiana, saying the provision inserted into a Senate bill while in House committee will be removed.

The Fort Wayne lawmaker said a fellow senator who previously worked at the Indiana Department of Natural Resources has helped educate him on the issue, including showing him a video that is appalling. * * *

Last year, Long similarly quashed a move to legalize canned hunts. That bill would have legalized the activity completely.

The amendment added to Senate Bill 487 this year focused on legalizing only five existing hunting preserves caught in a legal and regulatory quagmire.

It faces a full House vote next week before the Senate could see the legislation again. * * *

Gov. Mike Pence said Thursday he would be open to legislation allowing the five existing preserves to continue operating, though with appropriate standards in place.

From Feb. 4, 2012, a story by Grace Schneider in the LCJ:
For the last six years, the state of Indiana and a handful of owners of hunting preserve surrounded by high fences held a shootout in state court over whether the operations are legal under current law. * * *

On Tuesday, the Indiana House passed a bill, 56-40, that would grandfather four existing hunting preserves, including Bruce’s in Harrison County, and set regulations to allow new preserves.

Both Gov. Mitch Daniels and Senate President Pro-Tem leader David Long, R- Fort Wayne, said they oppose lifting the ban on the hunting and don’t support the House action. Long also indicated he’d see the legislation doesn’t get a hearing.

Still, [Rodney Bruce, a plaintiff in the lawsuit and owner of a 120-acre hunting preserve Whitetail Bluff, west of Corydon] said Friday that he remains hopeful.

“If we don’t get it done this year, we’ll get it done next year. It’s far from over” this session, he added.

Earlier this year the Indianapolis Star ran Ryan Sabalow's lengthy and powerful, four-part series on the deer farming industry.

Just last week Sabalow reported: "Nearly 300 white-tailed deer tested positive for chronic wasting disease on an Iowa deer farm, the most infected animals ever found inside a farmer's pens."

So today the Agriculture and Natural Resources Study Committee met to consider the issue. The result - the same old, same old! Leslie Weidenbener reports this evening in a lengthy story in the Evansville Courier & Press:

INDIANAPOLIS — Fenced deer hunting preserves would be legalized and regulated in Indiana if the General Assembly implements a recommendation approved Tuesday by a legislative study committee.

The group’s endorsement went beyond simply legalizing the handful of preserves that already exist.

Instead, the Agriculture and Natural Resources Study Committee voted 8-3 for a blanket recommendation that the state regulate preserves, a move that would legalize those already in operation and could allow new ones to open. The recommendation will be considered during the General Assembly’s next session, which begins in January. * * *

If approved by the General Assembly, the panel’s recommendation would end a nine-year standoff between the preserves and the Indiana Department of Natural Resources, which said in 2005 that no state law authorized the operations.

After the DNR moved to shut them down, the owner of Whitetail Bluff and other operations filed separate lawsuits, which led to conflicting court rulings. The Indiana Appeals Court is now considering the issue and the preserves have continued to operate under court order.

Meanwhile, lawmakers have considered bills to ban the operations and others to legalize them. Earlier this year, a bill that would have legalized and regulated the existing hunting operations passed the House and died in the Senate when only 25 of the chamber’s 50 senators voted yes. It takes 26 votes to pass a bill.

The fenced preserves are controversial among hunting groups, many of which consider them to be unethical. And on Tuesday, state Sen. Tim Skinner, D-Terre Haute, told the committee, “I can’t imagine anyone I know wanting to participate in this kind of a hunt.”

But supporters say the operations offer people who live in urban areas or those with disabilities opportunities to hunt they might not otherwise have.

DNR Director Cameron Clark told the study committee Tuesday that his agency does nothing to regulate the properties now because the court order doesn’t allow it. But he said conservation officers will occasionally go on the properties to see about a broken fence that can or has allowed a farm-raised deer to escape.

Meanwhile, an appeal of Ind. Dept. of Natural Resources, et al. v. Whitetail Bluff, has been fully briefed and was submitted to the Court of Appeals over a month ago. See this May 29th ILB post for details, as well as this update from the same day and this one from May 30th. See also this June 2nd post, headed "Canned hunting policy the focus of interim committee study and an appeals court challenge ."

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Indiana Government

Courts - " It now seems clear that the same-sex marriage campaign has succeeded — or very soon will — in 35 states, plus the D.C."

So writes Lyle Denniston in this new SCOTUSblog post.

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Courts in general

Ind. Courts - All four judges/justices up for retention get high scores from ISBA members

The ISBA has just posted the results of its poll of the membership:

The Indiana State Bar Association (ISBA) has completed its compilation of the 2014 Judicial Retention Poll responses. Results indicate strong support by ISBA members of Chief Justice of Indiana Loretta H. Rush, Indiana Supreme Court Justice Mark S. Massa, Indiana Court of Appeals Judge Rudolph R. Pyle III and Indiana Tax Court Judge Martha B. Wentworth, all seeking retention on the Nov. 4 Election Day ballot. * * *

ISBA members were electronically surveyed three times from Sept. 11 through Oct. 3. Of the 9,753 members polled, 1,143 cast ballots. * * *

The yes/no retention results of the justices and judges (with their swearing-in dates) are as follows:

Chief Justice of Indiana Loretta H. Rush (Nov. 7, 2012): Y-92%; N-8%; 1,125 votes cast

Justice Mark S. Massa
(April 2, 2012): Y-80%; N-20%; 1,098 votes cast

Judge Rudolph R. Pyle III (Aug. 27, 2012): Y-86%; N-14%; 1,015 votes cast

Judge Martha B. Wentworth (Jan. 17, 2011): Y-84%; N-16%; 1,014 votes cast

ILB: Three comments:

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Courts in general

Ind. Gov't. - More on: Same Sex Marriage Implementation guidance from AG's office to County Clerks

Supplementing this ILB post from yesterday, here is more today from the AG:

NOTE: The Indiana Attorney General’s Office today sent this letter to county clerks in Indiana’s 92 counties offering legal guidance regarding the mandate issued today by the U.S. 7th Circuit Court of Appeals in Chicago:

As an update to yesterday’s message, the Office of Attorney General wanted to notify you that we have just received the official mandate from the 7th Circuit Court of Appeals. That means that the stay of the injunction has been lifted and as mentioned below county clerks will be prohibited from denying marriage licenses to same sex couples so long as all other marriage license requirements are met. The ISDH updates to the electronic license applications will be completed soon. Please feel free to contact me if you have any questions.

Thank you,

Matt Light
Chief Deputy
Office of Indiana Attorney General Greg Zoeller

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Indiana Government

Ind. Gov't. - "Bosma not talking about gay marriage now"

From Niki Kelly of the Fort Wayne Journal Gazette, this report:

When the decade-long fight over gay marriage in Indiana abruptly ended Monday, one voice was surprisingly quiet - House Speaker Brian Bosma.

Over the years, Bosma has been one of the staunchest proponents of defining marriage as between one man and one woman, especially putting it in Indiana's Constitution.

In 2004 during a partisan stand-off in the Indiana House, Bosma - then minority leader - stood up on the House floor and shouted that a constitutional ban on gay marriage was the "most critical piece of the people's business."

His caucus also fled the chamber, causing dozens of bills to die.

Then earlier this year Bosma manipulated the committee process, where the constitutional amendment was expected to die, to ensure it moved to the full House for a vote.

So what did he have to say Monday when the U.S. Supreme Court effectively legalized gay marriage in five states including Indiana by turning down appeals on the matter?

Nothing.

Reporters contacted his spokeswoman and were told a statement would not be issued. That is unlike Senate President Pro Tem David Long and Gov. Mike Pence, who both tackled the issue head-on.

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Indiana Government

Ind. Decisions - Still more on: One of the NFP appeals today reeks to high heaven!

Updating this ILB post from Oct. 2nd, which referenced two different Court of Appeals opinions remarking in footnotes that the transcript had returned to the court reeking of tobacco, Kristine Guerra of the Indianapolis Star has now picked up the story for the Sunday Behind Closed Doors, properly crediting the ILB.

Guerra questioned AG spokesman Bryan Corbin about the source of the problem:

Corbin said the agency won't speculate on how the documents became smelly or "whether files incidentally come into contact with secondhand tobacco smoke when being handled by the many individuals and offices involved in an appeal."

Corbin said the agency takes precautions against outside contact with smoke. He added that the agency does not recall any other complaints and that "two footnotes in two years is indeed a rarity," considering the office handles about 1,300 new criminal appeals each year.

He said what's more important is that in both cases, the appellate court upheld the convictions "and the condition of some paper in the appeal has no bearing on that fact."

ILB: Really? Two public complaints in two years, immortalized in court opinions, is not enough? Some might consider this a reason for documenting every transcript that is returned to the court noticeably announcing its presence by its odor.

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on "Court rules against Long Beach lakefront property owners"

Updating this ILB post from Oct. 6th, re the case pending before the Court of Appeals on "Who owns the Lake Michigan beach front?" the ILB has now obtained a copy of the amicus brief filed in support of appellants by the Pacific Legal Foundation.

The ILB would also be pleased to post the briefs of the parties in this significant appeal; please contract me.

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In In re the Paternity of: J.G. (Minor Child), H.G. v. T.C. III , an 11-page opinion, Judge Baker writes:

H.G. (Mother) appeals the trial court’s order granting the request of T.C. III (Father) to modify the parties’ child custody and child support orders. Mother argues that the trial court lacked subject matter jurisdiction and that it abused its discretion in modifying the existing custody order. We find that by entering into an agreement regarding child custody and visitation as part of the paternity proceeding, Mother stipulated to the jurisdiction of the trial court over those issues. Further, finding no error in the trial court’s decision to modify the order and award custody to Father, we affirm.
In Justin J. Clark v. State of Indiana , a 9-page opinion, Judge Pyle writes:
Appellant/Defendant, Justin J. Clark (“Clark”), appeals his sentence of forty-five (45) years executed for his conviction of Class A felony robbery resulting in serious bodily injury. He argues that the sentence was inappropriate in light of the nature of his offense and his character and that he should not have been sentenced to the same amount of time as his co-defendant. We disagree and conclude that the trial court’s sentence was appropriate.
NFP civil opinions today (2):

Jo Ann Hacker v. Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, f/k/a Countrywide (NFP)

Larry W. Dudley v. Review Board of the Indiana Department of Workforce Development and TC Heartland, LLC (NFP)

NFP criminal opinions today (2):

Shawn L. Moore v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisons - Supreme Court rules that certificates of death are public records

In Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department, a 13-page, 5-0 opinion much awaited, Justice Massa writes:

This case presents the issue of whether the certificates of death that doctors, coroners, and funeral directors file with county health departments pursuant to Indiana Code chapter 16-37-3 are public records that a county health department must provide public access to under the Indiana Access to Public Records Act. We believe they are, and therefore we reverse the trial court.

Death Certificates Are Public Records and May Be Freely Obtained from the County Health Department.

Appellants argue the trial court’s ruling was erroneous because (1) although the Department claims it does not have the requested records, Indiana Code section 16-37-3-3 requires the Department to maintain a copy of each death certificate filed, and (2) those death certificates are “public records” subject to APRA and not covered by any statutory exemption. We agree.

A. County Health Departments Must Keep a Copy of Each Death Certificate Filed. * * *

B. Death Certificates Are Public Records for the Purpose of APRA.

Appellants contend death certificates, including the cause of death information thereupon, are public records and therefore subject to APRA, which provides: “Any person may inspect and copy the public records of any public agency during the regular business hours of the agency.” Ind. Code § 5-14-3-3(a) (2010 & Supp. 2013). * * *

In our society, death is an intimate and personal matter. We recognize that public disclosure of the details of a decedent’s death may cause pain to his family and friends. We are also mindful of the importance of open and transparent government to the health of our body politic. Our General Assembly has considered these competing interests and, insofar as we can determine, concluded that the public interest outweighs the private. Indeed, in recent history, it has rejected three bills that would have exempted death certificates from APRA. See H.B. 1067 § 11, 114th Gen. Assem., 2nd Reg. Sess. (Ind. 2006); H.B. 1551 § 9, 114th Gen. Assem., 1st Reg. Sess. (Ind. 2005); H.B. 1540 § 8, 113th Gen. Assem., 1st Reg. Sess. (Ind. 2003). Even if we wished to rebalance the scales, it is beyond our power to do so.

Conclusion. We reverse the trial court and remand this case for entry of summary judgment in plaintiffs’ favor. Upon remand, the trial court should also determine whether to award plaintiffs their attorney’s fees and if so, how much.

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Mandate issued by 7th Circuit, last barrier to same-sex marriage in Indiana eliminated

Here it is. It simply states:

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.
Although some county clerks were issuing marriage licenses yesterday, others were waiting for the mandate. As AG Zoeller advised yesterday:
As soon as that mandate is issued – and it could be as early as today – county clerks will be prohibited from denying marriage licenses to same sex couples so long as all other marriage license requirements are met. It would be advisable to start making necessary preparations to process marriage license applications and issue licenses accordingly.
Apparently that won't be enough in some counties. According to the Goshen News story this morning by Julie Crothers:
Christopher Anderson, Chief Deputy Clerk of the Court for Elkhart Country, said the county will not proceed with issuing licenses until his office has discussed the matter with their attorney.

"Right now we are waiting on counsel from our attorney regarding some of the intricacies related to the decision," Anderson said. "... The Attorney General for the state is not the attorney for the county, so we’ll be waiting to hear from our own attorney before we decide how we’ll proceed."

Posted by Marcia Oddi on Tuesday, October 07, 2014
Posted to Ind. (7th Cir.) Decisions

Monday, October 06, 2014

Ind. Law - After SSM: "Debate over religious freedom looms ahead"

Good story this evening in the Indianapolis Star by Kristine Guerra, that begins:

Although many observers hailed Monday’s U.S. Supreme Court decision on gay marriage as a boon for equality, debates and legal battles over religious freedom and discrimination based on sexuality remain simmering in Indiana and nationwide.

Socially conservative advocacy groups such as the American Family Association of Indiana and the Indiana Family Institute now plan to focus lobbying efforts on legislation that would protect religious organizations, nonprofit groups and businesses that deny services to gay couples based on religious grounds. Curt Smith, president of the Indiana Family Institute, said his organization already has spoken with three lawmakers about possibly creating legislation to protect religious liberty in the marketplace.

“This is a Pandora’s box,” Micah Clark, executive director for the American Family Association, said in a statement after the court’s decision Monday. “What does this mean for churches, religious charities, business owners and those tied into the wedding industry?”

The short answer, legal experts say, is not much.

The Supreme Court’s decision has no bearing on religious organizations that refuse to wed same-sex couples or private entities that deny services based on religious beliefs. Businesses such as bakeries, reception halls and places that provide wedding photography don’t have to do business with gay couples if they don’t want to.

Indiana is among a majority of states that lack a law prohibiting discrimination based on sexual orientation. Only a small number of states, including California, Iowa, Nevada and Illinois, have such a statute.

That is not to say a decision by a business to not serve gay couples will go unchallenged.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Indiana Law

Ind. Decisions - More on: 7th Circuit decides another set of Indiana cases today

Updating this ILB post from Feb. 4, 2014, re the 7th Circuit's opinions in Kendale L. Adams v. City of Indianapolis, which involved related cases raising "dozens of claims of illegal discrimination in the promotion process used by the Indianapolis Metropolitan Police Department and the Indianapolis Fire Department," the SCOTUS today denied cert.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today. Also decides Wis. cases re voter ID

In Robert Lodholtz v. Granite State Insurance Company (SD Ind., Lozano), a 7-page opinion, Judge Posner writes:

Before us is a petition filed under 28 U.S.C. § 1292(b) for permission to appeal from an order by the district court on the ground that though not the final order in the litigation it resolved a “controlling question of law” incorrectly, and that correction will expedite the resolu-tion of the entire litigation—in fact end it. See Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d 674, 675–76 (7th Cir. 2000). We grant the petition, and since the papers filed by the parties cover the merits adequately, we can pro-ceed to the decision of the appeal. * * *

The question for us therefore is whether a federal court can ignore a state court judgment on the ground that the state court misconceived its jurisdiction over the case, and thus whether it is open to Granite State to try to prove in its federal case that Lodholtz really was an employee of Pulliam and therefore the state courts had no jurisdiction of his suit against Pulliam. * * *

One might have thought that because the Indiana courts denied Granite State’s motion to intervene, the insurance company never had a chance to argue absence of jurisdiction as a party to the litigation. As we know, that is not true; we know that Granite State made the argument—indeed the ar-gument was the entire premise of its refusal to cover Lod-holtz’s liability to Pulliam. Had Granite State been willing to relinquish its reservation of rights, its motion to intervene would have been granted. It was not willing; and in assert-ing a reservation of rights it was trying to undermine the In-diana law that gives the insured the right to manage its own defense when the insurer reserves the right to deny cover-age.

The Supreme Court of the United States is the only federal court with appellate authority over state courts; that is the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). But even the Supreme would have had no authority over the Indiana courts in Lodholtz v. Pulliam because no issue of federal law was involved in that litigation. Granite State has struck out. The jurisdictional issue on which its federal suit is based was resolved against it by the Indiana courts, and there is no ground for a collateral attack by another judicial system on that determination.

The judgment is reversed and Granite State’s suit dismissed.

The consolidated Wisconsin cases are Ruthelle Frank v. Scott Walker and League of United Latin America v. David Deininger. Judge Easterbrook writes the 23-page majority opinion, joined by J. Tinder and J. Sykes. The ruling begins:
Since 2005 Indiana has required voters to present photographic identification at the polls. The Supreme Court held that this statute is compatible with the Constitution. Crawford v. Marion County Election Board, 553 U.S. 181 (2008). In May 2011 Wisconsin enacted a similar statute, 2011 Wis. Act 23. A district court held that Act 23 is unconstitutional and enjoined its implementation. Frank v. Walker, 2014 U.S. Dist. LEXIS 59344 (E.D. Wis. Apr. 29, 2014), stay denied, 2014 U.S. Dist. LEXIS 111811 (E.D. Wis. Aug. 13, 2014). After receiving briefs and argument, we stayed that injunction. Order issued Sept. 12, 2014; reconsid eration denied Sept. 26, 2014; opinions issued Sept. 30, 2014. We now reverse the injunction, because the district court’s findings do not justify an outcome different from Crawford.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Same Sex Marriage Implementation guidance from AG's office to County Clerks

This "Important Communication from the Indiana Attorney General" is posted on the state calendar:

Please accept this communication as an update to your office relating to the same sex marriage cases that the Office of Attorney General has been handling on behalf of the state.

Today the U.S. Supreme Court announced that it had denied the state’s request to hear an appeal of the decision made last month by the 7th Circuit Court of Appeals. That denial of the state’s request means that the 7th Circuit will issue a “mandate” very soon that will implement the injunction issued by Chief Judge Young in June. As soon as that mandate is issued – and it could be as early as today – county clerks will be prohibited from denying marriage licenses to same sex couples so long as all other marriage license requirements are met. It would be advisable to start making necessary preparations to process marriage license applications and issue licenses accordingly.

The Indiana State Department of Health is in the process of making appropriate updates to the electronic marriage license processing system. County clerks who utilize the electronic system can enter information for same sex applicants consistent with the orders of the court. Additionally, clerks who still utilize the paper forms can cross out the listings for “husband” and “wife” as appropriate in order to follow the orders of the court.

Additional communication from this office will be sent as soon as possible to provide updates regarding the mandate as well as the marriage license processing system.

If you have any questions, please contact me using the contact information listed below.

Matt Light
Chief Deputy
Office of Indiana Attorney General Greg Zoeller

ILB: The problem with the electronic marriage license system was much discussed after Judge Young's initial ruling. See ILB posts headed "Courts' Marriage License E-Filing Application continues to require male and female applicant." It looks as though nothing was done to remedy its deficiencies after Judge Young's ruling was stayed.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Indiana Government

Ind. Gov't. - Statement from Governor Pence on SMM in Indiana

The full statement:

I will always believe in the importance of traditional marriage and I will always abide by the rule of law.

While it is disappointing to many that the Supreme Court has chosen not to hear arguments on this important issue, under our system of government, people are free to disagree with court decisions but we are not free to disobey them.

Hoosiers may be assured that I and my administration will uphold the rulings of our federal courts concerning marriage in the policies and practices of our state.

As Governor of all the people of Indiana I am confident that Hoosiers will continue to demonstrate the civility for which we are known and respect the beliefs of all people in our state.

But is he going to reissue counsel Mark G. Ahearn’s June 26, 2014 memo to all executive branch agencies?

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Indiana Government

Ind. Decisions - Comments on SCOTUS denials today by IndianaTech law professor

Nancy Marcus, LL.M., S.J.D., Assistant Professor of Law at IndianaTech, where she teaches constitutional law, writes:

What The Court’s Marriage Case Cert Denial Means (and how to explain it to your lay friends):

1. Those same-sex couples in Indiana and the ten other states covered by the Fourth, Seventh, and Tenth Circuits should get the right to marry immediately since the stays of those courts are immediately dissolved upon the Supreme Court denying cert. As the language from the Seventh Circuit’s September 15 order clearly provides, “The stay will terminate automatically if the certiorari petition is denied....”

2. That brings the tally to 30 states + DC where same-sex marriage is legal.

3. The Supreme Court can still decide the marriage issue this term, and Ruth Bader Ginsberg indicated in a speech to a law school two weeks ago that it will... if the Sixth Circuit (the federal appellate district covering Michigan, Ohio, Kentucky and Tennessee) becomes the rogue federal appellate court to deny same-sex marriage rights.

4. The reason the Supreme Court will hear the case then, and not now, is because they like to wait until there is a "Circuit split," i.e., disagreement among federal appellate courts, before they decide an issue.

5. Marriage equality fans should be encouraged by this turn of events. The Court could have just sat on the cert appeal petitions for the Fourth, Seventh, and Tenth Circuits until the Sixth Circuit finally ruled, but by releasing those cases from the bondage of stay-land, the Court knows full well that it is going to cause hundreds of thousands of same-sex couples and their families to avail themselves of our new rights in the near future.

With the doctrinal building blocks in place, with all federal appeals courts ruling the same way to date since Windsor, and with the Court being quite aware of how its actions today will result in new legal families popping up across the country, it is hard to fathom this Court ripping away those families’ rights by, in essence, reversing itself. At least with the currently sitting Court, marriage equality is secure. Any future lower court decision going the other way will almost certainly be overturned at this point.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "ACLU says Supreme Court rejection of appeal makes gay marriage 'a reality' in Indiana"

Tom LoBianco of the AP has a good overview of today's developments, including:

House Democratic Leader Scott Pelath said the court's order signals that it's time to move on.

"We have squandered nearly a decade of our people's energy on the issue of who loves whom. The gamesmanship has dragged on and on through the past few legislative sessions. But as one court after another has struck down bans on same-sex marriage, the pointlessness of this maelstrom has become even more obvious," he said in a statement.

Niki Kelly of the Fort Wayne Journal Gazette has a new story, headed "Indiana same-sex marriage is now legal." A quote:
"This case is over," said Ken Falk, legal director of the ACLU of Indiana. The group represented several couples in challenges to the prohibition.

"Same-sex marriage is now legal in Indiana and is required to be legal by the United States Constitution," he said. "There is nothing that can be done by way of an Indiana constitutional amendment or Indiana law to alter that fact.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on "Court rules against Long Beach lakefront property owners"

Recall the case involving the Town of Long Beach and the question, Who owns the Lake Michigan beach front? Here is LaPorte County Circuit court Judge Thomas J. Alevizos' Dec. 26, 2013 opinion in LBLHA, LLC, Margaret West and Don Gunderson v. Town of Long Beach, along with an ILB post from Dec. 28, 2013, and another from Dec. 30th, 2013.

The case has been appealed to the Court of Appeals. Here is the docket.

The Pacific Legal Foundation ("Rescuing Liberty from Coast to Coast") is filing an amicus brief in the dispute. Here is a Sept. 25, 2014 post at its blog by Mark Miller discussing the case, headed "Defending property owners along the Great Lakes." Some quotes:

The problem for the bureaucrat property takers in the Great Lakes states is this: there is no high and low watermark akin to the high and low water marks along the coastal states that border the Atlantic and Pacific. The Great Lakes are non-tidal. Thus, the public trust doctrine, which as applied here holds that the state of Indiana owns the lake bed underneath Lake Michigan when within the boundaries of the State, only extends to the actual water line of Lake Michigan in Indiana, as that is where the water actually stops. Thus, the water of Lake Michigan is available for the public use by virtue of the public trust doctrine, but the sand upland of the water line is the property of those private property owners who hold the deed to the water line.

Like its neighbors Michigan and Ohio, Indiana recently decided it wanted to take this land upland of the waterline on Lake Michigan, all the way to a fictional, administratively-created “ordinary high water mark” that encroaches well into private property all along the lake in Indiana. Relying upon an unsupportable interpretation of the public trust doctrine, the State announced that the people of the State could use, at will and without permission, the private property between the water line and the fictional “ordinary high water mark,” since the State now astonishingly asserted that it held that property in the public trust.

Not surprisingly, the Indiana town of Long Beach—which borders Lake Michigan—then followed the State’s lead, and told its law enforcement officers to stop enforcing trespassing laws upland of the water line below the fictional “ordinary high water mark,” since the property was no longer the private property owners’ land.

The private property owners along Lake Michigan in Long Beach recognized a taking when they saw one, and they sued. Their case is now pending at the Indiana Court of Appeals, and—just as we did in Ohio a few years ago in a similar case—Pacific Legal Foundation has filed a friend of the court brief in support of private property rights. In the brief, PLF informs the Court of the history of the public trust doctrine along the Great Lakes, and explains that The Fifth Amendment’s protection of private property bars the state from expanding the public trust doctrine in a manner that divests private landowners of their property without compensation, as the State tried to do in this case.

The ILB will attempt to obtain for posting this amicus brief, as well as the other briefs in this appeal.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. Trial Ct. Decisions

Court - Analysis by Lyle Denniston of today's denial of cert in 7 SSM cases

A few quotes, be sure to read in full at SCOTUSblog:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks. If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court. Almost no one had expected that to happen. * * *

It is very hard, however, to interpret the Justices’ actions as having no meaning. Here are the reasons why the denial orders were such a surprise: [this is followed by discussion of six important points] * * *

Whatever happens in the near term will have some confusion and a great deal of uncertainty, especially for same-sex couples who now go ahead and get married, but that would not compare to the confusion that would arise if the Court at some point in the future were to grant review of a case and uphold a ban on same-sex marriage. What would happen in the states where marriage had become available, and what would happen to those who married based on Monday’s actions and their aftermath?

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Courts in general

Ind. Decisions - Former Justice Boehm cautious on same sex marriage resolution

Interesting post just now in Indiana Forefront by former Indiana Supreme Court Justice Ted Boehm, who warns that, because the SCOTUS could still take up the question based on a ruling from one of the remaining Circuits, "until the Supreme Court takes the issue, couples will face uncertainty whether these rulings will ultimately be sustained."

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - SCOTUS lets stand striking down of Indy’s adult bookstore ordinance"

Maureen Groppe, Star Washington Bureau, reports today in a story that begins:

WASHINGTON – The city of Indianapolis today lost a final effort to defend its 2003 ordinance on adult bookstore operating hours, clearing the way for the businesses that challenged the limits on when they could be open to seek damages that could top $1 million.

The Supreme Court rejected the city’s appeal of a lower court’s ruling striking down the ordinance.

This ILB post from Aug. 15th was headed "Annex Books, yet again ... Indy files petition with SCOTUS."

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Attorney General Zoeller: "7th Circuit ruling in Baskin case can proceed; clerks to be notified"

Just issued by AG Zoeller [ILB emphasis added]:

Supreme Court does not accept appeals including Indiana’s; stay to be lifted

7th Circuit ruling in Baskin case can proceed; clerks to be notified

INDIANAPOLIS – The United States Supreme Court at the beginning of its new term will not decide the question of state authority to define marriage as an institution between one man and one woman. The Court declined today to accept the cases of Indiana and four other states that had appealed legal challenges to their marriage statutes. The denial of the five states’ cert petitions means a federal appeals court ruling invalidating Indiana’s marriage statute can take effect and a stay order that had blocked implementation of that ruling will be lifted soon, meaning county clerks will be required by federal court order to issue marriage licenses to otherwise eligible same-sex applicants.

“Defending Indiana’s statute at trial and on appeal was our duty as attorney for our state government and was necessary. Our legal system is based on the bedrock principle that both sides in a dispute will be zealously represented by counsel who will advocate for their clients so that the courts can weigh the arguments and decide. Our constitutional process for testing the validity of statutes worked as intended, and Indiana’s legal defense has been conducted with civility and respect for all sides and within existing resources,” Zoeller said.

As lawyer for the state government defendants, the Indiana Attorney General’s Office defended the Indiana marriage statute in the consolidated lawsuit Baskin et al. v. Bogan et al. that plaintiffs’ lawyers filed against the State in March. In Evansville on June 25, U.S. District Court Chief Judge Richard L. Young ruled the statute unconstitutional, but the State appealed and Young’s ruling was stayed by the U.S. 7th Circuit Court of Appeals on June 27. The 7th Circuit affirmed Judge Young’s ruling invalidating the statute but stayed implementation of its own ruling until the U.S. Supreme Court announced whether it would accept the appeal Indiana filed. Both sides in the Baskin case had encouraged Supreme Court review, either of Indiana’s case or another state’s case.

The nine justices of the U.S. Supreme Court held a private conference Sept. 29 to determine many cases it would hear this term, including several same-sex marriage cases. The states of Virginia, Oklahoma, Utah, Wisconsin and Indiana each had appealed lower court rulings that struck down their states’ marriage statutes. The Supreme Court had the choice of accepting the appeals of all, some or none of the five states in a total of seven cases, or of holding over its decision to a later date. Today the Court denied certiorari to all five states.

The result is the 7th Circuit now can issue a mandate in the Baskin case – essentially, an order that the 7th Circuit’s earlier ruling can take effect. Once a mandate is issued by the 7th Circuit – which could happen later this week – county clerk’s offices will be required by federal court order to issue marriage licenses to otherwise eligible same-sex applicants, and same-sex marriages previously granted by other states will be legally recognized in Indiana.

Throughout the lawsuit the Indiana Attorney General’s Office has communicated with county clerks in the 92 Indiana counties and will do so again in order to minimize chaos and confusion at local courthouses as a result of the U.S. District Court’s June 25 injunction in the lawsuit that plaintiffs’ lawyers brought against the State.

Three other cases challenging Indiana’s marriage statute still are pending in the federal courts, two of which were stayed pending Indiana’s appeal to the Supreme Court in the Baskin case. Each now will be resolved consistent with the 7th Circuit’s mandate in the Baskin case.

Although Indiana’s appeal in the Baskin case is concluded, there still are legal challenges pending in the 6th Circuit and 9th Circuit to the marriage laws of other states, and it is possible that the U.S. Supreme Court could consider an appeal of one of those marriage cases yet this term or in a future term.

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 did not use outside counsel to defend its statute.

The current circumstance has its roots in the U.S. Supreme Court’s dual decisions of June 2013. In the U.S. v. Windsor case, the Court struck down the federal Defense of Marriage Act. But in the Hollingsworth v. Perry case challenging the State of California’s law, the Court declined to rule on state marriage definitions. The reason: The California statute had not been defended by the state’s lawyer, California’s attorney general, and the private attorneys who attempted to defend the law lacked legal standing. Zoeller noted the failure of the proper lawyer – the state attorney general -- to defend California’s law caused the Supreme Court in June 2013 to punt the issue back to the states, and opened the floodgates to challenges filed in multiple states in the 16 months since.

“Our nation and all sides involved needed a conclusive Supreme Court ruling to bring finality to the legal question of state authority to adhere to the traditional definition of marriage. Although it is unfortunate the Court did not accept the question and has again left states stuck in the limbo of uncertainty, ultimately the U.S. Supreme Court will have the final word on the subject of state authority to regulate marriage. Strong opinions exist on all sides of this issue but we continue to urge Hoosiers to show respect for the Court, the attorneys, the county clerks and the rule of law while this complicated process plays out,” Zoeller said.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (3):

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

Christina Haehn v. F.A. Wilhelm Construction Co., Inc., and Wilhelm Construction, Inc. [403](NFP)

Christina Haehn v. F.A. Wilhelm Construction Co., Inc., and Wilhelm Construction, Inc. [402] (NFP)

NFP criminal opinions today (2):

Steven Browning v. State of Indiana (NFP)

Warren Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 3, 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, October 3, 2014. It is two pages (and 22 cases) long.

Two transfers were granted last week:

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Indiana Transfer Lists

Ind. Decisions - Same sex marriage effective NOW in Indiana

Bill Groth, one of the attorneys in the Indiana SSM petition to the SCOTUS, points out that the 7th Circuit’s Stay Order provided:

The stay will terminate automatically if the certiorari petition is denied.
Here is the Sept. 14th ILB post.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - SCOTUS has DENIED REVIEW in the SSM cases!

More coming! WOW! The lower court rulings stand! Same sex marriage will be the law of the 7th Circuit, including Indiana. The stays should shortly be lifted in the Circuits affected, including the 7th.

Amy Howe writes in SCOTUSblog
:

The Court denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage. This means that the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly, clearing the way for same-sex marriages in those states and any other state with similar bans in those circuits.
This will make same-sex marriage legal in 30 states and the District of Columbia.

Posted by Marcia Oddi on Monday, October 06, 2014
Posted to Ind. (7th Cir.) Decisions

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

From Sunday, October 5, 2014:

From Saturday, October 4, 2014:

Posted by Marcia Oddi on Monday, October 06, 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 10/6/14):

Next week's oral arguments before the Supreme Court (week of 10/13/14):

Thursday, Oct. 16

Webcasts of Supreme Court oral arguments are available here.


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

Tuesday, October 7

Next week's oral arguments before the Court of Appeals (week of 10/13/14):

Tuesday, Oct. 14

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, October 06, 2014
Posted to Upcoming Oral Arguments

Sunday, October 05, 2014

Ind. Courts - LaPorte County judge rejects plea agreement

Related to the ILB post from earlier today, this long Oct. 2nd Michigan City News-Dispatch story by Kelley Smith begins:

MICHIGAN CITY — The murder case pending against Tommy Larue Shannon Jr. isn't over, as Judge Kathleen Lang on Thursday struck down the plea agreement he had reached with the state in August.

Shannon, 23, is accused of having beaten his girlfriend's son, 2-year-old Nizeir Brown, to death on Aug. 13, 2013.

A quick search of the ILB for "judge rejects plea" disclosed a number of posts relating to rejected plea agreements.

Posted by Marcia Oddi on Sunday, October 05, 2014
Posted to Indiana Courts

Ind. courts - "State trooper preached about Jesus during traffic stop"

Jill Disis reports in a story posted this evening on IndyStar that an Indiana State Trooper:

... Brian Hamilton pitched Christianity to [Ellen Bogan ] when he pulled her over for an alleged traffic violation in August on US Highway 27 in Union County.

With the lights on his marked police car still flashing, the trooper handed Bogan a warning ticket. Then, Bogan said, Hamilton posed some personal questions.

Did she have a home church?

Did she accept Jesus Christ as her savior?

“It’s completely out of line and it just – it took me back,” Bogan, 60, told the Indianapolis Star.

Bogan and the American Civil Liberties Union have filed a lawsuit in federal court against Hamilton. The lawsuit alleges he violated Bogan’s First and Fourth Amendment rights when he probed into her religious background and handed her a church pamphlet that asks the reader “to acknowledge that she is a sinner.”

ILB: Here is a copy of the 5-page complaint, filed Sept. 23rd. Some quotes:
1. After conducting a traffic stop at which Indiana State Police Trooper Brian Hamilton presented Ms. Bogan with a warning ticket, Trooper Hamilton prolonged the stop by asking Ms. Bogan, among other things, if she had accepted Jesus Christ as her savior and then presented her with a pamphlet from the First Baptist Church in Cambridge that informed the reader that he or she is a sinner; listed God’s Plan of Salvation, noting that the person must realize that “the Lord Jesus Christ paid the penalty for your sins; and, advertised a radio broadcast entitled “Policing for Jesus Ministries.” The actions of defendant Trooper Hamilton violated Ms. Bogan’s rights under both the First and Fourth Amendments to the United States Constitution. Ms. Bogan is entitled to her damages. * * *

30. To the extent that Trooper Hamilton unreasonably extended the length of the traffic stop beyond the time necessary to present Ms. Bogan with a warning ticket Trooper Hamilton violated the Fourth Amendment to the United States Constitution.

31. Trooper Hamilton’s proselytizing and coercive questions concerning Ms. Bogan’s religious beliefs violated the First Amendment to the United States Constitution.

Posted by Marcia Oddi on Sunday, October 05, 2014
Posted to Indiana Courts

Ind. Courts - Are Marion County judges fungible, obviating any need to identify them by name in IndyStar stories?

It has often been said, including in this quote from a May 6, 2012 Indianapolis Star editorial, that the way judges are elected in Marion County means the voters in the general election have little say: "In other words, every Democratic and Republican judicial candidate who makes it on the ballot wins in November".

Reflecting that truth, the Sunday Star's front-page story today, headed "As violence rises, prosecutors bargain away gun charges," and reported by two of the paper's best reporters, Mark Alesia and Tim Evans, refers to "the judge" or "a judge" five times in the long story, with no further identification, although, at least in theory, the judge must sign off on a plea agreement and the judge imposes the sentence. One of the story's most egregious examples, where both the prosecutor and defendant are named:

At the sentencing hearing, the judge noted Allen was Tolbert's only son.

"You never want to bury your children, and that's what had to happen for the Allen family," the judge said. "I haven't endured that. I hope not to, and I hope no one has to, but it's clearly a tragic loss of life."

Posted by Marcia Oddi on Sunday, October 05, 2014
Posted to Indiana Courts

Friday, October 03, 2014

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

In For publication opinions today (1):

Eve Carson v. Stacy Palombo
, an 18-page opinion, Cheif Judge Vaidik writes:

In 2009 Eve Carson posted a video to YouTube.com criticizing the investigation of her sister-in-law’s murder that occurred about a quarter-century before in Boston. Stacy Palombo, known by a username at the time, commented on Eve’s video, and Eve filed a complaint against Stacy for defamation per se, defamation per quod, and invasion of privacy by false light. The trial court entered summary judgment in favor of Stacy on all three claims, and Eve now appeals.

We conclude that the trial court did not abuse its discretion in denying Eve’s motion to amend her complaint on the defamation per se claim. This Court’s prior opinion in this case directed the trial court on remand to enter partial summary judgment in favor of Stacy on Eve’s claim for defamation per se, and the trial court did so. Pursuant to the law-of-the-case doctrine, Eve cannot amend her complaint to add facts that she knew—but omitted—at the time she originally filed her complaint in order to defeat the grant of partial summary judgment on this issue in favor of Stacy. In addition, because there is no genuine issue of material fact that Eve’s claimed damages were not incurred as a natural and proximate consequence of Stacy’s alleged defamatory statements, we affirm the trial court’s entry of summary judgment in favor of Stacy on Eve’s claim for defamation per quod. Finally, in light of the other videos that Eve herself posted on YouTube that cast her in essentially the same light as Stacy’s comment, we conclude that the trial court properly granted summary judgment in favor of Stacy on Eve’s claim for invasion of privacy by false light. We therefore affirm the trial court.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on Friday, October 03, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Going private keeps taking its toll"

Dan Carpenter, now is a columnist for TheStatehouseFile.com, has a powerful column today ($$) that begins:

The money from the Indianapolis water-sewer utility sale is gone, and rates are going up, as the city told us would happen, sale or no sale.

The money from the Indianapolis parking meter sale is gone, and rates have risen and billable hours have lengthened, with the collections flowing past city coffers to an outfit in Texas.

The money from the Indiana Toll Road lease is gone, and now the foreign consortium running it has declared bankruptcy, ominously struggling against low use combined with raised tolls and much-criticized service.

The spectacular failure of IBM’s takeover of welfare eligibility determination, a fiasco that wrought untold suffering upon the poor, disabled and elderly, has the state before the Indiana Supreme Court trying to scratch back tens of millions of taxpayer dollars.

Could you please tell us again, Mitch Daniels and Grover Norquist and the rest of you libertarian luminaries, how privatization of basic government functions beats letting the government handle the work and control the revenue stream?

Posted by Marcia Oddi on Friday, October 03, 2014
Posted to Indiana Government

Ind. Courts - Effective Jan. 1, 2014, App. Rule 9 requires that all notices of appeal be filed with the Appellate Clerk; otherwise, the appeal is untimely

Cara Wieneke, a central Indiana attorney who does many criminal appeals, wrote the ILB this morning to say:

I just received either my 4th or 5th belated appeal of the year. Notices filed, but in the wrong court on all of them.
In response to my request for more details, she responded:
Any party wishing to appeal from a trial court’s adverse judgment has 30 days to file a notice of appeal. Until this year, the notice of appeal was filed in the trial court. But effective January 1st, 2014, Indiana Appellate Rule 9 requires that all notices of appeal be filed with the Appellate Clerk; otherwise, the appeal is untimely.

This rule change did not come about suddenly. Rather, attorneys were given a two-year grace period to comply with the change.

Most of my practice involves criminal appeals involving indigent defendants. Despite a two-year notice of the rule change, many attorneys (even regularly-appointed pauper counsel and public defenders) are still filing the notice of appeal in the trial court. In fact, I currently have 4-5 active appellate cases where court-appointed counsel filed the notice of appeal in the wrong court, thereby forfeiting the defendant’s right to appeal.

True, Indiana Post-Conviction Rule 2 can provide a remedy for these defendants. But the process requires additional steps to be taken (costing taxpayers more money for the additional attorney time), and there is no guarantee the defendant will be given an opportunity to file a belated notice of appeal. In those cases where the defendant is serving a relatively short sentence, requiring the defendant to first seek permission to file a belated notice of appeal almost ensures that he will have completed his sentence before the appeal is decided.

It is apparent that the training on the changes to Indiana Appellate Rule 9 was either inadequate or was lacking altogether. Additional training is definitely needed to ensure that criminal defense attorneys understand how and where to properly file the notice of appeal.

Posted by Marcia Oddi on Friday, October 03, 2014
Posted to Indiana Courts

Courts - More on: The use of legislative history in interpreting statutes

Updating yesterday's ILB post on the long review by Justice John Paul Stevens of 2nd Circuit Chief Judge Robert Katzmann's book, Judging Statutes, here now is a link to the Stevens review in the October 23rd issue of The New York Review of Books.

Posted by Marcia Oddi on Friday, October 03, 2014
Posted to Courts in general

Courts - "A look at what’s next on same-sex marriage"

Lyle Dennison of SCOTUSblog wrote yesterday on the SCOTUS options with the current "seven pending filings on same-sex marriage, from five states," plus the others that may arrive during the term. The post begins:

A wide wave of anticipation that the Supreme Court would plunge into the constitutional controversy over same-sex marriage ran into a wall of silence on Thursday. The Justices released a list of official actions which said nothing at all on that issue. Whether that was disappointing or reassuring, it likely will set off a new wave of interest in what the Justices do next, including next Monday.

Under the Court’s current schedule, it is not due to make any public move until Monday at 9:30 a.m. — unless it would take some action on the unrelated subject of voting rights in this year’s election, a building controversy.

Monday morning, the Justices officially start a new Term, but before they go to the bench, they will release a huge list of orders dealing with cases that built up on the docket, seeking review, over the summer months. That new list is almost certain to be made up mainly of denials of review.

Posted by Marcia Oddi on Friday, October 03, 2014
Posted to Courts in general

Ind. Decisions - Indiana issues that may be considered by the SCOTUS; and cases where Indiana is an amicus

Maureen Groppe reports for Gannett on "Indiana issues may get high court’s attention." Some quotes:

While speculation about what issues the high court will take up has focused on appeals from successful challenges to gay marriage bans in Indiana and other states, a number of pending cases also would affect Hoosiers. Those appeals include:

• A challenge to the subsidies that help people buy insurance on federally run health exchanges;

• A challenge to a federal rule cutting toxic emissions from power plants; and

• The city of Indianapolis’ defense of its law restricting the hours of stores that sell adult books, movies and sex paraphernalia.

[Re the adult books appeal] If the city’s appeal of the 7th U.S. Circuit Court of Appeals decision striking down the ordinance is not accepted, the businesses that successfully challenged the law will seek to recover damages from the city that could top $1 million.

“We pointed out in our brief that we thought the decision by the 7th Circuit was well supported by the evidence in the record and was a proper and correct decision,” said J. Michael Murray, a Cleveland attorney representing the bookstores that challenged the ordinance.

Also of interest, the story refers to some of the amicus briefs Attorney General Zoeller has filed on behalf of the citizens of the State of Indiana, but does not indicate what position Indiana is supporting:
There are no cases from Indiana already scheduled for a hearing, but Indiana has weighed in on cases from other states. Those involve:

• Whether a prisoner should be allowed to grow a beard for religious reasons;

• Whether evidence of a crime that’s found after a traffic stop is valid if the original reason for the traffic stop was not;

• Whether taxes on fuel used by railroads discriminates against the industry;

• What steps homeowners have to take if they want out of a mortgage when a lender doesn’t follow federal disclosure law; and

• Whether a state regulatory board, whose members are chosen by dentists, can say that teeth-whitening services must be offered only by dentists, not by day spas or tanning booths.

Indiana Attorney General Greg Zoeller has joined other states in filing supporting briefs in those cases that urge the court to rule on one side or the other. The factors that Zoeller considers in deciding when to get involved in a case from another state include whether a case affects state governments generally or a particular Indiana law, and whether the case involves a separation of powers issue or a threat to state sovereignty, according to spokesman Bryan Corbin.

The ILB posted about the North Carolina teeth-whitening case on Sept. 29th and checked some of the amicus briefs to determine whether the State of Indiana had weighed in, but did not find a reference to Indiana.

The ILB will check with the AG's office for more on Indiana's position in the above-listed cases and will add the answer here.

Posted by Marcia Oddi on Friday, October 03, 2014
Posted to Indiana Decisions

Ind. Decisions - More on: Federal judge strikes town ordinance prohibiting door-to-door solicitation after 9 PM

Updating this ILB post from Oct. 1st, that included a copy of the opinion, Robin Gibson reports in today's Muncie Star-Press in a story that begins:

YORKTOWN – Yorktown has lost a court showdown over its cutoff time for door-to-door solicitors.

The U.S. District Court Southern District of Indiana this week granted a motion for summary judgment by the Citizens Action Coalition, and prohibited Yorktown from enforcing its ordinance regarding when solicitors can knock on residents' doors.

In March 2013, the American Civil Liberties Union of Indiana sued Yorktown on behalf of the CAC over the town's fees and regulations for door-to-door canvassers. The plaintiffs said the issue was one of free speech, ACLU and CAC representatives told The Star Press, saying the cost and the rule limiting solicitation to daylight hours impeded the nonprofit group's efforts to canvass and solicit donations. * * *

Kerwin Olson, CAC executive director, said his organization had been optimistic the ruling would be in its favor because other courts have recognized "the importance of canvassing as it relates to a healthy political dialogue.

"Door to door canvassing is not solicitation," he added.

Posted by Marcia Oddi on Friday, October 03, 2014
Posted to Ind Fed D.Ct. Decisions

Thursday, October 02, 2014

Ind. Law - No good deed goes unpunished

Or was it a good deed? Employees at bank drive-thru help intoxicated driver (who drove through the wrong way) change his tire. He drove off and caused an accident. Bank liable?

Those are some of the facts described in this lengthy story today by Jeff Wiehe in the Fort Wayne Journal Gazette, headed "Bank sued over drunken driver: Case considers fault after workers help change tire." A sample:

Every day, you find people suing drivers who they claim caused crashes, and every once in a while, you find bars and restaurants hit with claims that someone overserved a patron who caused havoc on the roads afterward.

But last week, a woman who suffered serious injuries when a drunken driver slammed into her car two years ago filed a lawsuit – but not against him or against any bar or restaurant.

She filed it against a bank.

And it's a lawsuit that could – if it goes that far – task a jury with deciding whether the financial institution and its employees were reckless and negligent when they not only allowed a man with a blood al­co­hol content of 0.52 percent to leave the bank's parking lot right before the crash, but also helped him change his flat tire so he could do so.

Posted by Marcia Oddi on Thursday, October 02, 2014
Posted to Indiana Law

Ind. Gov't. - "Massive disease outbreak hits Iowa deer farm"

Ryan Sabalow reports this afternoon for the Indianapolis Star in a long story that begins:

Nearly 300 white-tailed deer tested positive for chronic wasting disease on an Iowa deer farm, the most infected animals ever found inside a farmer's pens.

The news comes as Indiana lawmakers are poised next week to issue recommendations on how best to regulate the state's deer-breeding operations and whether to ban deer imports.

At a hearing in August in Indiana, deer breeders and their sympathetic veterinarians repeatedly downplayed the risk of CWD, saying rigorous testing keeps infection rates low and reduces the risk of massive outbreaks of the always-fatal disease.

Some wildlife disease experts say this latest outbreak strongly suggests otherwise.

"This is what happens when you allow disease to sit and percolate on a game farm," said Bryan Richards, the chronic wasting disease project leader at the U.S. Geological Survey's National Wildlife Health Center.

Here is a long long list of earlier ILB posts on the topic.

Posted by Marcia Oddi on Thursday, October 02, 2014
Posted to Indiana Government

Courts - The use of legislative history in interpreting statutes

My October 23rd issue of The New York Review of Books arrived today, containing a long review by Justice John Paul Stevens, headed "Law without History."

The book is Judging Statutes, by 2nd Circuit Chief Judge Robert Katzmann. As Georgetown Law writes:

In the 2006 case of Arlington Central School District Board of Education v. Murphy, the Supreme Court had to consider whether an award of attorney’s fees given to parents suing the school included fees for expert witnesses. Then a question arose: Should the Court consider simply the text of statutes like the Individuals with Disabilities Education Act or look beyond the text to the statute’s legislative history to determine what Congress actually intended?

Robert A. Katzmann, the chief judge of the U.S. Court of Appeals for the 2nd Circuit, takes the latter view in a new book, Judging Statutes (Oxford University Press, 2014).

Tony Mauro reported in the National Law Journal on the Georgetown event in a story headed "Countering Scalia on Interpreting Laws, Katzmann's Book Packs Punch." A few quotes:
Judging Statutes is a full-throated defense of using “reliable” legislative history—such as conference committee reports—as a resource for determining the meaning of statutes when the language of the statue is ambiguous or contradictory.

Evaluating such documents was once a standard element of statutory interpretation cases, but Scalia’s unrelenting campaign against legislative history, and in favor of focusing on the words of the law, has had a powerful impact. Whenever he can, Scalia asserts that congressional committee reports and other materials purporting to say what Congress meant when it passed a law are unreliable at best, and completely phony at worst.

“There has been a dramatic transformation [away from the use of legislative history] in a very short period of time,” because of Scalia’s opposition, Treanor said.

At the event Tuesday, Katzmann was quick to state that Scalia has “done a service” by spotlighting the use and misuse of legislative history. And he added that “not all legislative history is equal.”

But, Katzmann said, “If you discard legislative history as a first principle, you will be ignoring what Congress—its members and staff—thinks is important in interpreting statutes. After all, the Constitution gives Congress the responsibility to enact laws,” as well as to establish its own procedures for doing so.

Put succinctly, Katzmann also said, “To disregard legislative history is to impugn the integrity of the legislative process.”

ILB: Of course, this debate is moot in Indiana, where we have consistently followed the "enrolled act" doctrine and do not maintain any sort of formal legislative history. (Indiana Constitutional history is an exception.)

Posted by Marcia Oddi on Thursday, October 02, 2014
Posted to Courts in general

Ind. Decisions - More on: One of the NFP appeals today reeks to high heaven! [Updated]

From a July 3, 2012 ILB post:

The opinion by Judge Najam is in the case of Scott D. Wampler, Jr. v. State of Indiana (NFP). The Court's first footnote:

1 We note that the record in this case emits an unpleasant odor consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent. We kindly request all those who prepare and file the briefs and record on appeal to avoid such contamination of submissions on appeal in the future.

Tuesday, in Breanne H. Rice v. State of Indiana (NFP), the Court's first footnote:
1 We note, as we have in a prior memorandum decision, that the transcript in this case emits an unpleasant odor consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent. We kindly remind all those who handle the record on appeal to avoid such contamination.
According to the opinion headings, the constant in both cases is they were handled by the same deputy attorney general.

[Updated at 1:34 PM]
A reader notes:
If all state offices are indeed smoke-free, it is surprising that such a strong odor of smoke remains with a transcript weeks later when the case arrives in a judge's office.

Posted by Marcia Oddi on Thursday, October 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Certain Martinsville Annexation Territory Landowners v. City of Martinsville, a 9-page opinion, Judge Kirsch writes:

The Appellants are remonstrators (“the Remonstrators”) who appeal the trial court’s order denying their remonstrance, affirming the City of Martinsville’s (“the City”) annexation ordinance, and approving the annexation of certain land surrounding the City. The Remonstrators raise several issues on appeal; however, we find the following issue dispositive: whether the appeal should be dismissed as moot because the annexation has become final, and there is no effective relief that this court can render to the Remonstrators. We dismiss. * * *

ROBB, J., concurs.
BAKER, J., concurs with separate opinion. [that begins, on p. 8] I fully concur in the opinion and write separately only to express my concerns regarding the time period during which remonstrators may request a stay. Here, we dismiss the Remonstrators’ appeal as moot because they failed to request a stay before the annexation became effective. While I agree that we must do so when an annexation becomes final, I fear that a clerk of the municipality may be able to finalize an annexation without allowing a reasonable time for remonstrators to request a stay.

In Robert Campbell v. State of Indiana , a 9-page opinion, Judge Riley writes:
Campbell raises one issue on interlocutory appeal, which we restate as follows: Whether the trial court abused its discretion by granting the State’s Motion to Withdraw from Plea Agreement. * * *

Campbell, the State, and the trial court are in agreement that Indiana courts have not yet decided this precise situation. Thus, Campbell relies on firmly established case law that holds the State may only withdraw from a plea agreement prior to the trial court’s acceptance, as long as the defendant has not relied to his detriment on the plea agreement and the State has not materially benefitted from the deal. See Mendoza v. State, 869 N.E.2d 546, 552 (Ind. Ct. App. 2007), trans. denied. Because the trial court had already accepted the Plea Agreement and entered a judgment of conviction at the time of the breach, Campbell contends that the trial court had no authority to rescind the Plea Agreement. Rather, Campbell maintains that the trial court was obligated to enforce the Plea Agreement by imposing a sentence in accordance with its terms. We disagree. * * *

If we were to adopt Campbell’s argument that upon the trial court’s acceptance of a plea agreement, the State may not withdraw under any circumstances and the trial court must proceed directly to sentencing, the floodgates would be thrown wide open for criminal defendants to make duplicitous promises to prosecutors in order to reduce their own penal exposure, knowing that their negotiated sentences would be preserved regardless of their non-compliance. Such a holding would “undermine the integrity and credibility of the criminal justice system.” Id. Accordingly, even though the trial court had already accepted the Plea Agreement and entered a judgment of conviction, we conclude that Campbell’s subsequent breach warranted the State’s withdrawal from the Plea Agreement prior to the imposition of any sentence.

Based on the foregoing, we conclude that the trial court did not abuse its discretion by granting the State’s Motion to Withdraw from Plea Agreement, vacating the judgment of conviction, and ordering the case to proceed to trial.

NFP civil opinions today (2):

In re the Involuntary Termination of the Parent-Child Relationship of: R.L. (Minor Child) and T.L. (Father) v. The Indiana Department of Child Services (NFP)

Denny Gene Inman and Lois Inman v. Charles L. Turner and Jennifer C. Turner (NFP)

NFP criminal opinions today (4):

Rodney Paul Sniadecki v. State of Indiana (NFP)

Donald Worth v. State of Indiana (NFP)

Nanette Zawadzki v. State of Indiana (NFP)

David Oxley v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, October 02, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Anonymous jury request denied in federal racketeering and murder trial

Ed Bierschenk reported in the NWI Times on Sept. 26th:

HAMMOND | A federal judge is expected to decide in the next week or two on whether the identities of jurors in the upcoming trial of an alleged leader in a notorious street gang should be kept secret.

The government is seeking an anonymous jury for the racketeering and murder trial of Juan "Tito" Briseno, who is facing the possibility of the death penalty. The trial is scheduled to begin Jan. 12.

Briseno's defense attorney, Arlington J. Foley, argued jurors could be prejudiced against his client if such action is taken. He indicated jurors could think their identities are being kept secret because Briseno already had been determined to be a particularly dangerous person. * * *

In particular, prosecutor Bruce R. Hegyi, who because of flight delays had to argue his motion via phone, pointed to the attempted shooting of a former gang member for allegedly cooperating with law enforcement officials. Foley, however, argued there was no evidence tying that incident to his client and noted the person was still alive.

Hegyi argued that while Briseno may not been directly responsible for the attempted shooting of the member, he was behind instilling the mindset of vengeance in the gang. He also contended Briseno was still directing actions of the gang even while in jail in 2010 and 2011.

U.S. District Judge Philip Simon, however, cited the opinion from another case that said having an anonymous jury "is an extreme measure" and that it seemed to him it should be done only when some type of jury tampering is likely to occur.

From an earlier, Sept. 21st Times story by Sarah Reese:
HAMMOND | Federal prosecutors are pressing for a fully anonymous jury during the upcoming trial of a reputed Imperial Gangsters member facing the death penalty.

The U.S. attorney's office says in a document filed Thursday in Hammond federal court that Juan "Tito" Briseno cannot seriously contest he is involved in a street gang with the capacity to harm jurors. * * *

Prosecutors want the identities of jurors kept secret from Briseno and the media to shield them from potential harassment or intimidation.

Briseno's attorneys say keeping jurors names' secret could deprive their client of an impartial jury. They argued in a document filed Sept. 12 that the gang has no clear chain of command and neither Briseno nor anyone he knows has the desire or ability to harm jurors. * * *

Briseno's attorneys suggested a compromise in which jurors' names would be kept from the media but not their client.

Prosecutors rejected that idea.

"Mr. Briseno's response only addresses the potential for intimidation and harassment by the media or the public in general," prosecutors wrote. "It would leave Mr. Briseno free to communicate the jurors' names, residential addresses, employment addresses, and the like to whomever he chooses through visits, telephone calls, mail and through intermediaries," prosecutors wrote.

Both sides already have agreed to a juror questionnaire that would not reveal jurors' identities but would provide Briseno with extensive information about them and their thoughts about gangs, crime, drugs, the death penalty and more, prosecutors said.

A story Sept. 30 in the Times, reported by Jim Masters, is headed "Judge denies motion for anonymous jury in gang trial." Some quotes:
In Tuesday’s ruling, U.S. District Court Chief Judge Philip P. Simon wrote prosecutors showed insufficient evidence that Briseno or members of his gang had previously interfered with the judicial process or had a history of intimidating witnesses.

Simon noted Imperial Gangsters’ East Chicago faction has been largely demolished, as 23 other defendants have already been convicted and are incarcerated.

“Juan Briseno is, in effect, the last man standing from a group that now includes a number of former associates cooperating against him (rather than interested in plotting juror intimidation on his behalf),” Simon wrote. “The prospect of Chicago or Florida IG’s coming to Northwest Indiana to intimidate jurors is of course possible but has not been demonstrated to be at all likely.”

Simon added he already conducted the trial of Briseno’s co-defendant, Richard Reyes, for which an anonymous jury was not requested, and there was no attempt at intimidation of the jurors.

This June 23, 2010 ILB post cites a 19-page, 2007 COA opinion by Judge Bradford, Major v. State, which discusses in detail the use of an anonymous jury at the state court level.

Posted by Marcia Oddi on Thursday, October 02, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Beyond the Bushes: Political Dynasties in State and Local Government "

That is the title of an October article by Dylan Scott in Governing. the subhead: "American politics is a forest filled with intricate family trees, and many offices seem almost hereditary."

This is certainly the case in the Indiana General Assembly. When I began working in the Statehouse, former Governor Frank O'Bannon's father Robert was the chair of Senate Finance. Current Speaker Brian Bosma's father was a long-time member of the Senate. Other generational names that come readily to mind are Bray and Bainbridge, but that is just a start.

Posted by Marcia Oddi on Thursday, October 02, 2014
Posted to Indiana Government

Wednesday, October 01, 2014

Ind. Decisions - More on the confusion caused by the Court's (or Clerk's) inconsistent method of handling corrections to its opinions [Updated Twice]

Shortly after noon today the ILB posted an entry that began:

The Supreme Court has issued a corrected version of yesterday's opinion in Corbin v. State.

The corrected Sept. 30th opinion is marked "Corrected on Oct. 1." A check of the docket indicates that the correction was to a typo in a citation.

The ILB entry then went on to comment on the confusion caused by the Court's (or Clerk's) inconsistent method of handling corrections to its opinions.

Now we have an example the confusion.

The Indiana Lawyer late this afternoon has posted a good summary of the opinion in Corbin v. State. But the IL link is to the opinion file-stamped Sept. 30th and not marked "Corrected on October 1, 2014" below the date line, adding to the proliferation of two different versions of the opinion.

[Updated 10/2 at 10 AM] The Indiana Lawyer has just tweeted:

@indianalawblog We've updated our story to link to corrected Corbin opinion. Agree it's easy to miss a changed opns, ct needs better system.
[Updated Oct. 10, 2014] A check of the Court's link to the opinion today shows that the problem has been totally resolved. Only the Corrected opinion is available, it shows the original filing date, and it is clearly identified as "Corrected".

Posted by Marcia Oddi on Wednesday, October 01, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (1):

In James Robinson v. State of Indiana, an 8-page opinion, Judge Robb writes:

In September 2013, James Robinson pleaded guilty to forgery and was ordered to serve four years on home detention. In December 2013, Robinson was awarded a general education development diploma (“GED”). In 2014, the trial court revoked his community corrections placement and ordered him to serve the balance of his sentence in the Indiana Department of Correction (“DOC”) due to several violations of his placement occurring in December 2013 and January 2014. In this expedited appeal, Robinson contends the trial court erred in denying his motion for educational credit time when revoking his placement and ordering he serve the remainder of his sentence in the DOC. Concluding the trial court is the proper authority to determine whether Robinson was entitled to the credit time he seeks, but that the trial court has not yet addressed whether he met the requirements for educational credit time, we reverse and remand.
NFP civil opinions today (0):

NFP criminal opinions today (1):

Lathay Davis v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, October 01, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court reverses lower courts' child support calculation decision

In In re the Paternity of D.M.Y., et al., M.R. v. B.Y., a 5-page per curiam opinion, the Court writes:

We grant transfer and reverse because the record shows that the party obligated to pay child support has not received credit for a substantial sum of money, $7,025.84, seized from his bank account and later paid to the other party as child support. * * *

On September 4, 2013, the court issued an order finding Father in indirect contempt for his willful failure to pay child support as ordered, finding him to be in arrears in the amount of $13,055 as of July 29, 2013, and authorizing a wage withholding order.

Father appealed, claiming that the trial court erred when determining his arrearage to be $13,055 as of July 29, 2013. Specifically, he argued that the trial court failed to credit him for the January 2012 distribution of $7,025.84 to Mother. In a memorandum [NFP] decision, the Court of Appeals rejected Father’s argument and affirmed the trial court, over Judge Robb’s dissent. In re Paternity of D.M.Y., No. 34A04-1310-JP-504 (Ind. Ct. App. May 15, 2014), vacated. We grant transfer to address Father’s argument. * * *

For an issue covered by the findings of fact, this Court applies a two-tiered standard of review, asking whether the evidence supports the findings and whether the findings support the judgment. Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). Here, the trial court found Father to be in arrears in the amount of $13,055 as of July 29, 2013, but its order does not include any subsidiary findings showing how the court reached that figure, and the court’s orders do not mention the amount of $7,025.84. It seems the trial court adopted the figure of $13,055 set out in Mother’s exhibit at the July 31, 2013 hearing.

Our analysis of the evidence is very similar to the analysis in Judge Robb’s dissenting opinion and the calculations provided by Father. * * *

We reverse the trial court’s order and remand for further proceedings, consistent with this opinion, to recalculate Father’s arrearage to provide him credit for the $7,025.84 payment.

Posted by Marcia Oddi on Wednesday, October 01, 2014
Posted to Ind. Sup.Ct. Decisions

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

The Supreme Court has issued a corrected version of yesterday's opinion in Corbin v. State.

The corrected Sept. 30th opinion is marked "Corrected on Oct. 1." A check of the docket indicates that the correction was to a typo in a citation.

Unfortunately, it appears that each time the Court corrects an opinion it does it differently.

With the Corbin correction today, both the uncorrected and corrected versions remain available, the latter with a different filing date and marked "corrected".

As this June 5th ILB post indicates, the Court did a better job with a May 28th correction, in the case of Smith v. Delta Tau Delta. Here is how that correction was handled:

My only suggested addition to the Court's May 28th methodology would be either to institute an online dynamic list of opinions corrected post-filing, or to post a "corrected opinion notice" such as the 7th Circuit does, to provide notification that the opinion has been corrected.

It does appear that the Court order in Corbin requires that the May 28th methodology was to be followed, it does not state that a new filing date was to be assigned, and it does state:

(3) ARRANGEMENTS SHALL BE MADE FOR REMOVING THE ORIGINAL OPINION FROM THE COURT'S WEBSITE AND POSTING THE CORRECTED OPINION IN ITS PLACE
Neither of these directives have been followed, however.

Posted by Marcia Oddi on Wednesday, October 01, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - More on: Supreme Court decision provides guidance to the state courts dealing with abusive and vexatious litigation practices

Updating yesterday's ILB post summarizing the opinion, the Indianapolis Star has a long story today giving background on the "frequent filer" who is the plaintiff in the lawsuit. A sample from the story by Tim Evans:

In 2012, however, the Court of Appeals described Zavodnik as someone who “attempts to make his living by filing lawsuits.”

Zavodnik objected to that claim in The Star interview, but the Supreme Court found — as had other lower courts before it — that many of his claims and motions are legally “defective, repetitive, and lacking merit.”

That included his plea for the high court to take up an appeal of a Marion County judge’s ruling that dismissed one of Zavodnik’s lawsuits. His request for a review, the order noted, did not give justices any indication of the nature of his complaint against the defendant.

Zavodnik told The Star today that he disagrees with the opinion and added, “I am not going to change my ways.”

“Everything in that opinion is a lie,” he said. “There is nothing I can do about it because the whole game isn’t fair. They’ve pretty much closed the door to courts to me in this state. Where can I go now where a judge will not (mistreat) me?”

ILB: It appears to the ILB that the Supreme Court, in its unusual 14-page ruling yesterday denying transfer, in essence was conducting a rulemaking by adjudication in order to set out for the lower courts a detailed, 5-part "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."

Posted by Marcia Oddi on Wednesday, October 01, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Still more on: Spierers' lawsuit survives motion to dismiss hurdle

Updating this ILB post from Dec. 24, 2013, yesterday federal district Judge Tanya Walton Pratt ruled:

The Court concludes that Rosenbaum and Rossman adequately met their burden of showing that the Spierers could not produce evidence on an essential element of their claim, shifting the burden to the Spierers to come forth with evidence in support of their claim. The Spierers instead opted to go forward and respond to the Defendants’ motion for summary judgment without the benefit of discovery, in part because they erroneously concluded that they were not required to put forth such evidence. Although the Court has great sympathy for the Spierers, they have failed to meet their burden of showing that there is a genuine dispute of material fact with respect to the element of causation. Therefore, the Defendants’ Motion for Summary Judgment (Filing No. 61) is GRANTED, and the Spierers’ claims against Rosenbaum and Rossman are DISMISSED with prejudice.
Here is the 21-page opinion in Spierer v. Rossman.

Here is a list of many earlier ILB posts on the Lauren Spierer disappearance case.

Posted by Marcia Oddi on Wednesday, October 01, 2014
Posted to Indiana Courts | Indiana Decisions

Ind. Decisions - Federal judge strikes town ordinance prohibiting door-to-door solicitation after 9 PM

Federal district court Judge Richard Young yesterday granted summary judgment to the Citizens Action Coalition (CAC) in their lawsuit challenging the constitutionality of the Town of Yorktown's ordinance. The issue: "Whether the prohibition of door-to-door canvassing and solicitation after the hour of 9:00 p.m. or sunset, whichever is earlier, comports with the First Amendment." Access the 22-page opinion here.

Posted by Marcia Oddi on Wednesday, October 01, 2014
Posted to Ind Fed D.Ct. Decisions