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Sunday, November 30, 2014

Ind. Decisions - 7th Circuit decided one Indiana case on Wed., Nov. 26th

In USA v. Boswell (SD Ind., Lawrence), a 16-page opinion, Judge Bauer writes:

A jury convicted defendant-appellant, William Boswell (“Boswell”), of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Boswell under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to 235 months—a bit over nineteen and a half years—imprisonment, with a five-year term of probation to follow. Boswell challenges both his conviction and sentence on appeal. In regard to his conviction, he argues that the district court committed reversible error when it permitted the government to elicit testimony regarding a tattoo of a firearm that he had on his neck. As to his sentence, Boswell maintains that the prior convictions used to characterize him as an armed career criminal under § 924(e) were not charged in the indictment and proven beyond a reasonable doubt to the jury, in violation of his Fifth and Sixth Amendment rights. For the reasons set forth in this opinion, we affirm.

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

Wednesday, November 26, 2014

Ind. Decisions - Two Indianapolis attorneys disciplined

In Re Kevin McShane - from an order filed Nov. 24th, relating to violations involving fees and representation:

The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.
In Re John M. Farrar, Jr. - from an order "of interim suspension upon notice of guilty finding," filed Nov. 24th:
The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of Operating a Vehicle While Intoxicated with a Prior Conviction, then punishable as a Class D felony.

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately.

Posted by Marcia Oddi on Wednesday, November 26, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 13 NFP)

For publication opinions today (5):

In Crystal Valley Sales, Inc., Charles Kline, and Nancy Kline v. Jonathan Anderson, National Sales Company, Inc., Rodger Anderson, Camco Manufacturing, and Norm Geible , an 18-page opinion, Judge Crone writes:

Crystal Valley Sales, Inc. (“Crystal Valley”) appeals the trial court’s dismissal of its civil conspiracy claims against National Sales Company, Inc., Rodger Anderson, Camco Manufacturing, Inc., and Norm Geible (collectively “Appellees”) for failure to state a claim. Crystal Valley contends that its amended complaint sufficiently states a claim against Appellees for civil conspiracy, and Appellees assert that a civil conspiracy allegation is insufficient absent an allegation of an underlying tort. Finding that Crystal Valley’s amended complaint failed to sufficiently allege an underlying tort against Appellees, we affirm. * * *

In sum, Crystal Valley’s amended complaint fails to sufficiently allege against Appellees a recognized, underlying tort to accompany its civil conspiracy allegations as required by Indiana law. Thus, the trial court properly dismissed the action without prejudice pursuant to Indiana Trial Rules 12(B)(6) and 12(C). Consequently, we affirm.

In In Re: The Guardianship of C.R. and A.R., E.R. v. M.S. and D.S. , a 10-page opinion, Judge Bradford writes:
Appellant E.R. is the maternal grandfather and adoptive father of minor children C.R. and A.R (collectively “the Children”). Appellees are the paternal grandparents of the Children (the “Grandparents”). The trial court awarded Grandparents visitation rights and, upon Grandparents’ motion, ordered that a visitation evaluation be conducted. E.R. appeals the trial court’s order on the visitation evaluation, arguing that the trial court did not have the authority to order the evaluation. E.R. does not contest the trial court’s decision regarding the parameters of the visitation granted to Grandparents. Finding that the trial court did not have the authority to order a visitation evaluation, we reverse. * * *

Accordingly, we find that Grandparents did not have standing to petition the trial court for a parenting time evaluation and that the trial court did not have the authority to order such an evaluation sua sponte. Because there was no authority to order the evaluation, we need not address whether the evaluation was in the best interest of the Children. We reverse the portions of the trial court’s March 20, 2014 order concerning the visitation study (Sections 16 through 23). The provisions of the order concerning Grandparents visitation time with the Children are unaffected by this decision.

In Eddie G. Love v. State of Indiana , a 5-page opinion with an appellant pro sec, Sr. Judge Darden writes:
Eddie G. Love appeals from the trial court’s order denying his petition for writ of
habeas corpus. Concluding that the trial court did not err by denying Love’s request, a claim which is barred by res judicata, we affirm. * * *

In Zavodnik v. Harper, 17 N.E.3d 259, 268-69 (Ind. 2014), the Supreme Court discussed the imposition of reasonable restrictions, which may be imposed on any abusive litigant, including those who proceed pro se, and set forth examples of those restrictions. In the event Love continues to challenge his conviction at the trial court level, the Zavodnik opinion may be a helpful resource for the trial court.

Derrick Weedman v. State of Indiana

Nathaniel Armstrong v. State of Indiana

NFP civil opinions today (5):

Harris Auto Reconditioning Services, Inc. v. Christopher Shoemaker (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: A.B. (Minor Child) (NFP)

Aaron Rogers v. Tiffany Stevenson (NFP)

Scott Williams and Geoffrey Bond v. April Boomer (NFP)

Harris Auto Reconditioning Services, Inc. v. Brian Wolfe (NFP)

NFP criminal opinions today (8):

Terrance Lassere v. State of Indiana (NFP)

Brian S. Habbinga v. State of Indiana (NFP)

Jordan Rivera v. State of Indiana (NFP)

Zaeem Mahmood v. State of Indiana (NFP)

Sukhjinder Singh v. State of Indiana (NFP)

Edgar N. Singleton v. State of Indiana (NFP)

Taylor Cannady v. State of Indiana (NFP)

Gary R. Manning v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 26, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Do Online Death Threats Count as Free Speech?"

The ILB has written before about Anthony D. Elonis v. United States, now pending SCOTUS oral argument, which bears some similarities to Indiana's Brewington v. State "true threats" case.

Here now is a quote from a long article that will appear in the Sunday NYT Magazine, authored by attorney Emily Bazelon, titled "Do Online Death Threats Count as Free Speech?"

On December 1, the Supreme Court will hear Elonis’s First Amendment challenge to his conviction — the first time the justices have considered limits for speech on social media. For decades, the court has essentially said that ‘'true threats'’ are an exception to the rule against criminalizing speech. These threats do not have to be carried out — or even be intended to be carried out — to be considered harmful. Bans against threats may be enacted, Justice Sandra Day O’Connor wrote in 2003, to protect people ‘'from the fear of violence'’ and ‘'from the disruption that fear engenders.'’ Current legal thinking is that threats do damage on their own.

Elonis, however, claims that he didn’t make a true threat, because he didn’t mean it. ‘'I would never hurt my wife,'’ he told the jury. ‘'I never intended to threaten anyone. This is for me. This is therapeutic.'’ Talking about the loss of his wife, he continued, ‘'helps me to deal with the pain.'’ He had copied the Whitest Kids U’ Know, along with the rapper Eminem, to try his hand at art and parody. Tara said she knew her husband had borrowed some of his words, but they still scared her. ‘'I felt like I was being stalked,” she said in court. ‘'I felt extremely afraid for mine and my children’s and my family’s lives.'’

The central question for the Supreme Court will be whose point of view — the speaker’s, or the listener’s — matters. The jury was instructed to convict Anthony Elonis if it was reasonable for him to see that Tara would interpret his posts as a serious expression of intent to harm her. The court could uphold the standard, or it could require that jurors be asked to convict only if they believe the speaker truly intended to threaten harm. In essence, the court will have to decide what matters more: one person’s freedom to express violent rage, or another person’s freedom to live without the burden of fear?

The legal issue is connected to a larger question: how to deal with the frequent claim that online speech is a special form of playacting, in which a threat is as unreal as an attack on an avatar in World of Warcraft.

Posted by Marcia Oddi on Wednesday, November 26, 2014
Posted to Courts in general

Ind. Law - "Deadline nearing to renegotiate farmland leases" - December 1st

The Greensburg Daily News has the story. Some quotes:

WEST LAFAYETTE - Tenant farmers who want to renegotiate a farmland lease for 2015 may need to deliver written notification to their landlord before Dec. 1, a Purdue University agricultural law professor advises.

The Indiana notification deadline is three months before the end of the current crop year unless the two sides have agreed on a different date, said Gerald Harrison.

By custom in the Indiana farming community, crop years end on the last day of February. Accordingly, the current crop year ends on Feb. 28, 2015 for the purpose of setting the notification deadline, provided an existing lease has no other rule.

Even if a notification is delivered on time, the landlord is under no legal obligation to change the terms of the lease, Harrison said.

But with many farmers feeling the financial pinch of slumping grain prices, he believes landowners and property managers might be more likely to consider reducing cash rents for next year.

“It depends on what the rent had been for 2014,” Harrison said. “Since land values and rents have been relatively high in recent years, landowners might be more understanding if tenants ask for a reduction in the 2015 cash rent or a modification of other lease terms.”

If no changes are made to the current lease, the terms remain the same for 2015, he said.

The Indiana Court of Appeals ruled in a recent case that a notification to terminate - or change - a farmland lease must be made in writing and properly identify the property. Although tenants are not required to file a copy of the notification with anyone other than the landlord, Harrison suggested providing a duplicate to the local office of the U.S. Department of Agriculture’s Farm Service Agency.

He said effective delivery of a legal notice is as important as the content of the document and the timing of the delivery. “The help of an attorney may be wise to draft the notification and properly deliver the notice to be sure it is effective,” he said.

ILB: This ILB post from Nov. 12, 2012 gives much additional information.

Posted by Marcia Oddi on Wednesday, November 26, 2014
Posted to Indiana Law

Ind. Courts - COA hears oral argument re funding dispute between the East Chicago City Council and its city court

Dan Carden reports this morning in the NWI Times:

The Indiana Court of Appeals heard oral arguments Tuesday in a funding dispute between the East Chicago City Council and its city court that could set a statewide precedent for whether and how city and town courts have their budgets cut.

Facing a nearly $5 million revenue shortfall, the East Chicago City Council in October 2012 warned all departments, including the city court, they would be required to reduce spending by 10 to 15 percent for the 2013 calendar year.

East Chicago City Judge Sonya Morris sued the council when it appropriated only $750,322 of her $833,691 budget request. She claimed the court could not operate without the additional funding.

Following a bench trial, Lake Circuit Judge George Paras agreed and ordered the council provide the city court an additional $65,000, which the council did. The council also fully funded Morris' 2014 budget request to avoid a second lawsuit.

In its appeal, the council's attorney, Jon Laramore, argued Morris failed to prove she was unable to reduce court expenses, noting that city and town courts in Hobart, Merrillville and Schererville hear more cases at one-third the cost of the East Chicago City Court.

"She never identified what would be cut if it had to be cut," Laramore said. "There must be some room in that budget to make reductions."

Morris' attorney, Margaret Christensen, argued the city court is unlike other city departments because it is vested with independent judicial authority. As such, the council cannot unilaterally reduce the court's spending, she said.

"There was sufficient evidence there would be impairment to court functions," Christensen said.

The three appellate judges agreed the City Council can eliminate the city court, but puzzled over how the council could reduce court spending if the judge claims a reduction will harm court operations.

They also debated Christensen's request that the council be required to pay Morris' appellate attorney fees, since the council is using city tax revenue to pay their own appellate attorney fees.

The case is Gilda Orange, et al v. The Honorable Sonya A. Morris. You may watch the oral argument here. The panel consisted of Judges Barnes, Bradford and Brown.

Posted by Marcia Oddi on Wednesday, November 26, 2014
Posted to Indiana Courts | Indiana Government

Tuesday, November 25, 2014

Ind. Decisions - "Court: St. Joe prosecutor used perjured testimony" [Updated]

Madeline Buckley of the South Bend Tribune reports today on yesterday's Court of Appeals opinion in Antonio Smith v. State of Indiana. The story begins:

In a decision that reversed a Mishawaka man's felony conviction, the Indiana Court of Appeals has ruled a St. Joseph County deputy prosecutor knowingly used perjured testimony in a jury trial for the burglary case.

The court also sent the opinion to the Indiana Supreme Court Disciplinary Commission, writing that the justices are concerned about the use of such testimony on the part of the state.

But the office of St. Joseph County Prosecutor Michael Dvorak released a statement that said it disagrees with the court's opinion and will ask the state Supreme Court to review the matter. The office has not released the name of the deputy prosecutor in question.

[Updated at 6:17 PM] The SBT story by Madeline Buckley now has been updated to report: " Court of Appeals records indicate the prosecutor in question is Micah P. Cox."

Posted by Marcia Oddi on Tuesday, November 25, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - Indiana Tech Selects New Law School Dean

On May 29th the ILB reported "Dean Resigns Abruptly at Indiana Tech Law School."

On June 15th the ILB had a post with this heading: "Indiana Tech replaces uppercase law dean with lowercase prof." The post included a statement from a Fort Wayne Journal Gazette story: "After Alexander's departure was announced, the university appointed andré douglas pond cummings as interim dean of the law school." (ILB: It had earlier been reported that the interim dean preferred that his name be written in all lower case, because of his relationship to the poet.)

Today Indiana Tech is announcing that Charles Cercone will be its new law school dean. He currently serves as dean of faculty at the Western Michigan University Thomas M. Cooley Law School. More from the announcement:

Cercone will officially begin his duties as dean on January 5, 2015. He currently serves as dean of faculty at Western Michigan University's Thomas M. Cooley Law School, a position he has held since 2003. Cercone first joined Cooley Law School in 1996 as professor of law, and has also served as acting dean of students during his tenure there.

"Dean Cercone brings a long and successful track record in strategic planning, curriculum development and support for student success to his role here at Indiana Tech Law School," said Dr. Arthur E. Snyder, Indiana Tech president. "His experience and skills will enable us to continue building on the strong foundation we’ve established for our law school."

"As we look ahead to Dean Cercone joining our team, I'd also like to express my deep gratitude to Interim Dean dré cummings for his work in leading the law school these last several months," Snyder continued. "Dean cummings and the law faculty and staff achieved much in welcoming our second strong class of law students, in preparing an effective and exhaustive self-study for ABA accreditation, and in hosting the ABA's site team on their accreditation visit in September. Dean cummings will remain part of the law school team as vice dean and professor of law."

In addition to his education background, Cercone has extensive practice experience, having worked at several of the most prestigious law firms in the U.S. prior to his career in legal education. Cercone has practiced law with Buchanan Ingersoll Professional Corporation in Buffalo, NY; Wilkie Farr & Gallagher in New York, NY; Bingham McCutchen, LLP in Boston, MA; and Dewey Ballantine in New York, NY. His practice areas included Environmental Compliance and Litigation, General Litigation Defense, Corporate and Tax Law. * * *

Cercone is a member of the American Bar Association and holds bar admissions with the State of New York, State of Michigan, Federal Courts in Michigan and New York, and the United States Supreme Court.

ILB: It is not noted in the news announcement that the new dean's current job as dean of faculty at Western Michigan University Thomas M. Cooley Law School, is terminating because the school is closing December 31st, 2014.

Above the Law reported on Oct. 3rd that Cooley Law School was planning to close, stating: "This may be the first law school campus closure since the public started learning that legal education wasn’t all that it was cracked up to be…".

Posted by Marcia Oddi on Tuesday, November 25, 2014
Posted to Indiana Law

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

For publication opinions today (0):

NFP civil opinions today (2):

Jason T. Myers v. Gary W. Myers (NFP)

In Re: the Termination of the Parent-Child Relationship of: M.C. and G.C. (Children in Need of Services), B.J.M. (Mother) and G.W.C. (Father) v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (4):

Brandan J. Franze v. State of Indiana (NFP)

Robert A. Rosenbourgh v. State of Indiana (NFP)

Janice Williams v. State of Indiana (NFP)

Brett Holland v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 25, 2014
Posted to Ind. App.Ct. Decisions

Monday, November 24, 2014

Ind. Decisions - "43 Sexual Harassment Cases That Were Thrown Out Because Of One SCOTUS Decision"

The SCOTUS decision was Vance v. Ball State University. Here is an ILB post about the ruling from June 24, 2013.

Today's story
is by Bryce Covert from ThinkProgress. A quote from the long article:

The Vance decision significantly narrowed the definition of supervisor when it comes to harassment cases, limiting it to someone who has the power to hire, fire, promote, or otherwise tangibly impact a report’s employment.

Advocates for the victims of sexual harassment feared that the Vance decision would make it more difficult to get justice. Their fears have played out. According to an analysis from the National Women’s Law Center conducted for ThinkProgress, 43 sexual harassment cases have been dismissed because a supervisor didn’t meet Vance’s restricted definitions, and the victim couldn’t prove that the employer was negligent in coworker harassment. (Vance also applies to harassment on other grounds, but the analysis is limited to sexual harassment cases in federal courts.)

See also this July 2, 2013 post re an article by Hofstra University Prof. Joanna L. Grossman.

Posted by Marcia Oddi on Monday, November 24, 2014
Posted to Indiana Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In In re the Visitation of H.B., Adam Burris v. Timothy W. Schmidt and Anita J. Schmidt , a 10-page opinion, Judge Najam writes:

Adam Burris (“Father”) appeals the trial court’s grandparent visitation order in favor of Timothy W. Schmidt and Anita J. Schmidt (“the Grandparents”) and with respect to Burris’ minor daughter, H.B. Father raises two issues for our review, which we consolidate and restate as whether the trial court’s order is clearly erroneous. We reverse. * * *

Here, there is no dispute that, following our instructions on remand, the trial court’s revised order addresses the requirements of In re M.L.B. Rather, on appeal Father asserts that the trial court’s findings are not supported by the evidence. In particular, Father contends that there is no evidence to support the trial court’s finding that Father would entirely deny the Grandparents visitation absent a court order. We must agree.

In Antonio Smith v. State of Indiana , a 15-page opinion, Judge Najam writes [ILB emphasis in bold]:
Antonio Smith appeals his conviction for burglary, as a Class C felony, following a jury trial. He presents two issues for our review, but we address a single dispositive issue, namely, whether his conviction was obtained by the State’s knowing use of perjured testimony at his trial. In particular, Nicole Greenlee, Smith’s former girlfriend, testified that Smith had committed the burglary while she hid outside in the bushes to serve as a lookout. But previously Greenlee had been convicted of the same crime on a guilty plea. Greenlee stated under oath, as the factual basis for her plea, that it was she who had broken and entered the building and committed the burglary, and she did not implicate Smith. The State also introduced at Smith’s trial a surveillance video and a detective’s testimony that a white female had committed the burglary. Greenlee is white, and Smith is African-American.

We conclude that the State was aware of a high probability that if Greenlee were called as a witness against Smith she would commit perjury and that Greenlee perjured herself at Smith’s trial. In particular, in its opening statement the State informed the jury that Greenlee would give two versions of the burglary, and the State granted immunity to Greenlee for her guilty plea testimony prior to her trial testimony. And after Greenlee had testified, the State did not correct the perjury. A conviction based on the knowing use of perjured testimony constitutes a denial of due process, and the error here was not harmless. Thus, we reverse Smith’s conviction. * * *

The State knowingly proffered perjured testimony at Smith’s trial, as there is substantial evidence that the State anticipated Greenlee’s testimony and was aware of a high probability that she would commit perjury. Moreover, after Greenlee had testified at Smith’s trial, the State knew that her guilty plea testimony and her trial testimony were inconsistent to the degree that one of them was necessarily false. See I.C. § 35-44.1-2-1. Greenlee’s perjury could not be cleansed, as the State suggests, by a jury determination that her testimony at Smith’s trial was credible. And the possibility that Smith was convicted as an accomplice does not render Greenlee’s perjured testimony harmless beyond a reasonable doubt. We hold that Smith’s conviction was obtained by the State’s knowing use of perjured testimony, and we reverse his conviction.[8]
_________________
[8] The Indiana Supreme Court Disciplinary Commission (“Disciplinary Commission”) has exclusive jurisdiction to discipline an attorney, where appropriate, for acting in violation of the Rules of Professional Conduct. We are troubled that the State knowingly proffered perjured testimony but are even more concerned that the State granted the witness immunity from prosecution, which encouraged such testimony. Thus, we direct the Clerk of this Court to send a copy of this opinion to the Disciplinary Commission. We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments. See Joel Schumm, “Isn’t it Time to Get Serious About Prosecutor Misconduct?,” The Indiana Law Blog (July 7, 2014), http://indianalawblog.com/archives/2014/07/ind_courts_isnt.html.

NFP civil opinions today (3):

Stanley F. Collesano v. Citimortgage, Inc. (NFP)

Daniel R. Walls v. Brian Joseph Eagan, and Dale Terrell (NFP)

In the Matter of the Termination of the Parent-Child Relationship of R.O., Minor Child, and J.T., Father, and M.O., Mother, J.T. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

Michael E. Johnson v. State of Indiana (NFP)

Charles Case, II v. State of Indiana (NFP)

Robert C. Tiller v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 24, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending November 21, 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, November 21, 2014. It is two pages (and 14 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, November 24, 2014
Posted to Indiana Transfer Lists

Ind. Courts - Indiana Trial Court Fee Manual worth perusing

The Indiana Courts site is featuring a 37-page publication, which is current through 2014 legislative session, titled "Indiana Trial Court Fee Manual." The report begins with filing fees. Starting on p. 12 and running through p.36 are the multitude of less well-known "Fees/Costs Assessed by a Court or Clerk."

[The above list might be read in conjunction with this Nov. 12th post on governmental entities "funding their operations by high court fees and high fees for access to public records."]

Page 37 of the report is a placeholder - it directs you to this 7-page "2012 Court Reporter Fees per Page" list. As you read this survey, remember that the charges are "per page."

Posted by Marcia Oddi on Monday, November 24, 2014
Posted to Indiana Courts

Ind. Gov't. - States' Attorneys General continue to be the focus of national stories

Following up on posts from Oct. 27th ("Florida Attorney General active in faraway court fights") and Oct. 29th ("Lobbyists, Bearing Gifts, Pursue Attorneys General"), the Lexington Herald-Leader ran a story Nov. 15th on an attorney general candidate closer to home: "Andrew Beshear raises $1.5 million for AG race, but critics question his donor list." A few quotes from John Cheve's long story:

Democrat Andrew Beshear, the 36-year-old son of Gov. Steve Beshear, has raised $1.48 million as the only declared candidate in the November 2015 election for Kentucky attorney general.

It's an impressive sum — incumbent Attorney General Jack Conway spent less than $1.9 million combined on his two successful campaigns — but the source of much of that money concerns ethics watchdogs and legal observers, who question how vigorously Andrew Beshear could protect the public interest as Kentucky's top law-enforcement official.

At the 87 fundraising events Andrew Beshear reported as of Sept. 30, he raked in contributions from many with a financial stake in his father's Democratic administration — executive branch political appointees, Frankfort lobbyists, state contractors and state-regulated industries, including coal, health care and banking.

On Nov. 20th the NY Times featured this editorial, headed "Attorneys General for Sale." Some quotes:
Every state has laws regulating lobbying, but almost all of those laws apply to lobbying members of state legislatures, not attorneys general. For the most part, states never anticipated that their chief legal officers would be the subject of aggressive pressure from big businesses and special interests.

But that’s all changed now. Politics at all levels has become dominated by those with enough money to spend lavishly on electing public officials and then pushing them for favors. In a recent investigative report, Eric Lipton of The Times revealed that an entire industry has sprung up to lobby state attorneys general on behalf of companies that are under scrutiny, or that need special legal benefits from a state.

The companies give hundreds of thousands of dollars (and often much more) to the campaigns or political funds set up to elect the attorneys general. Once in office, many of these officials are treated to expensive vacations at resort hotels, where they mingle with the lobbyists who are trying to cut deals for their clients.

The position of attorney general is often both extremely powerful and relatively low-profile, making it a perfect target for lobbying. These officials regulate corporations, enforce consumer protections and environmental laws, and bring civil suits against lawbreakers, often collectively. Many of them handle prosecutions and criminal appeals, and represent state agencies in court. * * *

For state lawmakers, fixing this mess will have to go beyond investigating individual cases. State lobbying laws will have to be expanded to cover attorneys general; already, many states barely police gifts to legislators. (Ten states allow officeholders to take gifts of unlimited value.) States also need to put lower limits on how much a donor can give to an attorney general’s campaign, or even consider making the job an appointed position, as it is in seven states. Big-money politics should not mix with state legal power.

Posted by Marcia Oddi on Monday, November 24, 2014
Posted to Indiana Government

Ind. Courts - " Cincinnati man accused of writing email threatening the lives of Dearborn County judges"

Mike Perleberg of Eagle Country 99.3FM reported the story Nov. 20th. Some quotes:

Joseph F. Simonson was booked into the Dearborn County Law Enforcement Center on Wednesday on a charge of Intimidation of a Judge (Level 5 felony).

According to a court affidavit completed by Dearborn County Sheriff’s Department investigators, Simonson allegedly sent an email to Sheriff Mike Kreinhop on November 3. The message stated in part, “Judges, police officers, and lawyers are rapist (sp)… The Judges of Dearborn County are hereby sentenced to death by public execution… The penalty for Judge Sally Blankenship is death.”

Using an IP address, detectives tracked the email to Simonson.

Posted by Marcia Oddi on Monday, November 24, 2014
Posted to Indiana Courts

Ind. Courts - John Feighner elected Judicial Nominating Commission district three representative

On Nov. 20th the Court's public information office announced:

John O. Feighner has been elected to serve as the Indiana Judicial Nominating Commission district three representative. Feighner was elected by attorneys to fill a vacancy that will occur December 31 when attorney John Ulmer's term expires.

District three is made up of Allen, Benton, DeKalb, Elkhart, Fulton, Jasper, Kosciusko, LaGrange, Lake, LaPorte, Marshall, Newton, Noble, Porter, Pulaski, St. Joseph, Starke, Steuben, Warren and Whitley counties. Ballots were sent to attorneys eligible to vote in district three. The Clerk of the Appellate Courts collected the ballots and certified Feighner garnered 608 votes, John E. Hughes garnered 566 votes and Jay A. Rigdon garnered 142 votes.

ILB: The Indiana Judicial Qualifications/Nominating Commission is chaired by the Chief Justice. Here is the current membership.

Three "non-attorney citizen" members are appointed by the governor for three-year terms. (See IC 33-27-2-1) These terms are staggered and each of the appointees represents a different judicial district.

Three attorney members are elected by the attorneys of the state, per IC 33-27-2-2 and 3.

Neither the citizen nor attorney commissioner is eligible for successive reappointment or reelection.

The news release does not point out that this is Mr. Feigner's third term on the Commission. Although members may not be elected for successive terms, they may serve for multiple terms. As this chart, which has not yet been updated, shows, this is Mr. Feigner's third term representing the 3rd District.

This Sept. 28, 2010 ILB post includes additional resources.

Posted by Marcia Oddi on Monday, November 24, 2014
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 11/24/14):

Monday, Nov. 24

Next week's oral arguments before the Supreme Court (week of 12/1/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/24/14):

Tuesday, November 25

Next week's oral arguments before the Court of Appeals (week of 12/1/14):

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, November 24, 2014
Posted to Upcoming Oral Arguments

Friday, November 21, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Destination Yachts, Inc., and Sheldon Graber v. Jim R. Fine, a 9-page opinion, Judge May writes:

Destination Yachts, Inc., (“Destination”) and Sheldon Graber1 appeal the entry of judgment in favor of Jim R. Fine. Although they raise two issues, we find one dispositive: Whether the trial court abused its discretion by denying Destination’s and Graber’s request for a continuance and entering judgment in favor of Fine because Destination was not represented by counsel. Finding the trial court abused its discretion, we reverse and remand for further proceedings. * * *

In this case, the record does not reflect that any evidence was taken. Rather, the record makes clear the only reason judgment was entered against Destination was that Destination appeared without counsel. Indiana Small Claims Rule 8(C)(3) provides that claims by or against a corporate entity that exceed $1,500.00 must be defended or presented by counsel. However, that rule is silent with respect to how a trial court should proceed when a corporation appears without counsel. Because that rule provides no guidance, we turn to case law. * * *

We believe under these facts, and under our standard of review in this case of prima facie error, the denial of a motion to continue was an abuse of discretion. We are aware that Fine travelled from Las Vegas for the hearing and that returning at a later date may have inconvenienced him. However, inconvenience is not a reason to justify the denial of a continuance where the basic rights of representation and defense against a claim are at issue. As a result, we reverse and remand to the trial court for further proceedings.

In Deriq Watters v. State of Indiana, a 4-page opinion, Judge May writes:
Deriq Watters appeals the revocation of his probation. We reverse. * * *

At the hearing, the State submitted two uncertified documents: an Abstract of Judgment convicting Watters of Class B felony robbery in the Marion Superior Court, and a purported plea agreement resolving that same cause. Watters objected to both arguing they were inadmissible hearsay because they were uncertified. The court overruled Watters’ objections and entered the exhibits into evidence. After the hearing, the court ordered Watters to serve the remainder of his suspended sentence in the Department of Correction. * * *

In the case at hand, we do not have certified copies, affidavits, or testimony to substantiate the exhibits offered into evidence. * * *

While trial courts have the discretion to admit hearsay evidence at a probation revocation hearing, the admission must not violate the due process standards provided by the United States Supreme Court. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) (when a loss of liberty is at stake, the parolee is to be accorded due process). We decline to extend the lowered bar for admission of hearsay at probation revocation hearings to include evidence with no “indicia of reliability.” See Cox, 706 N.E.2d at 552 (court is not bound by the hearsay exclusion rule, but the hearsay must be reliable). Although there is no bright line test of this reliability, testimony of the parties directly involved, affidavits of parties directly involved, and certified copies would have sufficed without putting an undue burden on the State. As the State did not provide any of those indicia of reliability herein, we hold the evidence was inadmissible.

In Christopher M. Montgomery v. State of Indiana, a 34-page opinion, Judge Brown writes:
Pursuant to an order from the post-conviction court, Judge Grant W. Hawkins presiding, Christopher Montgomery filed this “new direct appeal on his convictions for Count I, Murder, and Count III, Neglect of a Dependent,” which the post-conviction court “limited to issues related to the introduction of 404(b) evidence and sufficiency consistent with [the] court’s findings.”

We first address an issue sua sponte, which is whether the post-conviction court erred when, following a determination that Montgomery received ineffective assistance of appellate counsel, it ordered that Montgomery be granted a second direct appeal.

Following this discussion, we address the two issues raised by Montgomery, which we revise and restate as: I. Whether the trial court abused its discretion by excluding certain evidence; and II. Whether his conviction of neglect of a dependent as a class B felony violates double jeopardy principles. * * *

For the foregoing reasons, we affirm Montgomery’s conviction for murder under Count I, reverse his conviction for neglect of a dependent as a class B felony under Count III, and remand with instructions to enter a conviction under Count III for neglect of a dependent as a class D felony and to sentence him to three years thereon, to be served consecutive to his conviction for murder under Count I.

In Antwonna Smith v. State of Indiana, a 9-page opinion, Judge May writes:
Antwonna Smith was convicted after a jury trial of Class D felony theft and Class D felony resisting law enforcement. Resisting law enforcement is a Class A misdemeanor, but when Smith committed the offense it could be enhanced to a Class D felony if the person “inflicts bodily injury on or otherwise causes bodily injury to another person.” IC 35-44.1-3-1. Smith’s conviction of resisting law enforcement was enhanced to a Class D felony on the ground she inflicted bodily injury after a police officer scraped his knuckle and fingertip while forcing Smith to the ground. Smith argues on appeal the enhancement was error because she did not “inflict” the injury on the officer and the “cause”3 of the injury was the officer’s action, not hers. We agree and therefore reverse and remand so the trial court may enter a conviction of resisting law enforcement as a Class A misdemeanor. * * *

Smith did not “inflict” an injury on the officer or “cause” the officer’s injury, and her conviction should not have been enhanced to a felony. Officer Jones scraped his knuckle and fingertip when he fell while forcing Smith to the ground, but we agree with Smith that she was “a passive part of the encounter” and “took no actions toward” him.

We acknowledge that in Whaley v. State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006), trans. denied, a panel of this court reached the opposite result. * * *

As we do not believe a person who is thrown to the ground necessarily “inflicts” or “causes” an injury suffered by the person who throws her to the ground, we decline to follow Whaley * * *

[ILB: The opinion then cites at length a 2009 COA order by then-CJ Baker. As a COA Order, it is not available on the Indiana Courts website, but it can be found in West and at Google Scholar: In re the Matter of C.F. and A.F.. It says in short:

[E]ach panel of this Court has coequal authority on an issue and considers any previous decisions by other panels but is not bound by those decisions. See, e.g., O’Casek v. Children’s Home and Aid Society of Illinois, 229 Ill.2d 421, 323 Ill. Dec. 2, 892 N.E.2d 994, 1014 n.4 (2008) (horizontal stare decisis is not an inexorable command, whereas vertical stare decisis is an obligation to follow the decisions of superior tribunals).
Today's opinion then concludes by distinguishing the facts of the two cases.]

In the instant case, Officer Jones chose to halt Smith’s resistance by throwing her to the ground, and the officer was injured in so doing. Unlike Whaley, Smith did not create a scenario in which Officer Jones’ only option in handcuffing her was to remove her hands from a location in which he could not reach.

As Smith did not inflict or directly cause Officer Jones’ injury, her conviction should not have been enhanced to a felony. We must therefore reverse and remand.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: A.P., P.M., & A.T. and S.T. v. The Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: Z.J.C. and L.C. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (3):

John M. Gresko v. State of Indiana (NFP)

Charles Smith v. State of Indiana (NFP)

William A. Russell v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 21, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Jeffersonville City Court said to be missing records of 1,135 cases

Supplementing this ILB post from Nov. 18th, headed "Jeffersonville City Court in jeopardy of closing, City Judge blames State Police," quoting a story from Alex Schuman of WHAS11ABC, Schuman has a new story this morning. Some quotes:

Jeffersonville's City Court saves their files electronically. WHAS11 filed an open records request and received information showing the court's files are currently missing 1,135 cases from their records.

We received an anonymous tip after we covered the Jeffersonville City Council's first vote to move toward closing the city court.

The city court handles criminal misdemeanors, infractions, and ordinance violations. An infraction could be a traffic violation like speeding while a criminal misdemeanor could something as serious as a DUI.

Here's the breakdown of missing cases:

  • Infractions: 766
  • Ordinance Violations: 350
  • Criminal Misdemeanors: 19
According to the office of the city clerk, all the missing cases received verdicts and the criminals did go before the judge. The city clerk did not go on the record, but the deputy clerk called the situation, "frustrating."

"There are attorneys, even if attorney's aren't involved, the person who is in charge, [wants] information out of their file," said Jamie Miller, Jeffersonville's deputy city clerk. "Or the Army or FBI comes in and does a background check. We don't have that information if it's in the system. We can't give them anything, and that causes some issues."

Vicki Conlin, Jeffersonville city clerk, took control of the records on March 12, 2013. The cases go from getting filed by an officer, to the court, and then to the clerk's office.

Most of the lost records range from 2009 until 2012, and only two lost files are from 2013. * * *

WHAS11 asked court staff about who has administrative powers over the database, and could have possibly erased such a large number of files. The staff sent WHAS11 to Ken Pierce, Jeffersonville city court judge.

"I'm not the custodian of those records, nor have I been for the last year and a half," said Pierce. "I have know [sic.] idea where the went. Never once when I was custodian of those records did I have any question about those records. Never once did this come up."

Pierce was unaware of the 1,135 missing files until his interview with WHAS11. He said no one had contacted about the issue, and reiterated that the records have been controlled by the city clerk's office since March 2013.

"I do know that from the transfer from the old system to the new system - some files may have been lost," said Pierce. "I'm not sure which ones or how that may have happened. I also know that on occasion there are glitches in the system."

There are at least 14 listed administrators on the database, which include both the clerk and Judge Pierce.

WHAS11 reached out to the company that handles the court's electronic records, but have not yet responded to our inquiry about if anyone from the city has the capability to delete these files.

"I have no reason to believe than anyone has maliciously gone in and intentionally removed files," said Pierce.

The judge does not think the loss of these files should be considered a reason to shut down the city court, and said he hopes to learn how the records were lost.

ILB: Recall that yesterday the ILB wrote of the just announced Supreme Court changes to Adm. Rule 10:
[T]he order revises Administrative Rule 10 to make it clear that "All court records are the exclusive property of the courts and subject to the authority of the Supreme Court of Indiana." That means at whatever level.

Posted by Marcia Oddi on Friday, November 21, 2014
Posted to Indiana Courts

Thursday, November 20, 2014

Ind. Decisions - "Judge sets aside Michael Dean Overstreet's death penalty"

Earlier today the ILB posted the Attorney General's statement re the decision of St. Joseph Superior Court Judge Jane Woodward Miller that Michael Dean Overstreet is not competent to be executed.

Now, in an updated story, Indianapolis Star reporter Vic Ryckaert reports the reaction of the prosecutor in the trial, which took place in 2000. From the story:

St. Joseph Superior Court Judge Jane Woodward Miller ruled Overstreet is not competent to be executed, in a 137-page decision released today.

Johnson County Prosecutor Brad Cooper, who was a deputy prosecutor on the team that won the conviction against Overstreet in 2000, issued a strongly worded reaction to The Star via a text message.

"I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn't even afford to drive up for the hearing," Cooper said.

"The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds people who worked to convict this animal."

The Indiana Supreme Court transferred Overstreet's case to the St. Joseph County court after Johnson Superior Court Judge Cynthia Emkes, who presided over Overstreet's trial, removed herself for health reasons. * * *

Miller's ruling laid out a detailed explanation as to why she sided with Overstreet's lawyers, who argued that he was delusional and has no "rational understanding" of why the state of Indiana plans to execute him.

"Overstreet spends at least twenty hours a day by himself," Miller wrote. "He lives in a world where voices tell him what to do and criticize him when they feel he has erred. Shadow people populate his world with such frequency that they no longer bother him; he views them, instead, like mice." * * *

Overstreet was sentenced to death for the 1997 murder and rape of Kelly Eckart, 18.

[More] A reader writes to ask: "How aren't the prosecutor's comments disciplinary-worthy?"

Posted by Marcia Oddi on Thursday, November 20, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Courts - Order listing Supreme Court Justice assignments, effective immediately, and major technology oversight changes

Here is the assignments order. The biggest change, aside from Chief Justice Rush assuming the traditional CJ roles, is that Justice David has taken over the technology assignments formerly held by Justice Massa.

According to a press release:

All court technology projects will move forward under the direct supervision of the Supreme Court. Justice Steven David and Court of Appeals Judge Paul Mathias will lead the effort.
That change is memorialized in a separate order, which first explains the need for the change:
[P]rojects are currently spearheaded by various agencies and committees of the Supreme Court, which, itself, bears responsibility under the Indiana Constitution to oversee the projects as part of the Court’s supervision of the exercise of jurisdiction by all courts in the State as directed by Article 7, §4 of the Constitution of the State of Indiana.
And then continues:
IT IS NOW THEREFORE ORDERED that the supervision and oversight of court technology objectives, initiatives, and projects be consolidated under the authority of the Indiana Supreme Court, including administration of all functions heretofore performed by the Judicial Technology and Automation Committee [JTAC], the e-filing project, and appellate court technology ad hoc committees. The Court now appoints Supreme Court Justice Steven David and Court of Appeals Judge Paul Mathias to lead this integrated court technology effort on behalf of the Supreme Court, with Justice David also serving as the chair of the Judicial Technology Oversight Committee [JTOC], pursuant to Indiana Code § 33-23-17-3. Justice Mark Massa will serve as the chair of the Supreme Court’s Records Management Committee.
This is big, and it is underlined by the third order today, which repeals JTAC. In addition, the order revises Administrative Rule 10 to make it clear that "All court records are the exclusive property of the courts and subject to the authority of the Supreme Court of Indiana." That means at whatever level.

And these records are now explicitly to be "recorded and maintained pursuant to Supreme Court directives". Furthermore, "Each Clerk is the custodian of all court records pursuant to the directives of the Supreme Court of Indiana, and the judges of the trial courts directly served by the Clerk." Period.

Posted by Marcia Oddi on Thursday, November 20, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Former Elkhart man’s wrongful imprisonment triggers $4.9 million payout, a fight among insurance companies"

The subhead to the long Elkhart Truth story by Jeff Parrott: "Chris Parish received $4.9 million in an out-of-court settlement after spending 10 years in prison for a crime he didn’t commit. Now, several insurance companies are in a legal battle over which one is responsible for paying." Interesting story.

Posted by Marcia Oddi on Thursday, November 20, 2014
Posted to Indiana Decisions

Ind. Decisions - "Attorney General’s Office’s statement on Overstreet competency ruling"

On Sept. 24, 2013, the Indiana Supreme Court ruled, 5-0:

Overstreet's claim is that his mental illness and present mental state render him not currently competent to be executed under Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). * * *

To meet the threshold showing, Overstreet points to evidence about his mental illness discussed in the earlier court opinions in his case. In addition, he has tendered a report from forensic psychiatrist Dr. Rahn K. Bailey, prepared after he examined Overstreet on two occasions earlier this year. The twenty-page document discusses the background of the case and Overstreet's past and current mental condition, and concludes that in Dr. Bailey's professional opinion, Overstreet does not have, and does not have the ability to produce, a rational understanding of why the State of Indiana plans to execute him. We find this sufficient to permit Overstreet to file a successive post-conviction petition asserting the claim that he is not currently competent to be executed.

Today AG Zoeller has announced:
INDIANAPOLIS – Judge Jane Woodward Miller, a St. Joseph County Superior Court judge serving as a special judge in Johnson County Superior Court 2, has ruled that Michael Dean Overstreet is not currently competent to be executed. Overstreet abducted, raped, and murdered Franklin College student Kelly Eckart in 1997, and he was convicted at a jury trial in 2000 and sentenced to death.

During a four-day hearing in South Bend in September, Overstreet’s defense attorneys had asked the court to find that Overstreet is not competent to be executed. In a 2007 decision in another case, the United States Supreme Court reaffirmed that death row inmates who are mentally ill cannot be executed if they cannot rationally understand why they are being executed and what execution means. * * *

At the September competency hearing, the Attorney General’s Office presented evidence that despite having a mental illness, Overstreet understands that he would be executed and that it is because of his heinous crimes.

Judge Miller’s ruling granting the defense’s petition for post-conviction relief means that Overstreet’s convictions and death sentence remain valid, but the State cannot carry out the sentence until and unless Overstreet becomes competent. The Attorney General’s Office is reviewing the ruling and will decide at a later date whether to appeal it to the Indiana Supreme Court.

Posted by Marcia Oddi on Thursday, November 20, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - Inspector General recommendations to the General Assembly to strengthen public integrity laws

Here is the 26-page, Nov. 19, 2014 report from Inspector General David O. Thomas and State Ethics Director Cyndi Carrasco suggesting changes for consideration during the 2015 legislative session.

[h/t Niki Kelly, FWJG]

[More] Here is Kelly's preliminary story.

Posted by Marcia Oddi on Thursday, November 20, 2014
Posted to Indiana Government

Ind. Gov't. - "State Police Search Owen Co. Council Member's Home"

From 1340 AM WBIW (Bedford), some quotes from this story:

(GOSPORT) - Indiana State Police officers spent several hours Tuesday searching Angie Lawson's home near Gosport to locate hundreds of items -- from diamond rings to a Shiatsu foot massager -- that the Owen County Council member and former county auditor is suspected of buying with the county's Walmart credit cards.

ISP is in the midst of a months-long investigation into Lawson's suspected misuse of at least five Walmart credit cards issued to Owen County.

According to preliminary reports, Lawson may have spent $340,000 in county funds to purchase items for herself and her family.

Prosecutors have not yet charged Lawson with a crime, but the case is an active investigation. * * *

In court documents unsealed by Monroe Circuit Judge Marc Kellams, an ISP detective alleges Lawson diverted the Walmart bills to a post office box she shared with her husband and daughter, then issued online check payments using electronic signatures without sending the bills through her office and on to the county commissioners for review.

When the payments appeared in county bank statements, there would be check numbers correlating with dollar amounts, but the check recipients are not listed.

Court documents in the case state that there might be as many as 75 county-issued Walmart cards circulating and that Lawson may have given some to family members and friends.

She is also suspected of spending more than $18,000 in county funds for mail-order novelty items purchased from the Oriental Trading Co. and paying with a county check; not paying almost $50,000 in county health insurance premiums; and siphoning thousands from a county account that pays lawyers to represent indigent clients.

Lawson has not been charged with any crimes. Morgan County Deputy Prosecutor Bob Cline, who is overseeing the investigation, has yet to file any criminal charges and would not saywhen charges might come.

Lawson was terminated from her job as a deputy in the Owen County Auditor's Office in August after the allegations arose. Her annual salary was $27,860.

Posted by Marcia Oddi on Thursday, November 20, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Joseph M. Johnson v. State of Indiana , a 9-page opinion, Judge Bailey writes:

Johnson raises one issue on appeal, which we restate as: whether the trial court erred when it denied Johnson’s motion to suppress evidence obtained during an investigatory traffic stop.

On December 28, 2013, Jay County Sheriff’s Deputy Brad Wendel (“Deputy Wendel”) began following a gold van heading north on Highway 1 in Jay County. He ran a registration check and found that the van was registered to Ashley Boyd (“Boyd”). After he requested a driver’s license check on Boyd, he discovered that Boyd’s license was suspended. Deputy Wendel followed the van for approximately two miles, until he was in a safe area to initiate a traffic stop. During that time, he observed no traffic violations.

After making the stop, Deputy Wendel approached the van and observed a driver, later identified as Johnson, and two passengers, one of which was Boyd. Deputy Wendel stated the reason for the traffic stop: that the van was registered to a suspended driver. Boyd spoke up from the backseat, identified herself as Ashley Boyd, and confirmed her license was suspended. Deputy Wendel later testified that he had no reason to believe that Boyd was lying.

Deputy Wendel then asked Johnson for his driver’s license, because he “wanted to confirm that the driver was not Ashley Boyd.” (Tr. at 14.) Johnson handed Deputy Wendel an identification card and informed the deputy that his driver’s license was also suspended. Deputy Wendel placed Johnson under arrest.

On January 8, 2014, Johnson was charged with Driving While Suspended, a Class A misdemeanor.1 On February 20, 2014, Johnson filed a motion to suppress all evidence obtained during the traffic stop, which he later amended on March 19, 2014. The trial court held a suppression hearing on March 19, 2014, and that same day, issued an order denying Johnson’s motion. * * *

Johnson contends that after passenger Boyd identified herself as the vehicle’s owner, Deputy Wendel became aware of “evidence or circumstances which indicate that the owner is not the driver.” Armfield, 918 N.E.2d at 322. Citing Holly, Johnson argues that Deputy Wendel should have ended the traffic stop after Boyd’s disclosure because “the reasonable articulable suspicion which initially justified the investigatory stop of [the] vehicle dissipated.” * * *

The facts show that before asking for Johnson’s identification, Deputy Wendel knew of evidence or circumstances that indicated that the registered owner was not the driver, but a backseat passenger. By his own testimony, he had no reason to disbelieve Boyd’s statement. In other words, he no longer had reasonable suspicion that Boyd was driving while suspended. As such, “there is simply nothing in this record justifying any further inquiry subsequent to the valid Terry stop.” Holly, 918 N.E.2d at 326. The deputy’s investigation should have ended there. * * *

Once Boyd identified herself and Deputy Wendel had no reason to disbelieve her, the deputy had no reasonable suspicion to ask Johnson for his license or otherwise extend the stop. To the extent that Deputy Wendel may have felt he needed to confirm Boyd’s truthful statement as to her identity, we fail to see how his request to see Johnson’s driver’s license could possibly confirm it.

Although the deputy had reasonable suspicion to initiate an investigatory traffic stop, we hold that the officer lacked reasonable suspicion to request Johnson’s identification and thus all subsequent investigation violated Johnson’s rights under the Fourth Amendment. Accordingly, the trial court erred in denying Johnson’s motion to suppress the evidence obtained after Boyd’s statement. Reversed and remanded.

NFP civil opinions today (1):

Certain Underwriters at Lloyd's London v. The Lee Group Shelbyville Holding Company, LLC (NFP)

NFP criminal opinions today (2):

Aron Smith v. State of Indiana (NFP)

Scott W. Nicol v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 20, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, November 19, 2014

Ind. Decisions - Tax Court posts an opinion today; and some info from the ILB

Since August 29th, the Tax Court had posted only two rulings, one on a petition for rehearing, the other the denial of a Motion for Trial Rule 37 sanctions.

Today the Tax Court has posted an additional decision.

The City of Greenfield and the Greenfield Fire Protection Territory v. The Ind. Dep't of Local Government Finance, a 14-page opinion, Sr. Judge Fisher writes:

The Greenfield Fire Protection Territory, which was established by the City of Greenfield and the unincorporated area of Center Township, Hancock County, Indiana (Center Township), is the only fire protection territory in Hancock County that has a uniform tax rate. In 2011, the Department of Local Government Finance (DLGF) issued a final determination pursuant to Public Law 172-2011, Section 164 that adjusted the Territory’s general fund levy for the 2012 budget year. The City of Greenfield and the Territory have appealed that final determination, claiming that it is arbitrary and capricious, not supported by substantial evidence, and in contravention of Article 4, Sections 22 and 23 of the Indiana Constitution. Upon review, the Court reverses. * * *

The lack of sufficient factual findings would typically require the Court to remand the matter to the DLGF. See Perez, 426 N.E.2d at 33-34; Pack, 935 N.E.2d at 1227-28. Here, however, the Court need not remand for this deficiency because the DLGF’s final determination is invalid for an entirely different reason. * * *

The certified administrative record and the three generally applicable provisions of Public Law 172-2011 regarding fire protection territories indicate that Public Law 172-2011, Section 164 could have been written to apply throughout the state because neither the Territory nor the circumstances surrounding its establishment are unique. Therefore, Public Law 172-2011, Section 164 contravenes the special legislation provisions set forth in Article 4, Section 23 of the Indiana Constitution. Accordingly, the DLGF’s final determination that adjusted the Territory’s general fund levy for the 2012 budget year pursuant to Public Law 172-2011, Section 164 is invalid.

CONCLUSION. For the above-stated reasons, the final determination of the DLGF is REVERSED. The Court REMANDS this matter to the DLGF with instructions to reinstate the City of Greenfield’s and Center Township’s original levies and tax rates for the 2012 budget year and take any other actions consistent with this opinion.

The Tax Court website indicates a second opinion, from Nov. 7, The University of Phoenix, Inc. v. Ind. Dep't of State Revenue, but that is an error. Here is the docket.

On an entirely different matter, people accessing the Appellate Court Docket today will see this message:

NOTICE: On Nov. 26, the dockets in Tax Court cases will not be updated with new case events while Tax Court cases are converted into a new case management system. The Clerk's Office will still process filings, orders, opinions, etc., received on Nov. 26, but entries representing those case events will not be added to the applicable case docket until the week of Dec. 1. Beginning Nov. 27, Tax Court case dockets will be available at mycase.in.gov.
MyCase is the public access site for the Odyssey Case Management System. It is where users may access trial court dockets. (It is also the court site with the annoying CAPTCHA requirement). No further explanation of the change is provided.

Posted by Marcia Oddi on Wednesday, November 19, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Courts - Governor Names Joseph L. Claypool to Serve Remainder of Term as Harrison County Judge

From the news release:

Indianapolis – Governor Mike Pence today appointed Joseph L. Claypool as Judge in the Harrison Superior Court for the remainder of the current term ending on December 31, 2014. Claypool’s appointment is effective November 25, 2014.

“With nearly four decades in the legal field, including regulatory and law enforcement experience, Joe Claypool is uniquely qualified to serve Hoosiers well as Harrison Superior Court Judge,” said Governor Pence.

Claypool was elected on November 4 to serve as Harrison County Judge beginning January 1, 2015. He works as an Indiana Gaming Enforcement Agent with the Indiana Gaming Commission. Prior to joining the Gaming Commission in 2006, Claypool worked as an arbitrator for the Financial Industry Regulatory Authority. Claypool has practiced law for 36 years, both as a partner in private law firms and as a sole practitioner, where he provided general business representation of corporate clients. He earned his B.S. from Indiana University and his J.D. from Indiana University Robert H. McKinney School of Law. He also holds an M.B.A. from the Indiana University Kelly School of Business.

Posted by Marcia Oddi on Wednesday, November 19, 2014
Posted to Indiana Courts

Ind. Gov't. - Very disappointing news for anyone trying to watch the budget committee videocast

To anyone who tried to watch the videocast of the State Budget Committee hearing this morning, and possibly also this afternoon, you are out of luck.

Apparently the outside contractor that hosts the servers through which video streams had scheduled server maintenance without telling the House. The House has told the contractor to bring the servers back on line, and the contractor is in the process of trying to get the servers up and running. There is no estimated time for completion.

That means no video, and no archived video ...

Why is this important? Here is what I wrote earlier today:

The State Budget Committee hearings begin this morning at 10 AM in Room 404 of the Statehouse. They will be videocast. Here are the schedules for today and tomorrow. They don't resume again until Dec. 3rd.
Scheduled for today: Gaming Commission; Tax Court; Department of Child Services.

Posted by Marcia Oddi on Wednesday, November 19, 2014
Posted to Indiana Government

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

For publication opinions today (2):

In Sharon Handy v. P.C, Building Materials, Inc., PC Properties, Llc, David A. Stemler, and Karen L. Stemler, a 16-page, 2-1 opinion, Judge Crone writes:

Sharon Handy appeals the trial court’s entry of summary judgment in favor of P.C. Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler (collectively “PC”) on Handy’s negligence claim against PC. The sole issue presented for our review is whether the trial court properly entered summary judgment in favor of PC. Concluding that genuine issues of material fact remain for determination by a jury, we reverse and remand for further proceedings. * * *

Here, reasonable people could differ as to whether the granite countertops represented a known or obvious danger to Handy. Moreover, the obviousness of any danger does not resolve the issue, see Rhodes, 805 N.E.2d at 388, as questions remain whether PC: (1) knew or by the exercise of reasonable care should have realized that the granite involved an unreasonable risk of harm to Handy; (2) should have expected that she would not realize the unreasonable risk of harm of moving, pulling, or tipping the granite forward; and (3) failed to exercise reasonable care to protect her against the danger. In short, assuming that Handy was an invitee on the premises, genuine issues of material fact remain as to whether PC breached its duty of care to her. * * *

Reversed and remanded.
MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents in part with opinion. [that begins, on p. 15] While I agree with the majority’s conclusion regarding the extent of the designated evidence available for our review, I respectfully dissent from its conclusion that a genuine issue of material fact remains as to Handy’s status on the premises and PC’s corresponding duty of care. Although the majority could “affirmatively conclude that Handy was not a trespasser,” based on “the limited record,” it could not determine “as a matter of law whether Handy had an implied invitation to enter onto the premises, or merely permission to do so.”

In Phillip D. Mundy and Merle Jost v. State of Indiana , a 13-page opinion, Judge Mathias writes:
Phillip D. Mundy (“Mundy”) and Merle Jost (“Jost”) (collectively, “the Defendants”) were charged with Class D felony conspiracy to commit dealing in marijuana; Mundy was also charged with Class D felony maintaining a common nuisance. The Defendants filed motions to suppress certain evidence, which the trial court denied. The Defendants appeal from the trial court’s interlocutory order and present two issues, which we consolidate and restate as whether the police violated the Defendants’ constitutional rights to be free from unreasonable searches and seizures. Concluding that the actions of the police in this case were unreasonable under the circumstances, and therefore violative of Article 1, Section 11 of the Indiana Constitution, we reverse and remand. * * *

Under the facts and circumstances of the present case, we conclude that the conduct of the police detectives was not reasonable. The detectives’ intrusion onto the property at issue therefore ran afoul of Article 1, Section 11 of the Indiana Constitution. The search warrant that was subsequently issued based upon what the detectives observed on the property was therefore also improper. For all of these reasons, we reverse the trial court’s order denying the Defendants’ motions to suppress, and remand for proceedings consistent with this opinion.

NFP civil opinions today (2):

Gared Holdings, Llc. v. Best Bolt Products, Inc. (NFP)

In the Matter of the Termination of Parent-Child Relationship of A.R. and M.R. (mother) v. Ind. Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Ronald Mitchell v. State of Indiana (NFP)

Torrence Brown v. State of Indiana (NFP)

Michael Stephen Angle v. State of Indiana (NFP)

Allan J. Reid v. State of Indiana (NFP)

Randal E. Crosley v. State of Indiana (NFP)

Thomas R. Cox v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 19, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Bosma wants to close ethics waiver loophole for certain public employees leaving state government

Tony Cook and Ryan Sabalow report today for the Indianapolis Star in a long story that begins:

House Speaker Brian Bosma said Tuesday he wants to close a loophole in the state’s ethics laws that allows state employees to avoid public scrutiny when they take jobs with companies they regulate.

His comments suggest that a pledge from House Republicans to take up ethics reform during the upcoming legislative session may extend beyond the rules governing lawmakers and include new requirements for the executive branch as well.

At issue is a state law that requires state employees to take at least a year off before working as a lobbyist or going to work for companies they once regulated. The law is intended to prevent companies from dangling lucrative jobs in front of state employees to ease regulations or get a bigger share of public money.

But an Indianapolis Star investigation in August found that more than 100 state employees have taken advantage of a loophole that allows state agency heads to grant employees a waiver from the cooling-off period.

“I was personally surprised by the number of internal waivers that have been granted that there was not a public meeting about,” Bosma said Tuesday. “They were put in somebody’s file folder, and there was no public discussion. One of my intentions is to have those waivers go through the ethics commission.”

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

Bosma’s comments Tuesday suggest the scope of the reforms likely will include the executive branch as well.

Posted by Marcia Oddi on Wednesday, November 19, 2014
Posted to Indiana Government

Ind. Decisions - Indy federal court holds Indiana's "slating" statute cannot be enforced

From an ACLU of Indiana news release this morning:

Indianapolis--Political parties in Marion County cannot prevent the free speech activities of candidates they do not back for election, and county officials cannot enforce an unconstitutional law used to impede such speech, a federal judge affirmed today.

Judge Sarah Evans Barker of the U.S. District Court, Southern District of Indiana, in approving an agreed judgment filed by the parties, ruled that Indiana's "slating" statute -- Indiana Code § 3-14-1-2(a)(2) and (3) -- cannot be enforced. The order also provided that the Marion County Election Board cannot convene further hearings concerning the 2012 primary election or the plaintiff in the lawsuit, Zachary Mulholland, and required compensation and fees to be paid to Mulholland and to the American Civil Liberties Union of Indiana, who brought the case on his behalf.

In 2003 the Election Board conceded, in an approved judgment in a separate federal lawsuit, that Indiana's slating statute -- which made it a crime for a candidate in a primary election to publish election materials linking him with other candidates without prior permission and notice to the Board -- violated the First Amendment. Still, during the 2012 primary season, the Board enforced the statute against candidate Mulholland by seizing his campaign literature at polling sites on Election Day and demanding he appear for a hearing.

In March the ACLU of Indiana won an appeal in the U.S. Court of Appeals for the Seventh Circuit on behalf of Mulholland, a candidate for state representative, and the case was remanded to federal court for a final judgment. Seventh Circuit Court Judge David Hamilton wrote in the opinion that the Election Board's pursuit of action against Mulholland "shaves very close to harassment or bad faith prosecution."

"The Judge's decision today is a major victory for our plaintiff and for the First Amendment," said Kenneth J. Falk, ACLU of Indiana legal director, who argued the case with ACLU of Indiana senior staff attorney Gavin M. Rose. "Government agencies cannot enforce laws that have been declared unconstitutional, and the Election Board cannot prevent voters from receiving information about candidates for public office."

"We agree with the Seventh Circuit that this has been an outrageous misuse of power," said Jane Henegar, ACLU of Indiana executive director. "The Election Board has wasted hundreds of thousands of taxpayer dollars on private attorneys' fees in defense of actions that are indefensible. If the Board had admitted the unconstitutional nature of its behavior two years ago, the total cost to the taxpayers would have been a couple of hundred bucks, the cost of the seized pamphlets."

The decision, Zachary Mulholland v. Marion County Election Board, 1:12-CV-01502 SEB-MJD,was issued by the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on Nov. 18, 2014.

Here are a number of earlier ILB posts on the Mullholland lawsuit.

Here is the March 20th 7th Circuit reversal of Judge Barker's earlier ruling.

Posted by Marcia Oddi on Wednesday, November 19, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - Budget Committee hearings begin this morning

The State Budget Committee hearings begin this morning at 10 AM in Room 404 of the Statehouse. They will be videocast. Here are the schedules for today and tomorrow. They don't resume again until Dec. 3rd.

Posted by Marcia Oddi on Wednesday, November 19, 2014
Posted to Indiana Government

Tuesday, November 18, 2014

Ind. Decisions - "Incidents involving alleged patient privacy violations can lead to negligence lawsuits that invoke HIPAA as a benchmark"

"Court Upholds $1.4 Million Privacy Verdict: Walgreens Case Invokes HIPAA as a Benchmark", a long story written by Marianne Kolbasuk McGee for GovInfoSecurity, presents the best coverage the ILB has seen of the Indiana Court of Appeals opinion November 14th in the case of Walgreen Co. v. Abigail E. Hinchy. A few quotes:

A second state court ruling in recent weeks calls attention to how incidents involving alleged patient privacy violations can lead to negligence lawsuits that invoke HIPAA as a benchmark.

In the most recent case, the Indiana appellate court has upheld a $1.4 million jury verdict awarded in 2013 to a customer that alleged her privacy was violated by a Walgreens pharmacist who inappropriately reviewed and shared the woman's prescription history with a third party. * * *

HIPAA does not permit a "private cause of action" for individuals to sue for violations of the federal law. But the Walgreens case, like a similar case in Connecticut, gets around that by, instead, alleging negligence under state statutes for failing to meet HIPAA requirements, invoked as the "standard of care" for protecting patient information.

Posted by Marcia Oddi on Tuesday, November 18, 2014
Posted to Ind. App.Ct. Decisions

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

In Charles Keller v. USA (SD Ind., Magnus-Stinson), a 10-page opinion, Judge Hamilton writes:

Plaintiff Charles D. Keller, a federal prisoner, has sued the federal government to recover damages for an assault by another prisoner that he suffered in the United States Penitentiary in Terre Haute, Indiana. Keller appeals from a grant of summary judgment in the government’s favor, so we must consider the evidence in the light most favorable to him and draw all reasonable inferences in his favor. Parrott v. United States, 536 F.3d 629, 630– 31 (7th Cir. 2008). Accordingly, we must assume the facts are as stated in this opinion, but without vouching for their objective truth. * * *

If as the government suggests in its brief the guards made a “policy” choice that caused them to neglect an area of the yard because they were pursuing other policy objectives within their discretion (such as walking the perimeter or supervising trash collection), then perhaps that would be shielded by the discretionary function exception. But there is no evidence to that effect in the record, and the government’s say‐so in its briefs is not enough to support summary judgment. The government points to no evidence in the record to contradict Keller’s claims that the guards were simply lazy or inattentive. “That type of carelessness would not be covered by the discretionary function exception, as it involves no element of choice or judgment grounded in public policy considerations.” Palay, 349 F.3d at 432.

Accordingly, we conclude that the government did not sustain its burden to prove as a matter of law that the discretionary function exception shielded it from liability for the brutal attack that seriously injured Keller. Summary judgment was improperly granted for the government on that basis, and the district court’s error was not harmless.

We do not reach Keller’s claims that the district court abused its discretion in denying his motion to compel discovery or his motion for appointment of counsel. Keller is free to pursue further discovery on remand, and can of course renew his motion for appointment of counsel as well. We note in closing, however, that the district court may wish to revisit its determination on both matters in light of this opinion. See Parrott, 536 U.S. at 638–39 (finding that district court had abused its discretion in handling injured prisoner’s discovery requests). The district court’s resolution of the discovery disputes in this case resulted in a record so limited that it could not support summary judgment for the government.

A better‐developed record would have allowed the district court and this court to assess better the merits of the government’s motion for summary judgment. We REVERSE the district court’s grant of summary judgment and REMAND the case for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Tuesday, November 18, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - An update to "A look at the Indiana Tax Court"

On Sept. 2, 2014 the ILB posted a long entry headed "A look at the Indiana Tax Court." The post came about because the ILB had received a number of notes from readers asking about the long delays it took to get a decision from the Indiana Tax Court, and the ILB's own observations of the limited number of opinions issued by that Court.

The Sept. 2nd post, with several charts and graphs, showed, inter alia, that the average time from transmittal to an opinion in 2014 was 1,067 days. Based on the charts, the post concluded:

[W]hile the number of new cases filed has gone down starting in 2011, the backlog has soared during the same period. Also notable is that, beginning in 2011, when there are effectively two tax court judges, the number of decisions on merits issued each year has been less than that of previous years, when there was only one tax court judge.
Two and one-half months later, what has changed?

For one thing, the Tax Court judge, Judge Wentworth, who was up for retention at the general election on November 4th, was retained by the voters for a 10-year term by a vote of 713,998 to 317,849. This "yes" vote was second highest of the four appellate judges up for retention. Only Chief Justice Rush scored higher, with a vote of 720,948 to 324,484.

Secondly, in the two and one-half months since September 2nd, the Tax Court has issued only two additional rulings, one dated Sept. 4 was a four-page ruling on a petition for rehearing. The other, dated Sept. 18, was the denial of a Motion for Trial Rule 37 sanctions.

As for hearings, the Sept. 2nd ILB post listed the 19 hearings that had been set or scheduled in 2014. Looking forward, the post showed that two Tax Court hearings had been scheduled for September, one for October, and none for the months of November or December.

A look at the calendars today shows the Oct. 9th hearing was cancelled and rescheduled for Dec. 11th in the Statehouse. Two hearings were added in October, for the 22nd and the 29th, both in the Statehouse. One two-hour hearing has been set for November 6th, in Madison, Indiana. Finally, a one-hour hearing has been scheduled for December 5th in Evansville. That gives a total of 23 Tax Court hearings during 2014, 3 of them outside Indianapolis.

The Tax Court backlog at the end of 2013 was 193 cases. Based on the limited number of hearings and final decisions recorded in 2014, it seems unlikely that the backlog has appreciably decreased this year, particularly as new cases were filed during that same period.

The Tax Court's 2013-2015 budget request was a valuable piece of information the ILB relied upon in preparing its Sept. 2 post.*

The 2015-2017 Budget Committee Hearings Schedule for tomorrow, November 19, lists the Indiana Tax Court presentation from 11:00 a.m. to 11:30 a.m.
_______________
*Also useful was a story in the March 25, 2013 issue of Indiana Legislative Insight, cited in this ILB post, about the backlog at the Tax Court, along with this follow-up post from March 29, 2013.)

Posted by Marcia Oddi on Tuesday, November 18, 2014
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

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

For publication opinions today (1):

In In the Matter of the Termination of the Parent-Child Relationship of E.P. III and E.P. Jr. (Father) v. Indiana Dept. of Child Services, a 13-page opinion, Chief Judge Vaidik writes:

E.P. Jr. (“Father”) pled guilty to Class B felony child molesting and Class B felony neglect of a dependent in 2013. S.H., the victim, is the half-sibling of E.P. III (“E.P.”), Father’s son. Father was sentenced to twenty years in the Department of Correction; he is scheduled to be released in 2029. Shortly after pleading guilty, Father’s parental rights to E.P. were terminated. Father now appeals, arguing that the termination order should be reversed because the same judge, the Honorable James D. Humphrey, presided over his termination and criminal cases in violation of Indiana Code section 31-32-8-2. He also contends that there is insufficient evidence to support the termination order.

We conclude that Father’s claim regarding Judge Humphrey implicates procedural error, and because he failed to object at any time to Judge Humphrey presiding over both the termination and criminal matters, he has waived any claim of error in that context. We also conclude that there is sufficient evidence to support the trial court’s order terminating Father’s parental rights. We therefore affirm.

NFP civil opinions today (2):

Michelle R. Ruggio v. Review Board of the Indiana Department of Workforce Development, et. al. (NFP)

K.M. v. D.S. (NFP)

NFP criminal opinions today (6):

Jason E. Jackson v. State of Indiana (NFP)

Jack E. Primmer v. State of Indiana (NFP)

Charles Tinsley v. State of Indiana (NFP)

Montez Belmar v. State of Indiana (NFP)

Kenneth W. Gibbs v. State of Indiana (NFP)

Benjamin S. McMillen v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, November 18, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Illinois ranks 49th for how court system serves disadvantaged" What about Indiana?

A story today from Dave Collins of the AP, here published in the Benton Illinois Evening News, begins:

Illinois' court system had the third-worst score in the nation among state judiciaries in serving poor, disabled and other disadvantaged members of the public, according to new rankings.

Illinois' "Justice Index" score of 34.5 out of 100, determined by the nonprofit National Center for Access to Justice, is based on how states serve people with disabilities and limited English proficiency, how much free legal help is available and how states help increasing numbers of people representing themselves in court, among other issues.

Connecticut led all states with a score of 73.4 and was followed by Hawaii, Minnesota, New York and Delaware, respectively. Local courts in Washington, D.C., had the highest overall score at 80.9.

At the bottom was Oklahoma at 23.7, followed by Kentucky, Illinois, South Dakota and Indiana.

ILB: That puts Indiana at 46th worse.

More from the story:

Connecticut, Hawaii, Minnesota, Colorado, Tennessee and Maine had perfect 100 scores in serving people with disabilities, while Indiana, Georgia, Wyoming, Missouri and Idaho had the lowest scores.

Those rankings were based on issues such as whether interpretation services are offered free to the deaf and hearing-impaired and whether there are laws or rules allowing service animals in courthouses.

The index also reviewed how many civil legal aid lawyers were available to provide free legal help. Washington, D.C., had nearly nine civil legal aid lawyers per 10,000 people in poverty, the highest rate in the country. Texas had the lowest rate, 0.43 legal aid lawyers per 10,000 people in poverty.

See also this ILB post from Nov. 14th.

Posted by Marcia Oddi on Tuesday, November 18, 2014
Posted to Indiana Courts

Ind. Courts - "Jeffersonville City Court in jeopardy of closing", City Judge blames State Police

Alex Schuman of WHAS11ABC reports:

JEFFERSONVILLE, In - Clark County may soon be taking on more cases.

The Jeffersonville City Council voted to shut down their city court Monday. Their decision still requires a second vote, but will mean Jeffersonville can no longer help the county with the case load.

Their city court handles any misdemeanor, or violation that does not result in jail time that occurs in Jeffersonville's border.

"I'm a part-time judge. I have a private law practice. I have the ability to earn an income," Judge Ken Pierce, the only judge for Jeffersonville's city court said. Pierce hears cases three mornings a week, and came to the meeting to defend the need for a city court in Jeffersonville.

Pierce argues the loss of a judge who can issue warrants to local police, the money the court generates for drug prevention and the local library, and the back-log of cases at Clark County are prime examples of how having the court benefits the city. * * *

Councilman Matt Owen pushed a vote on the ordinance to discontinue the court because of its shrinking case load and increasing cost.

Current estimations show the city court could cost Jeffersonville more than 400,000 dollars in 2014.

The one, strange piece of this story, is that no one can officially explain why Jeffersonville's case load has experienced such a dramatic drop from 2012 to 2014.

"The other thing that I've been trying to put my hands on, and I can't - for some reason - is why this case load is going down," Julius said. "Your case load. Everybody else's case numbers are going up. Everybody. Your case load is going down."

Judge Pierce believes certain Indiana State Police officers are stationing themselves in Jeffersonville, and purposely failing to file their cases with his court. * * *

Judge Pierce also challenges the numbers the city council is basing their decision, and thinks he could get the number down from more than 400,000 to around 200,000.

"We have to rely on these numbers. We have to - if there's a mistake - you bring it to us - we will definitely research it," Julius to Pierce during the meeting said.

Pierce's term lasts for another year.

"I'm arguing for the better of the city."

The city council must vote to shut down the city court a second time for the decision to be official.

Posted by Marcia Oddi on Tuesday, November 18, 2014
Posted to Indiana Courts

Monday, November 17, 2014

Ind. Gov't. - Two significant decisions from the Public Access Counselor

14-FC-247: Alleged Violation(s) of the Access to Public Records Act by the Marion County Board of Voter Registration - Blogger Gary Welsh writes about this ruling here.

14-FC-246: Alleged Violation of the Access to Public Records Act by the City of Hammond - Here the City of Hammond denied a public records request for "the delineated dollar amounts of any settlement, attorneys’ fees and other associated legal costs for three lawsuits in which the City was named a defendant." More from the ruling:

The City responded to your formal request by stating the same and considered the request improper. It interprets your request to seek documents which do not exist, specifically a summary of the litigation and associated costs. It maintains the City does not have any records to satisfy your request. * * *

After reviewing your original request, it appears as if what you are asking for is relatively straight-forward. It may be true that the information is not in one particular document or is summarized succinctly, but you identify the type of public records sought with an element of specificity. I have often held that a requester does not need to identify a record with pinpoint accuracy, but must give the agency an idea of what it should be looking for.

This is consistent with the Court of Appeal’s decision in Jent v. Fort Wayne Police Dep't, 973 N.E.2d 30 (2012):

Whether a request identifies with reasonable particularity the record being requested turns, in part, on whether the person making the request provides the agency with information that enables the agency to search for, locate, and retrieve the records.
While this interpretation places the subjective discretion on the agency to determine whether they can search for and retrieve the records, it is my subjective opinion that your request gives enough information for search parameters. In terms of the litigation documentation, you identify the party names and cause number. If the case was indeed settled, there will be a settlement agreement or decree. If there are attorneys’ fees and associated costs, there will be invoices from the law firm or expenditure reports. The City is under no obligation to create a summary of this information, but rather the documentation itself showing these expenses. [ILB emphasis]

The City has not contended that it has no capacity or ability to search for these types of records. I do not agree with them that you strictly asked for records which do not yet exist.

CONCLUSION. For the foregoing reasons, it is the Opinion of the Indiana Public Access Counselor that the City of Hammond has violated the Access to Public Records Act.

Posted by Marcia Oddi on Monday, November 17, 2014
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending November 14, 2014

Apparently there were no transfer dispositions last week, as no transfer list was posted this morning by the Supreme Court.

[Updated at 2:50 PM]

Here now is the Clerk's transfer list for the week ending Friday, November 14, 2014. It is one page (and 1 case) long.

One transfer was granted last week, and it was with opinion, Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education. See the ILB here, from Nov. 13th.

Posted by Marcia Oddi on Monday, November 17, 2014
Posted to Indiana Transfer Lists

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

For publication opinions today (4):

In In the Matter of the Walter Penner Trust Under Agreement Created by the Grantor, Walter Penner on April 13, 2010, Stanley Penner v. Ronald Penner, a 15-page opinion, Judge May writes:

The parties to this case, along with their brother Frank Penner, are beneficiaries of the Walter Penner Living Trust (Trust). According to the terms of the Trust, Ronald Penner became the Trustee of the Trust on Walter’s death. Stanley Penner brought an action against Ronald in his capacity as Trustee, and the trial court found against Stanley on all counts. Stanley now appeals the denial of his motion to correct error and the trial court’s order that he pay attorney fees to the Trust. He presents multiple issues for our review * * *

Conclusion. The trial court did not err in its findings and conclusions of law regarding Trustee’s management of the Trust. Further, the trial court did not abuse its discretion when it awarded the Trust attorney’s fees and denied Stanley’s request for attorney’s fees. Finally, we deny Stanley’s request for appellate attorney’s fees and sua sponte award the Trust attorney’s fees, to be determined and ordered by the trial court on remand. Affirmed and remanded.

In E.W., O.W., v. J.W. , a 17-page opinion, Judge Robb writes:
The appellants in this matter, E.W. (“Father”) and O.W. (“Grandmother”) (collectively, “Appellants”), appeal from the trial court’s orders in favor of J.W. (“Mother”) in three consolidated causes, two of which concern Father and Mother’s child, R.W. The trial court issued separate orders denying Grandmother’s petition to adopt R.W., denying Father’s petition to terminate Mother’s parenting time, and denying Father’s petition for a permanent protection order against Mother. Appellants raise three issues for our review: (1) whether the trial court’s denial of Grandmother’s petition for adoption is clearly erroneous; (2) whether the trial court abused its discretion by denying Father’s request to terminate Mother’s parenting time; and (3) whether the trial court erred by denying Father’s petition for a protection order against Mother. We conclude the trial court’s decisions regarding the petition for adoption and request to terminate parenting time were not erroneous, and we affirm those decisions in all respects. However, we conclude the trial court’s order relating to Father’s petition for a protection order did not comply with Indiana Trial Rule 52(A), and we remand for further proceedings on that issue. Accordingly, we affirm in part and remand.
In Church of the Brethren, South/Central Indiana District v. Roann Church of the Brethren, Inc., Roann Break-Away Group and the Roann Church, Inc., a 17-page opinion, Judge Najam writes:
Church of the Brethren, South/Central Indiana District (“the Denomination”) appeals the trial court’s decision, following a bench trial, in favor of Roann Church of the Brethren, Inc. and The Roann Church, Inc. (“the Congregation”) on the Denomination’s complaint.1 The Denomination presents one issue for our review, namely, whether the trial court erred when it held that the Congregation did not place its property into an irrevocable trust, express or implied, for the benefit of the Denomination. We affirm. * * *

To reiterate, the court’s reasoning finds support in the language of the deeds, which do not contain trust language; in testimony, which labeled the Manual as nonbinding on individual congregations; and in the language of the 2002 Constitution, which did not create a fiduciary relationship and which, in any event, was nonbinding and revocable by the Congregation. Therefore, the Denomination has not met its burden; it has not shown that the trial court’s judgment is clearly erroneous. We affirm the trial court’s judgment in all respects.

In Gregory Hudson v. State of Indiana, a 10-page opinion, Chief Judge Vaidik writes:
Gregory Hudson struck and killed Kathleen Clark with his pickup truck. Hudson did not stop at the scene of the accident, nor did he contact authorities. After police received an anonymous tip that Hudson was involved in the accident, they confronted him at his workplace. Although Hudson initially denied it, he ultimately admitted to accidentally striking and killing Kathleen. At his bench trial for Class C felony failure to stop after an accident resulting in death, defense counsel argued that Hudson could not be convicted because he did not know he had struck a person; put differently, he did not know he had been in an accident causing injury. Citing expert and eyewitness testimony as well as other evidence, the trial court rejected this claim and found Hudson guilty. The court sentenced Hudson to five years—two years executed on home detention through community corrections and three years suspended, two of them on probation.

Hudson challenges his conviction on appeal. Although he frames his argument as one of statutory interpretation, the issue before us is actually one of sufficiency, and we conclude that the evidence is sufficient to support Hudson’s conviction. We therefore affirm the trial court.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of R.A., R.A. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (1):

Ben Robinson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 17, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Campuses fighting sexual assaults face murky question of consent"

Maureen Hayden | CNHI Statehouse Bureau, reported Friday in the Anderson Herald Bulletin:

INDIANAPOLIS — Colleges looking for ways to reduce sexual assault on campus may turn to lawmakers for help defining the word “consent.”

Rape allegations are difficult to investigate when there is misunderstanding about when “yes” means “yes,” representatives of several universities told members of the state Higher Education Commission on Wednesday.

“Many students are confused about what consent means, and how it’s obtained, especially when alcohol is involved,” said Rachel Green, an Indiana University-Bloomington senior who help leads a student initiative to reduce assaults on campus called Culture of Care. She was on a panel invited by the commission to discuss what the state can do to reduce sexual violence.

Prompting the commission’s interest are increasing numbers of sexual assaults reported on the state’s campuses. That includes IU-Bloomington, which has been under review by the U.S. Department of Education for possible violations of federal law in how it handles sexual violence.

At Wednesday’s meeting, state Rep. Christina Hale, D-Indianapolis, said a first step is recognizing the seriousness of sexual assault and how much it’s underreported, especially among students.

A study last year by the Centers for Disease Control ranked Indiana second in the nation for sexual assaults against young women. It said about 50 percent of assaults are unreported.

“We have a terrible problem,” said Hale, quoting the CDC numbers. “Yes, wholesome little Indiana is second worst in the nation.”

Earlier this year, Hale succeeded in getting the General Assembly to fund a study of sexual assault of minors. In the next legislative session, which begins in January, she plans to push for language that better defines consent when it comes to sex.

“Indiana lacks a definition of ‘consent’ ” she told the commission.

Butler University general counsel Claire Aigotti said “clarity around consent is essential” for colleges dealing with incidents involving students whose judgments are impaired by alcohol, when the accused and accuser offer different accounts of what happened.

“These are very difficult issues to navigate,” Aigotti said.

In September, California became the first state to enact a “yes means yes” standard. Its law requires colleges and universities that receive state funds to adopt sexual assault policies that include affirmative consent as the key element in determining whether the activity was consensual. Other states – including New Hampshire and New Jersey – are considering similar measures.

Hale said she didn’t know if Indiana is ready to take that step. She said results of the state’s sexual assault study, due early next year, will guide discussions.

“It’s a problem that couldn’t be more urgent or important,” she said. “I have colleagues on both sides of the aisle ready to look at all kinds of initiatives that might make a dent in it.”

Posted by Marcia Oddi on Monday, November 17, 2014
Posted to Indiana Government

Ind. Courts - Growth of veterans courts in Indiana

Judge Maria Granger, Floyd County Superior Court 3, presides over the Veterans Court of Southern Indiana, and wrote this story on veterans courts for the Louisville Courier-Journal. A quote:

In 2010, Veterans Courts did not exist anywhere in Indiana or Kentucky. Floyd County certified the first Veterans Court in Indiana to allow access to court recovery programs for troubled vets. The program saves taxpayers thousands of dollars in incarceration costs. The program places no financial burden on taxpayers. Veterans Court is an alternative and tough approach to justice based on teamwork, honesty, accountability, reducing crime and restoring lives as guaranteed by our Constitution. The Veterans Court movement began in Indiana in 2011, fueled by the patriotic spirit of Hoosiers. Now in 2014, there are 14 of these courts serving Indiana communities and several others are in the pre-planning stages.

Posted by Marcia Oddi on Monday, November 17, 2014
Posted to Indiana Courts

Law - More on "Death Penalty Act of 1996 created procedural hurdles, causing many inmates to lose access to final appeal"

Following its front-page story yesterday, the Washington Post has a new front-page story today, also by Ken Armstrong of the Marshall Project, headed "When lawyers stumble, only their clients fall: In at least 80 capital cases in which attorneys have missed the deadline, it is almost always the prisoner alone who suffers the consequences." A sample from the lengthy story:

[A]n investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.

Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found. And that attorney was given a simple censure, one of the profession’s lowest forms of punishment.

The lack of oversight or accountability has left many of the lawyers who missed the habeas deadlines free to seek appointment by the federal courts to new death-penalty appeals. When [Mary Catherine] Bonner, the Florida attorney, argued before the Supreme Court, the justices said nothing of her being a repeat offender, if they even knew. [In one, she was late by 210 days; in the other, 278 days. In a third federal case earlier that year, her petition for relief under habeas corpus was 312 days late.]

The absence of any systematic monitoring or punishment for mistakes on which their clients’ lives might depend underscores the uneven quality of publicly funded legal aid to death-row prisoners who turn to the federal courts.

Posted by Marcia Oddi on Monday, November 17, 2014
Posted to General Law Related

Ind. Decisions - "Supreme Court clarifies how to measure seized meth operations"

That is the headline of Dan Carden's Nov. 14th story in the NWI Times, reporting on the Supreme Court's Nov. 13th opinion in Joseph K. Buelna v. State of Indiana. From the story:

The Indiana Supreme Court has ruled stiffer penalties for methamphetamine makers must be based on the weight of the final product and not a mid-manufacturing mixture that contains some meth.

In a 5-0 decision, the state's high court said police who discover a working meth lab must determine how much meth could have been created using present ingredients if prosecutors intend to seek a sentence enhancement based on the amount of meth seized.

"Simply presenting massive quantities of intermediate mixtures or precursors is insufficient to establish the weight enhancement absent evidence of final yield," said Chief Justice Loretta Rush. "Because methamphetamine manufacture is a complicated process that depends on a variety of independent factors, unfinished mixtures and precursors alone tell a jury nothing about how much final product can be produced."

Police need not become meth makers themselves and complete the manufacturing process to determine final yield.

Rush said an expert or skilled witness can testify as to how much meth could be made given the manufacturing conditions, ingredients and skills of the accused.

Under Indiana law, a person manufacturing less than 1 gram of meth commits a Level 5 felony (advisory prison term: three years); more than 1 gram but less than 5 grams a Level 4 felony (six years); more than 5 grams but less than 10 grams a Level 3 felony (nine years); and more than 10 grams a Level 2 felony (17.5 years).

Rush said lawmakers would not have devised that classification scheme if they intended an intermediate meth mixture to count as the final product, since it then would be almost impossible for any meth making operation to qualify as a low-level crime.

"We do not believe the General Assembly intended to write a statute that made virtually every instance of methamphetamine manufacture a (Level 2) felony," Rush said.

Posted by Marcia Oddi on Monday, November 17, 2014
Posted to Ind. Sup.Ct. Decisions

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

From Sunday, November 16, 2014:

From Saturday, November 15, 2014:

From Friday afternoon, November 14, 2014:

Posted by Marcia Oddi on Monday, November 17, 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 11/17/14):

Next week's oral arguments before the Supreme Court (week of 11/24/14):

Monday, Nov. 24

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/17/14):

Monday, November 17

Friday, November 21

Next week's oral arguments before the Court of Appeals (week of 11/24/14):

Tuesday, November 25

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, November 17, 2014
Posted to Upcoming Oral Arguments

Sunday, November 16, 2014

Ind. Gov't. - IndyStar reports on appalling conditions at Animal Care & Control

"Years of Neglect" is the headline to this long, front-page story today by Bruce Eason. Some quotes [ILB emphasis]:

For more than a decade, Indiana’s largest animal shelter has failed to provide for the most basic needs of the 17,000 animals entrusted to its care each year.

From time to time, well-meaning people come together and try to fix the problems. Task forces are assembled. Studies are conducted. Solutions are found. But the city of Indianapolis has never implemented them.

A 2003 task force called for better medical care, more staffing and clearer euthanasia procedures at Animal Care and Control. A report commissioned this year by the Department of Public Safety found that little has changed.

The lone veterinarian position has been vacant since March, and because of a shortage of staff, decisions to kill a wounded animal are routinely made without even a basic medical workup. To meet bare minimum standards, the study found, the kennel staff needs to double.

Conditions have become so dire that the report’s authors suggest the shelter may even be in violation of the city’s own animal cruelty ordinances. * * *

Administration officials and some City-County Council members blame the problems on budget constraints in a city that has seen revenue plummet because of property tax caps and the national recession.

But animal welfare groups and others on the council say that explanation obscures the true culprit. A city that spends more than $350 million a year on public safety, they say, has never made animal care a priority.

“We’ve known this since at least 2000,” said Sue Hobbs, chair of an advisory board that oversees Animal Care and Control. “There have been committees and studies and panels, and nothing ever changes. It just doesn’t. It’s seriously like Groundhog’s Day.” * * *

[M]ost damning in the recent report is the suggestion that conditions at the shelter may violate the city’s own animal cruelty ordinances.

City code requires food “in adequate amounts to maintain good health.” The city doesn’t budget for food at all, instead relying on a hodgepodge of donations that veterinarians say is detrimental to the animals’ well-being.

Additionally, “there’s no budget for emergency care and this, the team members believe, is contrary to local laws on humane care,” the report said. “With lack of budgeting for emergency medical care, IACC staff is forced to make euthanasia decisions without adequate diagnostic information, such as X-ray and bloodwork results.”

The law requires animal owners to provide proper medical care and to segregate animals when they are sick to prevent the spread of disease. But the study, conducted this summer, found that poor sanitation and the lack of a quarantine area presented a high risk for disease. In October, a deadly viral outbreak killed two dozen cats before animal rescue groups took the remaining cats away to prevent its spread.

“The city is charged to investigate cruelty,” said John Aleshire, CEO of the Humane Society of Indianapolis. “How ironic it is that we would bring an animal back to a shelter that is not properly staffed, that does not have proper medical care and (where) the staff has to scrounge around for food.” * * *

“There have been all these points where it has kind of come to a crisis,” said Republican Councilwoman Christine Scales. “There have been various times where we’ve gotten a lot of publicity about the problems, and then there’s a hurry-scurry by the administration to do something, and then it kind of dies down again.”

She suspects animal care is simply easy to ignore.

“They (the animals) are voiceless, they don’t have someone politically well-connected to advocate on their behalf,” Scales said. “In a sense, it’s almost like the administration knows: They’ve heard it before, (animal welfare groups) get upset, they make their passionate pleas, and then they go away. They go back to working for the animals.”

From a letter to the editor in today's Star, written by Susan L. Gerhart:
Let’s call it what it is — an appalling, terribly run, severely underfunded attempt to handle stray animals in Indianapolis. Animal Care and Control periodically surfaces in a news story when some near catastrophe inundates the department. In between crises, the shelter slogs along, mishandling unfortunate animals on a routine basis. * * *

It is my hope that others will feel the outrage that I do and contact city officials, requesting that they stop doing studies and reports, and start funding the shelter. Surely, if we can spend millions for cricket fields, and give millions of dollars to billionaires to fund their sports teams, we can raise enough money to adequately feed, house and humanely care for the stray animals our irresponsible Indianapolis residents render homeless. To do less only lessens our humanity.

Posted by Marcia Oddi on Sunday, November 16, 2014
Posted to Indiana Government

Law - "DC police plan for future seizure proceeds years in advance in city budget documents"

The Washington Post continues its series on civil asset forfeitures with this story today by Robert O'Harrow Jr. and Steven Rich.

Of particular from the series is this Sept. 8th story headed "They fought the law. Who won? Many drivers faced a long ordeal in court to try to get their money back from police."

The ILB has a long list of earlier posts on civil asset forfeiture.

Posted by Marcia Oddi on Sunday, November 16, 2014
Posted to General Law Related

Law - Antiterrorism and Effective Death Penalty Act of 1996 created procedural hurdles, causing many inmates to lose access to final appeal

From the Washington Post today, a long, front-page investigative story by Ken Armstrong.

The subhead: "How bad lawyering and an unforgiving law cost condemned men their last appeal." A sample:

An investigation by The Marshall Project shows that since President Bill Clinton signed the one-year statute of limitations into law — enacting a tough-on-crime provision that emerged in the Republicans’ Contract with America — the deadline has been missed at least 80 times in capital cases. Sixteen of those inmates have since been executed — the most recent was on Thursday, when Chadwick Banks was put to death in Florida.​

By missing the filing deadline, those inmates have usually lost access to habeas corpus, arguably the most critical safeguard in the United States’ system of capital punishment. “The Great Writ,” as it is often called (in Latin it means “you have the body”), habeas corpus allows prisoners to argue in federal court that the conviction or sentence they received in a state court violates federal law. * * *

Some of the lawyers’ mistakes can be traced to their misunderstandings of federal habeas law and the notoriously complex procedures that have grown up around it. Just as often, though, the errors have exposed the lack of care and resources that have long plagued the patchwork system by which indigent death-row prisoners are provided with legal help.

The right of condemned inmates to habeas review “should not depend upon whether their court-appointed counsel is competent enough to comply with [the] statute of limitations,” one federal appeals judge, Beverly B. Martin, wrote in an opinion earlier this year. She added that allowing some inmates into the court system while turning others away because of how their lawyers missed filing deadlines was making the federal appeals process “simply arbitrary,” she added.

Posted by Marcia Oddi on Sunday, November 16, 2014
Posted to General Law Related

Saturday, November 15, 2014

Ind. Law - "The Schmuhls are 2009 graduates of Valparaiso University Law School"

That is the last line of this story from late Friday in Slate, that is headed "Husband and Wife Lawyers Accused in Home Invasion, Stabbing of Wife’s Former Colleague." The story begins:

Andrew and Alecia Schmuhl, both lawyers, have been charged in a vicious attack carried out against one of Alecia Schmuhl's former colleagues and his wife in the upscale Washington, D.C., suburb of McLean, Virginia. According to the Washington Post, 30-year-old Alecia Schmuhl was recently fired from an Arlington, Virginia, law firm where victim Leo Fisher works as a partner. She and her 31-year-old husband, Andrew, allegedly drove to Fisher's home last Sunday night, where Andrew Schmuhl is said to have entered the residence and allegedly tased, handcuffed, stabbed, and shot at Fisher and Fisher's wife, Susan Duncan, while Alecia Schmuhl waited outside. Fisher and Duncan remain hospitalized.
The Washington Post has a later, longer story, by Justin Jouvenal. Some quotes:
The home invasion began, a Fairfax County prosecutor said Friday, with a man posing as a police officer knocking on the front door of a tony McLean home belonging to the managing partner of a prominent law firm.

When 61-year-old Leo Fisher answered Sunday evening, the man with a badge and gun Tasered him. Fisher crumpled into the fetal position, and the man slapped a pair of flexible handcuffs around his victim’s wrists.

Then Fisher’s wife, Susan Duncan, came to the door, alarmed by the commotion. She was handcuffed, too, and shoved in a bathroom.

But the prosecutor said that this was no ordinary burglary — it was something more sordid: revenge. And that the alleged perpetrators were a pair of lawyers, one of whom was angry over her recent dismissal from Fisher’s Arlington County firm, Bean, Kinney & Korman. * * *

Some who know the Schmuhls had a hard time squaring their polished résumés with the crimes of which they are accused.

Alecia Schmuhl speaks three languages and served on the board of the Arlington-Alexandria Coalition for the Homeless. Andrew Schmuhl was a former judge advocate in the Army. Neither had a criminal record in Fairfax County. They both graduated from Valparaiso University Law School in 2009, the school said. * * *

The incident shocked Fisher’s upscale neighborhood, which is largely quiet and free of crime. The stately homes are set back from the street on sizeable lots. Neighbors said this week that Fisher and his wife were good neighbors.

Posted by Marcia Oddi on Saturday, November 15, 2014
Posted to Indiana Law

Friday, November 14, 2014

Essential ILB posts: The ILB has selected its "essential posts" from the past two 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 two weeks you may have missed, or forgotten.

Posted by Marcia Oddi on Friday, November 14, 2014
Posted to Essential ILB Posts

Ind. Courts - "Americans with Disabilities Act and the Code of Judicial Conduct"

That is the title to a new article in CourtTimes, written by Brenda Rodeheffer*. Here is a sample:

Judges should evaluate every aspect of the accommodation needs of counsel, parties, witnesses and jurors. If a juror can get into the courtroom, but cannot access the private jury restroom, an appropriate solution will have to be found. If a witness can get in the courtroom, but can’t sit in the witness seat to give testimony, accommodation must be made. A judge must educate and work with the local council or financing authority in order to accomplish the necessary changes.

There is no “grandfather” clause in the ADA, and our beautiful old courthouses were made without today’s emphasis on disability accommodations. When a courthouse is eligible for listing on the National Register of Historic places, there will have to be balance between not destroying the historical significance of the property and making services equally accessible to all users. For several counties, this was not possible and courts had to move from the historical courthouse.

In addition to physical mobility, the needs of those with limited sight or hearing must be considered.

__________
*CourtTimes generally does not provide further identification of its authors. Particularly with legal articles from whatever source, the ILB always tries to include an author's position and qualifications, for the benefit of the reader.

Posted by Marcia Oddi on Friday, November 14, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Ray Clifton v. Ruby McCammack, a 24-page opinion, Judge Brown concludes:

As in Ryan, “[w]e are satisfied that the evidence designated to the trial court here is such that the alleged emotional distress suffered by [Clifton] is not likely speculative, exaggerated, fictitious, or unforeseeable.” Id. at 124. We therefore conclude that the trial court erred in granting McCammack’s motion for summary judgment and denying Clifton’s motion because Clifton’s claim satisfies the bystander rule and because he has alleged serious emotional trauma that is of a kind and extent normally expected to occur in a reasonable person under similar circumstances.

For the foregoing reasons, we reverse the trial court’s grant of summary judgment in favor of McCammack, grant summary judgment in favor of Clifton, and remand for a trial on damages.

In Walgreen Co. v. Abigail E. Hinchy, a 23-page opinion, Judge Baker writes:
In this case, a pharmacist breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend. A jury heard extensive evidence during a four-day trial and ultimately found that the pharmacist and her employer are liable for the damages sustained by the customer as a result of the breach. We are loath to disturb jury verdicts and decline to do so in this case.

Walgreen Company raises a number of issues in this appeal. First, it argues that the trial court erred by refusing to grant summary judgment or a directed verdict in Walgreen’s favor on Abigail Hinchy’s claims based on respondeat superior and negligent retention and supervision of an employee. Second, Walgreen argues that Hinchy’s attorney engaged in improper ex parte communication when he filed a trial brief under seal with the trial court and did not provide a copy to Walgreen. Third, Walgreen contends that the jury was improperly instructed on issues surrounding respondeat superior and the tort of public disclosure of private facts. Fourth, Walgreen argues that the $1.8 million jury verdict was excessive and based on improper factors. Finding no reversible error, we affirm.

In Timothy W. Paul v. Stone Artisans, Ltd., a 10-page opinion, Judge Baker writes:
Timothy Paul appeals the judgment of the trial court finding that he breached his contract with Stone Artisans, Ltd. (Stone Artisans), and foreclosing a mechanic’s lien on his home. Finding no error, we affirm. * * *

We agree with the trial court’s determination that a consideration of the relevant factors points decisively towards enforcing this contract. Although any violation of HICA [Home Improvement Contract Act] is considered a “deceptive act,” Paul was not deceived here. I.C. § 24-5-11-14. He contracted for services which were performed to his satisfaction. It was not until it came time to pay for these services that he lodged any complaint. Appellant’s App. p. 82. HICA aims to protect consumers from abuse, not to provide an escape from legitimate contractual obligations.
The judgment of the trial court is affirmed and the cause is remanded to the trial court for further calculation of appellate attorney fees and costs as provided for in the contract.

NFP civil opinions today (2):

In Landon Q. Jones v. Terry Curry, as the Marion County Prosecutor and Ronald Stiver, as the Commissioner of the Indiana BMV (NFP), a 7-page opinion, Judge Bailey writes:

Jones presents the sole issue of whether Indiana Code section 9-30-10-4(c) prohibits the BMV from using a conviction that supported an initial HTV determination to also support a second HTV determination. * * *

Very recently, a panel of this Court considered a nearly identical contention with respect to Indiana Code section 9-30-10-4(b). In Hill v. State, 15 N.E.3d 589 (Ind. Ct. App. 2014), the appellant argued that the statutory language, “not arising out of the same incident,” prohibited the BMV from using a conviction that supported her initial HTV determination to also support a second HTV determination. * * *

The Hill Court agreed with the State that the statutory language at issue does not include a limitation upon the use of a qualifying conviction to determine HTV status, other than that predicate convictions must not have arisen from the same incident. * * *

Here, similar to Hill, the crucial inquiry of subsection (c) is whether the person has on ten occasions demonstrated, within a ten-year period, that he or she poses a threat to others’ safety. Subsection (c) does not include a limitation upon the use of a qualifying conviction to determine HTV status, other than that predicate convictions must not have arisen from the same incident.

[ILB: Hill v. State is a June 20, 2014 opinion, also authored by Judge Bailey.]

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

NFP criminal opinions today (8):

Trinity Ross v. State of Indiana (NFP)

Rafael Walker v. State of Indiana (NFP)

Shari Melton v. State of Indiana (NFP)

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

Henry Morales v. State of Indiana (NFP)

Cody Waldrip v. State of Indiana (NFP)

Ryan K. Hensley v. State of Indiana (NFP)

Ronald F. Graham v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 14, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court disciplinary opinion re noncompete agreement with associate

In the Matter of: J. Frank HANLEY II, filed Nov. 6th, concerns an Indianapolis attorney:

Stipulated Facts: In 2006, Respondent hired an attorney (“Associate”) to work in his law office pursuant to an employment agreement. Respondent’s law practice focuses primarily on Social Security disability law. The employment agreement included a noncompete provision that prohibited Associate from practicing Social Security disability law for two years in the event his employment with Respondent was terminated.

In 2013, Respondent fired Associate. Thereafter, Respondent sent letters to Associate’s clients advising that Associate no longer worked at the firm and that Respondent would be taking over their representation, and in those letters Respondent included Appointment of Representative forms for the clients to complete in order for Respondent to replace Associate as the clients’ representative before the Social Security Administration.

Despite the foregoing, Associate continued to practice Social Security disability law after leaving the firm, and at least two of Associate’s existing clients chose to keep Associate as their lawyer. Respondent did not attempt to enforce the noncompete provision and, after the disciplinary grievances were filed against him, Respondent provided Associate with the files for Associate’s clients.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.4(b): Failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.
5.6(a): Making an employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.
Discipline: The parties propose the appropriate discipline is a public reprimand. See Matter of Truman, 7 N.E.3d 260 (Ind. 2014). The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent's misconduct.

Posted by Marcia Oddi on Friday, November 14, 2014
Posted to Ind. Sup.Ct. Decisions

Courts - "Woman ticketed for going topless at Chicago event files civil rights suit against city" [Updated]

Martha Neil has the report today in the ABA Journal, quoting from a Chicago Tribune story, which includes a link to a YouTube video of the arrest. A quote from the story reported by Jason Meisner:

Sonoko Tagami, 41, is an ardent supporter of "GoTopless," a not-for-profit organization that "advocates for the right of women to appear bare-chested in public," according to the lawsuit filed in U.S. District Court. * * *

Tagami's suit claims the city's ordinance barring women from exposing "any portion of the breast at or below the upper edge of the areola" is unconstitutionally vague and a violation of free speech. The suit also alleged that since men are excluded from the ordinance, it violates rights to equal protection under the law.

Her attorney, Kenneth Flaxman, said Tagami had never had a problem at demonstrations in the city before this year.

"She was out there for several years making a statement about the absurdity of the law, and each time she had opaque body paint and the cops thought it was cute," Flaxman said. "l guess this time the cops didn't think it was OK."

ILB: Indiana has its own case, heard by a Court of Appeals panel in 2010. The panel elected to designate its opinion as Not for Publication.

The ILB however has a Sept. 16, 2010 post on the case, that includes links not only to the NFP opinion, but to the briefs. Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, represented the defendant in the case. A quote from the summary in his initial brief:

The public nudity statute violates the Equal Protection Clause by prohibiting the display of female nipples while allow men to bare their nipples without limitation. Although the burden is on the State to offer an “exceedingly persuasive” justification for disparate treatment, here the State offered no argument, much less any evidence, to justify treating women differently from men. Moreover, the justifications offered by other courts, such a maintaining public sensibilities, are based on long-standing sexual stereotypes and do not serve a legitimate government interest.
Here is a quote from the panel's NFP opinion, written by Judge Bradford:
In the end, C.T. would have us declare by judicial fiat that the public display of fully-uncovered female breasts is no different than the public display of male breasts, when the citizens of Indiana, speaking through their elected representatives, say otherwise. This we will not do. We conclude that Indiana‟s public nudity statute furthers the goal of protecting the moral sensibilities of that substantial portion of Hoosiers who do not wish to be exposed to erogenous zones in public.
[Updated at 10:45 AM] Prof. Schumm writes to advise that C.T. was later reclassified as For Publication, upon a grant of his motion. Transfer was denied by the Supreme Court.

Posted by Marcia Oddi on Friday, November 14, 2014
Posted to Courts in general | Ind. App.Ct. Decisions | Why is this NFP?

Thursday, November 13, 2014

Ind. Decisions - A third opinion today from Supreme Court, re “adulterated” methamphetamine

In Joseph K. Buelna v. State of Indiana, a 14-page, 5-0 opinion, Chief Justice Rush writes:

The severity of a methamphetamine manufacturing offense depends on the weight of “pure or adulterated” drug the defendant manufactures. But the term “adulterated” is ambiguous in the context of the manufacturing process, which has led to divergent interpretations of how to define, and consequently how to weigh, “adulterated” methamphetamine. We construe “adulterated” meth-amphetamine as a final product, not the total weight of an intermediate mixture still undergoing reaction. This interpretation derives from our precedent discussing “adulterated” drugs, practical considerations about the manufacturing process, the structure of the methamphetamine statute, and the rule of lenity. Accordingly, when the State seeks to establish the weight of manufactured meth-amphetamine based on an intermediate mixture that contains methamphetamine, it must demonstrate how much final product that mixture would have yielded had the defendant finished the manufacturing process. [ILB emphasis]

Here, the State presented no such evidence and thus may not use the intermediate mixture to establish the three-gram weight enhancement for Class A felony manufacturing methamphetamine. Yet, the record shows that Defendant manufactured additional final product that exceeded the three-gram threshold. On the basis of that additional final product, we find the evidence sufficient to sustain Defendant’s conviction.

Posted by Marcia Oddi on Thursday, November 13, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Pence, state differ on vets' contracts"

Niki Kelly of the Fort Wayne Journal Gazette reported on Nov. 11th:

INDIANAPOLIS – Gov. Mike Pence is claiming he met – and exceeded – a goal to send state contracts to veteran-owned businesses even though statistics released to the Journal Gazette in May showed the state lagging far behind.

Lawmakers passed a bill in April 2013 setting a 3 percent contracting goal for Indiana Veterans Business Enterprises each fiscal year.

The law went into effect July 1, 2013, and the fiscal year ran through June 2014.

In May, the Indiana Department of Administration reported to The Journal Gazette that awards to fewer than a dozen veteran businesses totaled $811,000 – $251,000 as prime contractors and $559,000 as subcontractors. To reach the 3 percent goal, the veteran contracts would have to reach about $2.2 million.

“This program began in July 2013 and was available to bidders on new state contracts,” said Connie Smith, former communications director for the Department of Administration. “A (request for proposal) can take 6 months or longer so it will be some time before contracts to veteran-owned businesses reach 3 percent.”

But Pence announced Monday – the day before Veterans Day – that the state had awarded 6 percent of its state contracts to Veterans Business Enterprises.The awards totaled $16.7 million to 62 entities between July 2013 and September 2014.

The Pence administration did not respond to questions seeking clarification Monday afternoon.

It is also unclear why the state included July and August in the calculation because they are part of a new fiscal year.

Posted by Marcia Oddi on Thursday, November 13, 2014
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court decides two today; important administrative law ruling

A reader writes:

The First American Title decision today is huge re: failure to exhaust no longer goes to subject matter jurisdiction.
See p. 4-5:
We summarily affirm that portion of the Court of Appeals opinion holding that the exhaustion of administrative remedies under AOPA is a procedural error and does not implicate the trial court’s subject matter jurisdiction.[3]
______
[3] We also summarily affirm that portion of the Court of Appeals opinion declaring the Commissioner’s hearing order untimely and void, as well as that portion of the opinion declaring that a petitioner seeking judicial review of an agency decision need not demonstrate a separate showing of prejudice.
Here is the May 13, 2013 Court of Appeals opinion.

Posted by Marcia Oddi on Thursday, November 13, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides two today; important administrative law ruling

In Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education, a 10-page, 5-0 opinion, Justice Rucker writes:

Resolving a long-standing lack of consensus on the subject, today we hold that a petitioner seeking judicial review of an agency action must file with the trial court the agency record as defined by the Administrative Orders and Procedures Act. Failure to do so results in dismissal of the petition. * * *

In support of their respective positions for the need vel non of a complete agency record both parties rely on this Court’s evenly divided [J.Sullivan did not participate] decision in Indiana Family and Social Services Administration v. Meyer, 927 N.E.2d 367 (Ind. 2010).

In sum we hold a petitioner for review cannot receive consideration of its petition where the statutorily-defined agency record4 has not been filed. In our view this bright-line approach best serves the goals of accuracy, efficiency, and judicial economy. Here because TOPS did not file the agency record as anticipated by AOPA, the trial court properly dismissed its petition for judicial review.

In First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, On Behalf of the Indiana Department of Insurance, a 9-page, 5-0 opinion, Justice Rucker writes:
In another opinion decided today we held that a petitioner seeking judicial review of an agency decision must file the agency record as defined by the Administrative Orders and Procedures Act and that the failure to do so results in dismissal of the petition. See Teaching Our Posterity Success, Inc., v. Ind. Dept. of Educ., ___ N.E.3d ___, No. 49S05-1411-PL-0700 (Ind. Nov. 13, 2014). We apply that holding here. * * *

First American acknowledges that it did not transmit the agency record to the trial court as anticipated by AOPA. It insists however that the documents presented to the trial court were sufficient to decide whether the Commissioner’s hearing order was void. According to First American, “the only documents relevant to judicial review were the April 15, 2012 Order appointing an ALJ to conduct an investigative hearing and the April 19, 2012 Order setting the investigative hearing for July 12, 2012.” Reply Br. of Appellant at 24-25. First American correctly notes these documents were attached to its petition for judicial review. In support of its contention First American relies heavily on Izaak Walton League of America, Inc. v. Dekalb County Surveryor’s Office which declared, among other things: “We think the purposes of the statutes governing what constitutes an adequate agency record . . . are clear. The record must include all that is necessary . . . to accurately assess the challenged agency action.” 850 N.E.2d 957 at 965 (Ind. Ct. App. 2006).

But in an opinion we decide today we declare a “bright line” rule effectively abrogating Izaak Walton and similar cases.
[ILB emphasis] “[W]e hold a petitioner for review cannot receive consideration of its petition where the statutorily-defined agency record has not been filed. In our view this bright-line approach best serves the goals of accuracy, efficiency, and judicial economy.” Teaching Our Posterity Success, Inc., ___ N.E.3d at ___, No. 49S05-1411-PL-700, slip op. at 9-10 (footnote omitted). In this case First American did not file the agency record with the trial court. Therefore its petition for judicial review cannot be considered. The trial court thus erred in failing to grant the Commissioner’s motion to dismiss the petition.

We reverse the judgment of the trial court.

Posted by Marcia Oddi on Thursday, November 13, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (4):

In XYZ, D.O., v. Robin Sykes and Thomas Williams, and ABC Hospital, a 13-page opinion, Judge Crone writes:

XYZ, D.O. (“Doctor”) brings an interlocutory appeal from the trial court’s denial of his motion to disqualify attorney Michael S. Miller and the law firm of Montross, Miller, Muller, Mendelson & Kennedy (collectively “MMMMK”) from representing Robin Sykes and Thomas Williams (“the Plaintiffs”) in their suit for negligence and loss of consortium against Doctor and ABC Hospital (“the Hospital”). Doctor moved to disqualify MMMMK arguing that MMMMK has an imputed conflict of interest because one of its current employees, attorney Kathleen Clark, previously represented Doctor as his primary lawyer in six medical malpractice cases. Doctor asserts that the trial court abused its discretion in denying the motion to disqualify. We agree with Doctor and therefore reverse the trial court’s decision and remand for further proceedings. * * *

We emphasize to the parties that we recognize that the imputed disqualification of an entire law firm is a serious penalty and that we do not make our decision lightly. [ILB emphasis] That said, we must be cognizant that “public trust in the integrity of the judicial process requires that any serious doubt be resolved in favor of disqualification.” Robertson v. Wittenmyer, 736 N.E.2d 804, 806 (Ind. Ct. App. 2000). This case squarely raises such serious doubt. Therefore, we are constrained to conclude that the trial court abused its discretion in denying Doctor’s motion to disqualify MMMMK. The trial court’s interlocutory order is reversed, and this case is remanded for further proceedings consistent with this opinion.

In Matthew Townsend v. Lyvonda Townsend, a 10-page opinion, Judge Barnes writes:
Matthew Townsend (“Father”) appeals the trial court’s order requiring him to pay the appellate attorney fees of his ex-wife, Lyvonda Townsend (“Mother”). We affirm. * * *

Because Mother’s request for appellate attorney fees was based on Indiana Code Section 31-15-10-1, the trial court was not required to consider Appellate Rule 66(E) in awarding her appellate attorney fees. Father has not established that the trial court abused its discretion in awarding Mother appellate attorney fees. We affirm.

In R.M. v. State of Indiana , an 8-page opinion, Judge Bradford writes:
On December 2, 2013, Jane Buckingham was working as a science teacher at Northwest High School in Indianapolis when Appellant-Respondent R.M. requested permission to place his backpack behind Buckingham’s desk. Buckingham initially granted R.M. permission to do so, but later became concerned about whether there was contraband in the backpack. Buckingham contacted Indiana Public School Police Sergeant Jeffrey Brunner who searched the backpack, finding a handgun. On February 18, 2014, Appellee-Petitioner the State of Indiana (the “State”) filed a petition alleging that R.M. was a delinquent child for committing what would be Class C felony carrying a handgun without a license and Class D felony possession of a firearm inside a school if committed by an adult. Following a fact-finding hearing, the juvenile court adjudicated R.M. to be a delinquent child for committing the above-stated acts and placed R.M. on probation.

On appeal, R.M. argues that the juvenile court abused its discretion in admitting the handgun into evidence during the fact-finding hearing because the handgun was discovered during an unreasonable search of his backpack in violation of the Fourth Amendment to the United States Constitution. Upon review, we conclude that Sergeant Brunner’s search of the backpack was reasonable. As such, we further conclude that the juvenile court did not abuse its discretion in admitting the handgun into evidence. Accordingly, we affirm the judgment of the juvenile court.

In Thomas L. Esmond v. State of Indiana, a 15-page opinion, Judge Mathias writes:
Thomas L. Esmond (“Esmond”) brings this interlocutory appeal from the order of the Newton Superior Court requiring him to undergo a psychiatric evaluation by the State’s mental health expert without the presence of counsel. Because the Indiana Supreme Court has held that a defendant who raises an insanity defense has no right to the presence of counsel during a psychiatric examination, we affirm. * * *

Riley, J., concurs.
Crone, J., concurs with separate opinion. [which concludes] For all these reasons, I believe that our supreme court should revisit Williams and Taylor and reconsider its presumption that the Sixth Amendment does not entitle a criminal defendant to the assistance of counsel during a psychiatric examination by the State’s expert. And although Esmond does not raise a separate argument under the Indiana Constitution, it bears repeating that Article 1, Section 13 “affords citizens greater protection than its federal counterpart[.]” Hall, 870 N.E.2d at 460.

NFP civil opinions today (6):

Jerry French v. Rebecca (French) Lambert (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: A.S. and B.S. (Minor Children) and D.J. (Mother) and H.S. (Father) v. The Indiana Department of Child Services (NFP)

In the Matter of the Paternity of S.P., Minor Child, K.M., Father v. A.P., Mother, and State of Indiana (NFP)

Kelly Robertson v. Elkhart Housing Authority (NFP)

T.D., and Ti. D. alleged to be CHINS and T.D. (father) v. Dearborn Co. Dept. of Child Services (NFP)

In Re the Paternity of B.M.: J.M. v. M.S. (NFP)

NFP criminal opinions today (2):

Corey Weaver v. State of Indiana (NFP)

Carl Gleason v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 13, 2014
Posted to Ind. App.Ct. Decisions

Courts - Several interesting takes on the latest challenge to the Affordable Care Act

A few quotes from EJ Dionne's column today in the Washington Post:

To the shock of many neutral legal analysts, four justices decided to take up an absurd legal challenge to the health-care law even before a lower court can rehear the case and before there is a conflict that typically triggers the high court’s involvement.

At issue is one phrase in the law that, in the worst possible construction, is a drafting error. It declares that subsidies to help people buy insurance will be available to those who were enrolled “through an exchange established by the State under [section] 1311.” * * *

Now let’s be clear: Not even the most conservative Supreme Court justices seemed to think this language was a problem before the conservative lawyers went to work.

In their dissent from the 2012 decision upholding the law, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito read the law exactly as its supporters do. They wrote: “Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” And they noted of the law’s structure: “That system of incentives collapses if the federal subsidies are invalidated.” * * *

There’s another conservative legal school called “textualism,” which, as the name suggests, involves paying close attention to the actual text of a statute. Abbe Gluck, a Yale Law School professor, has written a very helpful article on SCOTUSblog that not only points to the straightforward reading of the law that the conservative justices offered in that earlier dissent but also cites none other than Justice Scalia to guide us as to what textualism demands.

Textual interpretation, Scalia insisted, should be “holistic” and “contextual,” not “wooden” or “literal.” Courts, he said, should adopt the interpretation of a law that “does least violence to the text,” declaring that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.”

If Scalia wants to be true to his own principles, can he possibly side with a convoluted reading of the law that apparently never occurred to him before?

Here is the article by Yale Prof. Abbe Gluck that the column quoted above references. It is titled " The grant in King – Obamacare subsidies as textualism’s big test." A few quotes:
Textualists have spent three decades convincing judges of all political stripes to come along for the ride, and have had enormous success in establishing “text-first” interpretation as the general norm. In so doing, textualists have repeatedly emphasized that textual interpretation is to be sophisticated, “holistic” and “contextual,” not “wooden” or “literal,” to use Justice Scalia’s words. A lot of us (myself included) have gone to bat for this version of textualism, arguing that it is democracy enhancing and in furtherance of rule-of-law values, such as predictability.

The King challengers put all that on the line, and threaten all that textualists have accomplished. This is because King is not actually a text-versus-purpose case. Rather, King is about the proper way to engage in textual interpretation; specifically, about the interpretation of five words in a long and complex modern statute. And no one has to – or should – go outside the four corners of the Affordable Care (ACA) to decide it. So let’s cast aside the red herring of untethered purpose, and ask the question that gives King significance beyond the politics of health reform (and is a reason for the Court to avoid those politics): Will the Court follow, what Justice Scalia just five months ago (in Utility Air Regulatory Group v. EPA) called “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”?

The very long and I think very good analysis concludes:
Textualists have spent the past thirty years persuading even their opponents of the jurisprudential benefits of a sophisticated text-based interpretive approach. The King challengers put that all at risk. To be clear: my argument isn’t about the merits of the ACA. The ACA isn’t perfect health policy. But the King challenge is all about the ACA’s merits. They have vowed to destroy the statute at any cost, even if it means corrupting textualism to do it.
Lastly, here is an opinion piece from Linda Greenhouse, in the Nov. 12th NY Times. Some quotes:
Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. * * *

There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.

Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriage cases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.

A panel of the United States Court of Appeals for the District of Columbia Circuit ruled 2-to-1 the other way, accepting the plaintiffs’ argument that the language of the statute limits the tax subsidies to those who buy insurance through the state exchanges, which only 14 states have chosen to set up. The full appeals court quickly vacated the panel’s judgment and agreed to rehear the case. The new argument was set for next month, and the briefs were already filed. The absence of a circuit conflict and an imminent rehearing by the country’s most important court of appeals would, in the past, have led the Supreme Court to refrain from getting involved. * * *

Congress assumed that most states would set up exchanges; most states, led by red-state governors, did not. Section 1321 of the law provides that when a state defaults, the secretary of health and human services shall “establish and operate such Exchange within the State.” Clear enough: “such Exchange” implies, without explicitly saying so, that the federal exchange stands in for the missing state’s exchange and assumes its functions. But another section, 1401, explicitly makes the tax subsidies available to taxpayers and their dependents who buy insurance “through an Exchange established by the State.” Those challenging the law say this means “only the state” and that the I.R.S. is not authorized to give subsidies to the more than five million people enrolled through federally run exchanges.

These two provisions, part of a 900-page statute that was cobbled together without going through the usual House-Senate conference committee in which it might have been cleaned up, are the source of the confusion. The answer to the problem, as the Fourth Circuit panel found unanimously in the King case, is obvious. It’s a basic principle of administrative law that when a federal statute is ambiguous, courts defer to the agency’s interpretation — here, the I.R.S. regulation that makes the tax credits available without regard to whether the exchange is state or federal.

The 1984 decision that established this deference principle, Chevron U.S.A. v. Natural Resources Defense Council, Inc., is so central to the modern understanding of how the government works that it is among the most often invoked Supreme Court decisions of all time, cited in some 13,000 judicial decisions so far, a number that grows at the rate of about 1,000 a year. The tax provisions of the Affordable Care Act fall so naturally onto the “Chevron deference” landscape that it would take an agenda-driven act of judicial will to keep them out and to conclude that Congress enacted a law that contained the seeds of its own destruction.

Posted by Marcia Oddi on Thursday, November 13, 2014
Posted to Courts in general

Ind. Decision - 7th Circuit issues written opinion Nov. 12 in Ind. BMV case which it had reversed on the day of oral argument, Oct. 27

In USA v. LYN RIVERA BORRERO, et al. (ND Ind., DeGuilio), a 12-page opinion, Judge Easterbrook writes:

Indiana’s Bureau of Motor Vehicles will not register or transfer title to a car or other mo-tor vehicle unless the buyer furnishes information that in-cludes a Social Security number. 140 Ind. Admin. Code §6-1-2. For corporations and similar entities, by contrast, Indiana wants a federal employer identification number (EIN). It is possible to obtain an EIN without having a Social Security number. The Internal Revenue Service will issue an employ-er identification number to anyone who has an individual taxpayer identification number (ITIN), and it will issue an ITIN to anyone who wants one. Persons who cannot obtain Social Security numbers—including not only aliens whose visas do not allow them to work in the United States, but al-so aliens who lack authority to be in the United States at all—can have an ITIN for the asking and use it for many fi-nancial transactions.

Omar Duran Lagunes and four colleagues established a business to help people without Social Security numbers navigate the process of titling vehicles in Indiana and obtain-ing license plates. For each client, Duran’s service used a cli-ent’s individual taxpayer identification number to obtain an employer identification number, registered a limited liability company named after the client (so John Doe received “John Doe LLC”), and submitted in the LLC’s name the required paperwork and fees. The service used clients’ real names and addresses. Each client paid about $350, which included the fees remitted to the Bureau of Motor Vehicles. Indiana issued the titles and licenses as requested; the state has never sug-gested that holding title to a personal vehicle through an LLC violates any rule of state law. Nor has the Internal Rev-enue Service stated that it is improper to obtain an employer identification number for use by an entity that will own property but not generate income.

But the United States Attorney for the Northern District of Indiana procured an indictment charging Duran and colleagues with two federal crimes. Count One alleges that defendants conspired, in violation of 8 U.S.C. §1324(a)(1)(A)(v)(I), to violate 8 U.S.C. §1324(a)(1)(A)(iii) and (iv) by shielding unauthorized aliens from detection and encouraging them to reside in the United States. It also alleges that defendants violated 18 U.S.C. §2 by aiding and abetting the violation of §1324(a)(1)(A); this does not add anything, so we do not mention §2 again. Count Two alleges that defendants conspired to commit mail or wire fraud, in violation of 18 U.S.C. §1349. All defendants were convicted of both counts and have been sentenced to imprisonment as short as 24 months (Evelyn Rivera Borrero and Yalitza Exclusa-Borrero) and as long as 84 months (Duran). * * *

Section 1324(a)(1)(A)(iv) does not make the use of LLCs essential to a violation. Nor does the statute declare it to be a federal felony to use LLCs that lack a busi-ness, as opposed to personal, objective (another proposed distinction). None of the prosecutor’s stopping points has anything to do with the text of §1324(a)(1)(A)(iv).

These convictions can be sustained only if the provision of any sufficiently valuable service—food, medicine, trans-portation—to an unauthorized alien is a felony because it helps the alien “reside” in the United States. That would take the statute beyond a sensible understanding; the Rule of Lenity, if nothing else, would forbid it. * * *

The convictions on Count One are reversed, and the convictions on Count Two are vacated. We remand for entry of a judgment of acquittal on Count One. The United States Attorney must decide whether to reprosecute Count Two on a charge shorn of any allegation that title papers and licenses are “property” from Indiana’s perspective. Pending the new trial (if one occurs), all defendants are entitled to be released on bail. Some of them may already have served more time than would be appropriate following a conviction on Count Two alone. (That is why we entered a judgment of reversal on the day this case was argued, while telling the parties than an opinion would follow.)

Note that the heading indicates the case was decided Oct. 27, and the opinion was issued Nov. 12th.

Posted by Marcia Oddi on Thursday, November 13, 2014
Posted to Ind Fed D.Ct. Decisions

Wednesday, November 12, 2014

Ind. Courts - "Indiana high court weighs taking up St. Joe County adoption case"

Oral argument in the case of Jason and Justina Kramer v. Catholic Charities of the Diocese was heard Monday morning at Purdue by the Indiana Supreme Court. This post from Nov. 11 briefly touches on the merits of the case itself. A story today by Madeline Buckley in the South Bend Tribune goes into more detail.The long story begins:

The Indiana Supreme Court heard oral arguments Monday in a St. Joseph County lawsuit that sprang from a case in which a baby’s father took custody of the child after she was placed with an adoptive family.

The state’s high court will decide whether to rule on the case, which could flesh out an adoption agency’s responsibilities when placing children with families.

The saga began more than four years ago when a Goshen family took home a baby girl in May 2010, believing the adoption would soon be finalized.

But the baby’s father established paternity after Jason and Justina Kramer took the child home. The couple say the placement by the agency, Catholic Charities, caused pain and suffering because they had bonded with the child.

The Kramers sued Catholic Charities, accusing the agency of negligence because it checked the state’s putative father registry after it placed the baby with the couple, though the adoption was not finalized. The suit argues that if the agency had checked the registry before the placement, it would have learned about the father and never placed the child with the couple in the first place.

“The emotional attachment begins right away,” said the Kramers’ attorney, Charles Rice, at the oral arguments. “It doesn’t begin when the paperwork is done.”

But attorneys for Catholic Charities have argued that the Kramers signed a release acknowledging the risk in placement of the child before the adoption is final. It was an argument St. Joseph Circuit Court Judge Michael Gotsch agreed with when he ruled in favor of the agency.

“There is an inherent risk in any adoption proceeding,” argued Catholic Charities’ attorney, J. Thomas Vetne.

But the Kramers appealed, and the Indiana Court of Appeals reversed Gotsch’s summary judgment and ordered a trial in St. Joseph County Circuit Court, where the Kramers would ask a judge to award damages. The appeals court said the release the Kramers signed did not cover alleged negligence.

Now, Catholic Charities has asked the Supreme Court to hear the case, a request the justices are considering after listening to the oral arguments.

Posted by Marcia Oddi on Wednesday, November 12, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 15 NFP)

For publication opinions today (2):

In Frederick Holmes-Bey v. Keith Butts , a 6-page opinion involving a pro se petitioner, Judge Bailey writes:

Frederick Holmes-Bey (“Holmes-Bey”), a prisoner in the Indiana Department of Correction (“DOC”) and participant in the Indiana Sex Offender Management and Monitoring (“SOMM”) Program, received a disciplinary sanction in February of 2014. He sought to file, in the United States District Court, Southern District of Indiana, a petition under 28 U.S.C. § 2254, for a writ of habeas corpus, naming as respondent Keith Butts, Warden. The petition was inadvertently mailed to the Clerk of the Henry Circuit Courts, and the petition was stamped as filed in the Henry Circuit Court 2 and a cause number was assigned. Although Holmes-Bey discovered his error and notified the circuit court via letter, the circuit court re-captioned the matter to reflect a state court action, named the State of Indiana as the respondent, and entered an order denying the petition. Holmes-Bey appealed and the Indiana Attorney General filed a notice of non-involvement. Holmes-Bey presents the sole issue of whether the trial court lacked subject matter jurisdiction to enter the order of denial. We reverse and remand with instructions to dismiss. * * *
The trial court sua sponte altered Holmes-Bey’s complaint arising from a prison disciplinary decision and issued an order denying relief. However, the trial court lacked subject matter jurisdiction to do so. Reversed and remanded with instructions to dismiss the petition.
In Jeffrey Z. Hayden v. State of Indiana, a 17-page opinion, Judge Bailey writes:
Hayden raises four issues for our review:
I. Whether there was sufficient evidence to support Hayden’s convictions for Burglary and Residential Entry;
II. Whether the trial court abused its discretion when it declined to adopt Hayden’s proposed jury instruction defining the term “dwelling”;
III. Whether the trial court abused its discretion when it ruled as inadmissible hearsay certain testimony Hayden proffered; and
IV. Whether the charging information lacked specificity as to certain alleged facts, such that Hayden could not receive a fair trial.
We raise sua sponte whether certain of the charges for which Hayden was convicted must be vacated under double jeopardy principles. * * *

There was sufficient evidence that Ronald’s house was a dwelling to support Hayden’s conviction for Burglary. The trial court did not abuse its discretion when it declined Hayden’s proffered jury instruction. Any errors in the trial court’s hearsay rulings on Hayden’s proffered testimony were, at most, harmless. The charging information was not so vague as to deprive Hayden of his right to a fair trial. We remand the case to the trial court with instructions to clarify the entry of judgment and to vacate the guilty verdict on Residential Entry.

NFP civil opinions today (3):

Dr. Steven C. Prescott v. St. Mary of the Woods College (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: A.L., A.F.L, C.L. and C.L. & A.l. v. The Ind. Dept. of Child Services (NFP)

Jlo, Llc. v. Kent Kalley, Aaron D. Kalley, Industrial Centre Federal Credit Union, Town of Yorktown, Muncie Sanitary District, et. al. (NFP)

NFP criminal opinions today (12):

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

Sergio C. Poitan v. State of Indiana (NFP)

Charles S. Howlett v. State of Indiana (NFP)

Kenneth Kilpatrick v. State of Indiana (NFP)

James T. Bagby v. State of Indiana (NFP)

Jeff Leath v. State of Indiana (NFP)

Nathaniel Harris v. State of Indiana (NFP)

Thomas Holliday v. State of Indiana (NFP)

Kendra D. Phillips v. State of Indiana (NFP)

Maurice T. Higgins v. State of Indiana (NFP)

Eric A. Turner v. State of Indiana (NFP)

Brandon Stewart Temple v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 12, 2014
Posted to Ind. App.Ct. Decisions

Law - "Conference of Chief Justices and Conference of State Court Administrators respond to 'Guilty and Charged'"

The ILB on September 29 posted a long entry on local governments such as Ferguson, Missouri funding their operations by high court fees and high fees for access to public records. A sample from a Governing story that was quoted:

Ferguson's budget relies heavily on public safety and court fines that have skyrocketed in recent years. A review of Ferguson’s financial statements indicates that court fine collections now account for one-fifth of total operating revenue.
The ILB post also quotes the NYT, the AP, and NPR. The post ends by asking "What about Indiana" and references a bill that nearly passed the General Assembly last year that "even included provisions allowing an agency to charge a person using a cell phone for photographing a record."

Indiana CourtTimes published in its recent issue an "EDITORIAL: Conference of Chief Justices and Conference of State Court Administrators respond to 'Guilty and Charged,'" which was the title of the NPR series. A quote:

Since the 1970s, the Conference of Chief Justices (CCJ)—the association of top judges from the 50 states, DC and the territories—has maintained the position that court functions should be funded from the general operating fund of the states in order that the judiciary can fulfill its obligation of upholding the Constitution and protecting the individual rights of all citizens by providing access to justice for all.

In 2012, the Conference of State Court Administrators (COSCA)—the association of management executives that oversee judicial administration in the state courts—produced a position paper entitled “Courts are Not Revenue Centers.” The policy paper outlines a series of principles, including:

  • Courts should be substantially funded from general governmental revenue sources, enabling them to fulfill their constitutional mandates
  • Neither courts nor specific court functions should be expected to operate exclusively from proceeds produced by fees and miscellaneous charges
  • Optional local fees or miscellaneous charges should not be established.

Posted by Marcia Oddi on Wednesday, November 12, 2014
Posted to General Law Related

Environment - More on "County board approves 4,000-hog facility in southern Indiana despite worries of neighbors"

Updating this ILB post from Oct. 17th, the AP reported yesterday:

BROWNSTOWN, Indiana — A group of homeowners has asked a county judge to block a southern Indiana farmer from being allowed to build a facility that would house 4,000 hogs.

The group is appealing a Jackson County zoning board's decision last month to approve the confined feeding operation for a site that's a couple miles north of the town of Crothersville.

The appeal filed with a county court maintains the hog facility will hurt property values, increase odors and will expose area residents to health problems from water or air contamination, The Tribune of Seymour reported.

Kyle Broshears said the appeal was predictable and expected.

"We went into this process with our eyes open and our minds set on what it would take to win this battle for agriculture and farmers' rights," he said. "Our attorneys are already hard at work on securing the future of livestock production in Jackson County."

The zoning board took its 4-0 vote at nearly 1:30 a.m. after six hours of public comments before a crowd of more than 100 people who packed a courthouse meeting room and spilled into a hallway.

But the appeal filed by 14 residents argues people didn't have sufficient access to the meeting, that the three-minute limit for each person to speak was too short, and that 44 project opponents didn't get to speak that night because of illness or lateness of the hour.

A court hearing hasn't yet been scheduled on the appeal.

Broshears' plans call for spending about $900,000 on the facility that would include an 81-by-417-foot building housing the hogs and a concrete pit holding about 1 million gallons manure.

The proposal for the site about 40 miles north of Louisville, Kentucky, still needs approval from the Indiana Department of Environmental Management. Broshears said construction could begin next spring or summer.

Posted by Marcia Oddi on Wednesday, November 12, 2014
Posted to Environment

Ind. Courts - Updating "Elkhart teens appeal convictions in death of accomplice"

Updating this ILB post from Oct. 21st, which linked to the petitions to transfer of "Elkhart 4" defendants Blake Layman and Levi Sparks, along with two amicus briefs, here is the State of Indiana's response, filed Nov. 6th, titled "Opposition to Blake Layman's Petition to Transfer."

Posted by Marcia Oddi on Wednesday, November 12, 2014
Posted to Indiana Courts

Tuesday, November 11, 2014

Law - "Highway seizure in Iowa fuels debate about asset-forfeiture laws"

The subhead of this Washington Post story today is "This is the fifth installment in the 'Stop and Seize' investigative series." The ILB has linked to the WAPO series before, on Sept. 22nd.

It seems that both the NYT and the WAPO currently are undertaking extensive front-page investigations of the civil asset forfeitures program and we, the readers, are the beneficiaries. See yesterday's post on a NYT story here, headed "Police Use Department Wish List When Deciding Which Assets to Seize."

Today's Post story, by Robert O'Harrow Jr., cites a civil rights lawsuit filed in the SD of Iowa by two men who were subjected to civil asset forfeiture. From the start of the complaint:

Under a little known but increasingly scrutinized legal device called civil forfeiture, the drug interdiction units of the Iowa State Patrol, under the tutelage and training of Desert Snow and its owner and founder Joe David, have been confiscating cash and property from mainly out-of-state motorists under the fiction that the cash and property itself is “guilty” of a crime. Even if the owner of the property has no connection to criminal activity, the State of Iowa sues the property and its owner in civil actions (In Rem actions) and requires property owners to come into open court and open their financial records to prove their innocence. Notwithstanding the obvious direct conflict of interest, if the property owner fails to fight the civil action—often for an inability to hire legal counsel—the State of Iowa retains the cash and property and can use such cash to pay Desert Snow and Joe David for more training for its officers on how to confiscate even more cash. This creates a perverse incentive for Desert Snow and Joe David to teach the Iowa Drug Interdiction officers how to confiscate as much cash as possible regardless of the constitutional limitations placed on such seizures.

While state law authorizes civil forfeitures, the Iowa State Drug Interdiction team, with the active help of Desert Snow and Joe David, has turned this tool (meant to fight large scale drug cartels) into a veritable machine, devouring cash and property from thousands of out-of-state motorists, many of whom are innocent and “guilty” of nothing more than carrying their hard earned cash in their vehicle, and converting that cash and property into a huge revenue stream to help overcome budgetary shortfalls. Defendants seized much of this cash and property, as is the case with Newmerzhycky and Davis, without concern for the constitutional constraints placed on them by the Fourth and Fourteenth Amendments.

The story itself goes into fascinating detail about the script the law enforcement officers follow in conducting the traffic stops leading to the civil asset forfeitures.

Posted by Marcia Oddi on Tuesday, November 11, 2014
Posted to General Law Related

Ind. Courts - "Outgoing St.Joseph County prosecutor Dvorak lines up next job"

Mark Peterson reported last Friday for WNDU:

Outgoing St. Joseph County Prosecutor Michael Dvorak has lined up a new job.

Dvorak is a political icon in St. Joseph County where he has won 22 elections in a row.

Dvorak is finishing his 12th year as prosecutor. He decided not to run for re-election. * * *

Starting in January, Dvorak will serve as a lobbyist for the Indiana Prosecuting Attorney’s Council. He will be an advocate for the state’s 91 elected prosecutors in the Indiana General Assembly where laws are written and re-written.

“While I served in the legislature one of the positions I held for a number of terms, I chaired the Courts and Criminal Code Committee, so I have an understanding, the attention span of legislators and what they want to hear from constituents, why a law does or does not need to be passed,” said Dvorak.

Before becoming prosecutor, Dvorak served 16 years in the Indiana General Assembly as a member of the House of Representatives.

“I hope that my skill set having served in the legislature and served as an elected prosecutor, I think they qualify me for that, not let’s see how well I do at it,” said Dvorak. * * *

Michael Dvorak says the only election he ever lost was his first. In the early 80’s, Dvorak was one of several candidates vying for the Democratic nod in a race for state representative.

Dvorak says the race was won by Bernie Bauer, the father of former House Speaker B. Patrick Bauer. Tim Roemer came in second—and later became a member of the U.S. House of Representatives.

Posted by Marcia Oddi on Tuesday, November 11, 2014
Posted to Courts in general

Ind. Courts - "Title process in Madison County raises concerns: Anonymous letter reveals 'secret' court files"

From the Sunday Anderson Herald Bulletin, a lengthy story by Traci Moyer. Here are some quotes:

ANDERSON – For more than a decade, at least two local judges circumvented the Madison County Clerk’s Office and issued court-ordered titles for vehicles and other properties without creating a publicly traceable paper trail.

And, in some cases, people obtaining the titles were not charged a $141 clerk fee associated with the court filing. While it is impossible to determine an exact amount of revenue lost from this practice, more than $13,000 in potential clerk fees was not collected in 2014.

This unofficial title process abruptly stopped after three anonymous letters detailing the processing practice in Madison County were circulated in October, less than a month before Election Day. As of this week, all court proceedings involving titles are now properly routed and maintained by the clerk’s office.

Before the recent change, residents would typically go to Madison County courts if they needed to replace a lost or unavailable vehicle title. At least two judges kept the title files in their offices and did not turn the records over to the clerk's office.

Titles generated by bypassing the clerk's office might have saved residents money and prevented the court system from being bogged down with miscellaneous filings. But the process was patently unfair to local residents who filed for titles through the clerk's office and paid the $141 fee. The process also offered no way to determine whether money exchanged hands or to provide a way to correct or track old orders.

The process, according to some in the local judicial system, circumvented the way the legal system is supposed to work.

Madison County Circuit Court 6 Judge Dennis Carroll called the “secret” files a potential problem.

"In terms of policy, it’s not going to happen anymore – so I’ve been told," he said. “I have been here 30 some years, and I have never used a process where things are not filed through the clerk’s office.”

In 2014, titles processed by Madison Circuit Court 3 Judge Thomas Newman without involving the clerk's office included a 1931 Ford Model A, a 1979 Chevrolet Camaro, a 2012 Harley-Davidson, a 1970 Dodge Charger, a 1974 Chevrolet Corvette and a 2003 Mercedes Benz. * * *

At least one state investigation, by the Indiana Commission on Judicial Qualifications, is underway. And in Madison County, old cases — previously not filed with the clerk — are being backlogged into the county court system, court officials said. * * *

Court-ordered titles are issued when a title has been lost or destroyed, a vehicle has been salvaged for parts, or the vehicle was abandoned by the owner. In those cases, titles are issued through the Indiana Bureau of Motor Vehicles after an order is issued from an Indiana court showing a vehicle was not unlawfully obtained. The order is to include vehicle and owner identification, along with other required documentation. * * *

Newman created and assigned a case number to the paperwork — something he said he has been doing for more than 14 years. Usually, the issuance of docket numbers is left to a county clerk. Newman, who has the right to waive costs, insists that no one paid court fees on the titles and acknowledged that these particular orders and documentation were not filed in the clerk's office.

"My impression was no fees were ever charged," he said.

At least two Madison County judges, both of whom say they have handled very few title cases in the past couple of years, did file title cases through the clerk's office.

Newman said the miscellaneous case numbers he created were for an index system, not an official number for the courts. “This is a common practice,” he said.

Judge Thomas Clem of Circuit Court 5 told The Herald Bulletin that he confronted Darlene Likens more than a year ago about Newman allegedly circumventing her office. Clem said he was upset when she told him she was not only aware of the situation, but that she had personal experience with the process.

“I said, ‘Darlene, I think there is potentially a fraud on your office, I think it’s a fraud on the Bureau of Motor Vehicles, and I think you should have an attorney look into it,’” Clem said. “I don’t know what to think of this. I’m concerned. I don’t think it's right. I don’t think it represents good government or transparency.”

Clem said he never approached Newman regarding the titles and how they were handled.

A BMV spokesperson told The Herald Bulletin that as long as a judge signs the court order and the paperwork is in order, there is no fraud in any of the allegations raised. * * *

[Judge Carroll] emphasized that keeping secret files in judges' chambers is not a good practice.

“My view is it shouldn’t be secret, unless the law says it should be secret,” he said. “I just think it is not a good idea for us to decide to make things secret in the absence of statute or a rule that authorizes that.”

Carroll said he does not believe anyone was trying to act unethically.

“If you do things secretly, people do not know what is going on, and that runs counter to what we think generally ought to happen,” he said. “It should be public, it seems to me.”

Newman said he was baffled by the allegations.

“I don’t know what is going on,” he said. “I am here to do my job. When a judge’s integrity is impugned, it’s very upsetting — and that’s the end of that.”

Posted by Marcia Oddi on Tuesday, November 11, 2014
Posted to Indiana Courts

Ind. Gov't. - Indiana's Open Door Law in the news

"City official warns Council about texting during meetings" was the headline of a long story this weekend by Arthur Foulkes of the Terre Haute Tribune Star. Some quotes:

Text messaging, instant messages and email have dramatically changed the way people — including public officials — communicate.

But what effect do these new, less obvious, methods of communicating have on the openness of government?

Last week, Cliff Lambert, executive director of the Terre Haute Department of Redevelopment, sent an email to members of the City Council stating that he has “observed in recent months at council meetings …that there was texting occurring between some members of the council during the meeting.”

Indiana’s Public Access Counselor, Luke Britt, said such communication violates the spirit and the letter of the state’s Open Door Law.

In July, an Illinois appeals court ruled that text messages and emails sent by city council members during meetings — even if using their own personal devices — were public records subject to the Freedom of Information Act.

“I would definitely consider it a violation of the open door law,” Britt told the Tribune-Star Friday. “I would definitely consider that closed-door communication.”

Britt has argued that even privately-owned cell phones or lap tops may contain “public” records if they are used to conduct of public business. * * *

Steve Key, director of the Hoosier State Press Association Foundation, said he sympathizes with the state public access counselor’s views about electronic communication during public meetings, but does not believe Indiana law would necessarily support Britt’s argument about private cell phones and computers containing “public records.” [ILB: Not everyone would agree with Mr. Key here]

If public officials are sending messages on publicly-owned devices, the story is different, Key said. In that case, those transmissions are public records, however, that still leaves a big practical problem, he said. How long are text messages stored in phones? Where are they stored? Is it practical to ask cities and towns to maintain records of all such text messages?

“I don’t know how that, from a practical standpoint, would work,” Key said.

The story goes on to ask each council member about their use of their electronic devices during meetings, with some interesting answers.

There are also some comments to the story, including:

Did it ever occur to them that when they are focusing on their electronic devices, they aren't paying attention to what is going on in the meeting? They might just consider that these devices are no place in the meeting at all. My view is that it is not only rude, but they are neglecting their job.
"Do Westfield meetings violate open door law?" is the heading to this Nov. 10th IndyStar story by Chris Sikich. Some quotes:
Last month, the Westfield council voted to approve a controversial funding plan for a soccer arena — a vote that could shape the city’s future but also could face scrutiny over whether it was aboveboard.

City officials acknowledge that three council members — meeting as the council’s finance committee — had been meeting privately to discuss details about the proposal for months.

The city’s legal counsel insists the committee meetings comply with the state’s open meeting law. But the state’s foremost authority on that law says otherwise.

Public Access Counselor Luke Britt told The Indianapolis Star that local governments are required to post notice of council committee meetings 48 hours in advance. And they’re legally required to be open to the public. Westfield, however, does not post public notices of the committee meetings.

Communities can face stiff penalties for violating the open door law, including having decisions overturned in court.

Open door advocates say the public has a right to know what elected officials are discussing during such meetings. By the time proposals leave the committee and reach the full council, decisions could have been made — in effect if not by vote.

Many communities do post notices of council meetings, including neighboring Carmel and Indianapolis. Britt, however, thinks cities and towns across the state probably violate the law simply because no one is watching.

“It happens all the time,” Britt said. “They don’t understand the law.”

Longtime Westfield City Attorney Brian Zaiger disagrees. He said no formal action created Westfield’s committees. They don’t include a majority of council members. And they take no final actions or votes.

Britt, though, said Indiana’s open door laws are written broadly to ensure that such committees qualify as public agencies.

More from the long story:
Mayor Andy Cook and City Council President Jim Ake said the meetings aren’t precisely closed to the public. They wouldn’t turn away anyone who showed up, were that to happen.

No one ever has, though, possibly because no notice is provided anywhere. The city’s website doesn’t include any information about council committees — even to note they exist. The dates, times and locations aren’t posted publicly.

Cook said residents could learn the times, dates and locations by requesting the personal calendars of elected officials from the city under a public records act.

No one has filed a complaint with the public access counselor or a lawsuit in court about Westfield’s meetings. The city, though, would face serious repercussions if a court found it guilty of violating open door laws.

Posted by Marcia Oddi on Tuesday, November 11, 2014
Posted to Indiana Government

Courts - "Irony alert: SCOTUS Justices miffed by rulings without reasons"

Richard Wolf of USA Today has the story. It begins:

WASHINGTON — Supreme Court justices who recently handed down several important rulings without reasons issued a warning Monday to local governments dealing with cell tower siting decisions: Do as we say, not as we do.

During oral arguments in a case that could affect zoning decisions for cell towers nationwide, a majority of justices clearly felt it was unjust for local governments to deny applications from wireless companies without explanations.

"What's the big deal of having a city council say, 'We deny this request for the following reasons: one, two, three?' " Justice Antonin Scalia asked.

Ironically, the justices also appeared miffed during their second case of the day when presented with a collective bargaining agreement that did not state clearly whether retiree health benefits should vest for life or be contingent on each new contract.

"Whoever loses deserves to lose for casting this upon us, when it could have been said very clearly in the contract" Scalia said of the ambiguous labor agreement.

The back-to-back arguments, though not raising huge issues, were notable to court-watchers for the same reason. They showed how a lack of clarity in communications or contracts can lead to lengthy legal disputes, even landing at the Supreme Court.

But the court may be the last body that should be demanding clarity. In the past few weeks, it has decided or refused to hear cases on voting rights, abortion clinics and same-sex marriage without explaining why.

Posted by Marcia Oddi on Tuesday, November 11, 2014
Posted to Courts in general

Ind. Courts - Recap of yesterday's Supreme Court oral argument at Purdue

Steven Porter has the story today in the Lafayette Journal Courier. Some quotes:

[The Supreme Court] justices set up shop at Purdue University to give people in the region a glimpse of what a hearing of the state’s highest court is all about. More than 500 people attended the proceedings at Loeb Playhouse.

Among those taking it all in were high school and college students who heard from the justices about how they keep public opinion and partisan politics from affecting the court’s rulings.

Justice Brent Dickson said he and his colleagues must ensure outside pressures don’t obscure their view of the specific legal questions at hand and the applicable rules, as codified by the Indiana General Assembly.

“Public opinion changes all the time,” he said. “The law does not.”

The governor and legislature can change laws in response to shifting public opinion, but that’s not the Supreme Court’s role, Dickson clarified.

“We don’t hold a finger up to the wind and see which way the wind is blowing,” he quipped.

Chief Justice Loretta Rush, who spent 14 years as a judge in Tippecanoe County before her appointment to the high court, told attendees that justices must set aside their personal beliefs and weigh cases strictly on their legal merits.

Justice Robert Rucker illustrated that point with a story about former Chief Justice Richard Givan who opposed the death penalty on religious grounds but, in his judicial capacity, penned majority opinions that upheld the legality of several death sentences. * * *

[T]he justices declined to answer any questions about the oral arguments that had just taken place — part of actual proceedings in a case.

At issue in the case is whether Catholic Charities was negligent in its handling of a foiled adoption attempt it facilitated in 2010. [ILB: oral argument available here]

Jason and Justina Kramer, the would-be adoptive parents, sued the agency after the biological father of a newborn already living in their home established paternity of the child and successfully halted the adoption process.

The Kramers allege that they suffered harm because Catholic Charities failed to discover the father’s claim to paternity. A trial court ruled for the charity, but an appellate court reversed the decision and found the agency negligent.

The Supreme Court agreed to hear oral arguments Monday, but that doesn’t mean the court will actually take up the case. The justices could vote to let the lower appellate court’s ruling stand, or they could set a date to hear detailed arguments on the matter.

Justice Mark Massa said the court declines to hear about 90 percent of the cases sent its way annually, deferring to the lower courts’ rulings.

Later yesterday, the justices watched the unveiling of a historic marker honoring a women's suffrage trailblazer and Tippecanoe County's first female lawyer, Helen Gougar.

Posted by Marcia Oddi on Tuesday, November 11, 2014
Posted to Indiana Courts

Monday, November 10, 2014

Ind. Gov't. - Nationally, "Aging Prisoners Shackle State Budgets"

A story by Mike Maciag in the November issue of Governing is headed " Aging Prisoners Shackle State Budgets: The nation’s graying prison population will strain the corrections system. There are ways to keep costs down, but they’re not often used."

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to Indiana Government

Ind. Decisions - First same-sex dissolution in Indiana granted

This March 31st ILB post quotes a FWJG story by Rebecca Green about the difficulties of same sex couples married in another state and filing for divorce in Indiana:

The issue showed up earlier this month in federal court in Indianapolis with a trio of lawsuits filed against the state, challenging the ban on same-sex marriages and the refusal to recognize marriages solemnized in other states.

Among the three suits was one that included plaintiffs Linda Bruner and her wife, Lori Roberts. The two have been married since 2010, having had a lawful marriage in Iowa.

Together since 2003, the couple have been raising Roberts' two children. However, they recently separated in a split that included a protective order in Hancock County, according to court documents.

On Jan. 31, Bruner filed for divorce in Marion County, though the position of both the Marion Circuit and Superior courts is that the courts do not have jurisdiction to dissolve same-sex marriages.

Should her request for a divorce be denied, Bruner intends to appeal to the Indiana Court of Appeals, according to court documents.

"The trial court's refusal to grant a divorce to (Bruner) denies her access to the courts and a meaningful opportunity to be heard in violation of her constitutional rights," wrote Bruner's attorneys in their complaint. "Further, (Bruner) is forced to remain in an unhealthy and unsafe marriage."

Today, Indiana residents Linda Bruner and Lori Roberts were granted a decree of dissolution in Marion County Superior Court. According to a press release issued by Jane E. Q. Glynn, attorney for Linda Bruner, today Bruner:
... was granted what is believed to be the first same-sex divorce in the state.

In 2010, Indiana residents Linda Bruner and Lori Roberts traveled to Iowa and married. They returned home to Indiana as a married couple, but like many other Indiana married couples, they later decided to end their marriage. In researching her divorce options, Linda learned that Indiana’s ban on same-sex marriages made Indiana’s divorce statutes unavailable to her. The state of Indiana law in 2010 forced her to remain married to her spouse. Linda could not return to Iowa where she was married to obtain a divorce since Iowa requires a divorce plaintiff to have been an Iowa resident for one year. Linda could not uproot her entire life to move to Iowa for a year.

On January 31, 2013, Linda filed her divorce petition in Marion County Superior Court 5, and she waited. In March 2014, Linda requested a final hearing, but the brief hearing was scheduled for June 2014, so Linda continued to wait. At the June 2014 hearing, the court had no choice but to dismiss Linda’s petition based upon Indiana’s law banning same-sex marriage. Linda appealed. Nineteen days later in a different case, U.S. District Judge Richard Young ruled that Indiana's same-sex marriage ban was unconstitutional, igniting a series of appeals that ended on October 6, 2014, when the U.S. Supreme Court denied certiorari to same-sex marriage lawsuits arising out of the 4th, 7th, and 10th Circuits. On that day, Indiana’s ban on same sex marriage was no longer law.

At the time of these federal decisions, Linda’s appeal of the dismissal of her divorce petition was pending before the Indiana Court of Appeals. Following the rulings by the federal courts, which eliminated the legal barriers to her divorce case, Linda’s appellate attorneys requested that the Indiana Court of Appeals dismiss her appeal and send her case back to the trial court so that Linda could proceed with the divorce after all. On October 14, 2014, just eight days after same-sex marriage became legal in Indiana, the Court of Appeals granted the motion. The very next day, Linda asked the trial court to reinstate her divorce case, and her case was set for final hearing.

[This morning] the trial court approved the settlement agreement that [Bruner] and her spouse had signed. The trial court entered a decree of dissolution.

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to Ind. Trial Ct. Decisions

Ind. Gov't. - "State government still has a long way to go when it comes to transparency in how well we are protecting our children"

"Why do we still learn so little about abuse and neglect cases? State law says such records should be open, but that's not the reality." That is the headline to this long Nov. 3rd commentary by reporter Virginia Black in the South Bend Tribune. Here are some quotes:

But the high-profile deaths of two South Bend children this summer — and some other cases, such as the case of Josiah, who we might not hear about at all — should remind us that state government still has a long way to go when it comes to transparency in how well we are protecting our children.

Last year, I wrote a story about a young Plymouth mother who nearly killed her baby, who was not breathing when an ambulance arrived at the house. The family acknowledged that when the infant was taken to Memorial Hospital, doctors told them he was in critical condition, and he spent nearly a week on a ventilator. Police verified that hospital officials told them, too, the boy was in critical condition and on a ventilator.

Indiana law provides for records to be released, minus certain identifying information, in a child's "fatality or near-fatality." The problem is, it does not describe what a "near-fatality" is.

I asked for the record surrounding the boy's near-fatality and was denied.

DCS attorney John Wood wrote in his response that federal law defines a near-fatality as "an act that, as certified by a physician, places the child in serious or critical condition." But because state definitions are murky, Wood wrote, DCS added its own definition: a child must have been placed on a ventilator in an intensive care unit.

The medical records from the Marshall County office, Woods said, "do not indicate" the child was ever on a ventilator, and "we found no record of a physician certification that the child's condition was ever classified as critical or serious. ... we must reaffirm our initial conclusion that we have no information regarding a near fatality case concerning the child."

More recently, The Tribune requested the documents surrounding the August death of 11-month-old Micahyah Crockett and those of his sister, Alaiyah, who was 14 months old in February when she was seriously hurt. She's now "in a vegetative state." After her son's death, authorities say, the children's mother admitted she also caused her daughter's injuries.

St. Joseph juvenile magistrate Graham Polando issued an order last week preliminarily denying the release of most of those records but setting a hearing for Friday, for The Tribune and WSBT to object to the court's redactions.

Polando wrote, "While the Department (DCS) alleged that (Alaiyah) suffered a 'near fatality,' the Magistrate cannot find that she has." He, too, cited the lack of a physician's certification, and that although "the medical records certainly indicate that (the girl's) physicians concluded (she) was in a 'serious or critical condition' ... they do not appear to have concluded she was in such condition based on 'an act.'"

Regarding the release of the documents involving Micahyah, Polando notes the apparently contradictory statutes and preliminarily ruled that no medical or law enforcement documents, or DCS reference to those, be released.

Citing a lack of statutory guidance on previous DCS involvement with a sibling, Polando writes, "the records regarding the Department's 'previous contact' with Mother regarding (Alaiyah) remain protected."

After public calls statewide for more transparency and more oversight two years ago, the General Assembly added to the DCS ombudsman's small staff, set the stage for strengthened or newly created child fatality review teams in each county, and ultimately created a DCS oversight committee headed by state Sen. Carlin Yoder from Middlebury and including state Sen. John Broden from South Bend.

Last spring, I asked Broden, not only a state lawmaker interested in child welfare issues but also a former DCS attorney himself, whether he had ever seen the release of information surrounding a "near-fatality." He thought a moment before acknowledging he had not.

Federal and state confidentiality laws are meant to protect the children involved from later humiliation, authorities say. But who is really protected, when we can legally learn whether our neighbor has been accused of smoking marijuana but we are not aware that claims he abused or neglected a child are substantiated?

The public must have confidence that when cases of child abuse and neglect fall through the cracks — and of course they sometimes will — that those cases are scrutinized for what we can learn. Sometimes, a DCS caseworker, a CASA worker, judge or therapist might have misjudged a parent's mental state. Perhaps teachers or relatives did not report something they suspected. Maybe a doctor looking at a tragic injury believed a young mother's story that her toddler injured herself.

Legislators must clarify apparently conflicting interests in what the public should learn about the circumstances in which we have failed a child, and I hope they consider doing so in the next General Assembly session.

Austin Kinder, the Mishawaka man accused of nearly killing the baby just weeks ago, shuffled into court Thursday in jail garb and chains. We know from court records that he is scheduled for trial in February, and that he also has pending charges from 2013 of domestic battery and drug possession. DCS did not respond last week to a request for information about Josiah's near-fatality, so we do not know whether the agency was involved last year, whether Kinder was ordered to seek any sort of treatment or whether the child had ever been removed from Kinder's care.

But three years after Tramelle Sturgis' tragic death, and for the well-being of the other potential Josiahs among us, it's time for all of us to insist on the transparency we profess to believe in.

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to Indiana Government

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

For publication opinions today (2):

In Wesco Distribution, Inc. v. Arcelormittal Indiana Harbour Llc. and Espu, Inc., a 51-page opinion, Judge Robb writes:

On April 28, 2006, a ladle containing molten iron unexpectedly descended from its hoisted position and tipped, causing molten iron to spill and ignite a fire which extensively damaged the steel shop at a mill operated by ArcelorMittal Indiana Harbor LLC (“ArcelorMittal”) in East Chicago, Indiana. ArcelorMittal determined that the incident was caused when the braking system on the crane hoisting the ladle failed. Specifically, ArcelorMittal determined that parts supplied by WESCO Distribution, Inc. (“WESCO”) had fractured and led to the braking system failure. ArcelorMittal sued WESCO for breach of implied warranties and breach of contract. After extensive pre-trial proceedings and a twenty-two day trial, a jury found in favor of ArcelorMittal and awarded damages in the amount of $36,134,477. The trial court subsequently awarded ArcelorMittal prejudgment interest in excess of three million dollars on the amount it expended to repair its facility and entered final judgment for ArcelorMittal and against WESCO in the amount of $39,031,555.96.

WESCO appeals the judgment, alleging several instances of reversible error: * * *

WESCO also contends the trial court abused its discretion in: * * *

We conclude WESCO has not shown that the trial court committed any reversible errors or that the trial court abused its discretion in its handling of the discovery issue. We also conclude, however, that the trial court did abuse its discretion in awarding prejudgment interest to ArcelorMittal. Accordingly, we reverse the award of prejudgment interest and remand for re-entry of the final judgment in an appropriate amount. In all other respects, the trial court is affirmed.

In Christa Allen v. Richard Hinchman, M.D.; Richard Tanner, M.D.; and Jeffery Smith, M.D., a 19-page opinion, Judge Baker writes:
In this case, we are asked to determine whether the standard of care for doctors treating incarcerated persons is a different, lower standard of care than that applied to their professional counterparts practicing outside prison walls. We find that it is not. The standard of care for doctors practicing in Indiana prisons is no different than the standard of care for doctors practicing within the general population.

Christa Allen appeals the trial court’s grant of summary judgment in favor of appellees-defendants Doctors Richard Hinchman, Richard Tanner, and Jeffrey Smith (collectively, the Doctors) regarding her medical malpractice claim based on the treatment provided by the Doctors during her incarceration. Allen argues that the trial court erred when it determined that physicians who provide medical care to incarcerated persons are subject to a different, lower standard of care and found that her tendered expert, Dr. Wilson, was unqualified to testify because he was unfamiliar with the standard of care for physicians practicing in prisons. Allen asserts that Dr. Wilson was qualified to testify and maintains that there is a question of fact as to whether allowing her the use of a vaginal stent was medically necessary. Allen also argues that the trial court erred when it denied her motion to amend her complaint to allege a violation of the Eighth Amendment to the United States Constitution.

Finding that Dr. Wilson was qualified to testify, we conclude that summary judgment was inappropriate. However, we affirm the trial court’s decision to deny Allen’s request to amend her complaint, as her Eighth Amendment claim was barred by the relevant statute of limitations.

NFP civil opinions today (5):

In the Matter of the Termination of the Parent-Child Relationship of G.L.: G.W.L., III (Father) v. Ind. Dept. of Child Services (NFP)

Steve Mitchell v. Dan R. Walker (NFP)

Daniel E. Hoagland and Karen S. Hoagland v. Michael C. Mosier and Jeffery A. Mosier, Co-Executors of the Estate of Dorothy H. Mosier, et. al (NFP)

Kwang Moo Yi v. Deer Creek Homeowners Association, Inc, (NFP)

Frontline National, Llc. v Kathy Steinhauer (NFP)

NFP criminal opinions today (3):

Michael Janitz v. State of Indiana (NFP

Matthew A. Mahoney v. State of Indiana (NFP)

Darnell Johnson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case Friday, a reversal

In USA v. James Bowling, (SD Ind., McKinney), a 14-page opinion, Judge Manion writes:

James Bowling was convicted of two counts of making false statements in connection with the purchase of a firearm under 18 U.S.C. § 922(a)(6). Bowling argues that he deserves a new trial because the trial court made three errors: it prevented him from asserting a mistake-of-fact defense; it refused to require the government to enter into a stipulation; and, it failed to submit the issue of materiality to the jury. We hold that the trial court violated Bowling’s due process right to present a mistake-of-fact defense and remand for a new trial.

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues an order encouraging mediation in the IBM case

The Indiana Supreme Court issued this brief order on Thursday, Nov. 6th, likely after their weekly conference. It references the oral argument it heard on Oct. 30th in Indiana v. IBM, and continues:

The Court takes this matter under advisement and, in the meantime, encourages the parties to consider engaging in mediation to seek a mutually agreeable resolution of their dispute. To this end, the Courts DIRECTS the parties to file a joint notice, within thirty (30) days of the date of this order, advising the Court whether they have agreed to participate in mediation, and if so, whether they agree to a particular mediator. If the parties' notice states that they agree to mediation, the Court will enter an appropriate order appointing a mediator, either as selected by the parties or, if requested, as determined by the Court. If the parties indicate they do not agree to mediation, then the COUli will proceed in due course with resolution of this appeal.
The AP reported this weekend:
John R. Malley, a private attorney [with Barnes & Thornburg] helping represent Indiana in the case, said Friday that the state would pursue the court's suggested course of mediation.

“We will mediate in good faith to try to reach a resolution; if none is attainable, we will proceed in the court process,” Malley said in a statement.

IBM spokesman Clint Ros­well said Friday that the company is reviewing Rush's order.

ILB: The ILB recalls that on Jan. 3, 2014, during the oral argument in the legislative fines case, Berry v. Crawford, then Chief Justice Dickson made a call for compromise from the bench. The appellees followed the next week with a motion for alternative dispute resolution, which was followed on Jan. 25th by a motion in opposition from the appellants. On Feb. 11th CJ Dickson ordered:
BEING DULY ADVISED, THE COURT DECLINES TO COMPEL MEDIATION OF THIS DISPUTE AND WE DENY THE MOTION, BUT THIS DOES NOT PRECLUDE THE PARTIES FROM VOLUNTARILY ENGAGING IN MEDIATION ON THEIR OWN MUTUALLY AGREEABLE TERMS.
The Court decided the legislative fines case on June 18, ruling 3-2 for the appellants.

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to Ind. Sup.Ct. Decisions

Law - "Police Use Department Wish List When Deciding Which Assets to Seize"

Another long, shocking civil asset forfeiture story, this one today in the NY Times. Shaila Dewan reports:

The seminars offered police officers some useful tips on seizing property from suspected criminals. Don’t bother with jewelry (too hard to dispose of) and computers (“everybody’s got one already”), the experts counseled. Do go after flat screen TVs, cash and cars. Especially nice cars.

In one seminar, captured on video in September, Harry S. Connelly Jr., the city attorney of Las Cruces, N.M., called them “little goodies.” And then Mr. Connelly described how officers in his jurisdiction could not wait to seize one man’s “exotic vehicle” outside a local bar.

“A guy drives up in a 2008 Mercedes, brand new,” he explained. “Just so beautiful, I mean, the cops were undercover and they were just like ‘Ahhhh.’ And he gets out and he’s just reeking of alcohol. And it’s like, ‘Oh, my goodness, we can hardly wait.’ ”

Mr. Connelly was talking about a practice known as civil asset forfeiture, which allows the government, without ever securing a conviction or even filing a criminal charge, to seize property suspected of having ties to crime. The practice, expanded during the war on drugs in the 1980s, has become a staple of law enforcement agencies because it helps finance their work. It is difficult to tell how much has been seized by state and local law enforcement, but under a Justice Department program, the value of assets seized has ballooned to $4.3 billion in the 2012 fiscal year from $407 million in 2001. Much of that money is shared with local police forces.

The practice of civil forfeiture has come under fire in recent months, amid a spate of negative press reports and growing outrage among civil rights advocates, libertarians and members of Congress who have raised serious questions about the fairness of the practice, which critics say runs roughshod over due process rights. In one oft-cited case, a Philadelphia couple’s home was seized after their son made $40 worth of drug sales on the porch. Despite that opposition, many cities and states are moving to expand civil seizures of cars and other assets. The seminars, some of which were captured on video, raise a curtain on how law enforcement officials view the practice.

From Orange County, N.Y., to Rio Rancho, N.M., forfeiture operations are being established or expanded. In September, Albuquerque, which has long seized the cars of suspected drunken drivers, began taking them from men suspected of trying to pick up prostitutes, landing seven cars during a one-night sting. Arkansas has expanded its seizure law to allow the police to take cash and assets with suspected connections to terrorism, and Illinois moved to make boats fair game under its D.W.I. laws, in addition to cars. In Mercer County, N.J., a prosecutor preaches the “gospel” that forfeiture is not just for drug arrests — cars can be seized in shoplifting and statutory rape cases as well.

“At the grass-roots level — cities, counties — they continue to be interested, perhaps increasingly so, in supplementing their budgets by engaging in the type of seizures that we’ve seen in Philadelphia and elsewhere,” said Lee McGrath, a lawyer for the Institute for Justice, a public interest law firm that has mounted a legal and public relations assault on civil forfeiture.

That is just the start of the long, must-read NYT story. Here are some earlier ILB post.

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to General Law Related

Ind. Decisions - Transfer list for week ending November 7, 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, November 7, 2014. It is one page (and 9 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, November 10, 2014
Posted to Indiana Transfer Lists

Ind. Gov't. - ILB blocked at City-County building

The ILB received this message earlier this morning:

In its eternal wisdom, the city county has now blocked access to a large number of websites including the Indiana Law Blog. Unbelievable.
ILB: After checking, it is true; even judges have been blocked!

Posted by Marcia Oddi on Monday, November 10, 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 11/10/14):

Monday, Nov. 10

Next week's oral arguments before the Supreme Court (week of 11/17/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 11/10/14):

Monday, November 10

Next week's oral arguments before the Court of Appeals (week of 11/17/14):

Monday, November 17

Friday, November 21

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, November 10, 2014
Posted to Upcoming Oral Arguments

Friday, November 07, 2014

Ind. Decisions - Agreement resolves investigation of former Center Township Small Claims Court judge

The Indiana Courts has just released this statement:

The Indiana Commission on Judicial Qualifications and former Center Township (Marion County) Small Claims Court Judge Michelle Smith Scott have entered into an agreement that Judge Scott will not perform any judicial duties. Judge Scott has agreed not to seek or accept judicial office in the future, including acting as a judge pro tempore, private judge, or temporary judge. In exchange for Judge Scott’s agreement not to serve in any judicial capacity, the Commission is closing its investigation into alleged ethical misconduct.

Under the terms of the agreement, Scott waived certain confidentiality provisions related to Commission investigations—allowing the agreement to be made public. The stipulation and agreement for resolution of investigation is attached.

Judge Scott submitted her resignation on September 11, 2014, effective October 3, 2014. While Judge Scott was still in office, the Commission began investigating allegations of misconduct involving Scott’s private marriage business, which included whether her alleged conduct failed to comply with local rules, failed to promote confidence in the judiciary, abused the prestige of judicial office to advance other interests, and was an extrajudicial activity inconsistent with her ethical obligations as a judge. The stipulation and agreement now closes the Commission’s investigation into this matter.

The Commission is the 7-member group that investigates alleged ethical misconduct by judges. Chief Justice Loretta Rush chairs the Commission. The Indiana Supreme Court has final authority over judicial discipline.

See some earlier ILB posts about Judge Michelle Scott here.

Posted by Marcia Oddi on Friday, November 07, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (2):

In Anonymous Physician and Anonymous Medical Group v. Richard Loucks Rogers, a 17-page, 2-1 opinion, Judge Robb writes:

Richard Rogers, pro se, filed with the Indiana Department of Insurance a proposed complaint for medical malpractice on March 4, 2011 against Anonymous Physician and Anonymous Medical Group (collectively, “Physican”). Physician filed in the trial court a Motion for Preliminary Determination and for Summary Judgment, alleging Rogers’s complaint was not timely filed under the Indiana Medical Malpractice Act. The trial court initially granted summary judgment to Physician but later granted Rogers’s motion to correct error and denied summary judgment. The parties present several issues on appeal, which we consolidate as the following single issue: whether the trial court erred in denying summary judgment upon finding that genuine issues of material fact exist as to whether Rogers timely filed his proposed complaint. Concluding that Rogers’s claim was not timely filed under the Indiana Medical Malpractice Act and summary judgment for Physician was appropriate, we reverse. * * *

Concluding that Physician’s last act of negligence occurred January 7, 2009 and that the doctrine of continuing wrong does not apply, Rogers’s claim is barred by the Medical Malpractice Act’s occurrence-based statute of limitations. Accordingly, summary judgment is appropriate for Physician, and the trial court abused its discretion in finding otherwise and granting Rogers’s motion to correct error. We reverse.

BAKER, J., concurs.
KIRSCH, J., dissents with opinion. [which begins, at p. 16] The doctrine of continuing wrong applies where an entire course of conduct combines to produce an injury. Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 699 (Ind. 2000). When the doctrine attaches, the statutory limitations period begins to run at the end of the continuing wrongful act. Havens v. Ritchey, 582 N.E.2d 792, 795 (Ind. 1991). In order to apply the doctrine, the plaintiff must demonstrate that the alleged injury-producing conduct was of a continuous nature. Burton v. Elskens, 730 N.E.2d 1281, 1284 (Ind. Ct. App. 2000). “The doctrine of continuing wrong is not an equitable doctrine; rather, it defines when an act, omission, or neglect took place.” Coffer v. Arndt, 732 N.E.2d 815, 821 (Ind. Ct. App. 2000), trans. denied.

In The City of Indianapolis, Indiana, and the Indianapolis Department of Public Works v. Evelyn Cox, a 20-page opinion, Sr. Judge Shepard writes:
Owen Cox and Evelyn Cox initiated a class action against the City of Indianapolis, claiming that the City acted illegally in the course of changing its method for financing sanitary sewer improvement projects. The trial court entered summary judgment for the plaintiffs and awarded damages and prejudgment interest.

In the course of oral argument before this panel, counsel for Evelyn Cox acknowledged that it would be consistent with the statutes and constitutional provisions under which they bring this case for the City to make various kinds of forgiveness, either to individual property owners or to groups of them, as the circumstances might warrant. We think counsel’s acknowledgement was appropriate, and that it reflects why Cox’s claims must fail. We reverse and remand. * * *

On the multiple grounds explained above, we conclude that Cox’s claims are barred. She is not entitled to summary judgment on her statutory and Indiana constitutional claims. We reverse the trial court’s grant of summary judgment to Cox and remand with instructions to grant the City’s Cross-Motion for Summary Judgment.

ILB: Notable in Cox are three references by former CJ Shepard to statements made by counsel to Cox in the COA oral argument: first in the summary at the beginning of the opinion; second, on p. 13 "Morse is only modestly helpful here because Cox says she does not challenge the constitutionality of the City’s ordinance[5]; and third, on p. 15. "Indeed, as noted above, counsel for Cox acknowledged during oral argument that a municipality could do so, arguing instead that it had forgiven more than it should have.[6]"
_________
[5] 5 Oral argument at 22:23.
[6] Asked whether such judgments are to be made by courts or by the City, counsel appropriately replied: “The City.” Oral argument at 28:52.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Jack L. Anderson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, November 07, 2014
Posted to Ind. App.Ct. Decisions

Courts - "Patent appeals court rebukes top tech lawyer for forwarding judge’s e-mail"

That is the headline to this pretty amazing Nov. 5th story in ArsTechnia, reported by Joe Mullin. It begins:

The US Court of Appeals for the Federal Circuit published a unique order this morning, issuing a public reprimand to one of its best-known practitioners, patent lawyer Edward Reines of Weil Gotshal.

The order reveals that the full 11-judge court instituted an attorney discipline proceeding against Reines in June, shortly after it became aware of an e-mail exchange that led to the resignation of then-Chief Judge Randall Rader. The order makes public many more details of the story behind the e-mail that led to Rader's resignation, as well as the e-mail itself.

The court publicly reprimands Reines for forwarding the complimentary e-mail to more than 30 current or prospective clients. Within a few days, Reines showed the e-mail to in-house counsel at many of his big-ticket tech clients, including Apple, Cisco, eBay, Facebook, HP, Netapp, Newegg, Samsung, and Yahoo.

Both the entire story, and the disciplinary order itself, are must reads, whether you are an attorney or a judge.

Posted by Marcia Oddi on Friday, November 07, 2014
Posted to Courts in general

Courts - "Analysis: Paths to same-sex marriage review"

This morning Lyle Denniston of SCOTUSblog looks at the how soon "the issue of same-sex marriage could be back before the SCOTUS".

Posted by Marcia Oddi on Friday, November 07, 2014
Posted to Courts in general

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

Updating this ILB post from Oct. 23rd where the ILB wrote: "it looks like the county will be paying attorney fees to Faegre Baker Daniels rather than reducing judges salaries," on Nov. 5th there was a follow-up story from John Estridge, editor of the Brookville American-Democrat. Some quotes:

In split decisions, Franklin County Council decided to pay the two Franklin County judges their $5,000 individual county stipends and pay the judges' legal fees, even though some of the council members and council meeting attendees said the judges sought a legal remedy too soon.

Even while council is paying the judges, members refused to pay the Franklin County Prosecutor and Assistant Prosecutor the same $5,000 stipend.

By Indiana law, the counties are mandated to not decrease a judge's salary. At some point in the past, council began paying the judges each the maximum amount allowed by the state, $5,000. Thus, the county has to pay that same amount every year unless the state gives the judges a raise. Then the county can deduct the amount of the state raise from the amount it gives the judges. * * *

County council members received a letter from an attorney representing Franklin Circuit Court Judge J. Steven Cox and Franklin Circuit Court II Judge Clay Kellerman dated Oct. 10. It does not mention the bonus, but among its demands are the $5,000 supplement for each judge in 2014 and another $5,000 be placed in the 2015 budget for each judge. Also, it demanded council pay for the legal fees the judges had incurred. If those specific items did not occur, then the judges were going to sue the county and the council members individually. * * *

Later in the meeting, council president Jeff Koch brought up the subject of the $3,800 in legal fees for the judges. That is when Leffingwell brought up the talk of transfers at the last meeting and the judges pulling the trigger too soon.

“I don't think we should pay the legal fees for the judges,” Leffingwell said. * * *

“It's up to you,” Koch said. “If council decides not to pay, then the lawsuit continues, and the only thing that is going to go up is the attorney fees.”

“If they push it,” Leffingwell said. “They got their $5,000.”

“The attorney fees just keep accruing,” council member Dean McQueen said.

“Every county that has tried to do it has lost,” Sizemore said.

Oglesby made a motion to pay the judges' attorney fees out of County Council Contingency Fund. McQueen seconded the motion, and it passed 4-3 with Daryl Kramer, Leffingwell and Sizemore voting against the motion. * * *

Kramer proposed council pay the judges quarterly in 2015 and then deduct any money from their pay if the General Assembly votes the judges a raise. * * * Oglesby disagreed with Kramer.

“Here's the problem,” Oglesby said. “We got a letter from their attorney, and it is filled with Indiana Codes and everything. You cannot differentiate it no matter what they've been paid. These guys can tell you this, but they don't have any laws to back them up. And minutes from the last meeting don't show $5,000 being made for the judges. It's not even in the minutes. It's not even going to hold up in court. You can talk about it, talk about it, talk about, it but if you don't have law to back up what you're doing, you're dead meat in the water.”

Prosecutors will not see the supplement in either year, Leffingwell said.

“There's no case law that says we have to pay their salary,” Leffingwell said. “Should it morally be paid, probably. But there's no statute that says we have to pay them.

Posted by Marcia Oddi on Friday, November 07, 2014
Posted to Indiana Courts

Thursday, November 06, 2014

Courts - "Federal Appeals Court Upholds Four States’ Same-Sex Marriage Bans"

Chris Geidner of BuzzFeed has posted this good story on today's 6th Circuit, 2-1 opinion. (The story includes the opinion.)

The WSJ Law Blog has this story by Jacob Gershman and Ashby Jones.

[More] Here is Lyle Denniston's take, in SCOTUSblog.

Posted by Marcia Oddi on Thursday, November 06, 2014
Posted to Courts in general

Ind. Decisions - Supreme Court decides one today, the right-to-work law challenge

In Gregory F. Zoeller, Attorney General and Rick J. Ruble, Commissioner of the In. Dept. of Labor v. James M. Sweeney, David A. Fagan, Charles Severs et. al., a 10-page, 5-0 opinion with a separate concurring opinion by Justice Rucker, Justice Dickson concludes:

We conclude that Indiana Code sections 22-6-6-8 and 22-6-6-10 in the Indiana Right to Work Law do not violate Article 1, Section 21 of the Indiana Constitution. Any compulsion to provide services does not constitute a demand made by the State of Indiana. We reverse the trial court's entry of declaratory judgment and its denial of the defendants' motion to dismiss.
The Court restricted its analysis to whether the statutes violated Sec. 21 of Art. 1 of the Indiana Constitution. The vote: Rush, C.J., and David and Massa, JJ., concur. Rucker, J., concurs in result with separate opinion.

Justice Rucker, concurring in result, writes beginning on on p. 6:

I concur in the result reached by the majority. I write separately to emphasize the significance of the Union seeking “a general declaration that the Indiana Right to Work Law is unconstitutional on its face . . . .” Slip op. at 3. As the majority points out, “[w]hen a party claims that a statute is unconstitutional on its face, the claimant assumes the burden of demonstrating that there are no set of circumstances under which the statute can be constitutionally applied.” Id. (emphasis added) (quoting Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999)). * * *

What is not at stake in this case is an “as applied” constitutional challenge to the statute. Unlike the heavy burden placed on a party seeking to challenge a statute on its face, an “as-applied” constitutional challenge asks “only that the reviewing court declare the challenged statute or regulation unconstitutional on the facts of the particular case.” * * *

In essence there may very well exist a set of facts and circumstances that if properly presented and proven could demonstrate that a union has actually been deprived of compensation for particular services by application of the Right to Work Law. And thus as to that union the statute would be unconstitutional as applied. However, this is not that case.

Posted by Marcia Oddi on Thursday, November 06, 2014
Posted to Ind. Sup.Ct. Decisions

Environment - "Cockiness hastens spread of deer disease"

Updating a long list of earlier ILB posts on high-fenced hunting, including these, today's Fort Wayne Journal Gazette includes this letter from Glenn Lange, VP, Indiana Wildlife Federation:

Ohio has just reported its first case of chronic wasting disease in deer. It was – hold your breath – in a high-fenced shooting preserve.

Like Missouri, Wisconsin and 19 other states with CWD, Ohio’s wild deer herd will be forever changed.

Why? Because for some crazy-no-matter-how-you-spin-it reason, a person in Ohio bought and shipped deer from another person in Pennsylvania. That introduced a devastating disease that has no cure, no live test and is always fatal, with the onset of symptoms possibly taking years while it stays viable in the natural environment.

Overconfidence is so dangerous, yet so prevalent, on this issue.

At a Natural Resources Summer Study Committee hearing this summer, there was no shortage of overconfidence. While wildlife experts testified about the dangers of shipping captive deer across state lines, many legislators heard what they wanted to hear: We’ve got the best Board of Animal Health, bulletproof protocol, veterinary expertise like the world has never seen. Ohio residents were told the same things in 2012 and handed over authority of the industry to their Department of Agriculture instead of their Department of Natural Resources. To the credit of Indiana’s DNR, they are fighting tooth and nail to stop that from happening here.

This coming session, your legislator will likely hear and vote on another bill designed to make captive deer-shooting preserves legal and unencumbered in Indiana. See whether they have learned anything – ask them how they will vote.

Posted by Marcia Oddi on Thursday, November 06, 2014
Posted to Environment

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

For publication opinions today (1):

In Victor Keeylen v. State of Indiana, a 3-page opinion on rehearing, Judge Mathias writes:

We grant Keeylen’s petition to clarify one factual issue, but otherwise affirm our opinion in all respects.
NFP civil opinions today (1):

Rueth Development Company v. Power-Rueth & Associates, Donald S. Powers, Margret F. Powers et. al. (NFP)

NFP criminal opinions today (3):

In State of Indiana v. Anthony Rivera (NFP), a 10-page opinion, Sr. Judge Sullivan writes:

The State of Indiana appeals from the trial court’s order disposing of a petition alleging that Anthony Rivera violated the terms and conditions of his direct placement in community corrections. After finding that Rivera had committed a technical violation, the trial court sentenced him to time served as a consequence for that violation. The State contends that the trial court’s sentencing decision is illegal because it, in effect, violated the terms of Rivera’s fixed-sentence plea agreement. We affirm.
Kevin Tandy v. State of Indiana (NFP)

Don Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 06, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, November 05, 2014

Courts - A couple interesting constitutional amendments regarding courts considered in other states yesterday

Once in the distant past, the ILB looked at the language of Art. 7, Sec. 10 of the Indiana Constitution that reads:

A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission.
Then the ILB asked (in a post I remember but haven't yet located) whether that meant the Governor could not name a new Supreme Court justice or Court of Appeals judge until the was an actual vacancy, not simply a future date certain when the jurist was resigning.

Well, Florida may have heard me. It attempted this amendment to Art. V, Sec. 11 of the Florida Constitution by adding the following as 11(a)(2):

Whenever a prospective vacancy occurs in a judicial office for which election for retention applies, the governor shall fill the prospective vacancy by appointing a justice or judge from among at least three persons but not more than six persons nominated by the appropriate judicial nominating commission. The term of the appointment commences upon the expiration of the term of the office being vacated and ends on the first Tuesday after the first Monday in January of the year following the next general election. [h/t Gavel to Gavel; emphasis by ILB]
But the meansure failed, Gavel to Gavel has it listed under "losers":
Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs.
And another effort of possible interest in Indiana: In Oregon, according to Gavel to Gavel:
Measure 87 now allows state judges to teach part time at public colleges/universities without running afoul of the state constitution’s no-dual-office or no-dual-salary provisions.
Gavel to Gavel had a long analysis of the Oregon measure, headed "Oregon Measure 87: why a 1979 Oregon Supreme Court case on judges as part time teachers is on the 2014 ballot", on Oct. 23rd.

Posted by Marcia Oddi on Wednesday, November 05, 2014
Posted to Indiana Courts

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

For publication opinions today (2):

In Erie Insurance Exchange v. Troy Sams and Teresa Sams, a 16-page opinion, Judge Bailey writes:

Following a bench trial, Erie Insurance Exchange (“Erie”) appeals the trial court’s judgment ordering Erie to pay $63,924.89 to Troy Sams and Teresa Sams (the “Samses”) for losses they sustained after a storm damaged their home. * * *

In sum, Erie urges us to supplant the trial court’s findings as to the cause and instead find that “it was the deteriorated and faulty shingles that set in motion the series of events that led to the loss[.]” (Appellant’s Br. at 16.) We decline Erie’s request to reweigh the evidence. See Associated Aviation Underwriters v. George Koch Sons, Inc., 712 N.E.2d 1071, 1073 (Ind. Ct. App. 1999), trans. denied. There is support in the record for the trial court’s finding that the storm caused the damage. The court found no other causes. Because the Policy unambiguously covers storm damage, the trial court’s conclusion is not clearly erroneous. * * *

The trial court based its judgment on the evidence the parties introduced, and the court’s judgment is well within the evidence presented. Therefore, under these specific facts, and based on the evidence presented in this case, the court’s judgment that the replacement cost of the Samses’ damaged roof, cathedral ceiling, and exterior vinyl siding was $63,924.89 was not clearly erroneous.

Conclusion. The trial court did not err in finding that the Erie Policy covered the storm damage to the Samses’ home. In addition, the court’s judgment of $63,924.89 was not clearly erroneous.

In Randall Manson v. Mark L. Keglovits, a 16-page opinion, Judge Brown writes:
In this interlocutory appeal, Randall Manson appeals from the trial court’s January 31, 2014 rulings that the law of South Dakota is applicable in this case and that he is not entitled to summary judgment with respect to his alleged contributory negligence. Manson raises two issues, which we revise and restate as:
I. Whether the court properly concluded that the substantive law of South Dakota rather than Indiana is applicable in this cause; and
II. Whether the court erred in denying Manson’s cross-motion for summary judgment alleging he was not contributorily negligent as a matter of law under the law of South Dakota. We affirm.
NFP civil opinions today (1):

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

NFP criminal opinions today (3):

Garland W. Thomeson v. State of Indiana (NFP)

Kieon Smith v. State of Indiana (NFP)

Casey Riggins v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 05, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - Some notes on Indiana court-related election results

Supreme Court, Court of Appeals, and Tax Court Retention Results

Via the Indiana Election Division, last Updated November 5, 2014 (10:27 AM)

Justice Loretta H. Rush 625,890 277,496
Justice Mark S. Massa 602,789 288,344
Judge Rudolph Reginald Pyle III 596,000 287,790
Judge Martha Wentworth 618,794 270,266

Former Judge Running for County Clerk Defeated in Madison County

Fredrick R. Spencer, former Judge of the Madison Circuit Court, sanctioned by the Supreme Court in 2003, lost his race for Madison County Clerk. His opponent, incumbent Republican Darlene Likens, won with 63% of the vote. In a story from the Anderson Herald-Bulletin from several weeks ago:

Spencer said his experience as judge and former positions within the community give him an advantage over Likens when it comes to implementing the vote centers.

“I am seeking the office because I was urged to do so,” Spencer said. “There is a thought that a law-trained person serving as clerk has advantages over a layman in terms of training and experience.”

"Tom Busch defeats Les Meade for Circuit Court" is the headline of a story this morning by Steven Porter in the Lafayette Journal Courier. Some quotes:
Tom Busch will take the bench in Tippecanoe Circuit Court in January.

He defeated Republican opponent Les Meade by 717 votes, garnering slightly more than 51 percent in the general election, according to unofficial results released Tuesday evening.

"I certainly wasn't taking this for granted. It could've gone either way," Busch said. "I knew it would be a close race."

Busch, who's serving as Superior Court 2 judge, had announced plans to retire, but he changed course following the May primary and decided he'd run on the Democrat ticket.

The decision was made, he said, after members of the public prompted him to postpone his retirement and give them an alternative to Meade, who'd won the Republican nomination.

Posted by Marcia Oddi on Wednesday, November 05, 2014
Posted to Indiana Courts

Ind. Courts - 7th Circuit Appeals "weighing Indiana strip club dispute"

The 7th Circuit heard oral argument yesterday in BBL, Incorporated v. City of Angola (14-1199). You may listen to the audio here.

Mike Marturello reported in the KPCNews (Kendallville Herald-Republican), but all but the beginning of the story is behind a paywall:

CHICAGO — A three-judge panel in the U.S. Court of Appeals for the 7th Circuit heard oral arguments in the case pitting the owners of a proposed Angola strip club against the city of Angola on Tuesday.

On appeal is a First Amendment suit brought against the city by Alva and Sandra Butler, owners of BBL Inc., parent company of Showgirl III. In January Judge Robert Miller of the U.S. Federal District Court for Northern Indiana ruled against the Butlers, who sought a preliminary injunction to void regulatory action by the city, preventing a strip club from opening.

WISH TV quotes an AP story:
ANGOLA, Ind. (AP) — A federal appeals court is now considering whether northeastern Indiana city officials acted properly when they prevented a strip club from opening.

Attorneys for the city of Angola and Showgirl III owners Alva and Sandra Butler presented oral arguments before the appeals court in Chicago on Tuesday.

A federal judge in January upheld the rezoning decision that prevented the club from opening in the city about 40 miles north of Fort Wayne.

The Herald-Republican reports an attorney for the Butlers told the appeals court that Angola officials “went into a panic” and wrongly changed the city’s zoning rules.

See this Feb. 4, 2014 ILB post on the federal district court opinion.

Posted by Marcia Oddi on Wednesday, November 05, 2014
Posted to Indiana Courts

Ind. Decisions - A Road More Traveled: More than One-Third of Recent Indiana Supreme Court Opinions Issued Without Hearing Oral Argument

There are exceptions to every rule or usual practice, but most Indiana Supreme Court cases follow a similar path. After the transfer petition and any responses are filed, within a few weeks (criminal cases) or a couple of months (civil cases), counsel and litigants receive word of some action. In about 90% of cases, they receive an order denying transfer. In roughly 6-8% of cases, they receive an order granting transfer, usually followed by an order setting the case for oral argument. In a handful of cases, approximately 15-18 in recent years, they receive an order setting the case for oral argument to decide whether to grant transfer.

Opinions Issued Without Arguments

The conventional path to an opinion (transfer grant, oral argument, opinion) has seemed not-so-conventional in the first four months (July-October) of this fiscal year. Excluding disciplinary cases and rehearing opinions, the Indiana Supreme Court has issued 29 opinions. Oral argument was held in only 62% (18/29) of those cases. However, no oral argument was held before the issuance of an opinion in cases involving significant issues, such as:

Others were less surprising. Three of the opinions involved self-represented litigants, where oral arguments are seldom held.* The Drake v. Dickey opinion was a narrow one discussing only a footnote from the Court of Appeals opinion. Finally, the remaining five opinions were seemingly more straightforward and capable of resolution without argument. (Or, perhaps, the briefs may have been so good that no stone was left unturned — although I think arguments always provide additional, useful insight into some aspect of any case.)

A Slow December on the Argument Calendar?

The Indiana Supreme Court oral argument calendar includes 26 cases between September and November. No cases are currently listed beyond November 24, although the online docket shows that argument will be held in Bd. of Comm’r v. Teton Corp. on December 18.

Of these 26 cases:

Of the 21 non-direct appeals:Recent Transfer Grants

Transfer has been granted in 29 cases in the four months of July through October.** Oral argument has been scheduled in most of those cases, although it is probably too soon for grants from the past two weeks to be scheduled. At this point it seems unlikely that arguments will be scheduled in Russell v. State (transfer granted September 18) or Willis v. State (transfer granted October 2), unless the justices are waiting to schedule one of the cases for an oral argument outside of the Statehouse. Arguments are generally scheduled in the order of transfer grants, and arguments have already been scheduled in the two cases granted transfer on October 16.
__________
* Although I understand the potential awkwardness of a pro se appellate argument from a non-lawyer, I suspect some would do quite well — and all would have fewer opportunities to mess things up than in a jury trial, where self-representation is constitutionally protected and not infrequently exercised.

** Gomillia v. State does not appear on any transfer list, although transfer was granted on August 12, the same day an opinion was issued.

Posted by Marcia Oddi on Wednesday, November 05, 2014
Posted to Schumm - Commentary

Ind. Courts - "School bus fees case to state Supreme Court"

The case of Lora Hoagland v. Franklin Township Community School Corp., set to be argued before the Supreme Court on Nov. 24th, was the subject of a long story yesterday in the Indianapolis Star, reported by Stephanie Wang. Some quotes:

What the case will likely come down to is what the state constitution means by mandating tuition-free public schools that are open to all, said Indiana University McKinney School of Law clinical professor Cynthia Baker.

“The meaning of that is being critically explored because of all these attendant and expensive aspects of what it is to educate a public school student today,” she said.

A previous Supreme Court decision, 2006’s Nagy v. Evansville-Vanderburgh School Corp., ruled unconstitutional a $20 per-student fee that went into the district’s general fund to help pay for school staff and student activities, whether students participated in them or not.

In essence, the court said in a 4-1 opinion, it amounted to a tuition for attending public schools.

Baker, who is also McKinney’s director of its Program on Law and State Government, said the Supreme Court could apply the same analytical framework to Franklin Township’s bus fees. It could conclude that the idea of having a public school system only really works when students are physically present, so it would be inappropriate to pass that cost down to families.

And yet, Baker pointed out, Indiana is one of a handful of states where students pay textbook fees.

“I think that’s a pretty fine line,” she said. “All students need instructional materials.”

Baker also cites another Supreme Court opinion, 2009’s Bonner v. State of Indiana, where residents sued over whether public education was good enough. The court ruled that the state constitution does not address the quality of public education — leaving that up to the legislature to determine.

It could be similar, she said, with school buses and other elements of education: If not clearly delineated in the state constitution the Supreme Court could say it’s up to the government. The Court of Appeals, however, had said laws requiring transportation for special needs students implied access for all.

At the crux of the case, however, is a political point — not a legal one.

“It would certainly increase the political pressure on a recalibration of how we, all Hoosiers, pay for our — all public school — students in our state’s public education,” Baker said.

Districts have been suffering from property tax caps that stifle school tax revenue. Transportation and capital projects, including building maintenance, are paid out of those funds.

[Franklin Township Schools Superintendent Flora] Reichanadter says Franklin Township schools soon won’t have enough money from the local tax base to pay for buses.

“If it is a right,” she said, “the legislature needs to set aside money to pay for this.”

And Franklin Township isn’t the only district struggling under tax caps. Under a state law that resulted from Franklin Township’s school bus fees, three districts have notified the state Department of Education that in three years, they may have to eliminate transportation services.

Among them: Decatur Township, which after giving its notice passed a referendum this year to increase property taxes.

The list also includes the Westfield Washington and Danville districts.

“It’s not going to get any better,” said J.T. Coopman, executive director of the Indiana Association of Public School Superintendents. “It’s in the hands of the legislators. They’re the ones that enacted property tax caps. ... They created the problem; they’re going to have to create a solution.”

Posted by Marcia Oddi on Wednesday, November 05, 2014
Posted to Upcoming Oral Arguments

Ind. Courts - 9AM oral argument tomorrow before Supreme Court canceled

Note that the first oral argument before the Supreme Court tomorrow, scheduled for 9AM and involving a certified question, has been canceled.

Posted by Marcia Oddi on Wednesday, November 05, 2014
Posted to Upcoming Oral Arguments

Tuesday, November 04, 2014

Ind. Courts - SD Ind. proposed revisions to local rules re filing under seal

The USDC, SD Ind. has published a notice, dated Oct. 31st, re revision of certain Local Rules. Comments are due by Nov. 30th.

Many of the proposed changes relate to filing under seal in civil cases (Local Rule 5-11) and filing under seal in criminal cases (Local Rule 49-1-2). The text of the existing rules is not shown shown, but the current rules are available here.

The comments accompanying the proposed revisions:

Local Rules Advisory Committee Comments Re: 2014 Amendment

The 2014 revision includes a more detailed procedure for obtaining permission from the Court to maintain filed documents under seal in civil matters; filings under seal in criminal matters is the subject of new Local Criminal Rule 49.1-2. Under the new procedure, the parties are encouraged to consider and confer regarding redaction whenever practical and possible to avoid multiple filings of the same document and unnecessary motion practice. Parties should note that a protective order does not authorize a party to file or maintain a document under seal. In addition, the rule encourages the parties to follow Seventh Circuit guidance on the legal parameters for maintaining documents under seal as enunciated in cases such as City of Greenville, Illinois v. Syngenta Crop Protection, LLC, No. 13-1626, Slip Opinion (7th Cir. Aug. 20, 2014); Bond v. Utreas, 585 F.3d 1061 (7th Cir. 2009); Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002); and Eads v. Prudential Ins. Co. of Am., Cause No. 1:13-cv-1209-TWP-MJD, Order to Show Cause (S.D. Ind. Aug. 5, 2014).

New Local Criminal Rule 49.1-2 replaces Local Rule 5-11 for filing cases and/or documents under seal in criminal matters and includes a list of documents that may be filed under seal without a motion and a detailed procedure for obtaining permission from the Court to maintain cases and filed documents under seal. Whenever practical, the parties should confer regarding redaction in lieu of filing sealed documents. In addition, the rule encourages the parties to follow Seventh Circuit guidance on the legal parameters for maintaining cases and documents under seal.

Posted by Marcia Oddi on Tuesday, November 04, 2014
Posted to Indiana Courts

Monday, November 03, 2014

Ind. Gov't. - "Gay marriage: Colorado Republicans, once seizing it as issue, now shrug"

The much missed Jon Murray, formerly of the IndyStar, reported Oct. 31 in the Denver Post in a long story. Some quotes:

Just two years ago, Colorado's House Republican leadership felt so strongly about fighting off legal recognition for same-sex relationships that they twice torpedoed a civil unions bill that otherwise was guaranteed passage on the floor.

The world has changed drastically since then — and so has the approach by the state GOP's standard-bearers to the once-divisive topic. * * *

Colorado's new gay marriage reality once was a prospect that drove fearful voters to the polls, as when they passed the state's now-invalid constitutional ban on same-sex marriage in 2006. Back then, Colorado's Republican members of Congress frequently co-sponsored the Federal Marriage Amendment to ban gay marriage everywhere.

But ahead of the Nov. 4 election, gay marriage now is an apparent non-issue.

GOP insiders and political analysts say Colorado Republicans' rapid tone shift — which still meets resistance from some social conservatives — is necessary for their political survival.

In the last three years, polls have gone from showing the state's voters evenly split on gay marriage to favoring it by a solid majority — as high as 61 percent . Republicans remain divided in polls, though most support at least civil unions. * * *

Movement on marriage has happened so fast that even some Colorado Democrats, including Gov. John Hickenlooper, Beauprez's opponent, have come around to supporting same-sex marriage vocally only in the last year, as it became clear it was a winning issue. * * *

But while the debate has shifted nationally, it's not over. Some big-name Republicans have decried the rulings on gay marriage, including Kansas Gov. Sam Brownback and 2016 presidential aspirants such as Texas Sen. Ted Cruz.

In Colorado, too, the GOP still has some catching up to do.

While party spokesman Owen Loftus says the party hears little from the rank-and-file about gay marriage, the party's platform resolutions, adopted in April, include one saying: "It is resolved by Colorado Republicans to support and defend the definition of marriage as the union of one man and one woman."

That item was approved at April's state assembly by a nearly 5-to-1 margin.

And some elected officials and Republican candidates vow not to back down or accept that the Supreme Court's action likely brings finality to the gay marriage fight in Colorado.

But what they can do is unclear.

Posted by Marcia Oddi on Monday, November 03, 2014
Posted to Indiana Government

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

For publication opinions today (1):

In In the Matter of the Termination of the Parent-Child Relationship of D.B.M. and H.B. (Father) v. Indiana Department of Child Services, a 12-page opinion, Chief Judge Vaidik writes:

H.B.’s (“Father”) rights to his son D.B.M. were terminated earlier this year. He now appeals, arguing that the testimony of an Allen County Department of Child Services (“ACDCS”) supervisor should not have been admitted at the termination hearing. He contends that without this testimony, there is insufficient evidence to support the trial court’s order terminating his parental rights. We conclude that any error in admitting this evidence was harmless, and even setting this evidence aside, there is sufficient evidence to support the termination order. We affirm. * * *

The evidence presented at the termination hearings supports the trial court’s findings. FCM Norris and GAL Webber testified that Father did not comply with the court’s order to participate in services recommended by the family-functioning assessment and had not exercised any parenting time with D.B.M. throughout the case. Additionally, GAL Webber testified that Father—who did not attend the termination hearing—had “basically fallen off the face of the earth and we haven’t always known where he has been.” Tr. p. 61. GAL Webber and FCM Norris also stated that Father had no relationship with D.B.M. Id. at 55, 61.

Based on the foregoing, we conclude that the evidence supports the trial court’s determination that there was a reasonable probability that the conditions resulting in D.B.M.’s removal or the reasons for his placement outside Father’s home would not be remedied.

NFP civil opinions today (1):

In Re the Matter of: K.J.W., A Child in Need of Services and A.L.W. v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (5):

Kelli Greene v. State of Indiana (NFP)

Jade M. Cook v. State of Indiana (NFP)

Fabian Lavell Bennett v. State of Indiana (NFP)

Gage Patrick Ringer v. State of Indiana (NFP)

George Ivory v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, November 03, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending October 31, 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 31, 2014. It is two pages (and 19 cases) long.

Three transfers were granted last week:

Also of interest on today's list is the only case where the justices disagreed on granting transfer. In the case of Larry Love v. State, transfer was denied by a vote of 3-2, with J.Dickson and J.Rucker voting to grant transfer. Love is an Aug. 8 NFP opinion, where the issue was stated as "whether the trial court properly denied Love’s motion to suppress because a show-up identification was not unduly suggestive."

Posted by Marcia Oddi on Monday, November 03, 2014
Posted to Indiana Transfer Lists

Law - "Pianist asks The Washington Post to remove a concert review under the E.U.’s ‘right to be forgotten’ ruling"

An Oct. 31st column by Caitlin Dewey in the Washington Post begins:

The pianist Dejan Lazic, like many artists and performers, is occasionally the subject of bad reviews. Also like other artists, he reads those reviews. And disagrees with them. And gripes over them, sometimes.

But because Lazic lives in Europe, where in May the European Union ruled that individuals have a “right to be forgotten” online, he decided to take the griping one step further: On Oct. 30, he sent The Washington Post a request to remove a 2010 review by Post classical music critic Anne Midgette that – he claims — has marred the first page of his Google results for years.

It’s the first request The Post has received under the E.U. ruling. It’s also a truly fascinating, troubling demonstration of how the ruling could work.

“To wish for such an article to be removed from the internet has absolutely nothing to do with censorship or with closing down our access to information,” Lazic explained in a follow-up e-mail to The Post. Instead, he argued, it has to do with control of one’s personal image — control of, as he puts it, “the truth.”

Really. Later in the piece:
Whose truth is right: the composer’s or the critic’s? And more critically, who gets to decide?

It’s a question that goes far beyond law or ethics, frankly — it’s also baldly metaphysical, a struggle with the very concept of reality and its determinants. Lazic (and to some extent, the European court) seem to believe that the individual has the power to determine what is true about himself, as mediated by the search engines that process his complaints.

Accordingly, in the three months after the “right to be forgotten” ruling went into effect, Google approved 53 percent of take-down requests on first application, and an additional 15 percent upon further review.

Those removals included articles from the Guardian about a former Scottish soccer referee who lied about granting a penalty kick, a BBC article that discussed a Merrill Lynch banker’s role in the financial crisis, and a report in the Daily Mail about an airline that had been accused of racism by a Muslim job applicant. And they proceeded despite the fact that, as Google complained in a filing to regulators, “in many cases we lack the larger factual context for a request, without which it is difficult to balance competing interests.”

Posted by Marcia Oddi on Monday, November 03, 2014
Posted to General Law Related

Ind. Courts - "How many ways do we elect judges?" in Allen County

A section from an article yesterday in the Fort Wayne Journal Gazette by Andrew Downs:

How many ways do we elect judges?

Should judges be appointed or elected? If they are appointed, who should appoint them? If they are elected, should the candidates run in partisan or non-partisan elections? These are fun questions to debate, and in Indiana it appears that we have decided to embrace as many methods for selecting judges as we can. This election, voters in Allen County will see three of the ways judges get, and keep, their jobs in Indiana.

The race for judge of the circuit court is a partisan race. There is only one candidate, but there is a party label by his name. The races for superior court judges are nonpartisan, and only one of them is competitive. To add a layer of complexity to our understanding of judicial elections, the candidates for superior court in Allen County may spend only $10,000 on their campaigns. This is the only race for judge in Indiana with this sort of limit.

This election we also will be voting whether to retain certain judges of the Indiana Supreme Court and Indiana Court of Appeals. Unlike the races for circuit and superior court where voters may see more than one person running for the office, voters will see only the names of some of the current judges on the ballot and the voters will be asked whether those judges should be retained for another term. A more thorough search may find one, but a quick look through history is unlikely to find a single judge who failed to be retained.

Posted by Marcia Oddi on Monday, November 03, 2014
Posted to Indiana Courts

Law - "How Political Donors Are Changing Statehouse News Reporting"

That is the headline to this story today in Governing, reported by Danial C. Vock. The subhead: "A growing share of statehouse reporting in state capitols across the country comes from conservative groups, blurring the lines between journalism and advocacy. ." A few quotes:

[Benjamin] Yount, who has been an Illinois statehouse reporter for eight years, mentioned the many press passes hanging on his studio wall, 35 miles from the state Capitol in Springfield. He wondered why citizen journalists, including those who are advocates of one cause or another, should be treated differently than traditional journalists who see themselves as objective. “What is it going to take to legally erase that line? Should there be a line?” he asked, his indignation rising. “Should legally we recognize the difference between someone who is media and someone who is just an angry mom, an angry grandparent, the average taxpayer?”

For seasoned reporters, the idea that anyone off the street can do what they do is tough to take. But Yount is far from alone in pushing the idea that we need to re-examine who is qualified to cover state government. In fact, blurring the lines around what is considered legitimate media is a major emphasis of his employer and institutions like it.

The group he works for, the Franklin Center for Government and Public Integrity, is deploying reporters to cover state and local governments around the country. Its ultimate ambition is to have bureaus in every state. But they aren’t news bureaus in the way many traditional journalists understand them. They are being paid to cover government from an unabashedly ideological perspective.

The Franklin Center has been one of the top recipients of money from groups tied to the conservative billionaire Koch brothers. It grew from zero outlets to 30 in its first year in 2009. By its second year, it claimed outposts in 41 states.

The initial sites varied widely in their approach. Some covered events in a relatively straightforward fashion; others made little effort to conceal their ideological bent. After some shake-ups and streamlining, most of the sites that didn’t become financially self-sufficient now appear under the Watchdog banner.

Other groups, many tied to Koch-funded conservative think tanks, are trying their hand at mixing advocacy and journalism at the state level as well. Like Franklin’s Watchdog, they offer a steady diet of articles and reports on conservatives’ go-to issues, including excessive government spending, union abuses, the virtues of school choice and the folly of overregulation.

From later in the lengthy article:
The growth of the ideological press corps has forced established journalists, political leaders and the public to confront the questions Yount raises about who, exactly, ought to be treated and trusted as members of the media. What’s the proper way to treat new media reporters who have a clear political ideology? What if they are also employees of lobbying organizations funded by some of the biggest political donors in the country?

The questions take on an even greater urgency as the traditional outlets that once supplied statehouse news offer less and less of it.

After decades of erosion in newspaper coverage of state capitols, the bottom fell out between 2003 and 2009. Print publications were already reeling from huge, Internet-triggered losses in subscribers and advertising dollars when the Great Recession delivered another crushing blow to their business models. Reporters assigned to distant posts, whether in foreign countries or in state capitols, were among the first to be dumped. By 2009, nearly one in four full-time newspaper reporter positions in the country’s statehouses had been eliminated. Since then, the numbers have declined another 12 percent.

ILB: A look at a map on the Franklin Center website shows that Indiana current is NOT one of the few states listed on the map of "Franklin Affiliates in Your State."

Note that the "Franklin Center" and its "Statehouse News Online" is not related (as far as the ILB knows) to the Franklin College StateHouse Bureau and its StatehouseFile.

Posted by Marcia Oddi on Monday, November 03, 2014
Posted to General Law Related

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

From Sunday, November 2, 2014:

From Saturday, November 1, 2014:

From Friday afternoon, October 31, 2014:

Posted by Marcia Oddi on Monday, November 03, 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 11/3/14):

Thursday, Nov. 6

Next week's oral arguments before the Supreme Court (week of 11/10/14):

Monday, Nov. 10

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 11/10/14):

Monday, November 10

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, November 03, 2014
Posted to Upcoming Oral Arguments

Saturday, November 01, 2014

Ind. Gov't. - "Families of more than 1,800 special-needs children to be mailed the financial help they’ve been promised"

On Sept. 19th the ILB quoted an AP story:

The Indiana Department of Child Services announced Thursday it has reached a settlement with adoptive families who alleged the state had reneged on promised payments. The state will pay $15.1 million to about 1,800 families who adopted special needs children. The settlement was filed in LaPorte Superior Court on Thursday afternoon and still needs court approval.
Yesterday that approval was granted. Marisa Kwiatkowski reports in the Indianapolis Star:
The families of more than 1,800 special-needs children now will receive the financial help they’ve been promised.

LaPorte Superior Court Judge Richard Stalbrink Jr. formally approved a $15.1 million settlement on Friday between the Indiana Department of Child Services and a group of adoptive parents who had been on the waiting list for such funds since 2009. The payments provide financial support to families who adopted foster children with more extensive needs. * * *

In August, state officials announced the adoption subsidies would be funded for the current fiscal year, including payments starting July 1. Then in September, lawyers reached an agreement to make retroactive payments to those families who were on the adoption subsidy wait list from 2009 through June 30, 2014.

“This is great news, as we are primed to celebrate National Adoption Month,” DCS Director Mary Beth Bonaventura said in a written statement. “I know parents that have faced challenges meeting the needs of their adopted children are pleased to know these resources are coming.”

Since 2009, Indiana hadn’t paid any subsidies to new families because the state legislature didn't appropriate the funds for the program, DCS said in August.

[Attorney Lynn Toops, of Cohen & Malad, the law firm representing the adoptive families] said the lump-sum checks, which total $15.1 million in back pay, should be mailed to families before Christmas. All future subsidies, about $10 million per year, will be paid on a monthly basis, she added.

Posted by Marcia Oddi on Saturday, November 01, 2014
Posted to Indiana Government