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Wednesday, December 31, 2014

Ind. Decisions - Tax Court decides one today, in Garwood case

In Virginia Garwood v. Indiana Department of State Revenue, a 7-page opinion, Sr. Judge Fisher writes:

Virginia Garwood has filed her second appeal with this Court, seeking a refund of over $100,000 from the Indiana Department of State Revenue. The matter, currently before the Court on the Department’s motion for summary judgment, concerns whether the Department properly denied a portion of Garwood’s refund claim. The Court finds that the Department’s denial was not proper as a matter of law. * * *

For the above stated reasons, the Court cannot conclude that the Department properly denied Garwood’s refund claim as a matter of law. Accordingly, the Court DENIES the Department’s motion for summary judgment. The Court will issue, under separate cover, an order scheduling this matter for further proceedings.

ILB: Of interest as background to today's opinion is the ILB's Dec. 4th post, headed "Why did Judge Wentworth last summer (7/13) suddenly recuse herself from the Garwood tax appeal?"

Here is a long list of all the ILB Garwood posts.

Posted by Marcia Oddi on Wednesday, December 31, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Law - Jon Laramore to head Indiana Legal Services

Indiana Legal Services announces today:

New ILS Executive Director has been selected

I am pleased to inform you that the ILS Board has elected to hire Jon Laramore as the new Executive Director. His first day on the job will be February 16, 2015. Jon has a major argument before the Supreme Court of the United States in January, 2015 which requires his full attention now. I spoke with Jon last evening to welcome him to our law firm. Jon comes to ILS from Faegre Baker Daniels where he is a partner and practices primarily in appellate courts.

Jon received his A.B. degree in 1979 from Princeton University, magna cum laude, and his J.D. degree from Harvard Law School in 1983, cum laude. Jon was chief legal counsel to two Indiana governors before joining Faegre Baker Daniels. Jon was one of the founders of the ISBA appellate pro bono project, former chair of the ISBA appellate practice section and the immediate past president of the Indiana Board of Law Examiners.

The upcoming SCOTUS argument is Mellouli v. Holder, which is set for argument on Jan. 14, 2015.

Here is Mr. Laramore's Faegre Baker Daniels biography.

Posted by Marcia Oddi on Wednesday, December 31, 2014
Posted to Indiana Law

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

For publication opinions today (2):

In Clifford Garrett and Judith Ann Garrett v. Paul T. Spear and Linda Spear, a 5-page opinion, Judge Robb writes:

On February 6, 2013, the trial court granted summary judgment in favor of Paul and Linda Spear (collectively, “Spear”) and against Clifford and Judith Garrett (collectively, “Garrett), and ordered Spear to obtain and record a survey reflecting a property line. Following an affirmance by this court on appeal, Spear filed a notice of compliance with that order, and the trial court made a Chronological Case Summary entry on May 16, 2014, stating that Spear complied with the February 6 order, and reaffirmed the same in an order on June 5, 2014 in response to Garrett’s motion to correct error. Garrett appeals, raising one issue for our review, which we restate as follows: whether the trial court’s denial of Garrett’s motion to correct error was an abuse of discretion. Concluding the trial court did not abuse its discretion, we affirm. * * *

Garrett asserts there is no evidence to support a finding that Spear complied with the trial court’s order, but Garrett makes this argument without pointing to anything obligating Spear to prove his compliance in the first place. The trial court’s February 6 order does not contain any direction that the parties submit evidence of their compliance with that order, and Garrett fails to identify an Indiana Trial Rule or local rule that requires a party to affirmatively prove compliance with a court order. From our perspective, Spear’s notice to the trial court is sufficient to support the trial court’s CCS entry reflecting compliance with the court’s order. If Garrett believes that Spear has failed to comply with the court’s February 6 summary judgment order, it is incumbent upon him to enforce the judgment in further proceedings.

In Alfredo D. Rodriguez, as Permanent Guardian of the Person and Estate of Miriam Rodriguez, and Alfredo D. Rodriguez, Individually v. United States Steel Corporation , a 9-page opinion, Judge Najam writes:
Alfredo Rodriguez, individually and as permanent guardian of the person and estate of Miriam Rodriguez, appeals the trial court’s grant of summary judgment in favor of United States Steel Corporation (“U.S. Steel”) on Alfredo’s negligence claim. Alfredo presents three issues for our review, but we address only one dispositive issue, namely, whether the trial court erred when it concluded that U.S. Steel did not owe a duty to Miriam. We affirm. * * *

Alfredo contends that U.S. Steel owed third-party motorists, and, therefore, Miriam, a duty when it permitted Faught to work long hours for several consecutive days without any policy or training to combat employee fatigue. Consequently, he argues, the trial court erred when it entered summary judgment in favor of U.S. Steel. We disagree. * * *

Considering each of the three Webb factors, we hold that U.S. Steel did not owe Miriam a duty of reasonable care. While, in general terms, her injury was reasonably foreseeable, she had no relationship with U.S. Steel, and public policy strongly counsels against the imposition of a duty on employers to monitor worker fatigue. In sum, we do not believe reasonable persons would recognize such a duty and agree that it exists. Absent such a duty, U.S. Steel is entitled to summary judgment, and we affirm the trial court’s entry of summary judgment in favor of U.S. Steel.

NFP civil opinions today (2):

In the Matter of the Termination of the Parent-Child Relationship of: P.L. and D.L. (Minor Children) and C.L. (Mother) and H.L. (Father) v. Indiana Department of Child Services (NFP)

In Dolen Glenn v. Dick Brown and Indiana Department of Correction (NFP), an 8-page opinion with a pro se appellant, Judge Bailey writes:

Pro-se appellant Dolen Glenn (“Glenn”) appeals the denial of his motion to correct error, which challenged the dismissal of his complaint against the Indiana Department of Correction (“DOC”), Superintendent Dick Brown (“Brown”), and other DOC employees.1 He presents the sole issue of whether the trial court properly dismissed his complaint. We reverse and remand. * * *

Glenn asserts that he has raised a First Amendment challenge in that freedom to read is akin to freedom of speech. He directs our attention to King v. Fed. Bureau of Prisons, 415 F.3d 634 (7th Cir. 2005), an appeal presenting very similar circumstances to those of the instant appeal. * * *

We find this reasoning persuasive and thus disagree with the trial court’s determination of frivolousness. Glenn’s complaint has a basis in law, specifically, the First Amendment to the United States Constitution. Although he ultimately may not prevail, we cannot say – absent development of a factual basis to permit application of the Turner factors – that he states no claim upon which relief could be granted.

The trial court perceived other infirmities in Glenn’s complaint * * * However, this is not the role of the trial court in conducting its review pursuant to Indiana Code section 34-58-1-2.

The statutory language plainly provides for an additional level of scrutiny of a prisoner’s claims. However, we do not believe that the statutory scheme at issue is designed to allow a trial court judge to become an advocate for one party or sua sponte raise an affirmative defense on a party’s behalf.
We reverse the dismissal and remand for further proceedings consistent with this opinion.

ILB Note: The ILB believes that this opinion, the reversal of a a prisoner's suit against DOC, deserves the ILB appellation: Why is this decision NFP?

NFP criminal opinions today (6):

Marlan Long v. State of Indiana (NFP)

Bryan P. Meek v. State of Indiana (NFP)

Alexander Adrian Rankin v. State of Indiana (NFP)

In Michael Whicker v. State of Indiana (NFP), a 7-page opinion, Judge Bradford writes:

Approximately six years after the trial court accepted the parties’ plea agreement and sentenced Whicker in accordance therewith, Whicker filed a petition to reduce his Class D felony conviction to a Class A misdemeanor. The State responded by acknowledging that while it had previously agreed that it would not object to any such request, the applicable three-year statutorily-prescribed period for Whicker to file a petition to reduce his Class D felony conviction to a Class A misdemeanor had long since passed. The trial court subsequently denied Whicker’s petition. We affirm. * * *

Because the three-year time frame in Indiana Code section 35-38-1-1.5 is jurisdictional and Whicker does not fall within the narrow exception created by Troxell, we conclude that as a result of Whicker’s failure to file his petition to reduce his Class D felony conviction to a Class A misdemeanor within the statutorily-prescribed timeframe, the trial court lacked jurisdiction over Whicker’s petition. Accordingly, we further conclude that the trial court did not err in denying Whicker’s petition.
___________
[1] We note that the Attorney General’s Office, which represents the State on appeal, has filed a belated appearance and requested permission to file a belated appellate brief. In requesting permission to file a belated appellate brief, the Attorney General’s Office explains that it failure to file a timely appellate brief was due to the fact that Whicker’s counsel failed to serve the Attorney General’s Office with notice of the instant appeal or with a copy of Whicker’s Appellant’s brief. We take this opportunity to remind Whicker’s counsel that the Attorney General represents the State in all criminal appeals, see Appellate Rule 17(A), and, as such, must be provided with service of the notice of appeal as well as all briefs and motions filed in connection to said appeal. Because the law is so well settled in favor of the State on the questioned raised by Whicker, we have decided to proceed on the merits and without the delay attendant to allowing the Attorney General to file a belated brief.

Willie Harrison v. State of Indiana (NFP)

Lawrence Kelshaw v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 31, 2014
Posted to Ind. App.Ct. Decisions | Why is this NFP?

Ind Law - Top 2014 Indiana Law Stories

It is New Year's Eve and the ILB has now read a number of end-of-2014 "top 10" law stories. The ILB agrees with most of the lists that the top three 2014 stories are:

The coming year will doubtless see more developments on same sex marriage and ramifications from the new code.

Other big 2014 stories, several of which also will resonate in 2015:

Posted by Marcia Oddi on Wednesday, December 31, 2014
Posted to Indiana Law

Ind. Decisions - Judge Rules Aurora City Councilman’s Goats Can Stay

Mike Perleberg reported Dec. 30th for EagleCounty 93.3FM:

A city councilman’s pets have gotten the goat of some Aurora city officials.

The city sued councilman Joe Milish, his wife, and his landlord on November 6 alleging they were in violation of the city’s ordinance prohibiting the keeping of livestock within 300 feet of a building or house in the city limits. The ordinance specifically named “any hog or swine, horses, cattle, or other livestock of any kind.”

The Milishes possess two goats. According to court documents, the goats are for their children’s 4-H projects. They are kept in an fenced area outside the family’s home.

Numerous other residents had complained to the city about the animals. The city sought a preliminary injunction to give the Milishes to rid the animals from their rented property on Conwell Street and a fine of $2,500 per day unless the councilman fell in line with the ordinance within three days.

In a court hearing for the injunction held November 20 in Dearborn Superior Court I, the Milishes appeared without an attorney. They argued that the goats were kept as pets, showing judge Jonathan Cleary photos of the small goats riding in their car.

Cleary ruled in favor of the Milishes. The judge noted that Aurora’s code does not mention goats. He also wrote in his order that Indiana statute defines livestock as “any animal or fowl raised for commercial purposes,” but that the Milish goats are used as pets for 4-H.

“The Aurora Municipal Code Section 91.01 seeks to regulate farming activities in the city and not the exclusion of pets,” Cleary stated in the ruling.

But this may not be the end of the saga. The story continued:
The city may be considering a refined animal ordinance specifically targeting certain animals regardless whether they are pets or livestock. The matter was discussed by Aurora City Attorney Jeff Stratman at the December Aurora Plan Commission meeting.

The issue of farm animals in the city was visited by Aurora City Council earlier this year. In April, mayor Donnie Hastings, Jr. vetoed an ordinance that would have specifically allowed for livestock to be raised within in the city if they are under 90 pounds and are for the purpose of a 4-H project.

Council was one vote shy of being able to override Hastings’ veto.

Posted by Marcia Oddi on Wednesday, December 31, 2014
Posted to Ind. Trial Ct. Decisions

Tuesday, December 30, 2014

Law - Products liability lawsuits and the changed financial calculus

"Victims of G.M. Deadly Defect Fall Through Legal Cracks" is the headline to this long, long article today in the NYT Business section, reported by Barry Meier and Hilary Stout. Just a few quotes:

A Wisconsin police investigator had looked into why the car’s airbags had not opened when it swerved off a road in 2006 and plowed into trees, killing Ms. Weigel and a second teenager. The inquiry uncovered critical clues: The car’s ignition switch had powered off seconds before the accident, and G.M. had received reports of similar incidents, pointing to a possible defect.

But when Ms. Weigel’s family shared that report with a major plaintiff’s law firm in Milwaukee, the firm responded with cold, hard math.

“Because of the $350,000 maximum recovery for loss of society in Wisconsin and the extreme expense of litigating the case against General Motors, our office is unwilling to become involved in this matter,” Daniel A. Rottier, a partner in the firm, Habush, Habush & Rottier, wrote in May 2007.

Today, at least 42 people are known to have died in crashes linked to the defective ignition switch, and both G.M. and federal safety regulators have come under fire for allowing the danger to linger for more than a decade. But the experience of some accident victims and their families shows that other opportunities to raise public alarm bells — through the legal system — were also lost. * * *

Companies, lawyers and judges have long faced criticism for suppressing information contained in lawsuits about product dangers. However, legal experts said that factors such as tort reform and rising lawsuit costs might be further dimming the legal system’s role in bringing such risks to light.

Those experts said that the incentives for plaintiffs’ lawyers to invest large sums of money in a case that may or not serve as a kind of legal canary in a coal mine have been diminished. “It is harder to win,” added John C. P. Goldberg, a law professor at Harvard University. Beginning several decades ago, companies, insurers and others, pointing to instances of excessive jury awards and frivolous lawsuits, pushed state lawmakers to pass measures that would reduce awards and limit filings. Since then, many states have capped awards for noneconomic damages such as pain and suffering, limited punitive damage awards or changed how liability is assessed.

Supporters of the changes say they are not intended to bottle up safety information.

“If anything, plaintiff’s lawyers have become aggressive in finding defective products,” said Victor E. Schwartz, a defense lawyer and an executive of the American Tort Reform Association, an advocacy group. Today, he added, lawyers also can use technological tools like the Internet to spot cases.

But some lawyers say the changed financial calculus has affected the kinds of cases being pursued.

“You cannot afford to take an auto products case unless there is a death or serious injury,” said James E. Butler Jr., a plaintiff’s lawyer whose firm was involved in a case against G.M. that the company later counted as one of those linked to the faulty ignition switch.

Posted by Marcia Oddi on Tuesday, December 30, 2014
Posted to General Law Related

Ind. Decisions - More on: Tax Court posts one today, filed Dec. 24

Updating this ILB post from yesterday, kudos to the Tax Court, which has unlocked and reposted the Dec. 24th SAC Finance opinion.

Posted by Marcia Oddi on Tuesday, December 30, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

In Jeffrey Hewitt v. Westfield Washington School Corp; Board of School Trusties of Westfield Washington School Corp. et al., a 16-page opinion, Judge Bailey writes:

Plaintiff-Appellant Jeffrey Hewitt (“Hewitt”) brought claims alleging breach of contract and denial of due process against his former employer, Defendants-Appellees Westfield Washington School Corporation (“the School Corporation”), Board of School Trustees of Westfield Washington School Corporation (“the Board”), Superintendent Mark F. Keen (“Keen”), and four individual Board members (“the Board Members”) (collectively, “the School”), after the School terminated Hewitt’s employment as an elementary school principal upon discovering he had an intimate relationship with a subordinate teacher. Hewitt appeals the trial court’s grant of summary judgment on both claims in favor of the School. * * *

The School has failed to carry the “onerous burden” of showing that there are no genuine issues of material fact and that the School is entitled to a judgment as a matter of law on Hewitt’s breach of contract and due process claims. Accordingly, the trial court erred in granting summary judgment in favor of the School. We therefore remand for further proceedings.

In Donald Snemis, Commissioner of the Ind. BMV; and Melvin Wilhelm, Prosecuting Atty. v. Joseph P. Mills, a 6-page opinion, Judge Pyle writes:
Appellant/Respondent, Donald Snemis, the Commissioner of the Indiana Bureau of Motor Vehicles, and Melvin Wilhelm, Prosecuting Attorney, (collectively, “the BMV”) appeal the trial court’s order vacating the suspension of Appellee/Petitioner Joseph P. Mills’ (“Mills”) driver’s license. Mills qualified as an habitual traffic violator (“HTV”) in August 2008, and, as a result, the BMV notified him in January 2012 that his license would be suspended for ten years. Mills filed a petition for judicial review of the BMV’s notice, arguing that it was untimely and constituted “extreme unfairness” since the BMV had waited several years after he qualified as an HTV to suspend his license. The trial court agreed that the BMV’s delayed notice was unfair and vacated Mills’ suspension.

On appeal, the BMV claims that there are factual errors in the trial court’s findings because the trial court miscalculated the time between Mills’ qualification as an HTV and the BMV’s notice. The BMV also argues that the court erred in vacating Mills’ suspension because the doctrine of laches does not apply to HTV adjudications. We reverse and remand with instructions for the trial court to reinstate the BMV’s adjudication against Mills because we conclude that Mills had the burden of proof on appeal and did not fulfill that burden as he did not file an appellee’s brief. We reverse and remand.

In Peerless Indemnity Insurance Co. v. Moshe & Stimson Llp, Sarah Moshe, and Justin Stimson , a 9-page opinion, Chief Judge Vaidik writes:
Sarah Moshe, Justin Stimson’s sister and former law partner, sued her brother in Marion Superior Court alleging, among other things, defamation. Justin made a claim under Moshe & Stimson LLP’s insurance policy for defense and indemnification. Peerless Indemnity Insurance Company, the firm’s insurer, filed a summary-judgment motion arguing that it had no duty to defend and indemnify Justin due to a clause in the policy that excluded coverage for certain employment-related practices, including defamation. The trial court initially ruled in Peerless’s favor, but it later reversed course and ordered Peerless to defend and indemnify Justin.

On appeal, Peerless argues that the employment-related exclusionary clause is unambiguous and bars coverage. We agree. Because Justin’s alleged actions toward his sister were employment-related, the exclusionary clause applies. We reverse the trial court and remand with instructions to enter summary judgment in Peerless’s favor on the issue of coverage.

In Metro Holdings One, Llc, Exproman, Inc., and Quaker Sales & Distribution v. Flynn Creek Partner, Llc , a 38-page opinion, Judge Pyle concludes:
Here, the terms of the parties’ Purchase Agreement allowed for Flynn Creek, upon default by Metro, to choose a remedy at law or equity, and the parties agreed that Flynn Creek’s equitable remedy included “the right” to specific performance. After Metro did not perform its obligation to purchase the Phase 2 Property, Flynn Creek chose to seek an equitable remedy and chose to assert its right to specific performance. We will not invalidate a remedy for which the parties have contracted. See Humphries, 789 N.E.2d at 1036. Based on the language contained in the four corners of the Purchase Agreement, we conclude that the trial court did not err by granting summary judgment to Flynn Creek on its claim for specific performance.
In Brandan Jones v. State of Indiana, an 8-page opinion, Judge Friedlander writes:
Brandan Jones appeals following a guilty verdict for class D felony Assisting a Criminal.1 Jones raises a single issue for our review: Did the State present sufficient evidence to support a finding of guilt? We affirm. * * *

When Officer Hutson approached the vehicle, he observed a male driver and a male passenger in the front seat. Both men provided Officer Hutson with state identification cards. After returning to his patrol car and checking the identification provided by Bennie Stigler, the man in the driver’s seat, Officer Hutson discovered that Stigler’s driver’s license was suspended for life. Before returning to the SUV to arrest Stigler, Officer Huston called for backup. A few minutes later, Officer Robert Lawson arrived, and both officers approached the vehicle. To their surprise, however, Jones, the passenger, was now in the driver’s seat, and Stigler, the driver, was now in the passenger seat. The officers removed both men from the car and placed them in handcuffs. Officer Hutson asked Jones why he had switched seats, and he denied doing so. During this conversation, Officer Hutson smelled an odor of alcoholic beverages on Jones’s breath. * * *

The crux of Jones’s argument on appeal is that in order to convict him of assisting a criminal as a class D felony, the State was required to prove not only that Stigler had committed a class C felony, but also that Jones was aware that Stigler was committing a class C felony by driving after his license was forfeited for life in violation of Ind. Code Ann. 9-30-10-17. * * *

The only mental element the State must prove in order to support a conviction for assisting a criminal is intent to hinder the assisted party’s apprehension or punishment, regardless of whether the crime is charged as misdemeanor or a felony. In order to prove such intent, the State would need to prove that the assisting party had reason to believe that the assisted party was subject to apprehension or punishment[.]

NFP civil opinions today (5):

Sonia Long, et al. v. Heartland Residential Services, Inc., et al. (NFP)

William Lee, Sr. v. Anonymous Psychologist I (NFP)

Adolph L. Buckner v. HSBC Mortgage Services, Inc., and LSF8 Master Participation Trust (NFP)

Michelle Barnes and Raymond Surzycki v. Prairie Horse Farms, Llc (NFP)

Timothy S. Enders v. Estate of Randall Enders (NFP)

NFP criminal opinions today (9):

Timothy Johnson v. State of Indiana (NFP)

Kevin D. Morris v. State of Indiana (NFP)

William E. Bowen v. State of Indiana (NFP)

Darren Rayford v. State of Indiana (NFP)

Justin Knight v. State of Indiana (NFP)

Demerius Shaw v. State of Indiana (NFP)

Ryan Allen Klug v. State of Indiana (NFP)

Armana Cottrell v. State of Indiana (NFP)

Wiley Parsons v. State of Indiana (NFP)

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

About this Blog - Become an ILB supporter for 2015! Please

This is your chance! Here is how:

The ILB needs your help!

THANKS to the several of you who have already responded!

Posted by Marcia Oddi on Tuesday, December 30, 2014
Posted to About the Indiana Law Blog

Ind. Gov't. - More on: "Lobbyists' protests shouldn't sink nursing home bill"

Updating this ILB post from yesterday, J.K. Wall has a lengthy IBJ story, dated Dec. 29, titled "Study: Nursing home building boom is costing state millions." Some quotes:

[T]he 27 new nursing homes that opened or began construction in 2014, plus another 10 expected in the next year or so, will cost the state $24 million in additional payments from the Medicaid program, according to Myers & Stauffer’s analysis.

Expect to hear that number repeatedly, starting Jan. 6, as the Indiana General Assembly reconvenes for its 2015 session.

The nursing home industry will once again be pushing for a moratorium on construction of new skilled-nursing facilities. Opposing them will be the construction industry and the rebels of the nursing home industry: Carmel-based Mainstreet, Louisville-based Trilogy Health Services, and Des Moines-based Life Care Services.

During last year’s debate, advocates of the moratorium argued that the recent building boom was costing the state money. But they couldn’t quote a precise figure.

Having one will be important, said Sen. Pat Miller, R-Indianapolis, who will propose a three-year moratorium on nursing home construction. That’s because every extra dollar spent on nursing home facilities is a dollar the state cannot spend on home and community-based care for the elderly, she said.

Nearly everyone prefers to remain at home, rather than a nursing home, as long as they possibly can. But Indiana lags most other states in the proportion of Medicaid spending that actually goes to community- and home-based care.

Posted by Marcia Oddi on Tuesday, December 30, 2014
Posted to Indiana Government

Ind. Courts - "New Tippecanoe Co. juvenile magistrate ‘not starting from scratch’"

The Lafayette Journal & Courier closely covers its county courts! Nothing wrong with that!

Two years ago now, on Dec. 26, 2012, the ILB had a post headed:"Ind. Courts - Who will replace Magistrate Graham who replaced Judge Rush who replaced Justice Sullivan on the Supreme Court?" The answer:

Lafayette lawyer Crystal A. Sanders has been named the new Tippecanoe County juvenile court magistrate, it was announced today.

Sanders will succeeded Faith A. Graham, who was picked by Gov. Mitch Daniels earlier this month to replace Loretta H. Rush who was appointed to the Indiana Supreme Court in September.

Well, on Dec. 24, 2014, the Journal & Courier's Steven Porter has reported that Tricia Thompson will:
... take over as Tippecanoe County’s juvenile magistrate judge. * * *

Thompson’s predecessor, Crystal Sanders, left Dec. 5 for her new job as chief deputy prosecutor in Pulaski County, leaving [Tippecanoe Superior Court 3 Judge Faith Graham, who presides over juvenile cases] momentarily without a full-time magistrate judge.

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

Ind. Gov't. - AG Zoeller seeks to expand Indiana's data privacy laws

Indiana is the latest state in the past few months seeking to expand privacy and data security requirements, according to this comprehensive story by Jalyce Mangum in Ad Law Access.

Dan Carden has this story in the NWI Times.

The AG's detailed Dec. 22nd news release is available here. One proposal that caught the ILB's eye:

Indiana’s Disclosure of Security Breach Act would be enhanced to facilitate prompt and more informative notification to affected consumers so they can take action to protect themselves in case of a data breach.
In a 2006 post, the ILB criticized the then-new IC 24-4.9, Disclosure of Security Breach [now found here], writing:
HB 1101 does not require that Indiana residents be notified immediately if a security breach occurs. Notification would be covered by the new IC 24-4.9-3, Disclosure and Notification Requirements, beginning on p. 7 of the Enrolled Act. Rather, the language contains qualifers such as "without unreasonable delay" and "as soon as possible after." There is not even a "but in no event not later than ...".

How are people to be notified? That is pretty much left up to the data base owner (see top of p. 9) and may be via mail, phone, fax, or e-mail. Of course, telephone leaves no record, and e-mail is likely to be mistaken for spam or phishing by a wary recipient.

The section goes on to provide that if this has been a really big disclosure of private information -- such as one of over 500,000 Indiana residents -- the requirements for notification are eased and may be met by posting on the company's web site or via a press release.

The Enrolled Act goes on to exempt from its disclosure requirements entities already covered by laws such as the Fair Credit Reporting Act, HIPAA, etc., if they contain similar requirements.

Chapter 4 (see p. 10 of the Enrolled Act) deals with enforcement. A person who fails to comply with the requirements of the act "commits a deceptive act that is actionable only by the attorney general under this chapter." This language may preclude private suits.

Under the proposed IC 24-4.9-4-1(b), "A failure to make a required disclosure or notification in connection with a related series of breaches of the security of a system constitutes one deceptive act." In other words, a security breach resulting in the disclosure of information on a million consumers is ok under this bill as long as there is notification. Failure to notify would constitute one deceptive act, for which attorney general could seek a civil penalty of up to $150,000. This penalty would apparently go to the state general fund, not to those affected by the security breach.

Further, the new law specifically preempts local units of government from passing ordinances "dealing with the same subject matter as this article."

Finally, and most importantly, HEA 1101's new IC 24-4.9 offers no remedies to those consumers whose security has been breached, other than requiring that they be notified of the breach. What of the remedies that would pause or help repair the damage the breach has caused -- the remedies of security freezes, credit monitoring and credit repair set forth in Professor Ramasastry's article?

Short of that, the biggest question here is: Is the new IC 24-4.9 now to be the exclusive remedy available to Indiana residents for these security breaches resulting in disclosure of their information? Or can consumers whose records have been released bring suit for negligence and ask for damages, costs, security freezes, and credit monitoring or credit repair? Will the companies whose negligence resulted in the disclosure be able to claim compliance with the minimal notification requirements of the new law as a defense?

Posted by Marcia Oddi on Tuesday, December 30, 2014
Posted to Indiana Government

Not Law - How the opportunity to control the Ebola virus in West Africa was lost

The entire Science section of today's NY Times is devoted to one story, "How Ebola Roared Back." It is accompanied by some powerful photos, including this one.

Posted by Marcia Oddi on Tuesday, December 30, 2014
Posted to General News

Monday, December 29, 2014

Ind. Gov't. - "Buck Fever: Ohio deer case renews criticisms of trophy buck shipments"

Ryan Sabalow of the Indianapolis Star added another long report on Dec. 27th to his series on deer wasting disease and the captive deer industry. (Here is a list of all ILB entries relating to "deer", most of which concern high-fenced, or canned, hunting.)

Some quotes from Sabalow's most recent story:

Like 12 of the 23 states where CWD has been found, the first Ohio case cropped up in a commercial deer operation — in which deer bred for enormous antlers are shipped to fenced hunting preserves to be shot by hunters willing to pay thousands of dollars.

The Ohio case, more than other instances of the disease, calls into question the effectiveness of the U.S. Department of Agriculture's CWD monitoring program meant to keep interstate shipments safe.

The preserve was a known risk, one of 43 captive-deer facilities quarantined in Ohio after they received shipments of deer linked to a CWD outbreak in Pennsylvania. But officials say attempts to track the source of infection — a key component of the monitoring program —have so far proven futile. They cite poor record keeping, deer escapes and a tangled web of hundreds of deer shipments.

"To be perfectly honest I don't believe anybody is ever going to be able to prove where the chronic wasting disease came from, if in fact it only came from one location," said Dave Griswold, the assistant state veterinarian in Pennsylvania. "I would not be surprised if it came from several locations."

Since The Star investigation published in March, six members of Congress and more than two dozen conservation organizations sent letters to the USDA calling for greater restrictions on the interstate movement of deer. But agricultural officials rebuffed the call, saying the monitoring program was adequate.

After a heated political battle, Missouri joined 21 other states choosing to ban the importation of deer rather than relying on the federal monitoring program to protect their wild herds.

In response to such actions, trade representatives for the $1 billion captive-deer industry ramped up their lobbying and public relations efforts, arguing concerns about CWD are overblown and further regulation would cripple their industry. Increasingly, they blame wild deer for their infections and have targeted wildlife agencies for not doing more to stop its spread.

"It ain't the deer farmers spreading this," said Shawn Schafer, executive director of the North American Deer Farmers Association. "It ain't the deer farmers giving it to wild deer. It's the poor deer farmers being the victims of these environmental problems."

Meanwhile, agricultural officials in Iowa, the 10th state to discover its first case of CWD on a commercial captive-deer operation in 2012, stunned wildlife officials when they culled a captive herd on which CWD had been found. Promoters of the deer industry had long argued there was no proof that CWD was as communicable as wildlife researchers contend, that it might just appear spontaneously in deer.

After two years in court disputing the state's plans to kill the animals, the Iowa farmers received more than $900,000 in federal funds to compensate them for their animals.

But the test results appeared to confirm researchers' suspicions about how contagious the disease can be if left, as one researcher put it, to "percolate" inside a farmer's deer pen. Of the 356 animals killed this summer, 284 tested positive, an infection rate of almost 80 percent.

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

Ind. Gov't. - "Money-hungry politicians discredit a hopeful safety innovation"

The ILB has a list of many entries involving red-light cameras, mostly in the 3-year period from 2008-2011. Many of them involved the City of Chicago.

On Dec. 26, Holman W. Jenkins, Jr. had a column, followed by 340 comments, in the $$$ WSJ, that began:

A promising industry betrayed by the behavior of its customers—that’s the story of the red-light camera business.

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

Courts - "Church-based institutions ponder same-sex benefits"

Tom Coyne and John Seewer of the AP reported last week in a lengthy story that begins:

Universities, charities and hospitals affiliated with churches that oppose same-sex marriage are facing the thorny question of whether they have an obligation — morally or legally — to extend health care benefits to spouses of gay and lesbian employees in states where they now are allowed to marry.

Many religious-based institutions are making no changes or sitting on the sideline, perhaps waiting to see if the U.S. Supreme Court will settle whether gay couples should be able to marry in every state. But they now face greater pressure to make a choice amid the dramatic expansion of same-sex marriage.

A few have extended benefits to the dismay of their church hierarchy and conservatives on campuses.

The University of Notre Dame almost immediately decided to offer benefits to same-sex spouses after a court ruling in October cleared the way for gay marriage in Indiana. Another Roman Catholic school, the University of St. Thomas in Minnesota, did the same this year, saying it was doing so to comply with state and federal laws.

The explanation offered by Notre Dame's president, the Rev. John Jenkins, illustrated the fine line administrators are facing at religious-based institutions.

Court decisions, he said, have altered "centuries of thought on the nature of marriage rooted not only in the Christian tradition but also in other religious traditions." But he went on to say there was "an urgent call to welcome, support and cherish gay and lesbian brothers and sisters, who have been too often marginalized and even ostracized."

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

Ind. Courts - Monroe County Probation Pilot Pretrial Release Program

Gretchen Frazee is a reporter/producer for WFIU and WTIU news, reports in a story headed "Monroe County Probation Pilot Program Could Be State Model." Some quotes:

The pretrial release program aims to get more people into home detention and community corrections programs, in an effort to save money and jail space.

Monroe County officials are beginning work on a program they hope will reduce the number of people in the county’s jail and keep offenders from missing court appointment.

The Indiana Supreme Court is also keeping an eye the Monroe County program to see if it is an example of a system that can be expanded statewide.

Using a $40,000 grant from the Indiana Supreme Court, the Monroe Circuit Court Probation Department will start what’s called a pretrial release program.

It consists of a probation officer meeting with low-level offenders, screening them, then recommending whether they should be released to home detention or another community corrections program instead of being kept in jail while they wait for a trial.

The probation department will also invest in computer systems that will call offenders and remind them to show up to their court or probation appointments. * * *

In an order outlining the goals of the grant, Indiana Supreme Court Chief Justice Loretta Rush wrote that pretrial risk assessments “protect public safety, save significant taxpayer expenses for jail operations” and minimizes “wealth-based disparity of access to pretrial release,” among other benefits.

If the program is successful, the Indiana Supreme Court could implement similar measures across the state. Monroe County has two years to spend the grant money.

ILB: Here is the order of the Supreme Court referenced in the story.

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

Ind. Decisions - Transfer list for week ending December 24, 2014

Here is the Clerk's transfer list for the shortened week ending Wednesday, December 24, 2014. It is one page (and 1 case) long.

Transfer was granted in one case, on Dec. 22, followed by dismissal: "the Court dismisses as procedurally improper this appeal from an interlocutory order." The case is Marcus Richardson v. Wendy Knight, the ILB reported on the ruling here, on Dec. 23.

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

Ind. Decisions - Tax Court posts one today, filed Dec. 24

ILB: Again today (earlier posting here) the Tax Court has posted an opinion that is a scanned, password-protected, locked document, thereby allowing no OCR and no pasting of quotes. The only way to pull quotes from this document would be to print it out, scan it, and then OCR the result. One presumes this locking of a public document is not intentional, but is a continuing technical oversight.

In Sac Finance, Inc. v. Indiana Department of State Revenue, a 12-page opinion filed Dec. 24th, but posted today, Judge Wentworth finds that "the calculation of Indiana's bad debt deduction excludes market discount income."

Posted by Marcia Oddi on Monday, December 29, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP) - including ruling in Charlie White appeal

For publication opinions today (3):

In Charles P. White v. State of Indiana , a 55-page opinion, Chief Judge Vaidik writes for the 3-judge panel:

Four months after Charles “Charlie” P. White was elected Indiana Secretary of State, a Hamilton County grand jury indicted him on seven felonies, including theft, perjury, and voter fraud. The charges arose from White’s conduct while he was a member of the Fishers Town Council and a candidate for Secretary of State; specifically, he purchased a townhome outside his district but kept his town-council position; submitted a form to the Hamilton County Board of Voter Registration that changed his address from his apartment to his ex-wife’s house, which was located inside his district; voted in the May 2010 primary election using his ex-wife’s address; and applied for a marriage license using his ex-wife’s address. Former Marion County Prosecutor Carl Brizzi defended White at trial. A jury convicted White of six of the seven counts, and the trial court sentenced him to one year of electronic home monitoring. His sentence was stayed pending appeal.

White utilized the Davis-Hatton procedure to temporarily suspend his direct appeal and seek post-conviction relief in the trial court. The trial court denied White’s request for post-conviction relief, which alleged, among other things, that Attorney Brizzi was ineffective. White’s reinstated direct appeal and the appeal of the denial of post-conviction relief are now before us.

We divide White’s claims into direct-appeal and post-conviction issues, and we ultimately conclude that three of White’s convictions must be vacated. As the State concedes, two of the convictions violate double-jeopardy principles. As for the third conviction, the perjury charge against White should have been dismissed because it was based on White’s street address, which was not material to his marriage-license application—only the county of residency is material. As for White’s post-conviction claims, we conclude that Attorney Brizzi was not ineffective. We affirm in part, reverse in part, and remand with instructions. * * *

Because three of White’s six convictions were improper, we remand to the trial court with instructions to vacate White’s convictions on Counts 1, 5, and 6. We affirm White’s remaining convictions, Counts 2 (perjury), 4 (voting in other precinct), and 7 (theft). With respect to White’s post-conviction claims, we conclude that Attorney Brizzi was not ineffective. Because the trial court ordered White’s sentences to be served concurrently, his sentence remains the same despite our instructions.

ILB: The video of the oral argument is available and the ILB recommends it to any attorney doing appellate work.

In State of Indiana v. Allison Moore , a 22-page opinion involving an appeal by the State from an interlocutory ruling of the trial court, Judge Bradford writes:

Moore filed a motion to suppress her statements to police, and the trial court granted Moore’s motion following a hearing. The trial court granted the State’s motion for certification of the matter for interlocutory appeal, and this court accepted jurisdiction. The State contends that the trial court erroneously granted Moore’s motion to suppress because she waived her right to silence by reinitiating the conversation with police. Moore contends that police continued to question her after she invoked her right to silence and that police interference led to her giving a statement without being re-Mirandized. * * *

Especially when one considers that neither Sergeant Scott nor Detective Baxter had any apparent authority to actually do anything about the children who had been in Moore’s care, it seems likely that their continued questioning of Moore was intended to eventually induce her to make incriminating statements. We conclude that Sergeant Scott’s and Detective Baxter’s questioning of Moore amounted to interrogation, which was pursued despite Moore’s clear invocation of her right to silence. Because the State did not scrupulously honor Moore’s right to silence in this case, the trial court did not err in granting her motion to suppress her incriminating statements. We affirm the judgment of the trial court.

In FLM, LLC v. The Cincinnati Insurance Company, et al. , a 24-page opinion by Judge Crone in a complex insurance coverage case, J. Crone writes:
FLM now appeals, raising three issues: (1) whether Cincinnati waived any challenge to FLM’s proposed order by failing to make a timely objection and expressly agreeing to it; (2) whether property damage coverage is available under the CGL policy; and (3) whether the CGL policy has separate $1 million limits for property damage coverage and personal injury coverage. We decide these issues as follows: (1) regardless of any waiver by Cincinnati, the trial court had inherent power to reconsider and revise its nonfinal order; (2) property damage coverage is available under the CGL policy; and (3) the CGL policy has separate $1 million limits for property damage coverage and personal injury coverage. Therefore, we reverse and remand with instructions to enter summary judgment in FLM’s favor as to property damage coverage and separate coverage limits. The amount of coverage over $1.7 million to which FLM may be entitled must be determined in further proceedings.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Frank R. Lempera, III v. State of Indiana (NFP)

Joseph Rolle v. State of Indiana (NFP)

Michael D. Hickingbottom v. State of Indiana (NFP)

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

Courts - "Obamacare, Gay Marriage Face Supreme Court in 2015"

From Pete Williams of NBC News.

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

Ind. Gov't. - "Lobbyists' protests shouldn't sink nursing home bill"

The Fort Wayne Journal Gazette ran this strong and important editorial Dec. 26th:

The money trail serves to explain events in politics better than almost anywhere else. Witness the spending frenzy surrounding a bill in the last session of the Indiana General Assembly. Lobbying costs and campaign contributions of nearly a half-million dollars illustrate why a proposed moratorium on nursing home construction became a flash point at the Statehouse.

When the bill is considered this year, lawmakers should know that the taxpayers who will have to support Indiana’s glut of nursing home beds will be watching as closely as the special interest groups.

Indiana has too many nursing homes – about 13,000 unoccupied beds. The state ranks fourth in the nation for the share of its Medicaid spending dedicated to nursing homes. Other states steer money to home health care services, but Indiana spends 68percent of its long-term care Medicaid dollars on nursing homes. The free-market arguments the ban’s opponents used don’t hold true when government regulation is involved.

“Short” sessions – years in which a two-year budget is not due – generally see less spending to influence legislation. But the sensible moratorium proposed last year by Sen. Pat Miller, R-Indianapolis, prompted the ban’s supporters – primarily established nursing home businesses – to spend 25 percent more than they spent in the last non-budget session. The bill’s opponents spent 52 percent more on lobbying and campaign donations than they spent during the same time period two years earlier.

The most powerful of those opponents was former state Rep. P. Eric Turner, R-Cicero. His son, Zeke Turner, is CEO of Mainstreet, a Carmel-based developer of long-term care facilities. Mainstreet has angered competitors by building high-end nursing homes near existing facilities and luring away wealthier patients. A conflict was inevitable when the push for the moratorium began a year ago.

Zeke Turner joined with a Fishers-based construction company to form the Indiana Alliance for Quality Senior Living – mostly construction companies or trade associations that would lose out on contracts if the ban went into effect. The alliance pulled out the firepower to stop it, spending $40,000 to hire former House Speaker Mike Phillips and his son, Jeff; former state Rep. Bob Kuzman; former House GOP spokesman Tony Samuel; and two lobbyists from the influential Bose Public Affairs group. Americans for Prosperity, a Virginia-based political interest group founded by Charles and David Koch, also opposed the moratorium. Lobbyist Jessaca Turner Stults, the state lawmaker’s daughter, represented Mainstreet in its own $10,000 lobbying fight.

In the end, of course, Eric Turner persuaded his GOP colleagues – in private caucus – to kill the measure, which had passed the Senate by a 33-14 vote. It later was revealed that the proposed ban would have prevented projects under development by Mainstreet Property Group, which the legislator co-owned with his son and other investors. The state awarded $345,000 in tax credits for a Terre Haute project that Mainstreet documents showed would earn Eric Turner an expected $1.8 million.

Sen. Miller said she will again seek a three-year construction moratorium.

“The reasons I filed it last year are still important today,” she told the Indianapolis Business Journal.

This year, without the interference of the House Speaker pro tem and with the knowledge that the lobbying effort is fueled by deep-pocket interests, lawmakers should have no reservations about approving Miller’s bill.

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

Ind. Law - "Prosecutors and judges are still adjusting to Indiana criminal code revisions"

Mark Wilson of the Evansville Courier & Press had this long, worth reading in full, story Dec. 27th that begins:

Prosecutors and judges are still adjusting to Indiana criminal code revisions made by a comprehensive criminal justice reform bill that took effect July 1, but say it is too early to assess the effectiveness of those changes.

“We haven’t seen the full effect of it yet because I’m still sentencing people under the old code,” said Vanderburgh Superior Court Judge Wayne Trockman.

That is because people whose crimes were committed before July 1 still fall under the old criminal code guidelines.

The new code changed the way felony crimes are classified — from four classes identified by letters to six levels ranked by number. Convicts under the new criminal code will have to serve 75 percent of their sentences instead of the current 50 percent, generally increasing the amount of time many will spend behind bars. Level 6 felonies are still only required to serve 50 percent of their time.

However, the changes also lowered penalties for most drug offenses and gave judges more flexibility in sentencing nonviolent offenders, changes that might reduce the population in Indiana’s state-run prisons.

“The new criminal code is designed to keep nonviolent offenders in community-based programs rather than sending them to the Department of Correction,” Trockman said.

Trockman oversees some of Vanderburgh County’s community-based treatment court programs, such as Forensic Diversion Court for lower level felony offenders, and Re-Entry Court for higher level but nonviolent offenders.

Although legislators may have intended for the changes to direct more offenders away from state prisons and into the care of local jails and programs, additional resources will be needed to make that work.

“If it is drug-related, we try to get them treatment. There are no more treatment providers now than there were before the new laws were in place,” Trockman said. “There is going to be a need for more treatment providers and more probation officers and more counselors. The need is going up and the supply is going up and it’s all going to crash at some point.”

Finding the funding to provide those local resources is going to be important, he said.

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

Ind. Gov't. - "Lawmakers show little appetite to reform local government"

Dan Carden has had a long series in the NWI Times on the Kernan-Shepard Report, ending with this story Dec. 27th that begins:

INDIANAPOLIS | Prospects are slim that any of the 13 recommendations to reform local government, detailed in the Kernan-Shepard Report, will become law during the upcoming session of the Indiana General Assembly.

The seeming urgency that accompanied the report's 2007 release has long since dissipated at the Statehouse, and the push by former Gov. Mitch Daniels for major changes in the structure and duties of local governments hasn't been embraced by his successor, Gov. Mike Pence.

"I have not heard any discussion about any of the Kernan-Shepard recommendations that might be bubbling up in the way of legislation this time around," said state Sen. Ed Charbonneau, R-Valparaiso. The Legislature convenes Jan. 6 for a four-month session.

Charbonneau said while he believes the 27 reform recommendations made by former Gov. Joe Kernan, a Democrat, and then-Chief Justice Randall Shepard, a Republican, are good ideas, he admitted they aren't easy to pass -- in part because a lot of state lawmakers got their starts in local government posts proposed to be eliminated.

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

Ind. courts - "Kansas courts weigh response to frivolous litigants: Proposed guidelines offer judges path to handling malicious pleadings

This Dec. 28th story by Tim Carpenter in the Topeka Capital-Journal reports:

The Kansas Supreme Court invited public comment on a new set of guidelines for judges grappling with frequent-filer litigants who submit repetitive, malicious or frivolous pleadings.
From later in the long story:
The draft said Kansas judges involved in family law had voiced concern about abusive litigants who directed disruptive filings at judges and others. Kansas case law has provided little guidance on how judges might address behavior of individuals disrupting pending cases.

The Indiana Supreme Court
recently addressed disruptive actions in lower courts by offering options for curbing abusive behavior. A judge could order frivolous filers to pay attorney fees or to post a substantial appeal bond. The courts could limit the length of pleadings or the number of exhibits.
ILB: See this ILB post from Sept. 30th, and this one from Oct. 1st.

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

Ind. Law - "Practicing law a family legacy"

Lu Ann Franklin had a feature in the Dec. 26th NWI Times that begins:

For the Theodoros family, the practice of law is a legacy, with three generations now working as attorneys at the same firm.

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

Ind. Courts - New Adm. Rule 9 requirement eff. Jan. 1; sanctions apply

One hour ISBA CLE today at noon. From the blurb:

Don’t start the new year by getting sanctioned or committing malpractice when it comes to sealing and excluding documents in Indiana courts. Join us to learn about the significant and extensive new Administrative Rule 9(G) requirements that become effective on Jan. 1, 2015. Topics include:
  • When must you file documents on green paper?
  • When can you file documents on green paper?
  • How do you file those documents on green paper?
You may register at the door.
  • Noon to 1:00 pm
  • Indiana State Bar Association
  • One Indiana Square, Suite 530
  • Indianapolis
The ILB will be there.

Posted by Marcia Oddi on Monday, December 29, 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 12/29/14):

Next week's oral arguments before the Supreme Court (week of 1/5/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/29/14):

Next week's oral arguments before the Court of Appeals (week of 1/5/15): Thursday, January 8

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, December 29, 2014
Posted to Upcoming Oral Arguments

Wednesday, December 24, 2014

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

For publication opinions today (2):

In Lloyd G. Perry v. Anonymous Physican 1, Alias Medical Group 1, Inc., Anonymous Physican 2, et al, a 7-page opinion in a case with a pro se appellant, Judge May writes:

In June 2010, Lloyd Perry filed with the Department of Insurance a proposed complaint alleging malpractice by a number of physicians and other healthcare providers (collectively, “the Providers”). As Perry did not provide expert testimony to rebut the medical review panel’s opinion there was no malpractice that caused his injury, we affirm. * * *

We do not believe Hughley can be read to eliminate the requirement in medical malpractice cases that a plaintiff, to defeat summary judgment for a health care provider when the medical review panel has determined there was no breach of the duty of care or that any breach was not the cause if a plaintiff’s injury, must provide expert opinion evidence. * * *

[I]n an action for medical malpractice, whether the defendant used suitable professional skill must generally be proven by expert testimony, usually that of other physicians. Stackhouse v. Scanlon, 576 N.E.2d 635, 639 (Ind. Ct. App. 1991), trans. denied. We therefore do not believe a medical malpractice plaintiff may defeat summary judgment with nothing more than a “perfunctory and self-serving” affidavit that specifically controverts the moving party’s prima facie case.

In Courtney West v. State of Indiana , an 8-page opinion, Sr. Judge Sullivan writes:
Courtney West appeals her conviction of operating a vehicle while intoxicated with a prior conviction within the past five years, a Class D felony. IC 9-30-5- 2 (2001), 9-30-5-3 (2008). We affirm and remand with instructions. * * *

Applying the plain language of Indiana Code section 9-13-2-117.5 to this case, a
reasonable finder of fact could conclude from this evidence that West was in “actual physical control” of the running car when Line approached her, and she thus operated the vehicle as defined by statute. * * *

A finder of fact could reasonably infer from this evidence that West was about to drive away in an intoxicated condition when Line blocked her car. See Traxler v. State, 538 N.E.2d 268, 270 (Ind. Ct. App 1989) (sufficient evidence that defendant operated a car while intoxicated where the defendant was found stopped on a county road with the engine running and the headlights off). West’s challenge to the sufficiency of the evidence must fail.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Reginald Greenwell v. State of Indiana (NFP)

Harold R. Ferrin v. State of Indiana (NFP)

Devontae S. Brodnax v. State of Indiana (NFP)

Tony R. Evans v. State of Indiana (NFP)

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

Ind. Gov't. - Plight of animals at Indianapolis Animal Care and Control continue to be dire; it is the largest animal "shelter" in Indiana

"[C]onditions are so dire that the shelter may be violating the city's own animal cruelty ordinances." That is from a report commissioned this year by the Indianapolis Department of Public Safety, quoted in an Indianapolis Business Journal story.

Paul Ogden had a good Sunday post about this; the need for action cannot be repeated too many times.

How many times over the years have we read about the conditions at the shelter, but without money, nothing changes.

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

Tuesday, December 23, 2014

Ind. Courts - Supreme Court orders Delaware County judges to temporarily take over Muncie City Court duties

Updating this ILB entry from Dec. 18th, Douglas Walker and Keith Roysdon report this evening in the Muncie Star-Press in a story that begins:

MUNCIE – Delaware County’s five Circuit Court judges are presiding over Muncie City Court in the absence of Dianna Bennington.

The Indiana Supreme Court on Dec. 18 suspended Bennington from her duties as City Court judge, with pay, pending resolution of a 13-count complaint filed by the Indiana Commission on Judicial Qualification.

The commission’s complaint accused the 43-year-old Bennington — who was elected judge in 2011 — of abusing her judicial power and engaging in “injudicious and prejudicial public conduct.”

Chief Justice Loretta H. Rush signed the order suspending Bennington after what court records reflect was a unanimous decision to do so by the five justices.

Another Supreme Court justice, Brent Dickson, later signed an order temporarily assigning the Delaware Circuit Court judges — Marianne Vorhees, Kimberly Dowling, Linda Ralu Wolf, John Feick and Thomas Cannon Jr. — “to sit as judge of the Muncie City Court, effective immediately and until further order of this court.”

“This order shall be sufficient authority for the judges to continue the employment of court personnel and otherwise discharge the duties of judge of the Muncie City Court,” Dickson wrote.

Posted by Marcia Oddi on Tuesday, December 23, 2014
Posted to Indiana Courts

Ind. Gov't. - "Adoptive families to receive $15.1M from state"

Updating earlier ILB posts, starting with this one from June 3rd headed "1,400 Indiana families sue Indiana DCS for unpaid subsidies" and including this one from Aug. 13th headed "Indiana to pay adoption subsidies to about 1,800 families", Marisa Kwiatkowski reports today in the Indianapolis Star in a story that begins:

The adoptive families of more than 1,880 children will receive a combined $15.1 million from the state, just in time for the holidays.

The payments, which are the result of a recent court settlement, should be mailed to families in the next few days, said attorney Lynn Toops, of the firm Cohen and Malad. Those dollars are meant to provide financial support to families who adopted foster children with more extensive needs.

LaPorte resident Debra Moss sued the Indiana Department of Child Services in June, claiming the agency failed to pay promised adoption subsidies while returning roughly $240 million to state coffers since 2009.

In August, state officials announced the subsidies would be funded for the current fiscal year, which started July 1. Then in September, lawyers reached an agreement to make lump-sum retroactive payments to families who had been on the adoption subsidy wait list from 2009 through June 30, 2014.

Toops, who works for the law firm representing the adoptive families, said the average retroactive payment will be about $5,000. About 400 families will receive a check for more than $10,000, with the largest check totaling more than $25,000.

Toops said many families will receive multiple checks, one for each adoptive child.

“We’re very excited about this positive result and very excited the checks will be going out right around Christmas time,” she said.

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

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

In Carol Ann Maurer v. Speedway, LLC (ND Ind., Nuechterlein), a 10-page opinion, Judge Bauer writes:

This appeal is from a judgment entered on a jury verdict in favor of defendant-appellee, Speedway, LLC (“Speedway”). Plaintiff-appellant, Carol Ann Maurer (“Maurer”), instituted a premises liability action against Speedway in Indiana state court for personal injuries sustained when she fell outside a Speedway gas station convenience store while trying to maneuver around a retail display of windshield washer fluid. Speedway removed the case to the United States District Court for the Northern District of Indiana on the basis of diversity of citizenship. Prior to trial, the district court granted a motion in limine filed by Speedway, excluding as evidence a municipal ordinance which Maurer sought to introduce at trial in order to prove Speedway had notice that its retail display created an unreasonably dangerous condition by narrowing the adjacent walkway down to a width of 24 inches. The sole issue Maurer raises on appeal is whether the district court erroneously excluded the municipal ordinance. For the reasons set forth below, we affirm.

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

Ind. Decisions - Merrillville attorney suspended for trust account violations

In In the Matter of Lisa A. Carmouche, a 2-page opinion, the Court concludes:

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of six months, beginning on the date of this order, all stayed subject to completion of at least two years of probation. The Court incorporates by reference the terms and conditions of probation set forth in the parties’ Conditional Agreement ...

Posted by Marcia Oddi on Tuesday, December 23, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 14 NFP) [Links corrected]

For publication opinions today (0):

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Relationship of: M.B., S.B., and C.B., Minor Children, and L.B., Mother v. Indiana Department of Child Services, et al (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: L.D.H., D.M.H., K.M.H., and N.M.H. (Minor Children) B.J.H. (Mother) v. The Indiana Department of Child Services (NFP)

Charles W. Wright v. Whitney Timberlake (NFP)

NFP criminal opinions today (11):

Jose Rodriquez v. State of Indiana (NFP)

Joanna Latrice Stokes v. State of Indiana (NFP)

Matthew D. Tribble v. State of Indiana (NFP)

Fabian Suarez Guadarrama v. State of Indiana (NFP)

Jamar Washington v. State of Indiana (NFP)

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

Joshua S. Ramon v. State of Indiana (NFP)

Jeffery Blackmon v. State of Indiana (NFP)

Darci J. McFadden v. State of Indiana (NFP)

Juan M. Fox v. State of Indiana (NFP)

Harold Bishop v. State of Indiana (NFP)

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

Supreme Court - Court speaks on evidence-based pretrial risk assessment practices

In the Matter of the Study and Implementation of Evidence-Based Pretrial Release is the caption of an order on pretrial release filed Dec. 22 and posted today by the Supreme Court, wherein the Court establishes parameters

Posted by Marcia Oddi on Tuesday, December 23, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court grants transfer and dismisses appeal

In an order filed Dec. 22 and posted today, the Supreme Court grants transfer in the case of Richardson v. Knight, vacating the Aug. 11, 2014 Court of Appeals opinion, and: "Having transferred jurisdiction, the Court DISMISSES as procedurally improper this appeal from an interlocutory order."

Posted by Marcia Oddi on Tuesday, December 23, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re significance of "lawful custody" in adoption statutes

In In Re the Adoption of B.C.H., a 12-page, 5-0 opinion, Justice David writes:

For the first forty-five months of her life, B.C.H. remained in the primary care, custody, and control of her maternal grandparents T.H. and C.H. (“Grandparents”). Unmarried at the time of B.C.H.’s birth, her mother R.H. (“Mother”) would visit her daughter about once a week. Later, Mother began keeping B.C.H. at her apartment one day and night per week, and when Mother married K.J. (“Stepfather”), these visits increased to twice weekly. In November 2010, Stepfather, with Mother’s consent, filed a petition to adopt B.C.H. The Grandparents were not served with legal notice nor given an opportunity to give or withhold their consent to her adoption. B.C.H.’s adoption was granted in August 2011, and a month later Mother removed the child from the Grandparents’ home and refused to allow them any further contact with their granddaughter. Subsequently, the Grandparents filed a motion to reopen B.C.H.’s adoption and to intervene. In their motion, the Grandparents argued that under Indiana’s adoption statutes they had “lawful custody” of their granddaughter when the court granted Stepfather’s adoption petition, thus entitling them to legal notice of and the opportunity to consent to her adoption.

IC 31-19-2.5-3 (effective 2012) requires that legal notice of an adoption petition be given to a “person whose consent to adoption is required under I.C. 31-19-9-1.” Under IC 31-19-9-1(a) (effective 2012), “a petition to adopt a child who is less than eighteen (18) years of age may be granted only if written consent to adoption has been executed by . . . (3) [e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought.” (Emphasis added.) Neither the adoption statutes nor case law defines “lawful custody” in this context. Therefore, we must interpret the term “lawful custody” and resolve whether B.C.H.’s maternal grandparents had lawful custody of her at the time the adoption petition was filed, thus requiring them to be given legal notice of the adoption petition and an opportunity to withhold consent to her adoption. * * *

Based on these circumstances, we believe that the Grandparents were exactly the type of caregivers the General Assembly had in mind when they chose the term “lawful custody” over “legal custody” in IC 31-19-9-1(a)(3). They were exactly who the legislature thought would be in the best position to tell a judge presiding over an adoption proceeding about the child in question and about the child’s best interests. Though only the trial court has the authority to ultimately decide whether the adoption is in the child’s best interests, lawful custodians like B.C.H.’s Grandparents have the right to present testimony to aid in the court’s often difficult decision.

But in this case, the Grandparents were given neither formal legal notice of the pending adoption nor an opportunity to voice their concerns and be heard. They will have that opportunity now. We vacate the Superior Court’s grant of the adoption petition and remand this case to the Superior Court for a hearing on B.C.H.’s best interests in the adoption. As her lawful custodians, the Grandparents must be given the opportunity to give or withhold their consent to Stepfather’s adoption of their granddaughter.

However, the Grandparents’ opportunity to withhold consent to B.C.H.’s adoption is not the same as an opportunity to veto her adoption for any reason they see fit. Should the Grandparents withhold their consent at the hearing for reasons the Superior Court finds not to be in B.C.H.’s best interests, then IC 31-19-9-8(a)(10) enables the court to grant the adoption if it finds that doing so is in the girl’s best interests. Thus, IC 31-19-9-1(a)(3) grants lawful custodians like the Grandparents the right to present testimony at an adoption hearing to aid the trial court’s decision, and to withhold consent to an adoption, but does not entitle them to override the trial court’s ultimate determination of the child(ren)’s best interests in the adoption should their failure to consent be for reasons found not to be in the best interests of the child(ren).

Posted by Marcia Oddi on Tuesday, December 23, 2014
Posted to Ind. Sup.Ct. Decisions

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Posted by Marcia Oddi on Tuesday, December 23, 2014
Posted to About the Indiana Law Blog

Ind. Decisions - 7th Circuit decided one Indiana case Dec. 22

In Carolyn Stump v. Greenfield Banking Company (SD Ind., Pratt), a 16-page opinion, Judge Williams writes:

After the United States Department of Veterans Affairs determined William L. Evans, Jr. was no longer competent to manage his veterans’ benefits, it appointed his daughter as the federal fiduciary. The VA later terminated her appointment and appointed the Greenfield Banking Company. Evans’s wife and daughter filed this suit asserting breach of fiduciary duty and conversion by the Bank. They also seek the creation of a constructive trust. The complaint alleges that the Bank complied with the terms of its obligations to the VA as federal fiduciary but that doing so meant it breached its fiduciary duty to Evans. The complaint does not make any allegations of misuse of funds, mismanagement depriving him of the use of any funds, embezzlement, or the like. We conclude that the district court properly dismissed this case for lack of jurisdiction because the allegations made in the complaint are outside the scope of state court review, and therefore ours as well. We affirm.

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

Monday, December 22, 2014

Ind. Courts - ACLU of Indiana Challenges South Bend Social Media Ordinance

From an ACLU of Indiana news release this afternoon:

Indianapolis-A lawsuit filed today by the American Civil Liberties Union of Indiana on behalf of South Bend Common Council President and 6th District Council member Oliver Davis challenges a recently-passed city ordinance that regulates both publicly controlled and privately maintained social media, Internet and electronic communications of council members, saying the ordinance violates the First Amendment to the U.S. Constitution.

Ordinance No. 10343-14, passed by the common council on Dec. 9 and signed by the mayor, places several extreme restrictions on council members' use of Facebook, Twitter, email and other electronic communications, going so far as to attempt to control what others post on the members' own social networking sites. The ordinance effectively stifles their First Amendment rights to communicate as members of the common council.

The ordinance lays out several restrictions of a highly subjective nature, saying the posts must be "informative," "accurate," "[not] misleading" and so on. But people use social media for amusement, to express opinions and to provoke action, and often post comments that are untrue-all of which is expression protected by the First Amendment.

"Elected officials retain their First Amendment rights," said Ken Falk, ACLU of Indiana legal director. "The ordinance simply goes too far in trying to impinge on these rights."

"I firmly believe as members of the South Bend Common Council, that in making our laws for the people of South Bend, we should be making laws that are in keeping with the U.S. Constitution," said Council President Oliver Davis. "This is what all council members and our mayor swore to when we were elected."

The case, Oliver Davis v. City of South Bend, Indiana, Cause No: 3:14-cv-2082, was filed on Dec. 22, 2014 in the U.S. District Court for the Northern District of Indiana, South Bend Division.

ILB: Unfortunately, the ACLU never includes the documents with its press releases. The ILB just tried to download the $$$ complaint and ordinance from PACER, but got an error message re the PDF format.

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

Courts - Wisconsin Chief Justice could be forced out by legislative action

A lengthy story today in the Milwaukee Journal Sentinel, reported by Patrick Marley, begins:

Madison — The legislative session that convenes in January could be the beginning of the end for state Supreme Court Chief Justice Shirley Abrahamson.

Republicans who control the Legislature are considering one measure that could push her out as chief justice and another that would set a retirement age for judges that could remove her from the court entirely.

The proponents of making changes for the court say their plans aren't aimed specifically at Abrahamson, the court's leading liberal. The proposed retirement age — which could be 75 — also could push conservatives off the bench in the coming years.

Abrahamson and another justice questioned the wisdom of making changes that affect judges and justices for their existing terms, given that there were no restrictions in place when they were last elected.

"To the extent that either enactment affects presently sitting judges and justices, it ignores and overturns the vote of the people," Abrahamson said in a written statement. "The people elected the members of the judiciary for a fixed term and a set office. The Wisconsin constitution should not be used to target judges. If the Legislature adopts these proposals, it is frustrating the electorate and injecting the ugliness of partisan politics into the judiciary, a nonpartisan independent branch of government."

Sen. Tom Tiffany (R-Hazelhurst) is sponsoring a measure to allow the members of the high court to choose the chief justice. Currently, the post goes to the most senior member.

He said he is not targeting Abrahamson.

"I don't look at the personalities," he said. "I look at the principles involved. I think the court members should be able to choose their leader."

The court in recent years has been bogged down in personal disputes, with justices openly criticizing one another behind closed doors, in public meetings and in their legal opinions. Some conservatives have blamed Abrahamson for many of those disputes and have been frustrated by her ability to use her power as the chief justice to delay court matters when she does not agree with the majority.

Abrahamson, 81, was the first woman to sit on Wisconsin's high court and is the longest-serving justice in state history.

Democratic Gov. Patrick Lucey appointed Abrahamson to the court in 1976, and she ascended to the position of chief justice in 1996 when she became the court's most senior member.

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

Ind. Gov't. - "A model for Indiana: Ohio crafts a plan to restore electoral balance"

Some quotes from today's editorial in the Fort Wayne Journal Gazette:

The Ohio General Assembly made history last week when it approved a bipartisan redistricting reform plan. The Indiana General Assembly should follow its lead and create a redistricting system that places fair representation before political advantage.

With a nearly unanimous vote, Ohio lawmakers ended almost 40 years of debate over how to draw legislative and congressional districts. The measure would establish a seven-member bipartisan commission to create maps. The districts can’t be drawn to one party’s advantage. The language calls for the statewide proportion of districts favoring a party to correspond with statewide voter preferences. If, for example, an average of 53 percent of voters favor GOP candidates over a 10-year period, the commission must allow no more than53 percent of the districts to be Republican-leaning.

By contrast, Indiana lawmakers control the redistricting process themselves. Whichever party holds majority status can draw districts to its advantage. Both parties have done so over time, but Republicans did an especially effective job in 2011. Their supermajority status in the General Assembly’s House and Senate reflects the results, with Republicans holding 40 of 50 Senate seats and 71 of 100 House seats. The GOP also holds seven of the state’s nine congressional seats.

Results from statewide contests show a GOP advantage, but not that much of an advantage. President Barack Obama and Democratic gubernatorial candidate John Gregg each won about 45 percent of the Indiana vote in 2012. Fairly drawn legislative and congressional districts wouldn’t produce the disproportionate result Hoosiers saw in the last election.

Why does it matter? Because gerrymandered districts discourage political participation. Good candidates are discouraged from running against stacked odds. Voters conclude their votes don’t matter. Over time, some politicians will concern themselves less with the electorate and more with lobbyists and campaign contributors.

Indiana’s pathetic 30percent turnout last month – the worst in the nation – is a clue that something is seriously wrong.

Districts drawn for political advantage can become more competitive as people move in and out over time, but even if the results swing in the opposite direction, the flawed process simply allows the newly empowered party to draw districts to its advantage. The whole, destructive cycle begins again.

Ohio lawmakers seem to have finally realized the danger.

“Gerrymandering is the leading cause of dysfunction in both state and federal legislatures,” Ohio state Sen. Frank LaRose, an Akron-area Republican, told the Cincinnati Enquirer. “Reforming this is one of the most impactful things we can do for the future of our democracy.”

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

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

For publication opinions today (2):

In Alexander Gul v. City of Bloomington , an entertaining 16-page opinion, Judge Baker writes:

Alexander Gul believes that modern day lawn maintenance practices are harmful to the environment. As a result, he refuses to mow his lawn to comply with an ordinance requiring that the height of grass in one’s yard may not exceed eight inches. He appeals the trial court’s order granting summary judgment in favor of the City of Bloomington (Bloomington) on Gul’s complaint against Bloomington appealing an administrative conclusion that Gul had violated the grass height ordinance.

Gul argues that the ordinance at issue (1) violates his freedom of conscience under the Indiana Constitution; (2) violates his freedom of expression under the United States and Indiana Constitutions; (3) is facially invalid because it conflicts with two Indiana Code provisions; and (4) is void for vagueness under the federal Due Process clause. After cutting through Gul’s arguments, we affirm.

In Richard C. Gross v. State of Indiana , a 16-page opinion, Judge Brown writes:
Richard C. Gross appeals his convictions and sentence for two counts of murder. Gross raises three issues, which we revise and restate as:
I. Whether the trial court abused its discretion in denying his motion to withdraw his guilty pleas;
II. Whether the court abused its discretion in sentencing him; and
III. Whether his sentence is inappropriate in light of the nature of the offense and his character.
We affirm.
NFP civil opinions today (2):

Sprit Food Mart, Inc., Keystone Marathon, Inc., and Fours Investment Group, Inc., v. RS Petroleum, Inc. (NFP)

In the Matter of the Term. of the Parent-Child Relationship of: D.H. and J.H. and H.G. and J.H. v. The Ind. Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Matthew Lucas Major v. State of Indiana (NFP)

James W. Tate v. State of Indiana (NFP)

Heidi Carpenter v. State of Indiana (NFP)

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

Ind. Decisions - Tax Court posts ruling, filed Dec. 19th

In Lowe's Home Centers, Llc. v. Indiana Dept. of State Revenue, a 14-page opinion which has been posted as a scanned locked document, thereby allowing no OCR and no pasting of quotes, Judge Wentworth rules on parties' cross-motions for summary judgment, holding that Lowes properly self-assessed and remitted use tax on the construction material.

ILB: Here is a list of all ILB posts relating to the Indiana Tax Court.

Posted by Marcia Oddi on Monday, December 22, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Transfer list for week ending December 19, 2014

Here is the Clerk's transfer list for the week ending Friday, December 19, 2014. It is two pages (and 21 cases) long.

Three transfers were granted last week.

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

Ind. Gov't. - "In 2 years, Pence yet to grant 1st pardon"

That is the headline to Niki Kelly's Sunday story in the Fort Wayne Journal Gazette. The subhead is: "Bias for due process cited; several area cases in limbo." Some quotes:

INDIANAPOLIS – The man who said he wants Indiana to be the best place for criminals to get a second chance hasn't given any.

Since taking office in January 2013, Gov. Mike Pence has received 34 recommendations from the Indiana Parole Board regarding pardon petitions.

And he hasn’t granted one.

“I have a heavy bias for respect for due process of law,” Pence said. “It’s a high hurdle for me.”

He said last year his public safety team didn’t bring him any cases that rose to the level he sought. But he is taking a fresh look this year and expects to make decisions between now and the end of the year.

There is no statutory deadline for Pence to act.

The 34 cases vary greatly, including the recommendations themselves. The Indiana Parole Board voted to grant some, deny some, and some cases had split votes.

But Pence has total discretion on whether to give a pardon.

A pardon is executive forgiveness for a crime that removes penalties and disabilities – such as not being able to get a gun license if you are a felon – to a person while also restoring civil rights, essentially making a person a new man or woman.

They are granted only to those who have completed their sentence, and at least five years have passed. It is not the same as commuting a sentence or clemency, where a person is let out of jail before a sentence is satisfied.

“I will prayerfully consider recommendations through the prism of what justice demands,” Pence said. * * *

Pence did not talk about any specific cases. But he said that the new expungement law might be more appropriate for some crimes.

Other things he will take into consideration are whether restitution was made if necessary; if the former offender has been active in the community and has support for the pardon; the nature and circumstances of the crime itself and how much time has passed since the events.

“I think offenses for violent crimes, I would view those with a much higher threshold,” Pence said. “But again it’s what justice demands looking at the totality of a person’s life.” * * *

Former Gov. Mitch Daniels gave pardons most – but not all years. In total he gave 62 in eight years – far fewer than recommended by the board.

He said his office kept statistics and he had the lowest pardon percentage of any governor.

Earlier stories by reporter Kelly on gubernatorial pardons are memorialized in ILB posts from Sept. 4, 2013 and Jan. 8, 2012.

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

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

From Sunday, December 21, 2014:

From Saturday, December 20, 2014:

From Friday afternoon, December 19, 2014:

Posted by Marcia Oddi on Monday, December 22, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/22/14):

Next week's oral arguments before the Supreme Court (week of 12/29/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/22/14):

Next week's oral arguments before the Court of Appeals (week of 12/29/14):

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, December 22, 2014
Posted to Upcoming Oral Arguments

Sunday, December 21, 2014

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

Continuing the ILB's new occasional 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 Sunday, December 21, 2014
Posted to Essential ILB Posts

Saturday, December 20, 2014

Ind. Decisions - "Jury sides with fired teacher: $1.9 million judgment against Catholic diocese"

That is the headline to Rebecca S. Green's story today in the Fort Wayne Journal Gazette, reporting on yesterday's verdict. Some quotes:

Almost every single thing for which Emily Herx asked the jury, she received.

Nearly $2 million in damages, and vindication, after the jury ruled that the Catholic Diocese of Fort Wayne-South Bend discriminated against the former language arts teacher at St. Vincent de Paul Catholic School when they fired her for undergoing in vitro fertilization.

The verdict came after about 51/2 hours of deliberation Friday afternoon, capping off a four-day jury trial before U.S. District Judge Robert Miller Jr. in the expansive federal courthouse just a few blocks from the Cathedral of the Immaculate Conception, the center of the diocese.

As she waited for the jury to come in, Herx sat ramrod straight in her chair at the table next to her attorney, Kathleen DeLaney, her face anything but calm as she clearly tried to control her breathing and anxiety.

Throughout the trial, she heard herself characterized by the defense as a potential drug abuser, an emotional basket case and as someone who committed a sin so grave and immoral that no circumstances could justify it.

But after the verdict was read, she seemed to uncoil with relief, crying and holding onto DeLaney in a long and tearful embrace.

At issue in the case was whether the diocese discriminated against Herx because of her gender by treating her differently than similarly situated male employees, or because of her attempts to become pregnant, by forcing her to choose between in vitro fertilization and her job.

Throughout the case, both sides stressed that Herx was fired for undergoing in vitro fertilization. For Herx, the decision to continue the treatment abhorred by the church was her last and safest chance to become pregnant with another child.

For the diocese, the matter had nothing to do with her attempt to become pregnant but with her choice of method. As part of her contract, Herx had signed a morals clause, promising to uphold Catholic teaching. When she did not do so, diocesan officials had no choice but to remove her from their teaching roster.

Repeatedly, the priests and bishop spoke on the stand of having wanted to see her show remorse or regret for making the decision she made.

Herx never did. * * *

During closing arguments Friday morning, DeLaney asked the jury for a total of $2,171,124 in damages – including compensation for lost wages, pain and suffering and enough money to punish the diocese for its conduct. Her annual salary had been around $28,000.

Under cross-examination Thursday, Bishop Kevin C. Rhoades testified that the diocese had net assets of about $30 million, but said a victory for Herx in the lawsuit could affect parts of its operation.

While the total amount of $1,950,001 awarded to Herx was close to what she had asked, the jury of seven men and five woman awarded her only $1 in punitive damages.

Diocesan attorney John Theisen asked Miller to order the amount of the award capped at $300,000, per statutory requirements. DeLaney argued that the cap did not apply in this case.

The judge asked both sides to brief their arguments over the next few days. * * *

The diocese intends to appeal the jury’s verdict to the U.S. 7th Circuit Court of Appeals in Chicago.

As he hustled out of the courthouse, Theisen told the small scrum of reporters that the case remained an issue of religious freedom, and that exemptions in civil rights laws for religious employers should have protected the diocese from the unfavorable verdict.

“It never should have brought the case to trial,” he said.

Posted by Marcia Oddi on Saturday, December 20, 2014
Posted to Ind Fed D.Ct. Decisions

Friday, December 19, 2014

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

In USA v. Clark (SD Ind., Barker), a 15-page opinion, Judge Williams writes:

Milford Clark strolled into a credit union wearing a two‐tone baseball hat and sunglasses, walked out, and got into his blue Ford Crown Victoria. Five days later, a man fitting Clark’s description robbed a bank wearing a two‐tone baseball hat and sunglasses and left in a blue Ford Crown Victoria. Authorities interviewed and ultimately arrested Clark for the robbery. Clark wanted to represent himself and the magistrate judge found that Clark waived his right to counsel for proceedings before that court. The district court considered the issue anew on a motion from the government and asked Clark questions about his decision to proceed pro se. Ultimately, Clark decided against self‐representation. He was convicted, and now argues on appeal that the district court infringed on his Sixth Amendment right to proceed pro se because it improperly reconsidered an issue already decided by the magistrate judge. We reject this argument because the district court could analyze whether Clark’s waiver was valid since the magistrate judge’s ruling was limited to “this juncture” of the proceedings, namely Clark’s initial appearance. Moreover, the addition of DNA evidence to the government’s case gave the court reason to question whether Clark fully understood the perils of going pro se and the court properly alerted Clark about how that evidence changed the nature of the case. We also find the credit union evidence was properly admitted for a non‐propensity purpose, to establish Clark’s identity. Though we are troubled by the government’s introduction of more evidence than necessary to show Clark’s identity, including a video and witness testimony that were used to characterize Clark’s actions as “casing” the credit union, any errors in introducing more than just a still photo and failing to weigh the probative and prejudicial values of the evidence on the record were harmless since Clark met the physical description of the robber and his DNA was found at the Bank. Therefore we affirm.

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

Ind. Decisions - "Jury rules in favor of teacher in discrimination lawsuit"

From WANE, Fort Wayne, this evening:

A federal jury has ruled in favor of a former elementary school teacher who sued the Fort Wayne-South Bend Catholic Diocese for discrimination after her contract was not renewed when it was learned she had undergone in vitro fertilization to try and get pregnant. The unanimous verdict was delivered at 4:30 pm. The Diocese plans to file an appeal in the next 28 days.

Emily Herx was a teacher at St. Vincent de Paul Catholic School when she was notified by the Diocese that her contract for the 2011-12 school year would not be renewed because of her use of in vitro.

Here is a list of earlier ILB entries.

Posted by Marcia Oddi on Friday, December 19, 2014
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Amicus Briefs in Indiana: Rare but Welcomed and Impactful

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

Imagine you are an Indiana Supreme Court justice faced with a stack (yes, we’re still waiting on electronic filing) of briefs in about 20 cases for the weekly conference. You are trying to decide which of those cases present issues of statewide significance worthy of the Court’s limited time and docket space on “important” issues under Appellate Rule 57(H).

About once or twice a month the stack looks a little different. An interested group, not a party to the case, has filed a friend-of-the-court or amicus brief explaining why the case presents an issue worthy of Supreme Court review. You’d probably take notice.

Analyzing data from 2013, this post considers the infrequency of amici briefs filed in the Indiana Supreme Court, the entities that submit them, and their apparent impact.*

Rare

Last year the Indiana Supreme Court considered whether to grant transfer in 775 cases. Just 17 of those cases (a little over 2%) included an amicus brief. Ten of those 17 cases included just one amicus brief. **

The largest number of amici in a transfer case (four separate briefs) were filed in Smith v. Delta Tau Delta. Two briefs were filed in five cases; three were filed in one.

That’s a mere 27 briefs in all transfer cases, which pales in comparison to the more than 30 briefs filed in just one Seventh Circuit case (the same-sex marriage challenge) earlier this year. Or the more than 800 amici filed with the U.S. Supreme Court in 2013-14, which was a decline from more than 1,000 the previous term.

Unlike the U.S. Supreme Court’s two stage process of petitions (and responses) for discretionary review, followed by a second round of briefing on the merits, Indiana has a one-step, combined process. Thus, amici must almost always become involved in a case before knowing if the justices are interested, which could suppress amici interest.

Welcomed

The Indiana Supreme Court welcomes amici participation. I’m not aware of a request to file an amicus brief being denied, and even late requests appear to be routinely permitted.

Motions to strike amici by an unhappy party appear to be routinely denied. For example, in the right to work case, the Court wrote in an order:

Summarizing, Appellees request that the court reconsider allowing amicus participation because the NFIB's brief provides inapplicable citations from other states not relating to this case or the Indiana Constitution, the NFIB individuals are "pursuing their own agenda" by raising irrelevant issues, certain persons and entities were denied permission to participate as amici by federal district courts, and ILF's brief is "openly partisan" and adds nothing unique to the State's position argued in its brief. The Court, however, generally welcomes participation of amicus curiae, though such participation does not commit the court to addressing issues raised by amicus. Furthermore, Appellees have an opportunity to present their own argument in their brief, including a response to arguments presented by amici.
Some opinions have even included a grateful footnote: “We thank all amici for their helpful briefs.”

Impactful

Transfer was granted in 65% (11/17) of the transfer cases with one or more amici briefs. This is nearly seven times the overall grant rate last year of about 9%. The odds of a grant of transfer were highest in civil cases with a published Court of Appeals’ opinion (about 25%), and cases with amici easily beat those odds. (And with one exception, the 17 transfer cases were all from published opinions in civil cases; Brewington was the only criminal transfer case.)

Even with a thorough understanding of all the briefs, issues, and opinions, it would be difficult in many cases to pinpoint the impact of the amici. One notable exception, however, is Drake v. Dickey, where the Court granted transfer solely to address a statement in a footnote in the Court of Appeals’ opinion, which was the sole subject of the amicus brief filed by the Indianapolis Bar Association, Appellate Practice Section.

Amicus Entities

Although the content of a brief is almost always its primary contribution, the endorsing entities cannot be overlooked. No one is going to be surprised if the Hoosier State Press Association Foundation weighs in on a freedom of press issue or the Insurance Institute of Indiana is concerned about an issue involving insurance coverage. But some cases have included amici from some unlikely suspects, such as the Brewington blogger intimidation case, which drew the following collection of entities and individuals on the same brief: Eagle Forum, the Hoosier State Press Association, the Indianapolis Star, The Association of Scholars, the Coalition for Open Government, the James Madison Center For Free Speech, NUVO, James W. Brown, Anthony Fargo, and Sheila S. Kennedy.

Beyond that case, which also included an amicus brief from the ACLU of Indiana, the following filed amici briefs with the Indiana Supreme Court in 2013:

The list reminds me a bit of E.E. Schattschneider’s critique of the role of pressure (interest) groups in the political system. He opined the "notion that the pressure system is automatically representative of the whole community is a myth," and "the flaw in the pluralist heaven is that the heavenly chorus sings with a strong upper-class accent."

I’ve filed many pro bono amici briefs over the years, and I’m sure many other lawyers are willing to help provide a voice to interested groups on important issues pending before the Indiana Supreme Court. The justices appear to welcome the input, which can and not infrequently does make a difference in a case.
_______________
*The focus of this post is the Indiana Supreme Court. Amici briefs were filed in eight Court of Appeals’ cases (all civil) in 2013. Two briefs were filed in three of the cases; one was filed in the other five. Seven of the eight were decided by published opinions.

**Amicus briefs were also filed in two other, non-transfer Indiana Supreme Court cases. Five separate amici were filed in Zoeller v. Sweeney (the right to work case), which was a direct appeal, and two were filed after a grant of transfer and upon direction (State Public Defender) or invitation (Indiana Tech Law Professors) in Wilson v. State, a pro se criminal appeal.

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

Ind. Gov't. - Correction: Public Access Counselor says Notre Dame police subject to public records law

Updating/correcting this ILB post from this morning, it turns out an identical PAC opinion was issued on Oct. 31, 2014! Here it is. It concludes:

For the foregoing reasons, it is the Opinion of the Public Access Counselor the Notre
Dame Security Police Department should be considered a public law enforcement agency subject to the Access to Public Records Act.
The $$$ Indiana Education Insight (h/t) featured the story on the front page of its Nov. 10, 2014 issue.

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

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

In Suzanne E. Esserman v. Review Board of the Indiana Department of Workforce Development, and Indiana Department of Environmental Management, a 16-page opinion, Judge Brown writes:

The issue is whether the record supports the Board’s decision that Employee was discharged for just cause. Employee argues that she was not discharged for just cause pursuant to Ind. Code § 22-4-15-1(d) and that she did not breach a duty to her employer under the statute. * * *

Based upon the evidence and testimony above and in the record before the ALJ and Board, Employer did not meet its burden of establishing that Employee breached a duty reasonably owed Employer or showing that Employee’s conduct was of such a nature that a reasonable employee of Employer would understand that the conduct was a violation of a duty owed Employer and the State of Indiana. Accordingly, we conclude Employee was not discharged for just cause and is entitled to unemployment benefits under her claim.

We also observe that a claim for unemployment benefits should not be confused with a wrongful termination lawsuit. To the extent Employer presented evidence that it had grounds not to continue Employee’s employment, this evidence does not support the conclusion that Employee breached a duty reasonably owed to her employer under Indiana’s statutes and caselaw governing unemployment compensation. See Conklin v. Rev. Bd. of Ind. Dep’t of Workforce Dev., 966 N.E.2d 761, 766 (Ind. Ct. App. 2012) (noting that the Board’s argument “blurs the line between the employment-at-will doctrine and the statutes and caselaw governing unemployment compensation,” that the employer was not required to continue to employ the employee, and that a claim for unemployment benefits cannot be equated to or confused with a wrongful termination lawsuit), reh’g denied. Employee did not breach a duty reasonably owed to Employer under Ind. Code § 22-4-15-1(d) and is thus eligible for unemployment benefits.

For the foregoing reasons, we reverse the Board’s decision finding that Employee was discharged for just cause.

Eunice McKibben v. Jeff Hughes, b/n/f Joyce Hughes

Erica N. Dumes v. State of Indiana - This is a worth-reading opinion by J.Brown on the unauthorized practice of law.

Christopher Duncan v. State of Indiana

NFP civil opinions today (5):

Mary (McNutt) Tuite v. Mark McNutt (NFP)

Sophia L. Masters v. Ryan E. Masters (NFP)

Keisha Hollis, on behalf of herself and all others similarly situated v. Defender Security Company d/b/a Defender Direct (NFP)

In Re the Paternity of T.T.: L.H. v. L.T. and D.N. (NFP)

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

NFP criminal opinions today (6):

Joseph D. Haskins III v. State of Indiana (NFP)

Daniel L. Scarpinato v. State of Indiana (NFP)

Karachi Warren v. State of Indiana (NFP)

Mack A. Jake v. State of Indiana (NFP)

Karla J. Shafer v. State of Indiana (NFP)

Michael D. Dague v. State of Indiana (NFP)

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

Ind. Gov't. - Public Access Counselor says Notre Dame police subject to public records law [Corrected]

This Sept. 15th ILB post quotes from a Sept. 14th South Bend Tribune story headed "Should Notre Dame police adhere to public records law?"

A long story today in the SBT, by Margaret Fosmoe, is titled "Notre Dame police subject to public records law, [PAC] opinion says." The story begins:

The University of Notre Dame’s Security Police department is a public law enforcement agency, with the same requirements to maintain and release public records as all other police agencies in the state, according to an opinion by Indiana’s public access counselor.

“The police force is established by the governing body of a private institution, but their powers come from the state of Indiana. I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state’s police powers,” wrote Luke Britt, an attorney who serves as Indiana’s public access counselor.

His formal opinion was released Thursday in a letter to Tribune Executive Editor Alan Achkar.

The Tribune’s complaint, filed last month, had stated in part: “The public has a right to know the details about crimes, accidents and other incidents that occur on a private university’s campus, which typically attracts large public crowds, sometimes numbering in the tens of thousands. Many of those people are not directly affiliated with the university but still rely on the university police for their safety.”

The university has a professional campus police force, with sworn officers who carry guns and have the power to make arrests and enforce state laws. But university officials have long maintained that Notre Dame’s status as private institution makes it exempt from the state’s public records law. * * *

Three previous public access counselors had issued opinions concluding a police force that answers solely to a private university is private, and thus not subject to the state’s public records law.

On Thursday, Britt, who became the public access counselor in 2013, took a different stance.

“The Notre Dame law enforcement agency is clearly operating under the color of the law, enforcing Indiana criminal code and not mere campus policy or disciplinary procedures,” Britt wrote. “They also have the authority to police the surrounding community. They even have a 911 dispatch.

“If a law enforcement agency has police powers, then they should be subject to the typical scrutiny given to traditional police forces. Police powers come from the state — they do not spring forth organically. University police hold themselves out as a law enforcement agency enforcing criminal code.”

ILB: The PAC opinion is not yet available.

[More]
This post has been corrected by a later post today.

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

Ind. Courts - "City Judge prevails in East Chicago court funding fight"

Yesterday's Court of Appeals opinion in Gilda Orange, et al., Members of the Common Council of the City of East Chicago, Ind. v. Hon. Sonya A. Morris (ILB post here) is the subject of a story today by Dan Carden of the NWI Times. Some quotes:

The East Chicago City Council is prohibited from reducing spending on its city court if the judge can show the budget cut will impair operations, the Indiana Court of Appeals ruled Thursday.

In a 3-0 decision, the appellate panel agreed with Lake Circuit Judge George Paras who ordered the council to restore $65,000 of the $83,000 it sought to cut from the city court's 2013 spending plan.

Appeals Judge Cale Bradford said East Chicago City Judge Sonya Morris sufficiently demonstrated the city's budget reduction would force the layoff of essential employees and require the city court to cease operations.

Specifically, Bradford said, Morris established the budget cut presented "a clear and present danger of impairment of operations" because East Chicago's City Court is a smaller percentage of the city budget than city courts in nearby municipalities, total court salaries were lower in 2012 than 2002 and the challenges presented by a low-income and Spanish-speaking population.

The appeals court was not persuaded by the City Council's claim that its 16 percent budget reduction spread across all city departments also should affect the $832,000 spent annually on its court.

"The council ... did not consider budget reductions already made by the city court, develop any understanding of court administration or make an independent determination of the reasonableness of the city court’s operations before cutting its budget by 10 percent," Bradford said.

Morris also won approval from the appeals court to require the City Council to pay her attorney fees for the appellate portion of her budget challenge.

The ruling, which still can be appealed to the Indiana Supreme Court, sets a precedent where city councils can eliminate their city courts, but cannot reduce court budgets without the judge's consent.

ILB: It seems Indiana city courts and city judges have been much in the news recently. There have been a number of stories about discussions by city governments re closing their city courts, such as this one from May 20, headed "Goshen mayor Allan Kauffman suggests cutting city court." A quote:
The city court has operated at a deficit for at least 10 years, according to income and expense data provided by Kauffman. The court ended 2013 with a $164,210 loss, and in 2012, the court ended up $120,949 in the red.

Indiana code has allowed city councils to abolish city courts every fourth year since 2006. If the city does not vote whether to keep the court open this year, the council will have to wait until 2018 to revisit the issue. [ILB: Here is the law, IC 33-35]

In addition, of course, are the recent reports about city judges in Muncie and Clarksville.

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

Ind. Decisions - "Supreme Court OKs arrests for 'annoying' drunks"

Updating this Dec. 18th ILB post headed "Supreme Court decides one today, reading reasonable person standard into public intoxication law," here is the NWI Times story on the opinion, Rodregus Morgan v. State of Indiana, reported by Dan Carden. Some quotes:

The Indiana Supreme Court on Thursday upheld the constitutionality of the state's public intoxication statute that makes it a misdemeanor crime if a person is drunk in a public place and "harasses, annoys or alarms another person."

The 5-0 ruling overturns a Feb. 13 decision by the Indiana Court of Appeals that struck down the "annoys" portion of the law as impermissibly vague.

Justice Steven David, writing for the high court, said "annoys" only is vague if it stands alone. When the word is considered alongside "harasses" and "alarms," as it must be, a reasonable person easily can understand the types of behavior that are prohibited.

Applying that standard, the Supreme Court vacated the 2012 public intoxication conviction of Rodregus Morgan, 52, of Indianapolis.

Morgan was sleeping in a downtown bus shelter when an Indianapolis police officer tried to waken him. When Morgan became agitated and reluctant to leave the shelter, the officer arrested him for public intoxication claiming Morgan smelled of alcohol and his behavior was annoying.

David said a sleeping individual is unlikely to annoy a reasonable person, especially in this case as Morgan was alone, except for his brother and the police officer, and he was not preventing others from using the bus shelter. * * *

Prior to 2012, Indiana's public intoxication law made it a crime to be drunk in public under any circumstance, including as a passenger in a vehicle operated by a sober driver.

The law was changed by the General Assembly to generally require a drunk person be endangering themselves or another person to be charged with public intoxication.

Posted by Marcia Oddi on Friday, December 19, 2014
Posted to Ind. Sup.Ct. Decisions

Thursday, December 18, 2014

Ind. Courts - Still more on "Judicial Qualifications Commission files charges against Muncie City Court Judge"

Moving at unprecedented speed (in the ILB's memory), the Supreme Court today acted on the Judicial Qualifications Commission petition filed with the Court Dec. 15th. The Court ordered that Judge Bennington be suspended with pay, until further notice, effective at midnight:

On December 11 , 2014, the Indiana Commission on Judicial Qualifications ("Commission") filed a "Notice of the Institution of Formal Proceedings and Statement of Charges" against Respondent, the Honorable Dianna L. Bennington, Judge ofthe Muncie City Court. Four days later, the Commission filed a "Verified Petition for Interim Suspension" pursuant to Indiana Admission and Discipline Rule 25(VIII)(E), which provides, "Upon petition by the Commission, the Supreme Court may impose, pending the disposition offormal charges, an interim suspension with pay ifthe Court deems the interim suspension necessary to protect public confidence in the integrity of the judiciary."

Having considered the Commission's Verified Petition for Interim Suspension, the Court hereby GRANTS the Verified Petition. Pursuant to Admission and Discipline 25(VIII)(E), Dianna L. Bennington is hereby SUSPENDED FROM OFFICE WITH PAY effective at 12:00 a.m. on Friday, December 19, 2014. This suspension will continue in effect until further order ofthis Court.

Here is the most recent earlier ILB entry, from Dec. 15th.

Posted by Marcia Oddi on Thursday, December 18, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "State plans more prison cell units"

Niki Kelly of the Fort Wayne Journal Gazette reports today in a story that begins:

Indiana will build eight prison cell units in 2017 and 2018 to cope with a rising prison population.

The increases come despite a comprehensive criminal justice reform bill passed by lawmakers that was supposed to reduce overall Indiana Department of Correction population by sending many low-level offenders to county jails or community corrections programs.

Aaron Garner of the DOC said population has dropped initially but will start to rise again in 2017.

That is because legislators also reduced credit time for many offenders, which means most felons will spend at least 75 percent of their sentence in prison. This is up from 50 percent.

And by early 2017 the state runs out of beds for adult males.

Legislators on the State Budget Committee hearing the presentation Wednesday seemed distressed by the news.

Sen. Karen Tallian, D-Portage, noted that during the legislative session there were differing projections floating around from the DOC, Legislative Services Agency and a third-party contractor.

She questioned what assumptions the DOC is using, and Garner said it is a mix of new advisory sentences and historical sentencing trends. Judges have new discretion in sentencing in the law, but it’s unclear whether they will use it.

“Until we get a better feel for sentencing practices under the new law we just don’t know,” Garner said.

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

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Posted by Marcia Oddi on Thursday, December 18, 2014
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 5 today (and 21 NFP)

For publication opinions today (5):

In Gilda Orange, et al., Members of the Common Council of the City of East Chicago, Ind. v. Hon. Sonya A. Morris , a 17-page opinion, Judge Bradford writes:

In 2012, Appellants/Defendants Gilda Orange, et al., in their capacities as members of the Common Council of the City of East Chicago, Indiana (collectively, “the Council”), reduced by $82,000 the 2013 budget of the City Court of the City of East Chicago, Indiana (“the City Court”), which is presided over by Appellee/Plaintiff the Honorable Sonya A. Morris, Judge. In October of 2012, Judge Morris filed a verified complaint in mandamus in Lake Circuit Court, seeking an order that the Council fully fund the City Court’s requested budget for 2013 and that the Council also pay the City Court’s reasonable expenses in prosecuting the action. The Council moved to dismiss Judge Morris’s complaint on the ground that it did not use the Indiana Supreme Court’s judicial assignment process as outlined in Indiana Trial Rule 60.5.

Special Judge George C. Paras was appointed to hear the complaint, denied the Council’s motion to dismiss, and held trial. Following trial, Judge Paras ordered the Council to appropriate an additional $65,000 to fund the City Court (“the Mandate”) and for each party to pay its own expenses and attorney’s fees. The Council contends that (1) Judge Morris failed to meet her burden to establish that the mandated funds were reasonably necessary to operate the City Court, (2) Judge Morris should have been required to use the judicial appointment process of Trial Rule 60.5, (3) existing probation funds could have cushioned the effect of budgetary cuts, and (4) the Council’s appeal is not moot. The City Court counters that (1) the Mandate was necessary to preserve the judicial independence of the City Court, (2) the mandated funds are reasonably necessary to fund court operations, (3) the Council failed to establish that the City Court’s budget is excessive or that East Chicago could not fund the budget, and (4) the City Court is entitled to appellate attorney’s fees and expenses. We consolidate and restate the issues as (1) whether Judge Morris produced sufficient evidence to support the mandate of funds, (2) whether Judge Morris should have been required to use the procedure outlined in Trial Rule 60.5, and (3) whether the City Court is entitled to appellate attorney’s fees and expenses. We affirm the judgment of the trial court and remand for calculation of the City Court’s appellate attorney’s fees and expenses. * * *

We conclude that because Judge Morris carried her burden to establish that the requested funds were reasonably necessary, the trial court did not err in granting her mandate request. We further conclude that Judge Morris used the proper procedure to prosecute her mandate action and so will not reverse the judgment of the trial court on that basis. Finally, we conclude the City Court is entitled to an award of its appellate attorney’s fees and expenses and so remand for calculation of those fees and expenses.

In Dawn Duty v. Boys and Girls Club of Porter County and Chuck Leer, an 11-page opinion, Judge Najam concludes:
The trial court did not err when it dismissed Duty’s claim against BGC alleging wrongful discharge. But the trial court erred when it dismissed Duty’s claim against Leer alleging tortious interference with a contractual relationship. Duty may proceed with that claim on remand.
In In Re: the Guardianship of M.N.S.; J.L.M. v. M.S.S, a 9-page opinion, Judge Najam concludes:
The evidence supports the trial court’s conclusion that Mother is an unfit parent. Mother’s contentions on appeal amount to a request that we reweigh the evidence, which we will not do. Mother makes no contention that the adoption is not in Child’s best interests. Notwithstanding Mother’s waiver of that issue, we hold that the evidence supports the trial court’s conclusion that the adoption is in Child’s best interests. I.C. § 31-19-9-8(a)(11)(B). The trial court did not abuse its discretion when it granted Stepmother’s adoption petition without Mother’s consent.
In T.H. and C.H. v. R.J. and K.J., a 19-page opinion, Judge Pyle writes:
Grandparents appeal the juvenile court’s order granting sole physical and legal custody of B.J. to R.J. (“Mother”) and Stepfather (collectively, the “Parents”). The juvenile court had previously adjudicated Grandparents as de facto custodians of B.J., thereby giving them the ability to seek custody. On appeal, Grandparents argue that the evidence did not support the juvenile court’s findings of fact and its ultimate conclusions. The Grandparents also claim they were entitled to continued court-ordered visitation with B.J.

Concluding that the evidence supported the juvenile court’s factual findings, that the Grandparents failed to rebut the presumption of awarding custody of B.J. to the Parents, and that there was no error in discontinuing court-ordered visitation with Grandparents, we affirm the juvenile court’s order.
We affirm.

In Thomas Mack v. State of Indiana , a 24-page opinion, Judge Najam writes:
Among other things, we hold that, in light of the facts and circumstances of this case, a lapse of at least “a few minutes” between a declarant’s perception of an event and his statement describing that event was too long to qualify the statement as a present sense impression under Indiana Evidence Rule 803(1). We also hold that the admission of this hearsay violated Mack’s right to confront the declarant. Nonetheless, these errors were harmless beyond a reasonable doubt. As such, on these and all other issues, we affirm Mack’s convictions.
NFP civil opinions today (6):

Ind. Automobile Wholesalers Assoc., Inc., National Dealer Licence, Llc., et. al. v. Carol Mihalik, Comm. of the Ind. Securities Div. of the Ind. Sec. of State, et. al. (NFP)

In Re the Termination of the Parent-Child Relationship of V.A. and A.A. v. Ind. Dept. of Child Services (NFP)

In Re the Adoption of K.M., Y.P. v. H.M. (NFP)

Roger Berghs, Karen Berghs, and Rex Harris v. Panet Antares, Inc., Purco Corp., and Dana M. Bashor (NFP)

Charles S. Komyanek v. Sodexho Services of Indiana (NFP)

Phillip Gray v. The Palace et. al. (NFP)

NFP criminal opinions today (15):

James D. Harral, Jr. v. State of Indiana (NFP)

Landon Harbert v. State of Indiana (NFP)

Bennie Truth v. State of Indiana (NFP)

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

Glenn A. Eads, Jr. State of Indiana (NFP)

Timothy L. Hall v. State of Indiana (NFP)

Michael Coleman v. State of Indiana (NFP)

Brian Pierce v. State of Indiana (NFP)

Daniel Camacho v. State of Indiana (NFP)

Oluwaseyi Ojo v. State of Indiana (NFP)

Terrance Greenwood, Jr. v. State of Indiana (NFP)

Brook McKee v. State of Indiana (NFP)

Michael Vicars-Goings v. State of Indiana (NFP)

Larry White v. State of Indiana (NFP)

Ron Petty v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 18, 2014
Posted to Ind. App.Ct. Decisions

Ind. Law - Firearms on campus? Legislators to try again this year

Reprinted in the Indiana Economic Digest is Maureen Hayden's long, fact-filled story on efforts to legalize firearms on campus. SIt begins:

Another gun battle may be looming at the Capitol, this time involving firearms on campus.

Gun advocates again hope to prevent state colleges and universities from restricting students who want to bring licensed handguns on campus.

A measure in the works would allow students the protection of a gun from menaces lurking on and near campus, advocates say - especially at night.

University officials oppose the Legislature's meddling in their existing policies. The state's two largest schools, Indiana University and Purdue University, have resisted previous attempts to keep them from imposing firearms rules that are tougher than existing state law.

Joe Newport, head of public safety at Indiana State University, said in an email that keeping students safe on campus isn't an easy job.

“I’m certain allowing possession of firearms would make it more difficult," he said.

In recent years, the General Assembly has loosened firearm restrictions and forbidden cities and towns from banning handguns on most public property.

Last year, a bill that would have required K-12 schools to hire armed guards failed after a contentious fight. But legislators did vote to allow adults to keep guns locked in their vehicles in K-12 school parking lots.

A similar measure to ease college campus restrictions died last year.

But Rep. Heath VanNatter, R-Kokomo, who plans to co-author a new version of the bill, hopes it comes up for debate when legislators convene in January.

“It’s a law that makes sense,” said VanNatter. “Law-abiding citizens with licensed handguns should be able to protect themselves virtually anywhere.”

Posted by Marcia Oddi on Thursday, December 18, 2014
Posted to Indiana Law

Ind. Courts - More on: Really? Two public complaints in two years, immortalized in court opinions, is not enough? [Updated]

Updating this ILB post from Dec. 17th, Kristine Guerra is now reporting in the Indianapolis Star:

Bryan Corbin, spokesman for the attorney general, said smoking is not permitted and does not happen inside the agency's offices. He said the records in the case that came before Riley were filed before Najam raised his objections and that changes have been made.

"The Attorney General's Office has shifted this category of criminal cases into a new paperless workflow using electronic scans of court records, not original paper copies," Corbin said in an email to the Indianapolis Star. "As we now scan such records, the condition of paper in the paper file should not be an issue, at least not for the Attorney General's Office."

The ILB has added emphasis - "this category"? Does that "category" mean the ones that otherwise might smell of tobacco smoke?

[Updated at 4:41 PM] Above the Law has now picked up this story, again.

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

Ind. Courts - More on: Supreme Court's presentation to the State Budget Committee

Updating this post from this morning, the ILB has now received and is posting the Supreme Court's 8-page letter of transmittal to the State Budget Agency.

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

Ind. Decisions - Supreme Court decides one today, reading reasonable person standard into public intoxication law

In Rodregus Morgan v. State of Indiana, a 13-page, 5-0 opinion, Justice David writes:

Rodregus Morgan was convicted under Indiana’s public intoxication statute for being intoxicated in a public place and engaging in annoying conduct. Morgan challenges his conviction on two possible grounds. First, that the Indiana public intoxication statute is unconstitutionally vague. Second, that there was insufficient evidence for his conviction. * * *

[W]e uphold the constitutionality of Indiana’s public intoxication statute, Ind. Code § 7.1-5-1-3, by reading a reasonableness standard into “annoys.” * * *

[Here] the requirements for conviction under Indiana’s public intoxication statute have not been met, and there is insufficient evidence to sustain Morgan’s conviction. * * *

Conclusion. An objective reasonable person standard should be read into Indiana’s public intoxication statute when applying the term “annoys.” Under that reading, the statute is not unconstitutionally vague. Furthermore, in applying the reasonableness standard, there is insufficient evidence to sustain Morgan’s conviction for public intoxication. We therefore vacate Morgan’s conviction for Count II Class B misdemeanor public intoxication.

Posted by Marcia Oddi on Thursday, December 18, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - "Supreme Court dismisses final right-to-work challenge"

Dan Carden reports in a long story today in the NWI Times:

Indiana's right-to-work law will remain in effect for the foreseeable future after the Indiana Supreme Court tossed the sole remaining constitutional challenge to the controversial labor statute.

In an order dated Tuesday but released Wednesday, the state's high court vacated Lake Circuit Judge George Paras' Aug. 13 ruling that found the 2012 law unconstitutionally required labor unions provide services to nonunion members without compensation.

The action was not unexpected after the Supreme Court upheld the right-to-work law Nov. 6 in a 5-0 decision overturning a similar finding by Lake Superior Judge John Sedia that the law was unconstitutional.

The Times accompanies the story with the one-page Zoeller v. Sweeney ruling dismissing the lawsuit.

Posted by Marcia Oddi on Thursday, December 18, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Supreme Court's presentation to the State Budget Committee

Each budget year state governmental entities appear before the State Budget Committee, presenting their plans and budget requests for the next biennium. Here is this year's schedule. Yesterday morning, the Supreme Court made its presentation.

The ILB looks forward every two years to reading the Court's transmittal letter, which is the overview of its requests. For instance, here is a Nov. 24, 2008 post discussing and linking to then CJ Shepard's 15-page transmittal letter, accompanying the FY 2009-2011 request. And here is the 30-page Supreme Court Transmittal Letter for the 2013-2015 biennium.

This year, according to this budget committee page (scroll down to Dec. 17), it appears the Supreme Court did not prepare a transmittal letter to accompany the bare-bones sheets of numbers. This seems odd, in this era of more openness.

The numbers themselves are very interesting, but difficult to understand without the explanation and overview.

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

Ind. Courts - "Is City Court really needed in Winchester?"

So asked Darrel Radford, Winchester News-Gazette City Editor, in this snippet on Dec. 17:

Winchester’s City Court doesn’t bring in a lot of dollars. But some officials believe having it makes a lot of sense.

Monday’s City Council meeting turned into a cross-examination of sorts about the court, particularly since its veteran judge, David Coffman, has decided not to run for re-election next year.

Clerk-Treasurer Vicki Haney said from a fiscal responsibility standpoint, perhaps it would be a good time to discuss the court and its value. She reported that revenues over the past three years has only topped about $5,000, while the annual budget to keep the court going is $38,000.

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

Ind. Gov't. - "Marshall County to Join Lawsuit over Theft of Documents"

Updating earlier ILB posts, the most recent of which was Dec. 16th, Anita Goodman reported Dec. 17th for K99.3 WKVI:

Marshall County Attorney Jim Clevenger and Marshall County Recorder Marlene Mahler discussed with the commissioners this week the theft of 2,700 documents totaling 39,000 pages out of the county’s computer system.

Clevenger noted that several other counties are facing the same issue with the same company and have been asked to join a multi-county action against the company. Representatives of LPS Real Estate Data Solutions reportedly went in and took data out of the recorder’s office without going through the proper channels to pay for the data wanted. A civil action will be filed against LPS to recover damages for the stolen data and punitive damages.

Chicago Attorney Jason Williams has submitted a proposed contingency fee representation agreement to represent the county in federal court. He’ll be responsible for all expenses.

The recorder’s office would normally charge $1 per page so the company would owe $39,000. The lawsuit would triple that amount.

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

Wednesday, December 17, 2014

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

In Kurt Stuhlmacher v. Home Depot U.S.A., Inc. (ND Ind., Rodovich), a 9-page opinion, Judge Williams writes:

Kurt Stuhlmacher’s parents pur-chased a ladder from Home Depot so that their son could work on the roof of a cabin he was building for them. Kurt was using the ladder for the first time when it fell, causing him to fall. Kurt and his wife brought a personal injury action against Home Depot and the ladder’s manufacturer, Tricam Industries. At trial, the Stuhlmachers’ expert, Dr. Thomas Conry, testified that the ladder was defective, likely causing Kurt to sense instability and involuntarily shift his weight. The magistrate judge struck Dr. Conry’s testimony, finding that Dr. Conry’s explanation of how the accident oc-curred did not “square” with Kurt’s testimony that the lad-der shot out to his left.

Because the testimony was stricken, the Stuhlmachers did not have any evidence showing causation, so the judge entered judgment as a matter of law for the defendants. We hold that the magistrate judge abused his discretion in strik-ing Dr. Conry’s testimony. We reverse the judgment of the district court and remand the case for a new trial.

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

Ind. Courts - Really? Two public complaints in two years, immortalized in court opinions, is not enough?

That is what the ILB wrote in this post, on Oct. 7, 2014, after the press had picked up on this Oct. 2nd ILB post, which referenced two different Court of Appeals opinions remarking in footnotes that the transcript had returned to the court reeking of tobacco.

Today, in Gary Elvers v. State of Indiana, on p. 2, the Court writes, in no uncertain terms:

In two prior memorandum decisions, our court noted that the record emitted a foul odor consistent with cigarette or pipe smoke, and we asked that those who handle the appellate record refrain from such contamination in the future. See Rice v. State, No. 49A02-1401-CR-12 (Ind. Ct. App. Sept. 30, 2014); Wampler v. State, No. 09A02-1201-CR-61 (Ind. Ct. App. July 3, 2012). It appears that our requests were disregarded because the record in the instant case is permeated with the same repugnant stench. The fact that all three of these malodorous records were handled by the same Deputy Attorney General prompts us to direct this third entreaty to the Office of the Attorney General with the demand that our request for clean, unscented records be heeded.
The Deputy Attorney General on all three cases is listed on the opinions as Ian McLean. As a reader noted in commenting on one of the earlier posts:
If all state offices are indeed smoke-free, it is surprising that such a strong odor of smoke remains with a transcript weeks later when the case arrives in a judge's office.

Posted by Marcia Oddi on Wednesday, December 17, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In Robert Holland v. Lake County Treasurer John Patelas , an 8-page opinion with a pro se appellant, Judge Riley writes:

Issue. Whether Holland received insufficient notice of the tax sale proceedings in violation of his right to due process, thereby rendering Born’s tax deed void. * * *

Holland seeks reversal of the trial court’s Order granting the issuance of a tax deed to Born. Specifically, he claims that he is entitled to relief under Indiana Trial Rule 60(B)(1)-(4),(6), and (8) because he was deprived of his Property without due process. Notwithstanding the fact that Holland’s argument is entirely void of cogent reasoning and primarily relies on facts that are not in the record, we find that another procedural defect precludes our review of the merits of this case. See Ind. Appellate Rule 46(A)(8)(a). * * *

[W]e conclude that Holland’s appeal is improperly before our court because the trial court did not rule on his Motion to Set Aside pursuant to Trial Rule 60(B). Dismissed without prejudice and remanded for further proceedings.

Dennis Boyer and Richard Smith v. Ernest Smith, Suzanne Cassidy, and In-Plas, Inc. is a 14-page opinion by Sr. Judge Barteau.

In Joseph Dixson v. State of Indiana , a 7-page opinion, Chief Judge Vaidik writes:

Joseph Dixson was convicted of Class A misdemeanor battery after a tussle with a security officer. Dixson now appeals, arguing that the trial court erred in instructing the jury on self-defense at his trial. Because this case does not involve deadly force, we conclude that the trial court erred in instructing the jury that, among other things, Dixson had to show that he had a reasonable fear of death or great bodily harm in order to prevail on his self-defense claim. We find the error to be harmless, however, and we therefore affirm. * * *

Although we conclude that the trial court erred in instructing the jury, reversal is not necessary. Any error in instructing the jury is subject to a harmless-error analysis. Randolph v. State, 802 N.E.2d 1008, 1011 (Ind. Ct. App. 2004), trans. denied. Errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the instruction would not likely have affected the jury’s verdict. Id. at 1013. That is true here because the uncontradicted evidence shows that Dixson did not have a right to be in the Duvall cafeteria when the incident occurred: he disregarded the facility’s protocols for entering the cafeteria and he disregarded Hoosier’s commands to re-enter the cafeteria correctly. See McCullough, 985 N.E.2d at 1138 (a defendant claiming self-defense must show three things, including that he was in a place where he had a right to be and he acted without fault). The same evidence also shows that Dixson did not act without fault. Because the uncontradicted evidence negates Dixson’s self-defense claim, we cannot conclude that the error in instructing the jury affected the jury’s verdict.

In Gary Elvers v. State of Indiana, an 18-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the Synthetic Drug Law is not unconstitutionally technical; the State properly enhanced Elvers’ charges based on the weight of the synthetic drugs in their adulterated form; the Information sufficiently apprised Elvers of the crimes with which he was charged; the search warrant is not defective; and there is sufficient evidence to support a conviction for dealing in a synthetic drug. We further conclude that the State improperly charged Elvers with two Counts of dealing in the synthetic drug JWH-122 and remand with instructions for the trial court to vacate the conviction on Count V.
In Tyrone Winkleman v. State of Indiana, a 14-page opinion, Chief Judge Vaidik writes:
Tyrone Winkleman was convicted of Class A felony robbery resulting in serious bodily injury, Class A felony kidnapping, and Class B felony criminal confinement, and sentenced to seventy-six years for kidnapping a truck driver in Elkhart, Indiana. Winkleman now appeals, arguing that the trial court committed fundamental error in instructing the jury because it omitted an element from the kidnapping instruction, failed to advise him of his Boykin rights before he pled guilty to the habitual-offender allegation, and abused its discretion in identifying four of the aggravators when sentencing him. Concluding that the jury instruction does not constitute fundamental error, Winkleman has failed to establish on this record that he did not know he was waiving his Boykin rights, and the trial court did not abuse its discretion in identifying the aggravators, we affirm the trial court.
NFP civil opinions today (2):

James Roof v. David Asher (NFP)

In the Matter of: J.M., A Child in Need of Services, T.M. v. Indiana Department of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (7):

Carrie Douglas v. State of Indiana (NFP)

Utah Dockery, Jr. v. State of Indiana (NFP)

James David Finney v. State of Indiana (NFP)

Michael Whittaker v. State of Indiana (NFP)

Robert Warner v. State of Indiana (NFP)

Steven R. Santana v. State of Indiana (NFP)

Deborah Birge v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 17, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Shawn Blount v. State of Indiana, a 15-page, 5-0 opinion, Justice Massa writes:

Shawn Blount appeals his conviction for being a serious violent felon in possession of a firearm, arguing (1) the trial court erred by admitting a detective’s testimony that a witness identified Blount as the suspect, and (2) he was prejudiced by a material variance between the allegations against him and the proof used to convict him. We are asked to decide whether the detective’s testimony was inadmissible hearsay; finding it was, we hold the trial court abused its discretion by admitting it. Nevertheless, because we conclude the error was harmless and find no variance between the charging information and the evidence presented at trial, we affirm Blount’s conviction. * * *

Ultimately, the State’s use of a direct quote from the charging information—“on or about”—during closing argument cannot and does not constitute a variance where time is not an element of the offense. Because we find no variance between the pleading and the proof, we find no error.

Posted by Marcia Oddi on Wednesday, December 17, 2014
Posted to Ind. Sup.Ct. Decisions

Courts - More on "Ferguson, Missouri Demands High Fees To Turn Over City Files"

On Sept. 29th the ILB posted "Ferguson, Missouri Demands High Fees To Turn Over City Files. And it should come as no surprise! What about Indiana?." This was followed on Nov. 12th by "Conference of Chief Justices and Conference of State Court Administrators respond to 'Guilty and Charged'" and on Nov. 24th by "Indiana Trial Court Fee Manual worth perusing."

On Dec. 10th the St. Louis RFT (Riverfront Times) published this long story by Lindsay Toler, headed "Ferguson, 6 St. Louis County Cities Sued to Stop 'Illegal' Municipal Court Fees." The story begins:

It's not just Ferguson.

At least six other St. Louis county municipalities impose the municipal court fines and fees that drew widespread criticism during Ferguson protests as unnecessarily predatory against poor and black residents. Now a team of lawyers has filed seven class-action lawsuits demanding that courts halt their rapacious fine structures and reimburse defendants in Ferguson, Beverly Hills, Fenton, Jennings, Pine Lawn, Wellston and Velda City.

Thomas Harvey, founder of the ArchCity Defenders, which provides legal services to the homeless and working poor, says there's no basis in state law for some of the fees some courts levy, such as a $50 fee to recall a warrant or a $15 fee for the letter alerting a defendant that he or she failed to appear in court.

"These fees have nothing to do with justice," Harvey tells Daily RFT. "We have to separate out the generation of revenue from the administration of justice."

Here is a report on the St. Louis City and St. Louis County region municipal courts that begins:
This report is the product of Better Together’s study of municipal courts in St. Louis City and County. The data and the qualitative evidence in this report point to a troubling and systemic issue in our region: Many of the municipal courts in St. Louis County have lost the trust of their communities, particularly those in which residents are predominantly African-American and poor. In these municipalities, because of a lack of oversight and an overreliance on court fines and fees, the courts are viewed as punitive revenue centers rather than centers of justice.

Posted by Marcia Oddi on Wednesday, December 17, 2014
Posted to Courts in general

Ind. Gov't. - Kentucky ethics enforcer says tough rules curb lawmaker misconduct

Maureen Hayden, CNHI State Reporter, has a long story Monday in the Greensburg Daily News. A few quotes:

Anthony Wilhoit was pleased to hear some Indiana good-government advocates describe his beloved Kentucky as the state with the “toughest ethics law” in the nation.

For 17 years, as head of the independent Kentucky Legislative Ethics Commission, Wilhoit's been the chief enforcer of rules that govern the conduct of lawmakers as it relates to their elected duties. * * *

Wilhoit is glad to hear that Indiana legislative leaders have pledged to tackle ethics reform – a decision brought on by high-profile scandals over the last year that exposed some gaping holes in ethics rules. But he cautions that stricter rules that force legislators to be more transparent aren’t a panacea.

“It’s good, but that doesn’t necessarily prevent them from doing things they shouldn’t,” Wilhoit said during an interview.

He knows. He’s gotten after legislators in Kentucky for violating wide-ranging rules that, among other things, compel lawmakers to disclose any economic interest in a matter that comes before them -- and then bars them from ever voting or even voicing support for it.

A lawyer and judge in an earlier career, Wilhoit favors preventative action when he can. He recalls watching live video of a state Senate debate and seeing a particular lawmaker move to vote.

“I knew he had a clear conflict of interest, so I called down to the floor and got him on the phone,” Wilhoit said. “I warned him not to do it.”

And he didn't.

Most the time, Wilhoit and his commission rely on lawmakers to follow the rules. Not everyone does, no matter the clarity of the rules.

A few years ago, the commission fined a lawmaker who voted to include a $170,000, no-bid sewer project in the state budget without disclosing some key information: The lawmaker owned the company that was awarded the bid.

Wilhoit thought that might result in a felony charge. That fell through when a chief witness dropped dead. * * *

Kentucky’s bumpy road to ethics reform came only after two major scandals in the 1990s. One was a federal bribery investigation that exposed 15 lawmakers who sold their votes, some for as little as $100. The other involved a governor’s spouse convicted of extorting more than $1 million in contributions from state contractors.

“We can’t say that kind of behavior doesn’t go on now,” Wilhoit said. “But it’s not one-tenth of what it was back then.”

Wilhoit’s commission has taken some hits for not being tough enough. A Harvard University study released last week gave both Indiana and Kentucky poor grades for their legislative ethics.

Wilhoit said the study, based on polling of political reporters, is too harsh.

But its conclusion still worries him. It’s why he spends much of his time “trying to hammer” the message to lawmakers that their behavior matters.

“I tell them, 'You all got to be very careful about the appearance of the things you do,'” he said. “Because people just don’t trust their leaders anymore.”

The ILB has obtained a copy of the Harvard report mentioned in the story. The story looks at public perception of corruption in the three branches of government and how each state scores. "Illegal executive corruption" is rated "moderately common" in both Indiana and Illinois, among other states. This was a surprise to the ILB: Illinois, of course, has had many recent governors sent to prison! Both Indiana and Illinois, as well as Kentucky, scored "very common" (4 out of 5) for "Illegal Corruption Legislative." For "Illegal Corruption Judicial", Indiana scored 1 out of 5 - "not at all common."

Posted by Marcia Oddi on Wednesday, December 17, 2014
Posted to Indiana Government

Tuesday, December 16, 2014

Stage Collapse - More on: "Cincinnati girl hurt at state fair challenges Indiana damages cap"

The videocast of yesterday's oral argument in J.P., et al, v. Mid-American Sound, et al is now available.

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Stage Collapse

Ind. Decisions - Supreme Court decides one today, re modification of child support orders

In Mark Rolley v. Melissa Rolley, a 2-page, 5-0 per curiam opinion, the Court concludes:

The Court of Appeals and the parties draw our attention to conflicting precedent in this field. Compare Hay v. Hay, 730 N.E.2d 787, 794-95 (Ind. Ct. App. 2000), and Reinhart v. Reinhart, 938 N.E.2d 788, 791-93 (Ind. Ct. App. 2010) (both reasoning that an agreed child support order can be modified only upon a showing of a substantial and continuing change in circumstances), with Marriage of Kraft, 868 N.E.2d 1181, 1185-89 (Ind. Ct. App. 2007), and Rolley, 13 N.E.3d at 526-31 (both reasoning that under the modification statute an agreed child support order can be modified based on either a substantial and continuing change in circumstances or, after twelve months, a twenty percent deviation).

We agree with Judge Pyle’s analysis and the result reached by the Court of Appeals in the present appeal. We therefore grant transfer, adopt that portion of the opinion of the Court of Appeals that addresses the available grounds for modification, and incorporate it by reference. See Ind. Appellate Rule 58(A)(1). We summarily affirm the part of the opinion of the Court of Appeals addressing the trial court’s calculation of Mark’s support obligation. See App. R. 58(A)(2).

ILB: The ILB has emphasized the statement signifying that this Supreme court opinion must be read in conjunction with a portion of the COA opinion (which the ILB has linked).

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 7 today (and 15 NFP)

For publication opinions today (7):

In In Re the Paternity of T.H., Tyrone Hutchins, Jr. v. Kellishia Kelly, a 9-page opinion, Judge Riley writes:

Appellant-Respondent, Tyrone Hutchins (Father), appeals the trial court’s denial of his Petition to Rescind or Vacate Paternity Affidavit. We affirm.

Father raises one issue on appeal, which we restate as follows: Whether the trial court abused its discretion when it denied Father’s Petition seeking to rescind or vacate the paternity affidavit which he executed when he was a minor. * * *

The Indiana Code has no provision for the filing of an action to disestablish paternity. In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind. Ct. App. 2005). Rather, the Indiana statutes governing paternity actions provide a means to establish paternity, not to disestablish it. * * *

Time and again, we have emphasized that allowing a party to challenge paternity when the party has previously acknowledged himself to be the father should only be allowed in extreme and rare circumstances. In re Paternity of R.C., 587 N.E.2d 153, 157 (Ind. Ct. App. 1992). This is not one of those circumstances. At no point during the proceedings does Father enunciate a belief that he is not T.H.’s biological father. Even though he unsuccessfully requested a paternity test in 2008, when the child was nine years old, Father never once stated that he doubted T.H.’s paternity. Rather, he readily admitted to having had sexual relations with Mother and, at the time of the birth, clearly fostered no doubt that he was the child’s biological father. Moreover, it was Father who took the initiative in November 2000, to request court-ordered visitation. Despite numerous court appearances since 2000, Father did not raise the issue of rescinding the paternity affidavit until September 14, 2013—curiously after all his requests for modification of child support fell for naught. Stripped to its bare essence, Father’s argument boils down to an invitation to reweigh his and Mother’s credibility and to find in his favor—this task which is not reserved for us. We affirm the trial court.

In Thomson, Inc. n/k/a Technicolor USA, Inc., et. al. v. XL Insurance America, Inc. f/k/a Winterthur International America Insurance Co., et. al., a 19-page, 2-1 opinion, Judge Kirsch writes:
Thomson, Inc. n/k/a Technicolor USA, Inc. (“Thomson”) appeals the trial court’s order granting summary judgment in favor of XL Insurance America, Inc. f/k/a Winterthur International America Insurance Company (“XL”) on Thomson’s claim for insurance coverage. Thomson raises several issues on appeal, of which we find the following dispositive:
I. Whether the trial court erred in granting summary judgment to XL because the trial court incorrectly concluded that the known loss doctrine prohibited Thomson from recovering under its primary or umbrella policies issued by XL as to the Taiwan site.
II. Whether the trial court erred in granting summary judgment to XL because a material issue of fact exists as to whether Thomson knew about contamination at the particular area of the Circleville, Ohio site at issue. * * *

Based on the evidence, we conclude that a material issue of fact exists as to whether Thomson had actual knowledge of its liability as to contamination at the raw materials handling area prior to the purchase of XL’s policies. Because a material issue of genuine fact exists, summary judgment was not proper, and the trial court erred in granting XL’s motion as to the Circleville Plant. We, therefore, reverse the trial court’s grant of summary judgment in favor of XL and remand for further proceedings. Reversed and remanded.

ROBB, J., concurs.
BAKER, J., dissents with separate opinion. [that begins, at p. 16] I respectfully dissent. I believe that the known loss doctrine prohibits Thomson from recovering its damages stemming from both the Taiwan and Ohio sites.

Underlying the known loss doctrine is a well-established and prudent principle that “a party may not intentionally turn a blind eye in order to avoid application of the known loss doctrine.” Gen. Housewares, 741 N.E.2d at 414 n.3. In other words, the application of this doctrine—or the declination to apply it—should not encourage would-be insureds to bury their heads in the proverbial sand. That would be bad public policy, indeed.

In Sandra Akiwumi v. Eric Akiwumi, invloving a pro se appellant, Judge Crone wrrites:
Sandra Akiwumi (“Mother”) appeals the trial court’s order finding her in contempt for denying Eric Akiwumi (“Father”) parenting time with their son and failing to notify Father of her new employer’s name, address, and phone number. Mother also appeals the trial court’s award of attorney fees to Father. She argues that she was denied due process because she was not afforded a full opportunity to be heard. She also argues that the evidence is insufficient to support the trial court’s contempt findings and that the trial court abused its discretion in ordering her to pay attorney fees. We conclude that Mother was not denied due process, that there is sufficient evidence to support the contempt findings, and that she waived her challenge regarding attorney fees. Accordingly, we affirm.
In Chad Folkening, DSL.Com, Inc. and eCorp, v. Megan Van Petten n/k/a Megan Van Petten Walton, a 10-page, 2-1 opinion, Judge Crone concludes:
Based on the foregoing, we affirm the trial court’s conclusion that the ten-year limitation period of Indiana Code Section 34-11-2-11 applies and therefore affirm its judgment in favor of Van Petten. Affirmed.

MATHIAS, J., concurs.
RILEY, J., dissents with opinion. [that begins, a p. 10] I respectfully disagree with the majority’s reasoning to affirm the trial court’s “conclusion that the ten-year limitation period of Indiana Code [s]ection 34-11-2-11 applies” rather than the six-year statute of limitation of I.C. § 34-11-2-9, which is imposed on written contracts for the payment of money.

In In Re: The Marriage of Helen Fisher v. Ronald Fisher, a 10-page opinion, Judge Robb writes:
Following dissolution of the marriage of Helen Fisher and Ronald Fisher, Helen appeals the trial court’s division of property. Helen raises the following issues for our review: (1) whether the trial court abused its discretion in valuing and distributing an IRA account; and (2) whether the trial court abused its discretion by declining to deviate from the presumptive fifty-fifty split of marital assets. Concluding the trial court erred in its valuation and distribution of the IRA, but that the trial court did not abuse its discretion by dividing the marital assets evenly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
In Preferred Professional Ins. Co., and Hills Ins. Co. Inc., v. Crystal West, William West, and Ind. Dept. of Ins., Patient's Comp. Fund, a 31-page opinion, including a concurring opinion, Judge Kirsch concludes:
We affirm the Marion County trial court’s determination that the Wests’ allegations constitute claims of common law negligence, not medical malpractice, and thus do not fall within the MMA. Accordingly, its grant of summary judgment in favor of the Wests and PCF was not erroneous. Affirmed.

BAKER, J., concurs.
ROBB, J., concurs in result with separate opinion. [that begins, at p. 30] I respectfully concur in the result reached by the majority. I, too, agree that the Wests’ claims do not fall within the MMA and therefore the trial court properly granted summary judgment to the Wests and PCF. However, I would arrive at that conclusion by a slightly different path.

In In the Matter of the Civil Commitment of W.S. v. Eskenazi Health, Midtown Community Mental Health, a 12-page opinion, Judge Crone writes:
W.S. appeals the trial court’s order on review of his regular mental health commitment. W.S. has been involuntarily committed to Eskenazi Health, Midtown Community Mental Health (“Midtown”) pursuant to a regular commitment since March 2009. Following a hearing upon W.S.’s petition for review, the trial court determined that W.S. is mentally ill and gravely disabled and should remain under a regular commitment at Midtown for a period of time expected to exceed ninety days. The court’s order provided, as a condition of the regular commitment, that W.S. take all medication as prescribed. W.S. argues that the trial court’s order is not supported by clear and convincing evidence. Finding clear and convincing evidence that W.S. is mentally ill and gravely disabled but that the trial court should hear additional evidence regarding the portion of the order regarding medication, we affirm and remand for further hearing.
NFP civil opinions today (6):

Dennis Wright v. Lacabreah Community Association, Inc. (NFP)

F.I.P., Llc., Todd Finner, and Scott Finner v. Nick Petrovski (NFP)

J.H. v. J.N. (NFP)

In Re the Paternity of A.C-F., J.F. v. T.C. (NFP)

In the Matter of the Term. of the Parent-Child Relationship of K.B., and J.B. Father v. Ind. Dept. of Child Services (NFP)

State of Indiana and Indiana Department of Correction v. Ray Miles (NFP) - "The State appeals the Madison Circuit Court’s order determining that Ray Miles (“Miles”) is not required to register as a sex offender for his lifetime. We affirm."

NFP criminal opinions today (9):

William Temple v. New Castle Correctional Facility (NFP) - "The Henry Circuit Court failed to follow this Court’s explicit instructions to transfer this cause to the Marion Superior Court. Instead, on July 21, 2014, the trial court denied Temple’s petition and granted summary disposition to New Castle Correctional Facility. Inasmuch as the trial court failed to follow this Court’s instructions on remand, we again reverse and remand with the same instructions."

Djuan Faceson v. State of Indiana (NFP)

Donielle Sims v. State of Indiana (NFP)

Jeremy Dallas Jenkins v. State of Indiana (NFP)

Omobea Kotea Miller v. State of Indiana (NFP)

Thomas D. Dillman v. State of Indiana (NFP)

Orley D. Yarber v. State of Indiana (NFP)

Jeffrey C. Buzzard v. State of Indiana (NFP)

James W. Hamilton v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on "In Spencer County, more than $200,000 worth of public records were copied without payment"

Updating this ILB post from Dec. 10th, the ILB has received a copy of a ND Ind. order from Dec. 4, 2013 in a similar case, also involving LPS Real Estate Data Solutions, and another Indiana county, St. Joseph.

Here, in an order denying a motion for judgment on the pleadings, LPS unsuccessfully contended that St. Joseph County cannot have it both ways:

On November 24, 2011, Defendant LPS Real Estate Data Solutions Inc. (“LPS”) entered into an Agreement with the Recorder, whereby they agreed to pay a monthly access fee in order to access and abstract documents from the Recorder’s databases. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement is attached to the complaint as an exhibit. [DE 29-1]. Under the Agreement, LPS paid a $500 monthly fee for unlimited access to the Laredo system. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement also contained a clause stating that “[c]opies of documents made from the Laredo system shall be charged $1.00 per page as per statute.” [DE 29-1 ¶ 8A].

St. Joseph County alleges that in March 2013, it discovered that LPS downloaded 42,606 documents or 191,924 pages from the Laredo system without paying for the copies. [DE 29 ¶ 10]. Though LPS had presumably paid its monthly access fees as called for in the Agreement, St. Joseph County alleges that LPS breached the Agreement by failing to pay an additional $1.00 per page copy fee for documents it downloaded from the Laredo system. [DE 29 ¶ 11]. St. Joseph County accordingly initiated this action on May 13, 2013 by filing a complaint against LPS Real Estate Data Solutions, Inc., and LPS Applied Analytics LLC. [DE 1].

From the Court's discussion:
The parties’ dispute centers around the extent of the Recorder’s authority to charge fees relating to its provision of enhanced access to its public records. “As an additional means of inspecting and copying public records,” Indiana law authorizes any local public agency to “provide enhanced access to public records maintained by the public agency.” Ind. Code § 5-14- 3-3.6(b). Enhanced access is defined as the “inspection” of a public record by anyone other than the governmental entity and that “(1) is by means of an electronic device other than an electronic device provided by a public agency in the office of the public agency; or (2) requires the compilation or creation of a list or report that does not result in the permanent electronic storage of the information.” Id. § 5-14-3-2(f). The public agency may fulfill its duty of enhanced public access by “enter[ing] into a contract with a third party under which the public agency provides enhanced access to the person through the third party’s computer gateway or otherwise . . . .” Id. § 5-14-3-3.6(c)(2). If the agency contracts with a third party to provide the enhanced access, it may charge the individual receiving access a “reasonable fee to either the third party to a contract or to the public agency, or both.” Id. § 5-14-3-3.6(e). The statute does not specifically define “reasonable.” * * *

[T]he Court simply cannot conclude at the pleading stage, without any factual development, whether the fees the Recorder seeks to collect would be reasonable. Reasonableness is by its nature a fact-intensive inquiry, and without any information as to the actual cost to the Recorder of providing the services at issue or the prices it charges other consumers for those same services, and without any case law interpreting the boundaries of reasonableness in this context, judgment on the pleadings is not warranted on this basis. * * *

St. Joseph County invokes several other sources for the Recorder’s authority to collect the fees at issue, but neither properly applies. It suggests that the statute governing the fees a county recorder must charge requires the Recorder to charge $1 for each of the copies at issue. The specific provision requires a recorder to charge: “[o]ne dollar ($1) per page not larger than eight and one-half (8 1/2) inches by fourteen (14) inches for furnishing copies of records and two dollars ($2) per page that is larger than eight and one-half (8 1/2) inches by fourteen (14) inches.” Id. § 36-2-7-10(b)(5). However, by referencing page sizes, this provision plainly applies to paper copies of records that the Recorder “furnish[es],” not to the electronic copies at issue here, so this provision does not independently justify the fees in question. * * *

In conclusion, the Recorder is authorized to charge a reasonable fee for the enhanced access services it provided to LPS. However, the Court cannot conclude on the basis of only the pleadings whether the fees at issue are reasonable. Therefore, the Court cannot conclude that the Agreement’s incorporation of Indiana law prohibits such charges or that the Agreement is void as ultra vires. Accordingly, LPS’ motion for judgment on the pleadings is DENIED.

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Indiana Government

Ind. Gov't. - "Non-compliant state child services agency seeks analysis of standards"

The Indiana Economic Digest has now posted Chelsea Schneider's lengthy Sunday story from the Evansville C&P. It begins:

INDIANAPOLIS - The Indiana Department of Child Services’ failure to meet a state law aimed at limiting the workloads of its family case managers led the agency to be in non-compliance in Vanderburgh County and most of the state.

DCS officials revealed the agency lacked the staffing required to meet the standard in all but one of its 19 regions when presenting to a committee of state fiscal leaders in preparation of the Indiana General Assembly crafting a new, biennium state budget in 2015.

But DCS is not asking the state for more funding to hire more family case managers. Instead, they plan to launch an analysis of the workload standard to see if the current state law is realistic.

“The goal is not to keep throwing positions out there without at some point conducting a reassessment where we can improve processes, shift administrative functions, where we can leverage technology more effectively,” said Doris Tolliver, DCS chief of staff.

To comply with the law, at least 77 additional case managers are needed statewide, Tolliver said. Vanderburgh County would require approximately 10 more case managers, with Warrick County needing approximately four additional case managers, according to agency figures for last fiscal year.

DCS determines whether a region is complying with the law using a monthly average of cases handled by family case managers. Under the law, family case managers in a given region should not average more than 12 new cases or 17 ongoing cases. The law enacted in 2007 follows a national standard.

The news caught the highest ranking Indiana Senate Democrat off guard. Senate Democratic Leader Tim Lanane, who wrote a letter to Gov. Mike Pence regarding DCS’ non-compliance with the law, said the agency planning to launch a study wasn’t a “very satisfactory answer.”

“We certainly wouldn’t say to our citizens ‘Well, it’s optional for you to follow the law and you can take a look at how we ought to change this law as an excuse for not doing that,’” Lanane said.

The state, Lanane said, should tap into its $2 billion budget surplus to fund the 77 family case managers.

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Indiana Government

Law - "Linking To Briefs To Develop Business"

Reasons why your firm should have a publicly accessible appellate brief bank are spelled out in this Above the Law article by Mark Herrmann. Links to several brief banks, including Winston & Strawn and Jones Day. Some of the comments to the post are also worth reading. such as:

I whole-heartedly agree. First, almost all of our stuff is public anyway -- if they want to see your briefs as a template, they can just go to PACER and get it, so there's little use in trying to "protect" it. Second, it's rare that an issue is so cookie-cutter that upon seeing it the client will say they have no further use for you. More likely they will want to retain the expert litigator to apply that knowledge to their circumstances.

Moreover, a brief isn't some million-dollar idea --it's a commodity that's already been used and paid for, so by sharing it as a business-development tool, you're potentially reaping a benefit from something that someone else has already paid you for.

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to General Law Related

Ind. Courts - "Trial postponed in alleged Facebook threats case"

Interesting story by Steven Porter in the Lafayette Journal & Courier. Some quotes:

A federal jury trial that had been scheduled to begin this week in the case of a Pine Village man who allegedly made death threats against two cops and two judges on Facebook was postponed another five months. * * *

Defense attorney Ashwin Cattamanchi requested the delay in order to have more time to prepare for trial and explore possible guilty plea agreements, court documents state. He also requested that Bradbury be granted access to the law library at the Lake County Jail where he's being held.

Studying up on the law would enable Bradbury to obtain "a better understanding of the legal aspects of his case and to assist counsel in his defense," Cattamanchi wrote.

U.S. Magistrate Judge Andrew Rodovich denied the request, however, ruling Dec. 9 that Bradbury "does not have a constitutional right to access a law library once he has been provided with competent legal counsel." * * *

Bradbury is accused of threatening to "blow the Tippecanoe County Courthouse to pieces," but he and his supporters have argued that the inflammatory language he used was mere "satire."

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Ind Fed D.Ct. Decisions

Stage Collapse - "Cincinnati girl hurt at state fair challenges Indiana damages cap"

Yesterday oral argument was heard before a Court of Appeals panel in J.P., et al, v. Mid-American Sound, et al. Oddly, there was no live videocast of the argument. The ILB has been told by the COA representative that the videocast soon will be made available via the court's archive at the same link. As of this writing, it has not yet been uploaded. There is, however, some press coverage of the argument.

From the AP, this story - a few quotes:

The teen's attorney, Robert Peck, argued the cap on total damages from a single incident means people are unconstitutionally denied equal treatment, WIBC and WISH reported. He said that if she had suffered the same injury but had been the only casualty, she could have sought up to the $700,000 in individual damages.

"The court understands the issues," Peck said after the hearing. "It's now in their hands." * * *

Because the maximum amount of money approved under state law already had been paid, Marion County Judge Theodore Sosin ruled in March that the cap is constitutional and the state and other defendants were not liable to pay Jordyn's claims. Her appeal of that ruling was the basis for Monday's oral arguments.

Judges questioned whether the cap violates the law requiring open access to courts. Once the teen turned down the settlement, there was no money left for her to sue for.

Fisher argued Jordyn's offer was equal to everyone else who did not suffer serious permanent injuries: 65 percent of her medical bills, with no compensation for emotional distress. He argued the Indiana Supreme Court has explicitly given legislators the power to limit the state's liability, to ensure a catastrophic incident doesn't bankrupt the treasury.

From a WRTV6/WIBC story by Eric Berman:
Indiana law limits what a person can collect in damages from the state to $700,000. Attorney Robert Peck isn't challenging that cap. But Peck argues a $5 million cap on the total the state can pay out in a single incident means people are unconstitutionally denied equal treatment. He notes if Jordyn had suffered the same injury but had been the only casualty, she could have sought up to the $700,000 maximum. Instead, the state offered $1,700 as her share of the $5 million pool.

Solicitor General Tom Fisher argues Jordyn's offer was equal to everyone else who didn't suffer serious permanent injuries: 65 percent of her medical bills, with no compensation for emotional distress. He argues the Indiana Supreme Court has explicitly given legislators the power to limit the state's liability, to ensure a catastrophic incident doesn't bankrupt the treasury.

Judges questioned whether the cap instead runs afoul of the law requiring open access to courts. Once Jordyn turned down the settlement, there wasn't any money left to sue for.

Jordyn was the only one of 65 victims eligible for the settlement to turn it down. Her mother and sister were seriously injured and accepted a $400,000 settlement. Legislators later approved a one-time increase in the money pool to $11 million to cover medical bills in full, but didn't allow any new recipients or claims.

Jill Disis of the Indianapolis Star has this story - some quotes:
The state on Monday defended the caps outlined by the Tort Claims Act, saying it had already made an offer to Polet and had paid out the maximum amount to the other victims.

That argument was a success in Marion Superior Court earlier this year, when a judge ruled in favor of the state.

Arguing for the state Monday, Solicitor General Thomas Fisher said government officials worked to create compensation amounts that were as fair as possible.

“Not everyone is going to get the full value of what their claim is worth,” Fisher argued before the three-judge appellate court panel. “We’re not setting out on this to be unfair and arbitrary.”

Under current Indiana law, the liability of government entities is limited to $700,000 per victim. But in an event involving multiple deaths or other injuries, the liability is capped at a combined total of $5 million.

“We have no problem with the individual cap,” Peck said. “What we are questioning is how that operates given that the aggregate cap then destroys the claims of those who have just been injured catastrophically with others.”

In a statement released after oral arguments, Attorney General Greg Zoeller defended the cap.

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Stage Collapse

Ind. Courts - Former Marion attorney turns himself in on warrant

Karla Bowsher has a story today in the Marion Chronicle-Tribune, but it is $$$ and all we can read is the snippet:

A former Marion attorney who resigned last year amid misconduct charges was arrested Sunday on suspicion of forgery and check fraud, jail records show.

Shane Beal, 43, turned himself in to the Grant County Sheriff's Department after a warrant was issued in connection with one felony forgery and two counts of check fraud, Sheriff's Sgt. Eric Fields said. Grant County Prosecutor Jim Luttrull Jr. could not immediately be reached for comment late Monday.

ILB: I looked up Mr. Beal in the Roll of Attorneys. He resigned from the Indiana bar on 8-14-2013. The Roll lists 18 concluded disciplinary cases for Mr. Beal.

In addition, the ILB located a Court of Appeals opinion from May 7, 2014 that begins:

Appellant-Defendant, Shane Beal (Beal), appeals the trial court’s denial of his motion for summary judgment, concluding that a genuine issue of material fact exist as to whether Beal’s representation of Appellee-Plaintiff, Edwin Blinn, Jr. (Blinn), in a federal criminal case constituted legal malpractice. We affirm.
The case is Beal, Shane, et al. v. Blinn, Edwin Jr., trans. pending.

Posted by Marcia Oddi on Tuesday, December 16, 2014
Posted to Indiana Courts

Monday, December 15, 2014

Ind. Decisions - A Lot of Law on the Way? Ten Opinion Days Remain in 2014

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

There are fancy clocks counting down the shopping days until Christmas, but for many appellate lawyers this time of year brings thoughts of a gift in the form of one or more opinions from the Indiana Court of Appeals. As explained in a post written about this time last year, the Court’s general desire to move cases quickly, coupled with its reporting on a calendar year basis, have generally meant that many opinions are issued near the end of the year.

That post and one written at the end of the year cataloged the number of opinions issued in the last five days of the year for the past several years.

For the past two years the average age of pending cases at year’s end has been just one month (literally 1.0). Therefore, expect a serious effort to decide many of the cases pending for more than a few months. Because a long delay in deciding a case may be caused by the three-judge panel working through a novel issue or one or two judges writing concurring or dissenting opinions, several of these opinions will likely be issued as for-publication opinions.

The Court has issued 2,027 opinions (as posted on its website, which includes rehearing opinions) so far this year. The comparable number was 2,103 last year, which might mean 2014 marks the first year-over-year increase in opinions after several years of declining numbers.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Schumm - Commentary

Ind. Decisions - More on "In vitro case ruled fit for trial: Diocese arguments rejected"

Updating a long list of earlier ILB entries on the Emily Herx lawsuit, including this one from Dec. 2nd, Rebecca S. Green of the Fort Wayne Journal Gazette, who has been covering this lawsuit from the beginning, reported Sunday, Dec. 14th, in a lengthy, great story headed "Jury's call: Did diocese discriminate against teacher?" that begins:

It’s come down to this: a federal court showdown between a former Catholic school teacher and the local diocese the week before Christmas.

For more than two years, the case of Emily Herx versus the Fort Wayne-South Bend Catholic Diocese has been winding its way through the legal channels of the U.S. civil courts – from the District Court in Fort Wayne to the 7th Circuit Court of Appeals in Chicago and back down again.

Earlier this month, the federal court of appeals cast aside the last attempt by the diocese to keep the case from going to a jury, bringing the former language arts teacher and the local bishop to an expansive federal courtroom on South Harrison Street.

At issue is whether diocesan officials discriminated against Herx in the spring of 2011, when they declined to renew her contract at St. Vincent de Paul School after she informed them she was undergoing in vitro fertilization treatments to conceive a baby.

Herx contends similarly situated male teachers, caught doing something the church views as immoral, would get to keep, and have kept, their jobs. Diocesan officials argue she violated the terms of her contract by undergoing the treatment, failing to conduct herself at all times in accordance with the teachings of the Catholic church.

So over what is predicted to be about five days, beginning Tuesday, area men and women will sit and listen to arguments and evidence, all in order to decide whether the largest religious institution in the area legally wronged a woman for trying to have a baby by means contrary to Catholic teaching.

That just gives a sample, read the whole story.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - SBT exit interview with St. Joe Prosecutor Michael Dvorak

Virginia Black of the South Bend Tribune has this long story today. Some quotes from a long, must read story:

as Dvorak prepares to leave the 10th floor space -- he announced earlier this year he would not run for a third term, and Chief Deputy Ken Cotter won the seat in November -- the office is considerably different than he found it in 2003.

The former state legislator and defense attorney has led the local criminal justice system through unprecedented changes in technology, for instance. We take for granted digital photos and recordings and cell phone GPS tracking now, but police, prosecutors and judges were forced to wrangle with the science as they began to enter courtrooms as evidence over the last decade.

Dvorak inherited the Metro Homicide Unit, originally created by former Prosecutor Michael Barnes in the early 1990s after Barnes did not file charges in the triple homicide Osco murders because of what he perceived as inadequate police work. Dvorak used that model of combining officers from the county, Mishawaka and South Bend police departments into one specialized crime-fighting unit to add the county-wide Special Victims Unit and the Fatal Alcohol Crash Team.

The units are so successful that he says Lake County officials have recently asked to visit so that they might set up a similar system.

Crimes against women and children are still harder to prove than other crimes, he acknowledges, despite the success of the SVU.

"The shocking part to me has been when you're in the courtroom and you poll jurors (during voir dire), how many jurors — 30, 40, 50, 60 years old — were victimized or know a victim? And you ask, 'Did you report it?' 'No,'" the prosecutor says. "So what's going on now in our community is maybe our numbers go up, does that mean we've got more problems? No, it means the community has greater confidence that something might be able to be prosecuted."

A prosecutor's decisions are often unpopular. Over the years, for instance, YWCA CEO Linda Baechle has accused his office of not prioritizing sex and domestic violence cases. During all three elections, whose outcomes Dvorak never took for granted, he bristled over such topics as conviction and plea agreement rates.

Conviction rates are difficult to measure, he says, because if they're high, it might be that a prosecutor is taking only sure wins to court, not merely that the staff is skilled.

During his time as prosecutor, he has fired a couple of deputies over big mistakes, but he has also seen several move into judges' seats. He says he feels privileged to have worked with a dedicated staff "to work for government wages and to give their best effort to really do well."

Through it all, he has taken exception to media coverage in an age where reporters are often forced to simplify fine points of law and complicated cases, and anonymous people can post withering and uninformed attacks on websites and social media. But to his credit, and unlike some other prosecutors in the area, he has been unusually responsive to media questions.

"We're kept on our toes by the silent footsteps of the media behind us, as we should be. And part and parcel of that is the media are going to get it wrong, and they're going to criticize us unfairly," Dvorak says. "That's all part of the imperfect system."

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Indiana Courts

Ind. Gov't. - "Public Access Counselor to City Council: Be careful when calling caucuses" [Updated]

That is the headline to this Dec. 14th story in the Evansville Courier & Press by John Martin. ILB readers don't learn much news out of Evansville anymore because the C&P is behind a total paywall. The snippit which is available reads:

EVANSVILLE - The Indiana Public Access Counselor — responding to a complaint filed by the Courier & Press about a recent closed caucus involving Democrats on the Evansville City Council — implored the City Council to be more judicious when calling caucuses in the future.
The ILB has been able to locate the Nov. 21st PAC opinion - Re: Formal Complaint 14-FC-254; Alleged Violation(s) of the Open Door Law by Evansville City Council. The opinion reiterates that official action may not take place in a caucus. A quote from the ruling:
I often counsel governing bodies that caucuses are a slippery slope. While they may be necessary at times to truly discuss political strategy, they should be used judiciously. The frequency of caucuses will naturally differ from entity to entity, however, any closed door meetings are treated with scrutiny and rightfully so. Mr. Danks specifically references the appearance of impropriety. This should not be taken lightly.
[Updated 12-16-14] Today the Indiana Economic Digest has posted the full C&P article published yesterday.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Indiana Government

Ind. Courts - "LaPorte prosecutors sued for alleged eavesdropping"

That is the headline to Madeline Buckeley's long weekend story in the South Bend Tribune. Some quotes:

Arrested on suspicion of murder, LaPorte County resident John Larkin agreed to an interview with Long Beach police officers with his attorney present. The Long Beach man gave a statement, but then privately conferred with his attorney when police left the room.

Unbeknownst to both him and his attorney, police and prosecutors recorded the private conversation and later listened to it while building a case against the man, a recently filed lawsuit alleges. Larkin is currently charged with voluntary manslaughter in connection with the 2012 shooting death of his wife. He says the shooting was in self-defense.

Court records show prosecutors listened to 12 minutes of conversation between Larkin and his attorney in what the lawsuit alleges was a violation of attorney-client privilege, as well as state and federal law.

The lawsuit accuses the LaPorte County prosecutor's office of eavesdropping on conversations between defendants and attorneys that take place at police stations or the county jail, noting at least one other example.

"It is a very egregious situation that should be addressed," said Chicago attorney Gregory E. Kulis, who filed the civil rights complaint on behalf of Larkin.

Prosecutors in March charged Brian J. Taylor with murder in the shooting death of a 24-year-old woman. Court documents show that Taylor told his attorney where he disposed of the gun during what they believed was a private conference at the police station. Police listened to the conversation and retrieved the gun.

Taylor's lawyers challenged the issue, and the Indiana Court of Appeals is hearing the case in a rare interlocutory appeal, which means the court takes the case before it is adjudicated. Taylor was released from jail while his appeal progresses.

The attorneys handling Larkin's criminal case are hoping for the same result, as they are asking the appeals court to hear the case while it is pending in LaPorte Circuit Court.

In the petition to the appeals court that alleges misconduct, Larkin's attorneys ask the court to grant a motion that LaPorte Superior Court Judge Kathleen Lang previously denied: to disqualify LaPorte County prosecutors from handling the case.

"They can't legally or ethically prosecute this case after listening to privileged material," said Chicago lawyer Michael Ettinger, one of Larkin's defense attorneys. * * *

Court records show deputy prosecutor Robert Neary said in court he listened to the recording, as well as Prosecutor Bob Szilagyi, deputy prosecutor Kristen Armstrong and an intern, Stephen Wicks. Armstrong later denied listening to the recording, though the defense's petition to the appeals court said her signature was on a document that contained a transcript of the 12-minute conversation.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Indiana Courts

Ind. Courts - More on "Judicial Qualifications Commission files charges against Muncie City Court Judge" [Updated]

Updating this ILB post from Dec. 11, which included a link to the 31-page charging document, the Supreme Court public information officer announced this morning:

Today, the Judicial Qualifications Commission filed a petition with the Supreme Court asking that Judge Bennington be suspended.
The ILB has now posted the 11-page memo in support of the Commission's petition for interim suspension, which cites "a pervasive pattern of injudicious public conduct which has escalated during the Commission's investigation."

[Updated at 12:33 PM] Here is the new Muncie Star-Press story on the latest action.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Indiana Courts

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

For publication opinions today (1):

In Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., et. al., a 4-page, 2-1 opinion on a petition for rehearing, Judge Robb concludes:

On rehearing, the appellees all contend that because Roncelli posted a bond to release the lien on the real estate that provided for payment of any judgment recovered “including costs and attorney’s fees allowed by the court,” Ind. Code § 32-28-3-11(b), they are entitled to recover attorney fees against the bond. Notably, none of the appellees argue Goodrich, as an owner of the property, is liable for their attorney fees. And they all agree their original claim to fees was based solely on the mechanic’s lien statute which, as we held previously, applies only to property owners. Although Roncelli’s undertaking assures payment of any judgment plus costs and fees allowed by the court, it does not give the appellees greater rights or impose greater liability on Roncelli than the underlying obligation. Because Roncelli is not an owner of the property or the structure, it is not liable for attorney fees under the mechanic’s lien statute and cannot be liable for them under the bond. We therefore re-affirm our previous decision that the trial court erred in awarding attorney fees to the appellees.

BRADFORD, J., concurs.
RILEY, J., would deny rehearing.

NFP civil opinions today (1):

Warren Lee v. Becky Lee (NFP)

NFP criminal opinions today (2):

Ryan Lady v. State of Indiana (NFP)

Yansie g. Norment v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Ind. App.Ct. Decisions

Stage Collapse - "Appeals panel to weigh constitutionality of Indiana’s tort claim cap"

As listed in the ILB's earlier post today, the Court of Appeals will hear oral argument at 1:30 in the case of J.P., et al v. Mid-American Sound, et al.

Troy Kehoe of WISHTV has just posted this story - some quotes:

INDIANAPOLIS (WISH) – One of the victims hurt in the 2011 Indiana State Fair stage collapse will ask a state appeals court Monday to declare the state’s cap on damage payments unconstitutional.

Attorneys for Jordyn Polet of Cincinnati plan to argue that the self-imposed cap does not allow all victims to be paid equally, and has resulted in the denial of the right for Polet and other plaintiffs to seek the amount of financial damages they see fit.

Polet, who was 10-years-old at the time of the collapse, sustained leg and ankle injuries during the collapse, and suffers from post-traumatic stress disorder, according to court documents. Her sister Jaymie and mother Jill sustained much more serious injuries, and their family friend Megan Toothman later died from injuries sustained during the collapse.

Indiana’s Tort Claims Act sets the maximum total payout to victims from a single event at $5 million. That money was paid to 62 victims. In late 2012, state legislators also allocated an additional $6 million in supplemental relief to 59 victims, bringing the state’s total payout to State Fair victims to $11 million in public funds.

Jordyn Polet elected not to settle, suing the state instead, and was not paid as part of the $11 million allocated to victims. Because the maximum amount of money approved by the Tort Claims Act has already been paid, Marion County Judge Theodore Sosin ruled that the State and other defendants are not liable to pay her claims.

Polet’s attorneys will appeal that ruling Monday.

“The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law. The State’s decision to disperse the entire $5 million available under the cap to other victims of the Indiana State Fair stage collapse and then pay Ms. Polet nothing also violates [her constitutional rights],” her attorneys wrote in a legal filing supporting their original motion.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Stage Collapse

Ind. Decisions - Transfer list for week ending December 12, 2014

Here is the Clerk's transfer list for the week ending Friday, December 12, 2014. It is one page (and 8 cases) long.

One transfer was granted last week, with opinion:

Among the cases denied transfer last week was White County Board of Commissioners v. Y.M.C.A. Camp Tecumseh, Inc. - see this Dec. 12 ILB post for details.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Indiana Transfer Lists

Ind. Gov't. - "State Board of Accounts audit rips Beverly Shores record keeping"

That is the headline to this Dec. 9th Chesterton Tribune story by Jeff Schultz. It begins:

An audit released on Dec. 2 by the Indiana State Board of Accounts requests that Beverly Shores Clerk-Treasurer Laura Sullivan pay back to the Town a total of $6,696.91 for penalties, interest and late fees she is responsible for since taking office nearly three years ago.

The report asked that Sullivan reimburse $4,873.95 for penalties, late fees and interest to the Internal Revenue Service incurred in 2012 and 2013 from late payments and late filings of federal withholding taxes. With that are charges of $1,313.82 for late payments of state withholding taxes and $458.14 for late payments to the Indiana Department of Workforce Development.

Town officials and employees like the clerk-treasurer are to pay claims and remit taxes in a timely fashion, according to the report.

The report has been forwarded to the Indiana General Attorney’s office and the Porter County Prosecutor.

The Town on multiple occasions was informed by legal notice that a tax warrant was issued for failure to pay taxes due, the audit said. It has paid $6,645.91 total in penalties, interest and late fees for failure to deposit state and federal taxes on time, the audit said, and Sullivan is to pay back the amounts out of her pocket.

State examiner Paul D. Joyce, in a letter town officials dated Sept. 29, 2014, said that audit found that accurate accounting records were not maintained and because bank reconcilements were not performed with cash recorded in accounting records, there was no way to verify a cash balance.

From the end of the long story detailing the failures:
[Town Council President Geof Benson] told the Chesterton Tribune that the Town Council was aware of the problems with [Laura] Sullivan and the discrepancies in the audit, which is done by the SBA every two years, came as no surprise. Concerns about Sullivan’s performance had been brought up regularly by town officials and residents, Benson said, but Sullivan is an elected official and therefore could not be dismissed by the Town Council.

Sullivan could not be reached for comment on Monday.

Sullivan took office after her victory in 2011 over independent candidate Gail Saum, by 71.5 to 28.5 percent margin. A Chesterton Tribune article from that time quotes Sullivan saying her goals were to improve services to Town residents with new electronic and online technology.

A press release sent by the Porter County Democrats last week said that Sullivan will be resigning on Dec. 31 “to pursue other endeavors.” Democrat Jon L. Voelz has been appointed to take over Sullivan’s term effective Jan. 1 for what would have been the last remaining year of her term.

In the Dems’ press release, Voelz is identified as part-time clerk of the Violations Bureau.

On Sunday, Dec. 12th, columnist David Rutter of the Gary Post-Tribune had a story about the debacle. A few quotes:
Laura Sullivan was swept into office on the crest of a 2011 populist landslide. The people of Beverly Shores spoke, and what Sullivan was selling, the people were buying.

Modern efficiency, sound bookkeeping, integrity, goodness and no more smoking in the town hall. Yes, Sullivan would change everything. And about time, too, she said. * * *

Six hundred souls live in Beverly Shores in 340 domiciles, many of them vacation and part-time abodes at the shore. Quiet prevails. Noise is illegal, as is sex on the beach.

But there’s virtually nothing about Beverly Shores that explains Sullivan, or what she did, or how she did it, or why no one stopped her or, well, anything. Her torturous assault on the town’s bookkeeping is the stuff of fiduciary legend.

Here’s the abridged version: She messed up the village books so badly in three years that no one — even state auditors whose job is to untangle such knots — could tell what happened or how deep the chasm is.

Is the money gone? Or maybe it’s in the wrong bank account or perhaps stuffed in a motel mattress somewhere? No one quite knows.

Ever since 2011, Sullivan did almost nothing that any municipal clerk-treasurer does — balance checkbooks, reconcile bank deposits, make sure money is sent to the right places, abide by fiscal rules, pay the electric bill, funnel payroll taxes to the state and feds.

It was not that she did these tasks inefficiently. She apparently did not do them at all.

At the least, the state told her to repay $6,500 or so to cover IRS delinquencies and fines while the village tries to figure out the size of the financial our pickle it has been bequeathed. Town officials said they saw the big sour financial glacier crashing down but could not run fast enough to escape it, or her. * * *

Why Beverly Shores thought Sullivan was a good candidate is open to debate. Why she thought so is equally opaque.

Folks perhaps didn’t know she lost her right to practice law in 2006. She was accused of leaving multiple bankruptcy clients dangling over the abyss for years.

Sullivan allegedly ignored paperwork, meetings, deadlines and letting her clients know how far up the financial creek they were going to sail. Sounds familiar.

Her defense? I’m really sorry, and I did the best I could.

She also told the Indiana Supreme Court Disciplinary Committee, which banished her for at least 90 days without automatic reinstatement, that it wasn’t all her fault because she was suffering from an “acute illness.”

Sullivan presented no evidence that she was ill.

She abstained from the same defense this time. This time it was just a glacier-sized sour pickle and math that never added up.

At the end, she was sorry as heck. It was the best she could do.

ILB: Here is Ms. Sullivan's listing in the Indiana Roll of Attorneys, indicating she is suspended. Here is the July 18, 2006 order of the Supreme Court. You may access the 39-page, 2013 Beverly Shores audit report (Porter County) from this ISBOA database.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Indiana Government

Ind. Gov't. - "The share of state support in university budgets continues to decline"

A good editorial this weekend in the Fort Wayne Journal Gazette this weekend points out the ramifications. A sample:

Since 2008, Indiana’s per-student appropriation for its public universities has fallen by 13.5 percent, from $5,132 per student to $4,442. In addition, Gov. Mike Pence’s administration has placed further pressure on universities, demanding funding cuts to help build the state’s reserves.

To their credit, some lawmakers seem to understand the connection between declining state support and tuition increases. In a meeting at IPFW in August, Senate Budget Committee chairman Luke Kenley, R-Noblesville, said he was concerned that major cuts to university funding would prompt the schools to seek more money from students.

That certainly has been one effect. Another, particularly at the flagship Indiana and Purdue campuses, has been to enroll more students from abroad and from out of state. Paying full tuition rates, they help subsidize costs for Indiana students receiving in-state tuition.

In a sort of can’t-win scenario, IU and Purdue are catching heat from lawmakers who complain they aren’t serving enough students from Indiana. Forty-three percent of IU-Bloomington’s freshman class this year come from overseas or out of state; 44 percent of Purdue’s undergraduate enrollment is international students or from outside Indiana.

Posted by Marcia Oddi on Monday, December 15, 2014
Posted to Indiana Government

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

From Sunday, December 14, 2014:

From Saturday, December 13, 2014:

From Friday afternoon, December 12, 2014:

Posted by Marcia Oddi on Monday, December 15, 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 12/15/14):

Thursday, Dec. 18

Next week's oral arguments before the Supreme Court (week of 12/22/14):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/15/14):

Monday, December 15

Tuesday, December 16

Next week's oral arguments before the Court of Appeals (week of 12/22/14):

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, December 15, 2014
Posted to Upcoming Oral Arguments

Saturday, December 13, 2014

Ind. Decisions - More on: Fed. District Court grants PPINK summary judgment on its equal protection claims re statutory abortion clinics requirements

Updating this ILB post from Dec. 4th, Steven Porter of the Lafayette Journal-Courier reports today on what happens next, in a story headed "Abortion clinic lawsuit unsettled." Some quotes:

New developments are expected next week in a challenge to Indiana’s abortion regulations.

Although no final judgment has been issued in the case, a federal judge sided with Planned Parenthood earlier this month, calling the two abortion laws at issue “irrational” and unconstitutional.

Attorneys for both sides are scheduled to discuss Monday whether they wish to proceed to trial next year.

“We are reviewing the state of the law to determine whether, in our opinion, the case should be final now, since we did win on the one claim,” said Kenneth Falk, legal director for the American Civil Liberties Union of Indiana, who’s representing Planned Parenthood in its suit.

U.S. District Judge Jane Magnus-Stinson wrote Dec. 3 that the state has no rational basis to impose one set of regulations on an “abortion clinic” and a different set of regulations on a “physician’s office” that provides the same services.

She noted that the Planned Parenthood clinic in Lafayette is a “prime example” of the ambiguity between the two classifications, since it employs a part-time physician and primarily dispenses birth control medication, not abortion-inducing drugs.

Magnus-Stinson wrote that the Indiana statutes in question clearly violate the the U.S. Constitution’s guarantee of equal protection under the law, but she denied the ACLU’s second argument.

Falk explained that his team made two parallel arguments in its motion for summary judgment. One cited equal protection; the other cited due process. Both claimed the new abortion regulations were unconstitutional.

In denying the second argument, Magnus-Stinson didn’t rule for either side. She simply stated that both legal teams made solid points that could be assessed in trial. * * *

Throughout the legal wrangling, Lafayette’s clinic has remained open thanks to an injunction preventing the regulations from taking effect.

“For the foreseeable future, it’s business as usual,” said Tammy Weaver, communications director for Planned Parenthood of Indiana and Kentucky.

Posted by Marcia Oddi on Saturday, December 13, 2014
Posted to Ind Fed D.Ct. Decisions

Friday, December 12, 2014

Ind. Decisions - "Supreme Court makes decision in Camp Tecumseh case"

Oral argument was held Monday, Dec. 9th, in White County Board of Commissioners v. Y.M.C.A. Camp Tecumseh. The Supreme Court had not yet granted transfer at the time of the argument.

A look today, Dec. 12th, at the docket in the case reveals, in an entry dated Dec. 8th , but entered Dec. 10th:

THIS MATTER HAS COME BEFORE THE INDIANA SUPREME COURT ON A
PETITION TO TRANSFER JURISDICTION FOLLOWING THE ISSUANCE OF A
DECISION BY THE COURT OF APPEALS. THE PETITION WAS FILED
PURSUANT TO APPELLATE RULE 57. THE COURT HAS REVIEWED THE
DECISION OF THE COURT OF APPEALS. ANY RECORD ON APPEAL THAT WAS
SUBMITTED HAS BEEN MADE AVAILABLE TO THE COURT FOR REVIEW, ALONG
WITH ANY AND ALL BRIEFS THAT MAY HAVE BEEN FILED IN THE COURT
OF APPEALS AND ALL THE MATERIALS FILED IN CONNECTION WITH THE
REQUEST TO TRANSFER JURISDICTION. EACH PARTICIPATING MEMBER OF
THE COURT HAS VOTED ON THE PETITION. EACH PARTICIPATING MEMBER
HAS HAD THE OPPORTUNITY TO VOICE THAT JUSTICE'S VIEWS ON THE
CASE IN CONFERENCE WITH THE OTHER JUSTICES.

BEING DULY ADVISED, THE COURT NOW DENIES THE APPELLEE'S
PETITION TO TRANSFER OF JURISDICTION.

LORETTA H. RUSH, CHIEF JUSTICE
ALL JUSTICES CONCUR, EXCEPT FOR RUSH, C.J., AND DICKSON, J., WHO
VOTE TO GRANT THE PETITION TO TRANSFER.
(ORDER REC'D ON 12/10/14 @ 8:33 AM) ENTERED ON 12/10/14 AB

So, transfer was denied by a vote of 3-2, with the dissenters being C.J. Rush and J.Dickson. This means that the decision of the Court of Appeals panel stands. The COA had panel concluded:
Because Carroll County is not a county of preferred venue, the trial court erred by denying the motion for transfer of venue to White County. On remand, the Carroll Circuit Court is directed to grant the White County Board’s motion to transfer.
Holly Campbell of WLFI this afternoon had the first story the ILB has seen on the Supreme Court's action:
INDIANAPOLIS (WLFI) – The Indiana Supreme Court has ruled a lawsuit between a proposed hog farm and Camp Tecumseh will go forward in a White County court.

As News 18 previously reported, the camp sued following the decision of the White County Commissioners to allow the farm. The Carroll Circuit Court denied the Board’s request to transfer the case to White County. That decision was reversed by the Court of Appeals, making White County the preferred venue. The camp took the decision to the Indiana Supreme Court.

White County attorney George Loy told News 18 the court upheld the Court of Appeals decision late Wednesday night.

See this June 29, 2013 ILB post for background, as well as this long list of other entries.

Posted by Marcia Oddi on Friday, December 12, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Why is this decision today categorized as NFP?

The opinion is Thomas Birge v. State of Indiana (NFP), about which the ILB wrote earlier today:

Interesting 2-1 opinion where the dissent writes: "Pursuant to Indiana Code section 35-41-3-2(e), Birge was entitled to use reasonable force to defend his real and personal property."
The ILB asserts that this opinion should be For Publication for several reasons. It is a 2-1 split. It involves the question of when is the use of reasonable force to defend real and personal property justified, an issue of "unique interest or substantial public importance" that has been much discussed in the past several years.

Posted by Marcia Oddi on Friday, December 12, 2014
Posted to Why is this NFP?

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

For publication opinions today (1):

In Central Mutual Insurance Company v. Motorists Mutual Insurance Company, an 18-page opinion including a separate concurring opinion, Judge Brown writes:

Central Mutual Insurance Company (“Central”) appeals the trial court’s order denying its motion for partial summary judgment and granting the motion for partial summary judgment filed by Motorists Mutual Insurance Company (“Motorists”). Central raises one issue which we revise and restate as whether the court erred in entering partial summary judgment in favor of Motorists. We affirm. * * *

We agree with the analysis in Old Republic Ins. Co. and Langreck, and hold that Indiana’s Garage Liability Statute, like Indiana’s Lease Statute and Owner’s Statute, applies only to determine priority of coverages between insurance policies providing the same level of coverage. The Motorists Policy clearly states, and Central concedes, that its coverage is excess. Central also concedes that the Central Policy provides that its coverage is primary. Thus, we cannot say that both policies provided the same level of coverage or that a riddle has been presented which Ind. Code § 27-8-9-10 was intended to solve. Accordingly, we cannot say that the trial court erred in entering summary judgment in favor of Motorists.

For the foregoing reasons, we affirm the trial court’s grant of Motorists’ motion for summary judgment. Affirmed.

BRADFORD, J., concurs.
BARNES, J., concurs in result with separate opinion. [that begins, at p. 16] I fully concur in the result reached by my colleagues. However, I reach that result differently.

Primarily, unlike my colleagues, I do not place much reliance upon our decisions in Langreck and Old Republic. Those cases dealt specifically with the fundamental difference between true excess or umbrella insurance policies versus primary insurance policies that purport to be excess in limited situations. In Langreck, we discussed at length the particular hallmarks of umbrella insurance policies and how they differ from primary liability policies. See Langreck, 816 N.E.2d at 494-96. Ultimately, we held that, “in coverage priority disputes between a primary insurer that purports to be excess in limited circumstances and an insurer who issues a true excess or umbrella liability policy, the umbrella policy is always excess to the essentially primary policy,” regardless of statutory priority provisions for automobile liability policies. Id. at 498. Here, neither policy at issue is an umbrella policy. Both policies are essentially primary policies with limited “other insurance” or excess coverage clauses.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Jeremy K. Blue v. State of Indiana (NFP)

Thomas Birge v. State of Indiana (NFP) - Interesting 2-1 opinion where the dissent writes: "Pursuant to Indiana Code section 35-41-3-2(e), Birge was entitled to use reasonable force to defend his real and personal property."

Jerry Horton v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 12, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Randall Shepard, a Republican, and former Lt. Gov. Kathy Davis, a Democrat, to co-lead second look at local governments"

Dan Carden of the NWI Times has the story here. Some quotes:

In partnership with the Indiana University Public Policy Institute, Shepard and Davis will oversee three commissions evaluating issues affecting Indiana's urban communities, suburban and medium-sized communities and rural communities.

Among the topics to be considered are workforce development and education; sustainability and the environment; infrastructure; health, arts, amenities and recreation; and local government finance. * * *

The work will culminate in a gubernatorial forum on local government innovation in August 2016. * * *

It is similar to the largely unrealized recommendations of the 2007 Kernan-Shepard Report that identified 27 state policy changes needed to modernize the 19th Century structure of Indiana's many local governments.

Posted by Marcia Oddi on Friday, December 12, 2014
Posted to Indiana Government

Thursday, December 11, 2014

Ind. Decisions - "Supreme Court Changes 100 Year-old Principle that an Untimely Notice of Appeal is Jurisdictional"

That is the title of a Dec. 11th article by Alice J. Springer of Barnes & Thornburg in The National Law Review, about the Supreme Court's September 25th decision in In re Adoption of O.R. The article bengins:

For over 100 years, Indiana appellate courts have held that the failure to timely file appropriate documentation to initiate an appeal deprived the appellate courts of jurisdiction to entertain an appeal. See e.g. Vail v. Page, 93 N.E. 705 (Ind. 1911). Countless cases throughout the years have reiterated that the failure to timely file a notice of appeal deprives the appellate court of jurisdiction. On September 25, 2014, the Indiana Supreme Court, in In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) changed this decades long precedent by holding that the failure to timely file a notice of appeal is not jurisdictional.
It concludes:
It is still imperative to timely file a notice of appeal because failure to do so forfeits that right. However, it may be possible, in certain limited circumstances, for a court to still address the merits of the appeal despite the untimely filing of a notice of appeal. Appellate courts in the post-In re O.R. era are utilizing the “extraordinary, compelling reasons” language from In re O.R. as the standard for determining whether an appellate court will address the merits of appeal despite the failure to timely file a notice of appeal. See e.g. Blinn v. Dyer, 2014 Ind. App. LEXIS 528 (Ind. Ct. App. Oct. 31, 2014) (stating that “[f]ailure to timely file a notice of appeal, while not a jurisdictional matter, nevertheless forfeits the right to an appeal absent "extraordinarily compelling reasons.”). Although there is little guidance at this point as to what compelling facts might meet this standard, it will not be easy to meet. Until case law further develops this new standard, a judgment may not be final even after thirty days after its entry has passed.
See also Prof. Joel Schumm's ILB post from the day of the opinion, that began:
The Indiana Supreme Court’s opinion today in In re Adoption of O.R. is, in a word, HUGE. Like telling a child there is no Santa Claus, Justice Rucker’s opinion shattered lawyers’ longstanding belief that a timely Notice of Appeal was some magical document without which their right to appeal was impossibly doomed. (It remains magical in federal court, for reasons explained in the endnote.*)

Posted by Marcia Oddi on Thursday, December 11, 2014
Posted to Ind. Sup.Ct. Decisions

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

In Kevin Harold v. Christopher Steel (SD Ind., Pratt), a 6-page opinion, Judge Easterbrook writes:

A small claims court in Mar ion County, Indiana, entered a judgment against Kevin Har old for a little more than $1,000. He did not pay, even though he had agreed to the judgment’s entry. Almost two decades later Christopher Steel, claiming to represent the judgment creditor, asked the court to garnish Harold’s wag es. It entered the requested order, which Harold moved to vacate, contending that Steel had misrepresented the judgment creditor’s identity (transactions after the judgment’s entry may or may not have transferred that asset to a new owner) and did not represent the only entity authorized to enforce the judgment. But he did not contend that the re quest was untimely. After a hearing, a state judge sided with Steel and maintained the garnishment order in force. Instead of seeking review within Indiana’s judiciary, Harold filed this federal suit under the Fair Debt Collection Practices Act, contending that Steel and his law firm (Peters & Steel, LLC, which we do not mention again) had violated 15 U.S.C. §1692e by making false statements. But the district court dismissed the suit for want of subject‐matter jurisdiction, ruling that it is barred by the Rooker-­Feldman doctrine be cause it contests the state court’s decision. 2014 U.S. Dist. LEXIS 43154 (S.D. Ind. Mar. 31, 2014). * * *

Harold might have used §1692e to file a counterclaim in Indiana and could have appealed within the state system. He did neither. His federal suit was properly dismissed. AFFIRMED

Posted by Marcia Oddi on Thursday, December 11, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Judicial Qualifications Commission files charges against Muncie City Court Judge"

Another Indiana city court judge in the news, per this press release from the Supreme Court:

The Indiana Commission on Judicial Qualifications has filed disciplinary charges against Muncie City Court Judge Dianna L. Bennington. The Commission alleges 13 specific counts of misconduct, including abuse of judicial power, repeated violations of statutes and court rules and injudicious public conduct.

The 31 page "Notice of the Institution of Formal Proceedings and Statement of Charges" is public record and has been filed with the Appellate Clerk’s Office. Judge Bennington has 20 days to file an answer to the charges. Only the Supreme Court can determine if any misconduct has occurred.

Generally, the charges assert Judge Bennington violated judicial canons requiring ethical conduct. The Commission alleges the judge abused her judicial power by sentencing a defendant to jail without any indication of when he would be released and conducted a sentencing hearing without a prosecutor present. The Commission alleges repeated violations of statutes and court rules, including noncompliance with contempt procedures and a lack of sufficient due process. The Commission also alleges injudicious public conduct related to a dispute with the father of her children, specifically that the judge made unfounded accusations and engaged in a public verbal confrontation using profanity and a racial slur. The Commission asserts the judge failed to cooperate with the Commission’s investigation by delaying or avoiding the Commission’s lawful requests for information.

The Indiana Supreme Court can appoint three Masters (judges) to conduct a public hearing on the charges that Judge Bennington committed misconduct. Supreme Court rules also allow the Commission and the judge to submit a settlement agreement to the Court. Any agreement or any decision by the Masters must be approved by the Supreme Court.

Here is the 31-page charging document, which is not otherwise posted.

The ILB has looked back in its archive and located the following:

Posted by Marcia Oddi on Thursday, December 11, 2014
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

In Teresa A. Fritz-Lint v. Review Board of the Ind. Dept. of Workforce Development and Truth Publishing Co., Inc. , a 6-page opinion, Judge Bradford writes:

Appellant Teresa Fritz-Lint was employed by Appellee Truth Publishing Co., Inc., (“Truth”) and received training, which included review of Truth’s anti-harassment policy (“the Policy”). The Policy defined harassment as including such things as jokes about another person’s protected status and related that violation of the Policy could result in termination. Fritz-Lint’s husband sent her an email containing a picture with the following caption: “Black people started wearing their pants low, white people called it ‘saggin.’ Spell saggin backwards … those sneaky white people.” Fritz-Lint forwarded the email to two coworkers.

A few days later, somebody printed a copy of the picture and placed in on an African-American coworker’s chair, who was offended and filed a complaint with Truth. Truth investigated, and while Fritz-Lint admitted that she had forwarded the email to two coworkers, she denied placing it on the African-American coworker’s chair. Truth dismissed Fritz-Lint for violating its anti-harassment policy by distributing the email to other employees. * * *

We agree with the Board and Truth. Fritz-Lint admits to forwarding the email to coworkers, and, although she denied personally delivering it to her African-American coworker, her dissemination of the offensive material allowed that delivery to occur. Moreover, even if the offensive email had never found its way to the African-American coworker, the mere dissemination of such material, if left unchecked, could encourage the growth, spread, and acceptance of such attitudes in the workplace. In other words, such actions could contribute to the creation of a hostile work environment. We have little trouble concluding that the Board’s decision that Fritz-Lint was dismissed for just cause, i.e., for violating the Policy, is not contrary to law.

In Dollie Smith, Henry Harris, Jr., and Clarence Carter v. Wayne Haggard, a 6-page opinion, Judge Mathias writes:
Clarence Carter, Dollie Smith, and Henry Harris (collectively “the Appellants”) appeal the Madison Circuit Court’s dismissal of their complaints against Wayne Haggard (“Haggard”). The Appellants claim that the trial court erred when it concluded that their complaints should be dismissed because they failed to file their summonses as required by Trial Rule 3 within the two-year statute of limitations. We affirm. * * *

Because the Appellants filed their summonses two days after the statute of limitations expired, they failed to meet the requirements under Trial Rule 3 for timely commencement of their causes of action. Under the brightline rule our supreme court established in Boostrom, and applied in Ray-Hayes, the trial court properly dismissed the Appellants’ complaints against Haggard

In Robin Eugene Montgomery v. State of Indiana, a 24-page opinion, Judge Bradford writes:
Between June 25, 2013 and August 24, 2013, Appellant-Defendant Robin Eugene Montgomery purchased a ten-count box of pseudoephedrine every ten days. At some point, officers from the Warrick County Sherriff’s Office initiated an investigation into Montgomery’s actions, during which the officers came to believe that Montgomery was operating a mobile methamphetamine laboratory. As part of their investigation, officers approached Montgomery at a storage unit located in Vanderburgh County on August 25, 2013. Montgomery attempted to flee from the officers in his vehicle, striking one officer and forcing another to have to dive out of the path of the vehicle. A chasing officer observed Montgomery throw a smoking yellow bag out of the window of his vehicle before Montgomery stopped the vehicle and was apprehended. Officers also discovered numerous items used during the course of the manufacture of methamphetamine in the storage unit, which was rented by Montgomery.

On August 27, 2013, Appellee-Plaintiff the State of Indiana (the “State”) charged Montgomery with numerous crimes, including Class B felony dealing in methamphetamine and Class D felony resisting law enforcement. Following a jury trial, Montgomery was found guilty of these charges. The trial court subsequently sentenced Montgomery to an aggregate twelve-year sentence. On appeal, Montgomery contends that the trial court abused its discretion in admitting certain evidence at trial. Montgomery also contends that the evidence is insufficient to sustain his conviction for Class B felony dealing in methamphetamine. Concluding that the trial court did not abuse its discretion in admitting the challenged evidence and that the evidence is sufficient to sustain Montgomery’s conviction, we affirm.

In Steven M. Sandleben v. State of Indiana, a 20-page opinion, Judge Najam writes:
Steven Sandleben appeals his convictions for three counts of public voyeurism,1 two as Class D felonies and one as a Class A misdemeanor, following a bench trial. He presents five issues for our review, which we revise and restate as follows: 1. Whether the evidence is sufficient to support his convictions. 2. Whether the voyeurism statute, as applied, is unconstitutionally vague. 3. Whether the trial court abused its discretion in admitting certain business records. 4. Whether the trial court abused its discretion when it sentenced him. 5. Whether his sentence is inappropriate in light of the nature of the offenses and his character. * * *

In sum, we hold that sufficient evidence supported Sandleben’s convictions for public voyeurism and that the public voyeurism statute, as applied, is not unconstitutionally vague. Moreover, while we hold that the trial court abused its discretion when it admitted certain business records over objection, those records were cumulative, which made the error harmless beyond a reasonable doubt. Finally, we hold that the trial court did not abuse its discretion when it sentenced Sandleben and that the sentence it imposed is not inappropriate. Affirmed.

NFP civil opinions today (2):

Keaton J. Miller v. Ryan Blackburn (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: B.B. and M.B. v. The Ind. Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Larry Woods v. State of Indiana (NFP)

Timothy Wellbaugh v. State of Indiana (NFP)

Antwoine Young v. State of Indiana (NFP)

Anthony Walls v. State of Indiana (NFP)

Jeffrey S. Taylor v. State of Indiana (NFP)

Angela L. Blair v. State of Indiana (NFP)

Benjamin T. Haines v. State of Indiana (NFP)

Maron Jackson v. State of Indiana (NFP)

D.B. v. State of Indiana (NFP)

Jason D. Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 11, 2014
Posted to Ind. App.Ct. Decisions

Wednesday, December 10, 2014

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

In Diane Ripberger v. Corizon, Inc. (SD Ind., Pratt), a 24-page opinion, Judge Rovner writes:

Diane Ripberger lost her job as a substance abuse counselor for the Indiana Department of Corrections (“IDOC”) when Corizon, Incorporated (“Corizon”) contracted with IDOC to provide counseling for Indiana prisoners. Ripberger sued Corizon, claiming sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. The district court granted Corizon’s motion for summary judgment, and Ripberger appeals. For the reasons stated below, we affirm. * * *

As the district court noted, Ripberger was a qualified substance abuse counselor who was the unfortunate victim of a reduced workforce at the Pendleton facility when IDOC privatized its substance abuse counseling program. Regardless of how the evidence is viewed, it is simply insufficient to demonstrate any unlawful motivation behind Corizon’s failure to hire her. We thus affirm the judgment of the district court granting summary judgment to Corizon.

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - More on: Supreme Court issues an order encouraging mediation in the IBM case

Updating this ILB post from Nov. 10th, the most recent docket entry to the case of State of Indiana v. International Business Machines Corp. reads"

12-08-2014 JOINT REPORT ON MEDIATION (6) ENTERED ON 12/08/14 LH
Tim Evans of the Indianapolis Star has a story here that reports:
Attorneys for the state and IBM Corp. this week submitted a report informing the Indiana Supreme Court “they have agreed to engage in mediation” and have selected John Van Winkle of Van Winkle-Baten Dispute Resolution as the mediator.

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, a sentencing revision, and a rare 3-2 split for the "new" Rush court

In William A. Parks v. State of Indiana, a 10-page, 3-2 opinion, Justice David writes:

William Parks was convicted of Class A felony dealing in methamphetamine and received an aggregate sentence of forty (40) years. Parks now asks this Court to evaluate the appropriateness of that sentence in light of the nature of the offense and his character under Indiana Appellate Rule 7(B). Reaffirming our authority and our reluctance to grant such a request, in this case our collective judgment has determined that a sentence revision is warranted. * * *

In our collective judgment, Parks’ sentence is excessive. We believe a more appropriate sentence given the nature of the offense and the character of the defendant would be an aggregate sentence of thirty (30) years, with twenty (20) years to be executed at the Department of Correction, two (2) years to be executed through the Tippecanoe County Community Corrections, and eight (8) years to be suspended to probation, of which four (4) years Parks should be placed on supervised probation and four (4) years on unsupervised probation. This case is remanded to the trial court to impose a sentence of thirty (30) years for Count II dealing in methamphetamine4 to be served as stated.

Rush, C.J., Rucker, J., concur

Dickson, J., dissents with separate opinion in which Massa, J., joins. [J. Dickson's dissent, which begins on p. 7, concludes on p. 10]: Giving due consideration to the trial court's responsibility and unique opportunity to perceive and assess relevant factors, its decision imposing a moderate sentence near the middle of the designated statutory range, particularly in light of the serious nature of the offense and the lack of demonstrated virtuous character of the defendant; this case is not an extremely rare, exceptional case warranting appellate sentence modification. I decline to join the Court's opinion finding this sentence to be inappropriate.

Massa, J., concurs.

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 11 NFP)

For publication opinions today (3):

In Donta Legg v. State of Indiana, a 9-page opinion, Judge Baker writes:

In this case, a sixteen-year-old was tried as an adult and convicted of murder. The defendant requested to be sentenced under the alternative sentencing scheme for juvenile offenders, but the trial court denied the request and sentenced him as an adult. As an issue of first impression [ILB emphasis], we find that the trial court did not abuse its discretion in finding that the nature of the offense and the character of the offender rendered sentencing under the alternative sentencing scheme unsuitable in this case.

Donta Legg appeals the sentence imposed by the trial court after Legg was convicted of Murder, a felony, and Carrying a Handgun Without a License, a class A misdemeanor. Legg argues that the trial court should have sentenced him under the alternative sentencing scheme applicable to juvenile offenders sentenced as adults and that the sentence is inappropriate in light of the nature of the offense and his character. Finding no error, we affirm.

In James McCauley v. State of Indiana, a 10-page opinion, Sr. Judge Darden concludes:
In this case, McCauley received ample notice that the State sought to revoke both his home detention placement and his term of informal probation. The State’s notice of violation specifically asked the trial court to revoke both home detention and probation, and listed violations applicable to both portions of McCauley’s sentence. In addition, during the initial hearing on the petition to revoke, the trial court advised McCauley that if a violation were proven, he could be sent to the Department of Correction for the full three-year sentence. McCauley indicated that he understood the court’s advisement. McCauley was thus made aware that the State sought to revoke his probation, and he received an opportunity to prepare his defense accordingly. Indeed, at the fact-finding and sentencing hearing McCauley agreed that it was appropriate that he “serve out his sentence” at the Department of Correction. The trial court did not violate McCauley’s constitutional right to due process.
In Paul Phillips v. State of Indiana, a 20-page opinion, Sr. Judge Barteau writes:
Paul Phillips appeals from his conviction after a jury trial of one count of child molesting as a Class A felony. We affirm.

Phillips presents the following issues for our review:
I. Whether the trial court denied Phillips the right to an impartial jury and a fair trial under the federal and state constitutions by denying Phillips’s motion for mistrial and motion to replace a juror after a juror asked a question, instead choosing to offer a curative instruction.
II. Whether the prosecutor engaged in prosecutorial misconduct amounting to fundamental error during closing argument.
III. Whether the trial court erred by instructing the jury about voluntary intoxication.

NFP civil opinions today (3):

In Re: The Marriage of Harris, Angela Harris v. Eric Harris (NFP)

Kaylee L. Hueston v. Thomas C. Hueston (NFP)

In the Matter of the Paternity of K.B.: B.C. v. K.B. (NFP)

NFP criminal opinions today (8):

Christopher Martin v. State of Indiana (NFP)

Pedro Vicente v. State of Indiana (NFP)

Michael D. Williams v. State of Indiana (NFP)

Xavier T. Heckstall v. State of Indiana (NFP)

Jeffrey Reel v. State of Indiana (NFP)

William M. Hedrick v. State of Indiana (NFP)

Jeton Hall v. State of Indiana (NFP)

Thomas Derrow v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Bungled [national] reporting doesn't negate seriousness of campus rape crisis"

Some quotes from an editorial today in the $$$ Bloomington Herald-Times:

According to a report from the National Institute of Justice, Bureau of Justice Statistics, between 20 and 25 percent of women in higher education institutions are victims of completed or attempted rape during their college careers. Nine in 10 of those victims knew their offender. Thirty-five percent of the attempted rapes and 12.8 percent of the completed rapes happened during a date. And less than 5 percent of the sexual assaults are reported to police.

It happens at Indiana University. A Washington Post analysis of federal crime data from 2012 noted the highest number of forcible sex offenses reported to authorities was 56 at Penn State. The University of Michigan was second at 34; Harvard was third at 31; and IU-Bloomington was fourth at 27.

IU’s campus newspaper, the Indiana Daily Student, has published some very dramatic stories about the issue this week. Two female students went public in opening up to the IDS about the details of being raped and the aftermath of their experiences. [ILB: See also this IDS editorial from 12/8/14] * * *

IU spells out its definition of consent on the website stopsexualviolence.iu.edu. It couldn’t be more clear:

“Consent is agreement or permission expressed through affirmative, voluntary words or actions that are mutually understandable to all parties involved.” It can be withdrawn at any time. It cannot be coerced or compelled by duress, threat or force. It cannot be assumed based on silence. It cannot be given by someone asleep, unconscious or impaired through the effects of drugs or alcohol.

Both men and women need to understand that. They need to respect that.

When they don’t, it’s not just that mistakes get made. Crimes are committed. Lives are ruined. And a culture of sexual violence continues.

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Indiana Government

Ind. Courts - "Court hears appeal of ex-Indiana secretary of state, who's fighting voter fraud convictions"

That is the headline to this story by Rick Callahan of the AP on yesterday's oral argument before the Court of Appeals in the Charlie White case. You may watch the argument before the 3-judge panel here.

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Indiana Courts

Ind. Gov't. - "In Spencer County, more than $200,000 worth of public records were copied without payment."

That is the lede to this very brief Dec. 5th item by Josh Allsopp at WFIE. It continues:

County officials claim LPS Real Estate Data Solutions had permission to view the documents and copy them for $1 per page.

County officials say they made copy's but never paid for them.

The county claims the same company has done this across the country.

We're told they're going to file a lawsuit against them.

The ILB was able to quickly locate this very informative Aug. 5th story (with Indiana tie-in) at St Louis RFT (Riverfront Times), reported by Danny Wicentowski, and headed "Real Estate Company Accused of Stealing 87,000 Property Records from Franklin County (MO)". Some quotes:
Franklin County Recorder of Deeds Sharon Birkman ... claims 87,000 property records were copied from the county's servers and likely sold at profit by LPS Real Estate Data Solutions.

"This company is stealing tax payers' information," says Birkman. She tells Daily RFT that she was deposed three weeks ago by lawyers from Fidlar Technologies, the software company that runs Franklin County's online data access program. Fidlar first informed her of the alleged theft back in March 2013, but she says she didn't know the exact number of documents taken until her deposition.

"They called me, and told me they were certain that LPS was 'scraping my data without paying for it'," says Birkman, whose office oversees millions of digitized deed records going back to the 1800s.

"[LPS] signed an agreement that agreement stating that they will not sell to a third party," says Birkman. LPS apparently broke that agreement with Franklin County, as well as dozens of others across the U.S..

So what is data scraping? According to a lawsuit filed last year in U.S. District Court in Illinois, LPS is accused of improperly accessing recorders' office servers by way of a "web harvester," which allowed LPS to potentially copy millions of documents without paying a cent. According to the lawsuit, LPS's business model involves collecting massive amounts of public property data, combining it with third-party information and then licencing the resulting package to its customers. The collection is done "on a vast scale," as LPS has arraignments with 2,600 recorders' offices.

Much of that access goes through a digital middle man contracted by the recorders' offices. Birkman says 24 Missouri counties use Fidlar's "Laredo" program, which charges users to view, download and print various land-related records. Users can only view documents one at a time and cannot download the files without paying the county a printing fee.

As for Fidlar, they take a cut of the $400-per-month subscription fee charged to companies like LPS.

That process was apparently too slow (and expensive) for LPS. Fidlar's suit alleges that LPS dug into the Loredo's server protocols to create the web harvester, which allowed LPS to "scrape" the documents in bulk, right from the source. An audit by Fidlar found that LPS used this technique in approximately 74 counties in Illinois, Indiana, Minnesota, Missouri, and Wisconsin.

For a good legal article on the issues raised here, see "How Website Operators Use CFAA (Federal Computer Fraud and Abuse Act) To Combat Data-Scraping," by Aaron Rubin and Tiffany Hu, Morrison & Foerster LLP, at Law360.

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Indiana Government

Ind. Decisions - 7th Circuit decides one Indiana case Dec. 9, re longevity pay

In Robert D. DeLee v. City of Plymouth (ND Ind., Moody), a 20-page opinion, Judge Flaum writes:

Pursuant to a long-standing local ordinance, the City of Plymouth, Indiana pays its police officers “longevity pay” after each work anniversary, calculated by multiplying $225 by the number of years that the officer has been on the force. Faced with financial difficulties in 1989, Plymouth enacted a second longevity pay ordinance pertaining to police, which prorates longevity pay for officers who take a leave of absence during any given year, including for military service. During police officer Robert DeLee’s twelfth year on the job, he missed nearly eight months of work while serving in the United States Air Force Reserves. And so, when he re-turned, Plymouth paid him one-third of his full longevity payment for that year. DeLee sued, arguing that longevity pay is a seniority-based benefit to which the Uni-formed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301–4335, entitles him in full. Because we conclude that Plymouth’s longevity benefit is more appropriately characterized as a reward for lengthy service, rather than as compensation for work performed the preceding year, USERRA guarantees DeLee a full longevity payment for his twelfth year of employment. Accordingly, we reverse the district court’s grant of summary judgment in favor of Plymouth.

Posted by Marcia Oddi on Wednesday, December 10, 2014
Posted to Ind. (7th Cir.) Decisions

Tuesday, December 09, 2014

Ind. Decisions - Supreme Court schedules oral argument in "Elkhart 4" appeal

The Elkhart Truth is reporting that:

The Indiana Supreme Court has agreed to hear oral arguments in the Elkhart Four case early next year.

Attorneys for Blake Layman, Levi Sparks and Anthony Sharp are tentatively scheduled to argue their case before the court at 10:30 a.m. Jan. 21, said Angie Johnson, Layman’s mother.

The ILB has earlier posted the transfer petitions and responses. However, as of today, the docket in the Sparks/Layman case does not show that transfer has been granted.

Perhaps that is why the Truth story above says "tentatively scheduled" ... The ILB did hear yesterday that letters had been sent out to the parties tentatively setting the date.

[More, on 12/10/14] Oral Arguments Online today shows 3 Court of Appeals oral arguments set for Jan., 2015, but nothing yet from the Supreme Court. It could be that the Supreme Court has decided to hear oral argument on the question of whether to grant transfer.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Indiana Decisions

Ind. Decisions - State will not appeal ruling in Overstreet competency to be executed case

Updating this news release from Nov. 20th, and this post from the same day headed "Judge sets aside Michael Dean Overstreet's death penalty," Attorney General Zoeller has now issued this news release that reads in part:

After thorough and careful analysis of a court’s ruling that Michael Dean Overstreet is not currently competent to be executed, the Indiana Attorney General’s Office has determined that an appeal is unlikely to succeed and the State will not appeal Special Judge Jane Woodward Miller’s ruling to the Indiana Supreme Court. Overstreet will remain a condemned prisoner under a sentence of death, but the sentence will not be carried out until and unless his mental competency is restored. This is not a new separate stay of execution and Overstreet’s death sentence has not been commuted; it is not clemency or a reversal of his conviction. Overstreet’s convictions were unaffected. * * *

“My office has defended the conviction obtained by the prosecutor for the past 14 years during multiple appeals and will continue to faithfully defend the jury’s verdict and death sentence as is the duty of the Office of the Attorney General. The court’s decision does not overturn the conviction nor does it set aside the sentence. My decision was based on the conclusion that Judge Miller’s determination of incompetency was done in a manner as set out by the United States Supreme Court that did not provide adequate grounds for appeal,” Indiana Attorney General Greg Zoeller said. * * *

Guiding the State’s determination that an appeal would not succeed are two U.S. Supreme Court precedents, the 1986 Ford decision and the 2007 Panetti decision, which ruled that severely mentally ill prisoners cannot be executed under some circumstances. In 2013, in response to a defense petition, the Indiana Supreme Court ordered the trial court to determine whether Overstreet with his documented history of mental illness was competent to be executed, and to use the criteria of the Panetti decision as the standard to decide. Defense lawyers assembled experts asserting Overstreet was too incompetent to be executed. The Attorney General’s Office vigorously opposed that and responded with its own expert who found him fully competent to be executed.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Indiana Decisions

Courts - "Courts Plunge Into the Digital Age "

Some quotes from a lengthy Dec. 8th story in Pew's Stateline:

Many states started switching to e-filing and paperless docket and document management systems for financial reasons. The recession hit state budgets hard and courts scrambled to find ways to cut costs and work more efficiently.

For years, courts had been resistant to digitizing because of the enormous start-up costs. But as the price tag for computer systems dropped dramatically in the 2000s, courts began getting on board.

Some used electronic systems for docketing—listing cases and their status. Lawyers and the public were able to log onto a computer at the courthouse and find information about a case. But in most states, documents could not be filed or retrieved electronically.

Today, states are at various stages of creating a paperless court system. A small number, including Wisconsin and Nebraska, mandate that all civil and criminal cases be e-filed statewide, according to the NCSC. Others, such as Idaho and Illinois, are just getting started on their electronic systems.

States are taking different approaches to the changeover, depending on how their courts are structured. In many states, each court is independent and funded by the county, so connecting to a central hub is a more complex task. Other states directly fund and run the courts, making it easier to create one electronic system.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Courts in general

Courts - Quandary in Wis. over who will judge ethics case involving Supreme Court justices

Patrick Marley reported Sunday in the Milwaukee Journal Sentinel in a long story that begins:

Madison — A Rock County judge running for state Supreme Court wants to ship an ethics case against Justice David Prosser to another state's top court — an idea that two law professors suggested is legally impossible.

In 2012, the state Judicial Commission filed an ethics complaint against Justice David Prosser for a June 2011 incident in which he put his hands on the neck of Justice Ann Walsh Bradley as the two argued about a case.

Prosser, Bradley and three other justices have declined to participate in the case against Prosser because they were involved in or witnessed the incident. That has caused the matter to stall.

Rock County Circuit Judge James Daley is running to replace Bradley, and he said he would like to see the issue sent to the Supreme Court of Minnesota or another nearby state. He said it was not acceptable to leave the matter unresolved and believed the Wisconsin Supreme Court has the power to hand the case off to a court outside the Badger State.

"They have the ability to resolve the issue in any way they can," he said.

Daley said the justices had the power to give the case to another state by invoking what's known as "the rule of necessity."

That rule says that judges can hear cases they normally would have to refuse to take if they are the only ones who can resolve a matter.

But two legal experts said that doctrine doesn't give a court from one state the power to hand off a case to a court from another one.

"I don't know if there are other tribunals in the state that could hear it, but I've never heard of sending one state's matter to (a) sister state under the rule of necessity," New York University law professor Stephen Gillers said by email.

"The Minnesota Supreme Court lacks jurisdiction over a Wisconsin ethics complaint. The doctrine does not work that way.

"Wisconsin and Minnesota are not part of the same system. They are creatures of different sovereigns."

Charles Geyh, a professor at the Indiana University Maurer School of Law, said he believed transferring such a case to another state would be unprecedented.

"Wisconsin cannot make its 'necessity' Minnesota's necessity, and I'm not sure how the Minnesota Supreme Court could deem it necessary to squander its scarce judicial resources (and taxpayer dollars) to solve Wisconsin's problems," Geyh wrote in an email to the Milwaukee Journal Sentinel.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Indiana Courts

Ind. Gov't. - Property tax caps threaten school bus riders

From the award-winning editorial section of the Fort Wayne Journal Gazette, some quotes from this Sunday editorial:

Remember when you voted to write property tax limits into the state constitution? Bet you didn’t know it would leave children without a ride to school.

But it’s another consequence of the growing property tax-cap shortfall. As lawmakers prepare for what looks to be the education session of the Indiana General Assembly, they should also prepare to explain what they will do to help students travel to and from school. Fort Wayne Community Schools is looking to reduce transportation services by nearly 20 percent, leaving 4,200 students off the bus next fall.

The district is hardly alone in struggling with transportation costs. Northwest Allen County Schools, a growing district, faces the challenge of transporting more students with fewer dollars available for bus service. At East Allen County Schools – geographically the 10th largest district in the state – a circuit-breaker loss of $296,931 is responsible for the current $249,082 deficit in the transportation fund. * * *

Countywide, tax-cap losses total nearly $41.8 million this year, according to figures from the Allen County auditor’s office. Statewide, more than 1.1 million Hoosiers voted for the tax caps in 2010; fewer than 450,000 voted no.

At least one lawmaker who supported the measure seems to be having second thoughts.

“We put the circuit breaker in because a majority of legislators decided that there was too much reliance on property taxes,” Sen. Dennis Kruse, R-Auburn, said at a recent meeting with DeKalb County school officials, “Now I think we’ve got it where we have too little of property tax.

“Too little of property tax” means $30 million less for FWCS, including a cumulative $9 million reduction in property tax-supported transportation funding. That loss is expected to double by 2017, according to FWCS Superintendent Wendy Robinson.

At a meeting last week at Anthis Career Center, she explained to about 75 worried parents that cutting spending elsewhere won’t help. State law restricts how property tax revenues can be spent. Salary money, including the $8 million allocated last month for raises, is off limits. Money earmarked for salaries can’t be spent on buses or fuel.

The only option for FWCS is to eliminate bus routes, with unwelcome effects on student safety, district-wide choice and school schedules. Inconvenience and uncertainty for working parents is another consequence.

As the state’s highest court sorts out Indiana’s role in providing and paying for school buses, money for transportation continues to decline and the ability of public schools to offer the very choices legislators claim to support is harmed. Ignoring the issue in the upcoming session would be an abrogation of the General Assembly’s responsibility.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Indiana Government

Law - "Lone US senator attempts to block bill challenging government secrecy"

From The Guardian yesterday, a long story by Ed Pilkington beginning:

New legislation designed to challenge the ingrained secrecy of the US government and open up federal agencies to greater public scrutiny is on the verge of collapse after a single Democratic senator, Jay Rockefeller of West Virginia, effectively blocked its passage.

The Foia Improvement Act of 2014 has cleared all its major procedural hurdles with unanimous support in both the House of Representatives and the Senate judiciary committee. Its overwhelming bipartisan backing has offered a rare glimmer of hope in an otherwise gridlocked Congress.

But unless Rockefeller agrees to drop his last-minute objections to the legislation by the end of Monday, its chances of coming to a vote by the end of this Congress are all but dead. The bill, which has been two years in the making, is backed by more than 70 good governance organisations and is seen as a critical step towards a more open and accountable flow of public information.

But a story last evening by Politico's Burgess Evans reports:
One of the last acts of retiring Sen. Jay Rockefeller (D-W.Va.) was holding up a broadly supported bill to reform the Freedom of Information Act, warning Friday that it could harm consumer protections.

Over the weekend, transparency advocates and bill supporters stirred, pushing Rockefeller to change his mind. And on Monday, as Congress’ lame duck session drew to a close, he relented. The Senate unanimously approved the FOIA Improvement Act, sending a bill intended to create a “presumption of openness” among government agencies to the House, which passed a similar bill earlier this year.

Rockefeller’s change of heart boosted transparency advocates and the bill’s sponsors — but he wouldn’t clearly explain why he dropped his objections during an interview Monday. The outgoing West Virginian emphatically denied feeling the pressure as the lone senator holding the bill up (“that would never bother me”) but gave a cryptic answer on why he altered his position.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to General Law Related

Ind. Courts - "A judge has yet to consider the core arguments of a lawsuit filed by YMCA Camp Tecumseh against the White County Board of Commissioners"

Yesterday's oral argument before the Supreme Court in the case of White County Board of Commissioners v. Y.M.C.A. Camp Tecumseh (which you may watch here) is the subject of a story by Chris Morisse Vizza in the Lafayette Journal Courier. Some quotes:

A judge has yet to consider the core arguments of a lawsuit filed by YMCA Camp Tecumseh against the White County Board of Commissioners’ vote to rezone 7 acres of land, clearing the way for a farmer to raise 9,000 hogs about a half-mile from the camp.

That’s because attorneys for both sides continue to dispute where the case should be heard.

The case made it all the way to the Indiana Supreme Court, which on Monday heard oral arguments about the technical issue of location.

The camp in July 2013 filed suit in Carroll Circuit Court, claiming, among other things, the commissioners’ rezoning decision was arbitrary and capricious and didn’t consider the impact on the 90-year-old outdoor education facility.

The camp lies on the east side of Springboro Road in Carroll County; the rezoned property belonging to livestock producer John Erickson is on the west side of the road in White County.

Sixteen months later, the parties still are arguing about jurisdiction.

Matthew Albaugh, an attorney for Camp Tecumseh, said the suit belongs in Carroll County because that is where the 600-acre camp is located and that is where the future hog farm will pose air, ground water and odor problems for the year-round outdoor education facility.

Mark Crandley, an attorney for the commissioners, argued in part that the suit belongs in White County because that is where the rezoning decision was made based on the county’s land-use plan.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Indiana Courts

Supreme Court - Attorney reprimanded for failing to reduce contingent fee agreement to writing

In In the Matter of John W. Peters, a one page order:

Respondent had failed to reduce the contingent fee agreement to writing, leading to a fee dispute with Client after the judgment was paid. * * *

Indiana Professional Conduct Rule 1.5(c), ... requires contingent fee agreements to be in writing and signed by the client. * * *

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 Tuesday, December 09, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In Kolyann Williams v. State of Indiana, an 8-page opinion, Judge Bradford writes:

Appellant/Defendant Kolyann Williams was pulled over by Kokomo Police Officer Jeff Packard when Officer Packard noticed that one of the tail lamps on Williams’s vehicle had a hole and was emitting white light. As Packard approached the vehicle, he detected the odor of marijuana. After a police canine alerted to the presence of drugs in Williams’s vehicle, Officer Packard retrieved a bag containing marijuana from Williams’s person. Appellee/Plaintiff the State of Indiana (“the State”) charged Williams with Class A misdemeanor marijuana possession, and the trial court found him guilty as charged, sentenced him to 365 days of incarceration, and suspended 363 days to probation. Williams contends that the trial court erred in denying his motion to suppress because Officer Packard’s stop was illegal. Because we conclude that Officer Packard did not have reasonable suspicion to believe that Williams had committed an infraction, we reverse the judgment of the trial court.
In Terrance Bowens v. State of Indiana , a 6-page opinion, Judge Crone writes:
Terrance Bowens challenges the sufficiency of evidence to support his conviction for class B felony unlawful possession of a firearm by a serious violent felon (“SVF”). Finding the evidence sufficient, we affirm.
In Stuart Bookwalter v. State of Indiana , a 12-page opinion, Judge Bailey writes:
To convict Bookwalter of Possession of a Syringe, as charged, the State was required to prove beyond a reasonable doubt that Bookwalter possessed, with intent to violate Chapter 16-42-19 of the Indiana Code (“the Legend Drug Act” or “the Act”), a hypodermic syringe or needle or an instrument adapted for the use of a legend drug by injection in a human being. See I.C. § 16-42-19-18. * * *

The question now before us distills to whether possession of a syringe without a valid prescription for a legend drug, insulin, or anabolic steroids, with intent to inject a non-legend drug, is sufficient to violate Section 16-42-19-18 of the Act. Bookwalter contends that it is not. * * *

The State observed at oral argument that a predecessor statute, the Dangerous Drug Act, criminalized possession of a syringe with intent to violate that act, under the definitions of which heroin was classified as a dangerous drug. * * * The State’s reference to this change proves too much: the legislature’s revision of the Legend Drug Act to exclude from its scope heroin weighs in favor of concluding that the Act is at best ambiguous as to whether possession of a syringe with intent to inject heroin is a criminal act under Section 16-42-19-18.

Given the Act’s ambiguity as to whether intent to inject any substance that is not also a legend drug, insulin, or anabolic steroid is within the scope of Section 16-42-19-18’s intent element, we must construe the statute in favor of Bookwalter to conclude that intent to inject heroin is not fairly covered by the Legend Drug Act’s definition of the offense of possession of a syringe. * * *

Having concluded that Section 16-42-19-18 does not fairly encompass within its language Bookwalter’s intended use of the syringe to inject heroin, we reverse Bookwalter’s conviction for that offense.

NFP civil opinions today (1):

Dallas C. Myers v. Heather D. Myers (NFP)

NFP criminal opinions today (3):

Christopher DeMoss v. State of Indiana (NFP)

Demetrius Sanders v. State of Indiana (NFP)

Christopher Truman v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Ind. App.Ct. Decisions

Environment - New legislator "pledges fact-finding trip to Bear Run Mine"

Updating earlier ILB posts on Bear Run Mine, including this one From Dec. 1 quoting an Indianapolis Star story, the Green County Daily World's Rick Curl writes today in a long story that begins:

Newly re-elected Indiana State Representative Bruce Borders (R-Jasonville) has pledged to begin a fact-finding effort regarding the concerns residents near the Bear Mine have expressed.

Recent media reports, including the Associated Press, have detailed the struggles residents have faced with dust and noise coming from the Sullivan County mine that is the largest surface mine east of the Mississippi River.

Area residents have urged state and mine officials to do something about the situation and now Borders has pledged to investigate and take a look for himself.

Borders, who just recently re-assumed his seat in Indiana House District 45, told the Daily World on Monday that he was previously unaware of the situation.

"The first thing I really need to do is to go over there," Borders said after finding out about the situation. "I've been over that way, literally in my other life as an insurance agent. I need to set up a meeting with the people over there and talk to them, go to the mine itself and talk to their management, take a look and hear both sides of it."

Peabody Energy, which runs the mine, has denied there are problems and have cited their history of environmental stewardship in written responses to the questions about the situation.

"Peabody Energy's strong commitment to environmental stewardship is well entrenched to our operational history," a Peabody Energy spokesperson said via email. "Bear Run Mine operates in a safe, environmentally sound manner and complies with all state and federal air, land and water quality permits."

According to a recent AP report, more than a dozen residents have complained to not only Peabody, but the Indiana Department of Environmental Management. And in short, IDEM has said there is nothing they can do unless an official from the agency witnesses a violation.

Peabody continues to claim they are in full compliance with all air quality regulations -- both state and federal -- and are a significant part of the local economy.

Today's story refers several times to an AP story, which in turn appears to refer to the Star story.

Posted by Marcia Oddi on Tuesday, December 09, 2014
Posted to Environment

Monday, December 08, 2014

Courts - SCOTUS May Review Begging Law

Adam Liptak of the NY Times writes this afternoon in a long, very interesting story that begins:

WASHINGTON — Begging is a crime in much of Worcester, Mass.

A city ordinance enacted last year banned “aggressive begging,” but it used an idiosyncratic definition of what counts as aggressive. It encompasses any begging — including silently asking for spare change with a cup or a sign — as long as it is within 20 feet of a bank, bus stop, pay phone, theater, outdoor cafe or anywhere people are waiting in line.

The Supreme Court has said that asking for money is speech protected by the First Amendment. But in June, the federal appeals court in Boston rejected a challenge to the 20-foot buffer zones, saying they were justified by the unease that panhandling can cause.

A week later, the Supreme Court struck down a Massachusetts law that had established 35-foot buffer zones around the state’s abortion clinics, including one in Worcester. The court said the law, which banned counseling, protests and other speech near the clinics, violated the First Amendment.

There was a tension between the two decisions, and lawyers for the plaintiffs in the begging case asked the appeals court to reconsider its ruling in light of the abortion case. The appeals court turned them down.

The Supreme Court will consider on Jan. 9 whether to hear an appeal on the begging decision and bring some order and consistency to free speech in Worcester.

But there is an awkward element to the justices’ task. The author of the appeals court’s opinion was Justice David H. Souter, who retired from the Supreme Court in 2009 but continues to hear the occasional case as a visiting appeals court judge.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Courts in general

Ind. Decisions - "Supreme Court OKs trial on school liability for shooting injuries"

Among the cases denied transfer on the Supreme Court's list of Transfer Actions, issued Dec. 5, but posted today (see this morning's ILB entry here) was M.S.D. of Martinsville v. Rebecca Jackson. That means the May 19th opinion of the Court of Appeals stands.

Dan Carden of the NWI Times reports this afternoon in a story that begins:

The Indiana Supreme Court has given the go-ahead for a trial to determine whether a school corporation is liable for student injuries suffered in a school shooting.

The high court announced Monday it decided, 4-1, against reviewing a May 19 Court of Appeals ruling that found the Metropolitan School District of Martinsville is not entitled to immunity under Indiana's Tort Claims Act.

The appeals court said implementation of the principal's school safety plan does not fall under the protections of that law, and only a trial can assess whether the school failed in its duty to protect the students because school officials had numerous warnings and might reasonably have expected the shooting to occur.

Chief Justice Loretta Rush was the sole jurist voting to hear the school district's appeal. Three of the five justices must agree to grant transfer for a Court of Appeals decision to be reviewed by the Supreme Court.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Indiana Transfer Lists

Environment - "A Watershed Moment - Great Lakes at a Crossroads"

The Milwaukee Journal-Sentinel this week has a don't miss three-part series by Dan Egan, titled A Watershed Moment:

Great photos too.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Environment

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

For publication opinions today (2):

In Randal L. Young v. Indiana Department of Correction, Bruce Lemmon, David J. Donahue, Stanley Knight et. al., a 7-page opinion, Judge Robb writes:

Randal Young, who is currently incarcerated in the Indiana Department of Correction (“DOC”), brought this suit challenging the constitutionality of the DOC’s policy concerning the restoration of credit time for inmates. The trial court granted judgment on the pleadings in favor of the DOC, and Young now brings this appeal pro se. Young raises one issue for our review: whether the DOC’s policy regarding the restoration of credit time denies equal protection of the law to prisoners serving consecutive sentences. Concluding the DOC’s challenged policy does not result in disparate treatment, we affirm the judgment of the trial court. * * *

We conclude that Section IX.E-9(d) of the DOC’s Disciplinary Code for Adult Offenders, which limits restoration of credit time to credit time deprived during an offender’s current sentence, does not violate the Equal Protection Clause of the Fourteenth Amendment or Article 1, Section 23 of the Indiana Constitution as the policy applies to offenders serving consecutive sentences. Because, as the DOC’s policy currently stands, there is no set of circumstances under which Young’s claim entitles him to relief, we affirm the judgment of the trial court.

In Brian S. Adcock v. State of Indiana, a 19-page opinion, Judge Barnes writes:
Brian Adcock appeals the post-conviction court’s denial of his petition for post-conviction relief (“PCR petition”), which challenged his convictions for two counts of Class A felony child molesting and two counts of Class B felony sexual misconduct with a minor. We reverse and remand.

The combined and restated issue before us is whether Adcock’s appellate counsel was ineffective for failing to challenge the sufficiency of the evidence against him on direct appeal. * * *

The trial court erred in granting the State’s motion for summary disposition. Rather, we conclude as a matter of law that Adcock received ineffective assistance of appellate counsel. We reverse and remand for the granting of Adcock’s PCR petition and the vacating of Adcock’s convictions for two counts of Class A felony child molesting and two counts of Class B felony sexual misconduct with a minor.

NFP civil opinions today (0):

NFP criminal opinions today (6):

Terry L. Lacroix v. State of Indiana (NFP)

Richard Edwards v. State of Indiana (NFP)

Clay Michael Howard v. State of Indiana (NFP)

Jonathan Maynard v. State of Indiana (NFP)

Calvin Sarver v. State of Indiana (NFP)

Mark Robinson v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Judge Rules in Favor of Jeffersonville Senior Citizens and Dismisses MAC Asphalt Plant Case"

From a news release from Indiana Construction Information Network:

Jeffersonville, December 8, 2014: Judge Jacobi has ruled in favor of the Jeffersonville senior citizens who have been fighting for clean air for over four years and dismissed their case. The request for a dismissal came after Jeffersonville Mayor Mike Moore revoked the plant’s zoning permit.

In an ironic move, MAC Construction filed an Objection to the Motion to Dismiss the case and argued to continue the case. The seniors stated that the case had become moot since the city’s revocation action. MAC may now appeal the revocation to the Board of Zoning Appeals or apply for a zoning variance.

According to public records of the Indiana Department of Environmental Management (IDEM), the MAC plant has been found in violation six (6) times the in the past eight years. As recently as 2009, MAC agreed to pay IDEM a $4,400 penalty due to stack emissions problems at the plant.

At issue have been the fumes and other possibly toxic chemicals potentially emitted from the plant.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Environment | Ind. Trial Ct. Decisions

Ind. Decisions - Transfer list for week ending December 5, 2014

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

Here is the Clerk's transfer list for the week ending Friday, December 12, 2014. It is two pages (and 14 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Indiana Transfer Lists

Courts - "A small group of lawyers and its outsized influence at the SCOTUS"

Reuters has a three-part investigative series today on the SCOTUS bar. Authored by Joan Biskupic, Janet Roberts and John Shiffman, the series is titled "The Echo Chamber" and the parts are: 1) The Elites; 2) The Firms; and 3) The Advocates. More:

The top of the first page of the series has indvidual photos and is captioned: "TOP TIER: In handling appeals heard by the U.S. Supreme Court, 75 lawyers have stood out – most for their success at getting cases before the high court, others for how often they argue those cases, and some for both reasons. Most of the 75 work at law firms that primarily represent businesses."

Additional features include a side-bar: Analyzing the impact of the Supreme Court bar (how they conducted the analysis); and a video: How elite corporate lawyers dominate.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Courts in general

Environment - "60 Minutes on how Duke Energy is handling over 100 million tons of coal ash waste in North Carolina"

If you missed the 60 Minutes feature show last night, access it here.*

Here is a list of dozens of ILB posts on coal-ash issues, going back as far as 2004 - a decade ago, including last year's Duke Energy Dan River spill, and the massive TVA coal ash spill that occurred Dec. 24, 2008, in Kingston, Tennessee, as well as many Indiana stories.
___________
*Warning: the 14-minute 60 Minutes video begins whether you want it or not, at least on my computer.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Environment

Ind. Gov't. - "Misdemeanor against abortion provider to be dismissed"

Updating this ILB entry from Sept. 18th and this update from Sept. 19th, headed "State files licensing action against four Indiana physicians for violations of abortion record-keeping, advice and consent laws," Amanda Gray reported this weekend in the South Bend Tribune:

SOUTH BEND — A misdemeanor charge against Dr. Ulrich "George" Klopfer, a local doctor providing abortions in St. Joseph County, could be dismissed in a year, so long as Klopfer abides by terms of a pre-trial diversion program.

Klopfer was charged with a misdemeanor for failing to timely file a state mandated terminated pregnancy report for an abortion he provided to a 13-year-old girl in South Bend in 2013. State law mandates that doctors file a terminated pregnancy report with every abortion procedure within 6 months, but law requires any abortion provided to a girl under the age of 14 be reported within 3 days. Klopfer didn't report that particular procedure for 6 months.

On Monday, a pre-trial diversion agreement was filed in the case, meaning as long as Klopfer holds to the terms of the agreement, his charge will be dismissed in Dec. 2015. Terms include paying $330 in fees and other costs, not committing any criminal offense during the yearlong agreement, perform 24 hours of community service, report to the prosecutor's office when requested and notify the prosecutor's office with seven days of any change of address.

St. Joseph County Prosecutor's office spokeswoman Jessica McBrier said the pre-trial diversion program is for individuals who don't have a criminal background and are charged with certain misdemeanors. According to the prosecutor's website, diversion is offered on a case-by-case basis and is up to the discretion of the deputy prosecutor handling the case.

Klopfer is also charged with the same misdemeanor in Lake County. The next time he will appear in court for that charge is set for Jan. 26, 2015, at a pre-trial conference hearing, according to Lake County's online records.

Klopfer's license will also be reviewed by the Indiana Medical Licensing Board in January, though a firm date hasn't been set yet.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Indiana Government

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

From Sunday, Dec. 7, 2014:

From Saturday, Dec. 6, 2014:

From Friday afternoon, December 5, 2014:

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 12/8/14):

Monday, Dec. 8

Next week's oral arguments before the Supreme Court (week of 12/15/14):

Thursday, Dec. 18

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 12/8/14):

Tuesday, December 9

Next week's oral arguments before the Court of Appeals (week of 12/15/14):

Monday, December 15

Tuesday, December 16

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

The past COA webcasts which have been webcast are accessible here.


NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.

Posted by Marcia Oddi on Monday, December 08, 2014
Posted to Upcoming Oral Arguments

Saturday, December 06, 2014

Courts - "How will West Publishing Co. solve this conundrum?"

This is fun. Howard Bashman writes today at How Appealing:

How will West Publishing Co. solve this conundrum? Yesterday, a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit disposed of an appeal by an unpublished opinion.

In the same case, however, one of the judges on the panel issued a for-publication concurring opinion. I have never before seen a U.S. Court of Appeals issue a decision that was unpublished, accompanied by the separate opinion of a single judge on the panel that was for-publication. If anyone else has previously seen this, please let me know via email.

Eventually, we will learn if the majority opinion will appear in the Federal Appendix and the concurring opinion, alone, will appear in the Federal Reporter, Third Series.

Posted at 01:58 PM by Howard Bashman

Several recent Indiana Court of Appeals cases have presented similar conundrums, enhanced because attorneys are precluded by Indiana rule from citing not-for-publication opinions. From an August 27, 2014 ILB post:
Today's opinion on rehearing is For Publication, while the original May 27, 2014 opinion is Not for Publication. Today's opinion cites Latoya Lee v. State, which is NFP. A week ago we saw Brandon Brummett v. State of Indiana (NFP), a one-paragraph opinion on rehearing, while the original June 2nd opinion is For Publication.

Posted by Marcia Oddi on Saturday, December 06, 2014
Posted to Courts in general

Courts - SCOTUS to look at specialty license plates

Many times in the past the ILB has had posts on Indiana license plates, most recently the question of the "OINK" plate. Before then, there were issues relating to various "GOD" plates and "Choose Life" plates, as well as specialty plates.

Now, according to Adam Liptak's story today in the NY Times, the SCOTUS has "agreed to decide how the First Amendment applies to license plates." More:

The case about license plates arose from Texas’s refusal to issue a specialty plate bearing a Confederate battle flag. The state allows many kinds of plates, including ones proposed by nonprofit groups. The state’s Motor Vehicles Board rejected this one, proposed by the Sons of Confederate Veterans.

The board said it had based its decision on public comments from people who “associate the Confederate flag with organizations advocating expressions of hate.”

The United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled against the state, saying it had violated the First Amendment.

There are two basic issues in the case, Walker v. Sons of Confederate Veterans, No. 14-144.

One is whether statements on specialty license plates are the government’s speech or that of the car’s owner. If they are the government’s speech, the First Amendment largely drops out of the analysis, as the government is free to say what it likes.

The Supreme Court made that clear in 2009 in Pleasant Grove City v. Summum, ruling that a Utah city did not have to allow a minor religion to erect a monument to its Seven Aphorisms near a Ten Commandments monument in a public park.

The court acknowledged that the government could not discriminate among speakers in the park and among people handing out leaflets there. But permanent monuments, whether donated by private groups or commissioned by the government, are government speech, the court said.

Most federal appeals courts, like the Fifth Circuit, have ruled that specialty license plates are different, conveying the positions of the drivers involved rather than that of the government. The appeals court in Chicago, the Seventh Circuit, for instance, ruled that specialty plates are “mobile billboards” for “organizations and like-minded vehicle owners.”

The second question was whether Texas had engaged in impermissible discrimination based on the speaker’s viewpoint. Texas argued that it should be allowed to reject particular license plate designs as long as it does not allow ones expressing any point of view, pro or con, on the topic at issue, here the confederacy. The Seventh Circuit allowed Illinois to turn down “Choose Life” plates on this ground, saying the state had declined to allow any abortion-related designs.

The Fifth Circuit noted that Texas had approved plates from several veterans’ groups but rejected this one based on “the view that the Confederate flag is an inflammatory symbol of hate and oppression.” The court said that amounted to viewpoint discrimination.

The last time the Supreme Court considered what the First Amendment has to say about license plates was in 1977 in Wooley v. Maynard, when it ruled that New Hampshire could not force George Maynard to drive around with plates bearing the state’s motto, “Live Free or Die.” Mr. Maynard, a Jehovah’s Witness, said he preferred life, “even if it meant living in bondage.”

Lyle Denniston of SCOTUSblog also has a post on this grant and a link to the SCOTUSblog case page on Walker v. Texas Division, Sons of Confederate Veterans, Inc..

Posted by Marcia Oddi on Saturday, December 06, 2014
Posted to Courts in general

Ind. Gov't. - "Experts See Legal Hazards in States’ Immigration Suit"

Updating two earlier ILB posts (Dec. 3 - "Gov. joins suit against President Barack Obama over immigration, but AG Zoeller will not participate" and Dec. 5 - ""Pence using outside counsel for immigration lawsuit""), here is a story in today's Indianapolis Star from Maureen Groppe, of the Gannett DC Bureau, that reports:

WASHINGTON — Indiana may not have the legal ability to sue President Barack Obama over his executive action on immigration, Indiana Attorney General Greg Zoeller said Friday.

Zoeller declined this week to handle the state's challenge, instead allowing Gov. Mike Pence to hire outside counsel to sign onto a multistate suit led by Texas.

That suit aims to stop Obama from providing work permits and protection from deportation to as many as 5 million immigrants in the country illegally.

Zoeller said it's unclear that Indiana and the 16 other states challenging the action can show they're sufficiently affected by it.

"Most of us might disagree as to whether states have standing or not," Zoeller said in a call with reporters about a letter he and other attorneys general signed urging Congress to overhaul immigration laws. "It's probably a tough question that is best left for the court." * * *

Zoeller said he's not criticizing Pence for challenging the president's actions, which Zoeller said may in fact be unconstitutional.

But Mississippi Attorney General Jim Hood, who co-authored with Zoeller the letter sent Friday to congressional leaders, pointed out that a federal judge ruled last year that the Mississippi governor could not challenge an Obama administration initiative to give temporary reprieve from deportation to illegal immigrants who arrived when they were children.

"Greg, or any other attorney general contemplating a governor jumping into litigation, has got to review that decision and take pause that the federal court has already found that the state didn't have standing to file that action," Hood said.

The NY Times today has a story by Julia Preston, headed "Experts See Legal Hazards in States’ Immigration Suit," that reports:
A group of 20 states that filed a federal lawsuit this week against President Obama’s executive action on immigration could face difficult legal and factual hurdles, legal experts said, because federal courts have been skeptical of similar claims in the past.

Several lawyers said the states could have a hard time convincing the federal courts that they could suffer specific harms as a result of Mr. Obama’s actions. Those harms are the legal foundation for them to bring the suit.

“The injury the states are alleging seems a bit speculative,” said Cristina Rodriguez, a professor of immigration and constitutional law at Yale Law School. “In many ways this is a political document,” she said of the suit, adding, “It feels more rhetorical than legal.” * * *

In a conference call on Friday, the attorneys general from two states named on the plaintiffs’ list distanced themselves to some degree from the lawsuit and sought to turn the pressure on Congress to pass a more permanent immigration overhaul. Greg Zoeller of Indiana, a Republican, and Jim Hood of Mississippi, a Democrat, released a bipartisan letter they signed with 16 other state attorneys general calling on Congress to act.

Mr. Zoeller said he agreed with Gov. Mike Pence, also Republican, “on the very serious constitutional questions that the president’s action raises.” But he advised the governor to seek an outside lawyer to represent Indiana in the immigration lawsuit because it would be “somewhat distracting” for Mr. Zoeller when he was working to convince lawmakers in Washington “to come together and do the hard work of legislation.”

Mr. Hood said Gov. Phil Bryant, a Republican, had joined the lawsuit but that the State of Mississippi had not. Mr. Hood said that after Mr. Bryant joined a similar lawsuit several years ago, he had been dismissed from the case by the judge.

The new lawsuit, Mr. Hood said, “was governor-driven litigation which involves policy and drags us into litigation we might not initiate on our own.”

Posted by Marcia Oddi on Saturday, December 06, 2014
Posted to Indiana Government

Friday, December 05, 2014

Ind. Decisions - "Justices affirm Lake adoption approval process"

Yesterday's Supreme Court decision in In the Matter of the Adoption of Minor Children: J.T.D. and J.S.: Ind. Dept. of Child Services v. N.E. (earlier ILB summary here) was the subject of a story late yesterday by Dan Carden in the NWI Times. It begins:

INDIANAPOLIS | Some 3,800 adoptions finalized over the past 14 years by the Juvenile Division of the Lake Superior Court no longer are at risk of being invalidated.

The Indiana Supreme Court ruled 5-0 Thursday that Lake Superior Judge Calvin Hawkins and the Court of Appeals both got it wrong when they decided adoptions only could be approved by the Superior Court's Civil Division.

Chief Justice Loretta Rush said the lower court judges misread a state law declaring "probate court has exclusive jurisdiction in all adoption matters." Lake County does not have a separate probate court, so Rush said that law does not apply.

Instead, Lake Country probate matters, such as wills and adoptions, are overseen by the Civil Division of the Superior Court, but jurisdiction for probate cases is shared by the Superior Court's Civil, Juvenile, Criminal and County divisions, Rush said.

As a result, the Superior Court's Caseload Allocation Plan assigning adoption cases to the Juvenile Division controls, and adoption cases must be decided by the Juvenile Division, she said.

Posted by Marcia Oddi on Friday, December 05, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court reprimands Judge of the Clarksville Town Court; requires resignation [Updated]

In In the Matter of the Honorable Mickey K. Weber, Judge of the Clarksville Town Court, a per curium opinion, the Court writes today:

This matter comes before the Court as a result of a judicial disciplinary action brought by the Indiana Commission on Judicial Qualifications (“Commission”) against Respondent Mickey K. Weber, Judge of the Clarksville Town Court. * * *

On March 28, 2014, Respondent pled guilty to Criminal Mischief in the second degree, Ky. Rev. Stat. Ann. § 512.030 (West 2014), and Operating a Motor Vehicle While under the Influence of Alcohol, Ky. Rev. Stat. Ann. § 189A.010(5)(a) (West Supp. 2014). The court ordered Respondent to complete an alcohol class, assessed fines and court costs against him, and imposed a mandatory driver’s license suspension against Respondent. * * *

In light of the facts of this case, the parties submit that the appropriate sanction is as follows: a public reprimand; Respondent’s resignation from the Clarksville Town Court within ten (10) days of the date of this opinion, to be effective on December 31, 2014; Respondent’s ineligibility for future judicial service unless/until he successfully completes an approved treatment plan and two-year monitoring agreement with JLAP; and Respondent paying the costs of this proceeding.

An earlier ILB post from Sept. 30, 2014, was headed "Disciplinary charges filed against Clarksville town court judge."

Readers may recall this post from Dec. 2 about a different local court in SE Indiana, headed "Jeffersonville abolishes city court as judge cries foul."

[Updated 12/8/14] "Clarksville judge set to resign following drunk driving arrest" is the heading of this Dec. 7th story by Ryan Cummings at WDRB.

Posted by Marcia Oddi on Friday, December 05, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Pence using outside counsel for immigration lawsuit"

Updating this ILB post from Dec. 3, Dan Carden reported yesterday in the NWI Times:

INDIANAPOLIS | Hoosier taxpayers will directly bear the cost of Gov. Mike Pence's lawsuit seeking to overturn President Barack Obama's executive order deferring removal actions for an estimated 4 million people who entered the United States illegally.

Unlike other cases where the Republican governor has sued the federal government — including attempts to undo the Affordable Care Act, legalization of gay marriage and clean air rules — Attorney General Greg Zoeller is not representing Indiana in its immigration lawsuit.

Zoeller spokesman Bryan Corbin said while the Republican attorney general shares Pence's concerns about "unilateral executive action to address matters entrusted to Congress," Zoeller chose to authorize outside counsel for the lawsuit rather than pursuing it himself.

"State statute permits state entities to hire outside counsel with the attorney general’s consent, and our office agrees that using outside counsel at the trial court level is appropriate in this lawsuit," Corbin said.

Zoeller authorized Pence to hire attorneys Peter Rusthoven and Joe Chapelle from the Indianapolis law firm of Barnes & Thornburg to represent Indiana in the 17-state immigration order challenge led by Gov.-elect Greg Abbott, the Texas attorney general.

Pence declined to say Thursday how much money he is willing to spend on the lawsuit. His office also has not responded to a request for a copy of the representation contract between the state and the law firm.

"We have no way to estimate the cost of any litigation at the outset," said Pence spokeswoman Kara Brooks.

In prior legal challenges to federal actions led by Zoeller, the attorney general claimed the state's cost of pursuing its interests in court were minimal because his staff lawyers are salaried state employees paid regardless of which case they work on.

Rusthoven billed the state $475 per hour in 2011 when he was hired as outside counsel for Indiana's lawsuit against IBM over a failed welfare privatization scheme.

The Times story links to a number of documents.

Also relevant is a long, long news release from Attorney General Zoeller, issued late this morning, titled " Zoeller and other state AGs urge Congress to take action on immigration," the last half of which, delineating Zoeller's history on immigration issues, begins:

As lawyers for Indiana state government, Attorney General Zoeller and his office repeatedly have had to contend with ramifications of federal government inaction and stalemate on immigration policy and enforcement:

Posted by Marcia Oddi on Friday, December 05, 2014
Posted to Indiana Government

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

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

Posted by Marcia Oddi on Friday, December 05, 2014
Posted to Essential ILB Posts

Ind. Gov't. - "File disputes prosecutor's statement in Bennett case"

Updating the Dec. 2 post headed "AP Exclusive: Bennett Probe Called for Prosecution", quoting stories from the AP's Tom LoBianco, Niki Kelly's report today in the Fort Wayne Journal Gazette begins:

Indiana Inspector General David Thomas released documentation Thursday morning showing he forwarded the complete investigatory file on Tony Bennett – about 12 binders full – in February to the Marion County Prosecutor’s Office.

This disputes what Prosecutor Terry Curry said Wednesday – that his office had received only a summary file in November 2013.

Thomas released two emails. The first was from Thomas to an unidentified prosecutor’s office employee on Feb. 27, 2014, saying a special agent would drop off the large file.

Thomas also offered to meet with Curry about the case.

Then a second email from that staffer confirmed receipt, saying, “thank you for the delivery of the “present”!!!! I have the 11 - 12 Binders in my office. I will gladly share them w/ Prosecutor Curry.”

Curry, a Democrat, did not bring charges against Tony Bennett, the former Republican Superintendent of Public Instruction, despite an investigation by Thomas’ office that found more than 100 instances involving Bennett and his staff that could support wire fraud charges.

Thomas also suggested possible “ghost employment” charges based on a state law barring officials from using their staff for political purposes.

Posted by Marcia Oddi on Friday, December 05, 2014
Posted to Indiana Government

Ind. Gov't. - Local government’s proposed budgets no longer to be published in newspapers prior to public hearings

That from the Crawfordsville Journal Review in a Dec. 4th opinion piece that begins (and ends):

The League of Women Voters believes that democratic government depends upon informed and active participation at all levels of government. The League further believes that governmental bodies must protect the citizen’s right to know by giving adequate notice of proposed actions, holding open meetings and making public records accessible.

The League was distressed to learn that the 2014 Indiana General Assembly eliminated the requirement that local government’s proposed budgets be published in newspapers prior to public hearings. Because this does not take effect until 2016, there has been little attention or awareness of this major departure of information available to public.

The Department of Local Government Finance successfully pursued elimination of the publication requirement in 2014 HEA 1266. The DLGF argued that posting of budget information on the DLGF website was more effective than publication in newspapers. How many citizens are even aware there is a DLGF website much less look at it regularly? * * *

The League of Women Voters of Indiana is partnering with the Hoosier State Press Association to advocate in the 2015 General Assembly for the return of the requirement of publication in local newspapers of local government budgets before HEA 1266 takes effect in 2016. Urge our Senator and Representatives to support transparent government.

Posted by Marcia Oddi on Friday, December 05, 2014
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

De'Carlos Freeman v. State of Indiana (NFP)

Dwayne Carter v. State of Indiana (NFP)

Lawrence Dean v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 05, 2014
Posted to Ind. App.Ct. Decisions

Thursday, December 04, 2014

Ind. Courts - Why did Judge Wentworth last summer (7/13) suddenly recuse herself from the Garwood tax appeal?

Tomorrow, Friday, Dec. 5, at 11:30 AM, the Indiana Tax Court will hold a hearing on Respondent's Motion for Summary Judgment in the case of Virginia Garwood v. Ind. Dep't of State Revenue (IDOR). The hearing will take place in Evansville, and Sr. Judge Fisher will preside.

The original Garwood case ("Garwood I", sometimes known as the "puppy-mill case"), was decided by Tax Court Judge Wentworth on Aug. 19, 2011. The Supreme Court denied transfer. See this ILB post from May 20, 2012 ("Supreme Court lets Tax Court decision in Garwood v. State stand") for background.

A "Garwood II" (82T10-1208-TA-46) ruling, denying the IDOR's motion to dismiss, was entered by Sr. Judge Fisher on Oct. 31st, 2013. Tomorrow's hearing is on Respondent IDOR's summary judgment motion.

The ILB was interested in why the Garwood case, which had been handled exclusively by Judge Wentworth for several years, had now been moved to Sr.J.Fisher. A review of the docket yields the answer. (Unfortunately, I can no longer link to the docket now that it has been moved to mycase.com, as related in this post yesterday titled "One step forward followed by two steps back for the appellate docket.")

Here is the answer, as it appears in July 1, 2013 entries in the case docket (which I have reformatted using a text-converter for easier reading):

07/01/2013 Tax Court Order

1. On August 19, 2011, Judge Martha Blood Wentworth issued
the opinion in Garwood v. Indiana Department of State Revenue,
953 n.e.2d 682 (Ind. Tax Ct. 2011) ("Garwood I").

2. On October 19, 2011, the Indiana Department of State
Revenue filed a petition for review of Garwood I with the
Indiana Supreme Court under Appellate Rule 63.

3. On May 15, 2012, the Indiana Supreme Court unanimously
denied the petition for review, terminating the litigation
between the parties pursuant to Appellate Rule 63(N).

4. On August 27, 2012, Virginia Garwood, the petitioner in
Garwood I, initiated the new matter captioned above by filing
a verified petition for judicial review in the tax court against
the department ("Garwood II").

5. On October 9, 2012, the Department filed a motion to
disqualify and change of judge for cause, which the Tax Court
denied on October 29, 2012.

6. On November 15, 2012, the Department filed a motion to
certify for interlocutory appeal the court's order of October
29, 2012 and motion to stay Tax Court proceedings, which the
Tax Court certified on December 4, 2012, staying the underlying
appeal.

7. On February 19, 2013, the Indiana Supreme Court denied
the Department's request for interlocutory appeal.

8. On April 17, 2013, Attorney General Gregory F. Zoeller's
office called the Tax Court staff to request a 10-15 minute
meeting between Judge Wentworth and the Attorney General.

9. Believing the topic would be a procedural question not
related to either Garwood I or Garwood II, Judge Wentworth met
with the Attorney General on April 19, 2013.

10. During the meeting, however the Attorney General request-
ed Judge Wentworth disqualify herself from Garwood II because,
among other things, he believed her summary of the Garwood I
opinion at a March 2, 2013, continuing legal education seminar
could be confused as her commenting on the present case,
Garwood II.

11. Having considered the concerns raised by the Attorney
General in light of both Indiana Judicial Conduct Rules 2.10
and 2.11 as well as the advice sought from the other judges
in attendance at the seminar and counsel for the Commission
on Judicial Qualifications, the March 2nd event does not merit
recusal.

12. Nonetheless, according to the judicial cannons and advice
from counsel for the Commission on Judicial Qualifications, the
request by the Department's lawyer in Garwood II that the judge
recuse was an ex parte communication.

13. Indiana Judicial Conduct Rule 2.9(b) requires that "if a
judge inadvertently receives an unauthorized ex parte communica-
tion, the judge shall notify the parties of the substance of
the communication and provide an opportunity to respond."

14. Ex parte communications by their very nature suggest
partiality. Tyson v. State, 622 N.E.2d 457 (Ind. 1993).

15. Even though Judge Wentworth's participation in the ex
parte communication was inadvertent, the request by the lawyer
for a party intending to affect the judge's behavior in
Garwood II (in the very manner taking place today) could create
a reasonable basis for questioning her impartiality.

6. Mindful of the duty to promote public confidence in the
impartiality and the fairness of decisions of the Tax Court,
Judge Wentworth hereby disqualifies herself from this case
under Rules 2.9(B) and 2.11 of the Indiana Code of Judicial
Conduct and requests the Chief Justice of the Supreme Court to
appoint a special judge pursuant to Indiana Code 33-26-2-6 and
Tax Court Rule 15.

Martha Blood Wentworth, Judge

Here is RULE 2.9: Ex Parte Communications and RULE 2.11: Disqualification, of the Rules of Judicial Conduct.

Also of relevance here are the Rules of Professional Conduct, particularly RULE 3.5. Impartiality and Decorum of the Tribunal. Rule 3.5 begins:

A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
Comment 2 states:
[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order.
It is unclear from the order if Judge Wentworth filed a disciplinary complaint against the Attorney General for the ex parte communication he initiated with her. Disciplinary complaints are private unless formal charges are pursued by the Commission.

Posted by Marcia Oddi on Thursday, December 04, 2014
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - A third opinion today from the Supreme Court

In In the Matter of the Adoption of Minor Children: J.T.D. and J.S.: Ind. Dept. of Child Services v. N.E., a 10-page, 5-0 opinion, Chief Justice Rush writes:

Local rules cannot confer, revoke, or override subject matter jurisdiction, but they may properly prescribe venue—the particular location among courts that have jurisdiction for cases to be heard. Here, the Lake Superior Court has four divisions, “civil (including probate), criminal, county, and juvenile,” Ind. Code §§ 33-33-45-3, -21(a) (2008), none of which is a “separate probate court” that would have exclusive adoption jurisdiction, see I.C. § 31-19-1-2(a). N.E. filed two adoption petitions in one of the Civil Division courts, violating a local rule that all adoptions (a type of probate case) must be filed in the Juvenile Division. The trial court, in turn, declined to transfer the cases to the Juvenile Division, and the Court of Appeals affirmed. Largely in an effort to adhere to dicta in one of our previous cases, it held the local rule impermissibly impinged on the jurisdiction of the Superior Court’s “civil (including probate)” division. We disagree. The local rule does not impermissibly expand jurisdiction beyond statutory bounds, but simply prescribes venue—and like all local rules, it is binding on the courts and litigants. The trial court erred in refusing to transfer these adoptions to the Juvenile Division, and we reverse and remand accordingly. * * *

The parties and both of the previous courts were all partly correct in their analyses. The trial court was correct that it did have subject matter jurisdiction over adoptions and that the Caseload Allocation Plan was a matter of venue and not jurisdiction. Yet DCS was correct that the trial court was bound by the Caseload Allocation Plan and therefore obligated to transfer the adoption to the Juvenile Division. Because nothing in Indiana Code chapter 33-33-45 restricts the probate jurisdic-tion of any of the Lake Superior Court’s divisions, each division—including the Juvenile Division—is imbued with the same jurisdiction as the court at-large. Therefore, even though the Caseload Allocation Plan’s provisions establish only venue and not jurisdiction, they are binding on the court and litigants. Lake County was free to adopt a Caseload Allocation Plan establishing exclusive venue for adoptions in the Juvenile Division as a matter of administrative convenience and efficiency, and that Rule is binding on the court and litigants.

Accordingly, we reverse the trial court’s denial of DCS’s motion to transfer and order these adoptions transferred to the Juvenile Division consistent with the Lake County Caseload Allocation Plan that was in effect at the time N.E. filed these adoptions.

ILB: An earlier news story about this case was headed "Fate of 3,800 Lake adoptions hangs on Indiana Supreme Court."

Posted by Marcia Oddi on Thursday, December 04, 2014
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - BSU so-far unsuccessfully contacts county prosecutor about fraud

Updating several earlier ILB posts quoting worth re-reading stories by Seth Slabaugh of the Muncie Star-Press ("Legal advice costs BSU $170,646" from Oct. 14th, and " Ball State writes off $12.6 million from scam" from Oct. 20th), Slabaugh today reports:

Ball State University has reached out to Delaware County Prosecutor Jeff Arnold regarding two investment scams that cost the university $13.5 million.

The prosecutor says he received an email from Deborah Daniels, a former federal prosecutor, that said “she was hired by BSU to conduct an internal investigation. She asked me to call her.”

Arnold was tied up in a murder trial at the time, then he was off for a week, and then when he tried to telephone Daniels, she was on vacation.

“I tried to call her again yesterday and today, and we still have not talked to each other,” Arnold said on Tuesday.

A sister of former Gov. Mitch Daniels and an Indianapolis attorney, Daniels was hired by Ball State to evaluate the university’s internal controls and investment portfolio and create a “management action plan.” BSU also hired the CPA firm Crowe Horwath for the review. * * *

Rick Hall, chair of the university’s board of trustees, told The Star Press more than six weeks ago that other information gathered by Daniels and the CPA firm would be provided to the prosecutor, who “will make a decision as to who should be prosecuted.” [ILB emphasis]

Posted by Marcia Oddi on Thursday, December 04, 2014
Posted to Indiana Government

Ind. Decisions - Supreme Court decides two today

In In Re: The Carroll County 2013 Tax Sale: Twin Lakes Regional Sewer District v. Richard C. Ray and Patricia A. Alford, et. al., a 6-page, 5-0 opinion, Justice Dickson writes:

After two landowners, delinquent in paying fees and penalties owed to a regional sewer district, successfully petitioned the Carroll County Circuit Court to remove their properties from the list of properties subject to a tax sale, the lienholder sewer district appealed, challenging the trial court's interpretation of IC 13-26-14-4. We hold that the statute does not apply to prohibit a tax sale of these properties. * * *

We recognize the landowners' earnest opposition to their property being subject to regional sewer district fees and their belief that the legislature's enactment of the lien foreclosure prohibition clause provided them with immunity in the absence of other liens. We must be guided, however, by the language enacted and thus find that, while it precludes the foreclosure of assessed regional sewer district fee liens when such liens are the only liens on a property, this preclusion does not extend to collection of such fees and charges by tax sale.

Conclusion. The lien foreclosure prohibition of IC 13-26-14-4, governing the collection of regional sewer district sewer liens, does not apply to collection by tax sale. Here, because the District employed the tax sale method and did not seek collection of the Appellees' unpaid sewer bills and penalties through the lien foreclosure method, the lien foreclosure prohibition clause does not apply. The judgment of the trial court removing the Ray and Alford properties from the tax sale list is reversed, and this cause is remanded for further proceedings consistent with this opinion.

In In Re: The Carroll County 2012 Tax Sale: Twin Lakes Regional Sewer District v. Steven E. Hruska, Virginia Hanna, et. al., a 2-page, 5-0 opinion, Justice Dickson writes in full:
The facts in this case parallel those of Twin Lakes v. Ray, 08S04-1402-MI-97, __ N.E.3d __ (Ind. 2014), which we contemporaneously issue today. In both cases, the same trial court granted landowners' requests to remove their properties from the list of properties subject to tax sale, and Twin Lakes Regional Sewer District appealed, challenging the trial court's interpretation of IC 13-26-14-4. For the same reasons expressed today in Ray, we also reverse the judgment of the trial court in the present case.

As we hold today in Ray, the lien foreclosure prohibition of IC 13-26-14-4, governing the collection of regional sewer district sewer liens, does not apply to collection by tax sale. Here, because the District employed the tax sale method rather than seeking collection of the landowners' unpaid sewer bills and penalties through foreclosure, the lien fore-closure prohibition clause does not apply. The judgment of the trial court removing the land-owners' properties from the tax sale list is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, December 04, 2014
Posted to Ind. Sup.Ct. Decisions

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

For publication opinions today (3):

In In Re Petition for Change of Birth Certificate, a 6-page opinion, Judge Friedlander writes:

Appellant is a transgender male who identifies as a man, lives as a man, and has undergone extensive medical treatment for gender transition, including gender reassignment surgery. Appellant filed a petition to change his legal gender so that he could correct the gender markers on his birth certificate. The trial court denied the petition based upon a perceived lack of authority to grant such a request. In this uncontested appeal, Appellant contends that the trial court erred by refusing to grant the petition. We reverse and remand. * * *

On February 14, 2014, the trial court issued an order denying the petition. The court concluded that it did not have authority to grant such a request, noting that the Indiana General Assembly had not yet spoken on the issue. On appeal, Appellant contends that the trial court had authority pursuant to [IC 16-37-2-10, as well as the court’s inherent equitable authority.

IC 16-37-2-10(b) provides in relevant part: “The state department may make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence”. Like name changes, the ISDH defers to the courts by requiring a court order to establish adequate documentary evidence for an amendment of gender on a birth certificate. * * *

Though never addressed by this court, the amendment of a birth certificate with respect to gender is not novel. The vast majority of states, including Indiana, have allowed it in practice for some time. * * *

IC16-37-2-10 provides general authority for the amendment of birth certificates, without any express limitation (in the statute or elsewhere) regarding gender amendments. In light of this statute, as well as the inherent equity power of a court of general jurisdiction, we conclude that the trial court had authority to grant the petition at hand. * * *

There can be no question in this case that Appellant made an adequate showing in support of his petition. He presented ample medical evidence regarding his gender transition, which culminated in sex reassignment surgery. Moreover, Appellant’s genuine desire to have all identifying documents conform to his current physical and social identity is apparent.

The trial court erred in denying the petition. On remand, the trial court is directed to grant Appellant’s petition and issue an order directing the ISDH to amend his birth certificate to reflect his male gender.

In Caddyshack Looper, LLC v. Long Beach Advisory Board of Zoning Appeals, a 22-page opinion, Judge Brown writes:
Caddyshack Looper, LLC, (“Caddyshack”) appeals the trial court’s order affirming a decision by the Long Beach Advisory Board of Zoning Appeals (the “BZA”) denying a request for a variance by Caddyshack. Caddyshack raises four issues which we consolidate and restate as whether the court erred in affirming the decision of the BZA. We reverse and remand. * * *

Based upon the evidence before the BZA, we conclude that Caddyshack demonstrated that strict application of the setback requirement will result in practical difficulties in the use of the property under Ind. Code § 36-7-4-918.5(3). Further, as noted above, we do not disturb the findings of the trial court with respect to subsections (1) and (2) of Ind. Code § 36-7-4-918.5. Accordingly, we reverse the order of the trial court which had affirmed the denial of the variance and remand.

In Albert C. Gentry, II v. Nora Day, and Sean Boomquist; Nora Day v. Sean R. Bloomquist, a 10-page opinion, Judge Crone writes:
Under Indiana law, a person is subject to civil liability for damages if he “furnished” alcohol to a minor with actual knowledge that the minor was visibly intoxicated when the alcohol was furnished and the intoxication was a proximate cause of the damage. IC 7.1-5-7-8, 7.1-5-10-15, 7.1-5-10-15.5. Our cases have held that a person “furnishes” alcohol in violation of the relevant statutes where that person is “‘the active means’ by and through which the [alcohol] was placed in the custody and control of the intoxicated person.” Rauck v. Hawn, 564 N.E.2d 334, 337 (Ind. Ct. App. 1990) (quoting Lather v. Berg, 519 N.E.2d 755, 761 (Ind. Ct. App. 1988)).

Nathan’s father, Albert C. Gentry, II (“Gentry”), filed a complaint alleging that Bloomquist was liable for Nathan’s death because he furnished alcohol to Hubbard with actual knowledge that Hubbard was visibly intoxicated and the intoxication was a proximate cause of Nathan’s death. Bloomquist filed a motion for summary judgment asserting that he did not furnish alcohol to Hubbard as a matter of law. The trial court granted Bloomquist’s summary judgment motion.

Gentry now appeals, arguing that a genuine issue of material fact exists regarding whether Bloomquist furnished alcohol to Hubbard. We agree with Gentry and therefore reverse and remand for further proceedings.

NFP civil opinions today (2):

Treni M. Gorman, Jr. a/k/a Tremi M. Gorman, Jr. v. State of Indiana (NFP)

Gina Vrankin v. Titan Vrankin (NFP)

NFP criminal opinions today (3):

Larry L. Haines v. State of Indiana (NFP)

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

Brice Tyshan Holden v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, December 04, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on "Seventh Circuit Motions Panels Seizing Merits Cases?"

Updating this brief post from Tuesday, Alison Frankel, in her Reuters "On the Case" column today, asks: "Are judges in the 7th U.S. Circuit Court of Appeals quietly taking advantage of their unusual assignment system to effect particular results?" Here is a sample:

But in a new working paper for a forthcoming issue of the U.C. Davis Law Review, a law professor at the University of Georgia contends that 7th Circuit judges can indeed manipulate the circuit’s unusual assignment system to set precedent in areas they want to influence. In “Superstar Judges as Entrepreneurs: The Untold Story of Fraud-on-the-Market,” the professor, Margaret Sachs, examines how Judges Posner and Easterbrook set precedent on class certification in securities class actions, especially after Rule 23 of the Federal Rules of Civil Procedure was changed to permit interlocutory appeal of class certification decisions from trial courts. All 17 of the 7th Circuit’s first reported opinions on interlocutory class certification appeals, according to Sachs, were written by Judge Posner or Judge Easterbrook. She says that dominance is anything but a coincidence.

Sachs argues that the two judges were able to shape precedent in part by retaining merits appeals of cases they agreed to hear as motions judges. Eleven of the 7th Circuit’s first 17 opinions on interlocutory class certification, she said, came in cases in which either Posner or Easterbrook served on a motions panel and went on to hear the merits of the case. In any federal circuit except the 7th, Sachs said, that would not have been possible. “If the motions panels had instead surrendered the appeals for reassignment to merits panels, the prevailing pattern in every other circuit, some percentage of the merits panels would almost certainly not have included Judge Easterbrook or Judge Posner,” she wrote.

Sachs calls Posner and Easterbrook superstars, but she nonetheless finds “worrisome” their apparent exploitation of the assignment system. “Judges Easterbrook and Posner typically presented an efficiency rationale,” she wrote. “While plausible as far as it goes, this rationale fails to take account of the arguable appearance of impropriety that the retention creates. Indeed, when deciding to grant a petition, the motions panel may develop a view about how the appeal should be resolved. Retaining the appeal for decision enables the motions panel to make that resolution the law of the circuit.”

There’s no federal policy against the self-selection that 7th Circuit motions panels can engage in, Sachs says, but all of the other circuits and considerable academic research support the entrenched practice of selecting appellate merits panels randomly.

[h/t: How Appealing]

Posted by Marcia Oddi on Thursday, December 04, 2014
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Fed. District Court grants PPINK summary judgment on its equal protection claims re statutory abortion clinics requirements

Updating this ILB post from Nov. 26, 2013, headed "Federal district court temporarily enjoins state enforcement of IC 16-18-2-1.5(a)(2) which Planned Parenthood has asserted would shut down its Lafayette clinic," here is Judge Magnus-Stinson's 41-page, Dec. 3, 2014 order in the case of Planned Parenthood of Indiana and Kentucky, Inc. (“PPINK”) v. Comm., Ind. Dept. Health. The conclusion:

For the reasons set forth herein, the Court GRANTS IN PART PPINK’s Motion for Summary Judgment, [Filing No. 71], to the extent that the Court enters summary judgment in favor of PPINK on its claim that Indiana Code §§ 16-18-2-1.5(a)(2) and 16-21-2-2.5(b) violate the Equal Protection Clause of the United States Constitution. The Court DENIES PPINK’s request for summary judgment on the Fourteenth Amendment claim it brings on behalf of its patients’ right to choose an abortion and on PPINK’s substantive due process claim. The Court DENIES the State’s Motion for Summary Judgment in all respects. [Filing No. 73.] No final judgment shall issue at this time.

PPINK’s claims that remain pending seek injunctive relief regarding Indiana Code § 16- 18-2-1.5(a)(2), but PPINK is entitled to that relief by entry of summary judgment in its favor on its equal protection claim. Thus, the Court requests that the assigned Magistrate Judge schedule a status conference with the parties to discuss the effect of the Court’s summary judgment order on the remaining pending claims, the necessity of the presently scheduled June 2015 trial, and the contents of any proposed permanent injunction and final judgment if the parties deem trial to be unnecessary.

There is much in the opinion worth reading.

Here is an Indianapolis Star story on the ruling.

Posted by Marcia Oddi on Thursday, December 04, 2014
Posted to Ind Fed D.Ct. Decisions

Wednesday, December 03, 2014

Ind. Gov't. - Gov. joins suit against President Barack Obama over immigration, but AG Zoeller will not participate

Maureen Groppe of Gannett reported this afternoon:

Indiana is challenging President Barack Obama’s steps to protect about 5 million undocumented immigrants from being deported — but the state’s attorney general is handing off the case.

Gov. Mike Pence, a Republican, announced Wednesday that he directed Attorney General Greg Zoeller to join a multistate lawsuit led by Texas to stop the Obama administration’s executive actions.

Zoeller, also a Republican, countered that he is granting consent for the governor to hire outside counsel.

Zoeller’s spokesman said that although the attorney general’s office usually represents the state government in lawsuits, state officeholders or agencies may “make a specific policy request for legal representation that can most effectively be provided through using outside counsel.”

“State statute permits state entities to hire outside counsel with the attorney general’s consent, and our office agrees that using outside counsel at the trial court level is appropriate in this lawsuit,” said spokesman Bryan Corbin.

Corbin referred questions about the cost of the outside counsel to the governor’s office and declined to say whether the move means Zoeller disagrees with the suit.

Zoeller said in his letter to Pence that he shares Pence’s “concerns about the unilateral executive action to address matters entrusted to Congress and the resulting impact on Indiana.”

Here is the Governor's letter to the Attorney General today, it ends with:
While we have previously had informal discussions about Indiana joining this lawsuit, I am formally directing you to use any and all legal means necessary to represent the State of Indiana as a plaintiff in the suit being filed by the State of Texas today.
Here is the Attorney General's formal response, which states in part:
Pursuant to my authority under Ind. Code 4-6-5-3, I am hereby providing consent for the Governor's Office to hire Peter Rusthoven and Joe Chapelle from Barnes & Thornburg as outside counsel to appear as counsel for the State in the Texas litigation and provide representation as appropriate in relation to the case. Consistent with other authorizations to hire outside counsel to represent the state, please note that this consent to hire outside counsel does not serve as consent for settlement or appeal of the lawsuit, which can be addressed later as necessary and appropriate through additional requests for consent.
The latest issue of Indiana Legislative Insight reported nearly a week ago:
Nineteen Republican attorneys general and attorneys general-elect released a joint statement through the Republican Attorney Generals Association regarding the President’s immigration proposals, asserting that “The President cannot ignore the American people, the states or an entire branch of government.” They said that as lead attorney for their states, “we are committed to the rule of law and ensuring that we remain a nation of laws, enacted as prescribed by our Constitution .... As attorneys general we will uphold our constitutional oath to take whatever actions may be appropriate to uphold the rule of law.”

Attorney General Greg Zoeller (R), was conspicuous by his absence from the statement. You may recall that General Zoeller incurred the wrath of some Senate Republicans for opting against defending parts of Indiana’s recent immigration law after a U.S. Supreme Court ruling likely rendered components unconstitutional, and he joined national bipartisan efforts to promote reasonable immigration reform, specifically labeling it a national, and not a state, matter.

The AG’s spokesman, Bryan Corbin, explains to us that “The Attorney General sees his official role as being nonpartisan and does not want to speak with a partisan political voice except during his own campaign. Attorney General Zoeller is co-authoring a forthcoming letter to Congress from a bipartisan group of state AGs, under the auspices of the National Association of Attorneys General, urging congressional action on immigration. AG Zoeller’s focus is on speaking as legal representative of a state through an official letter, and the RAGA press statement did not provide that opportunity.”

Posted by Marcia Oddi on Wednesday, December 03, 2014
Posted to Indiana Government

Ind. Courts - Pence Names current Marion Co. Judge Cook as Director of Alcohol and Tobacco Commission

From a news release:

Governor Pence today named Judge David Cook as Director of the Alcohol and Tobacco Commission. Judge Cook currently serves on the Marion County Superior Court 7 Criminal Division and was appointed to this role by the Indiana Supreme Court in February of 2014. * * *

Judge Cook is a graduate of Ball State University, where he received his Bachelor’s degree, and Indiana University – Indianapolis School of Law, where he received his Juris Doctorate.

Judge Cook will assume his role on January 5, 2015, at the expiration of his current term as Marion County Superior Court Judge.

Posted by Marcia Oddi on Wednesday, December 03, 2014
Posted to Indiana Courts | Indiana Government

Courts - "Argument analysis: 'Interpretive rules,' notice-and-comment rule making, and the tougher issues waiting in the wings"

Updating this ILB post from Dec. 1, about SCOTUS hearing a case involving an "interpretive rule", SCOTUSblog this morning has posted an really interesting argument analysis about the case. The lengthy entry, by Brian Wolfman and Bradley Girard, begins:

The Court heard argument Monday in Perez v. Mortgage Bankers Association (consolidated with Nickols v. Mortgage Bankers Association). Here is the question presented in the Solicitor General’s cert. petition:
Whether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

Posted by Marcia Oddi on Wednesday, December 03, 2014
Posted to Courts in general

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

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (1):

S.L. v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, December 03, 2014
Posted to Ind. App.Ct. Decisions

Ind. Courts - One step forward followed by two steps back for the appellate docket

Ever since the ILB began, I have been calling for a better appellate docket. For instance, in 2005 the ILB wrote:

Certainly it is better than no docket, but it is time for improvements. The docket is maddening to use, and delivers limited information. If you have used it before, you understand. If not, try it out. Type in Morrison. Say you were looking for "Michael Morrison." Pick one of the results. If it turns out to be the wrong one (very limited information is provided), you will have to start over from the beginning.
On Nov. 7, 2011 an ILB post was headed "Appellate Clerk announces an entirely new docket by the end of the year." It quoted an article in Court Times by Clerk Kevin Smith:
Users will be able to search for case dockets using multiple criteria (such as party name, court on appeal, trial court, appellate cause number, lower cause number, case type, litigant name, attorney name, trial court judge, date restrictions, etc.), and then further narrow and/or sort the results by similar criteria. They also will be able to view a docket from the results list, and then “go back” to their results screen again without having to run the query all over again.

Further, interested persons will now be able to use the Clerk’s Online Docket for research purposes in ways they have never been able to before. For example, if someone wanted to see how many appeals were filed from a particular trial court during 2011, she could simply specify the trial court and a date restriction of 2011, and up will come all appeals opened during 2011 from that trial court. She would then be able to look at the dockets in each case, gleaning relevant information from each and then going “back” to the list to look at the next one.

Other examples could include viewing the dockets in all appeals involving mortgage foreclosures, or in all appeals in which a certain attorney was counsel of record, or in all appeals filed with Court of Appeals during a given week. The possibilities are limitless concerning the information that attorneys, members of the media, and members of the public will now be able to gather easily from the Clerk’s Online Docket. We anticipate Phase II will be completed by the end of calendar year 2011.

Also promised:
Phase III will provide attorneys and members of the media and public with the unprecedented ability to receive e-mail notifications when certain activity occurs in an appellate case of their choosing. Through a free online subscription service, users will be able to choose the case or cases for which they wish to receive automatic e-mail notifications when certain docket entries (or any docket entry) is made. Subscriptions can be based on any number of criteria, such as: by appellate court (e.g., All, Supreme Court, Court of Appeals, or Tax Court); by appellate cause number; by trial court; by trial court cause number; by county of origin; by specific case type; and by attorney (i.e., cases in which a particular attorney has filed an appearance).
Alas, calendar year 2011 ended with no new docket. So did 2012. But in mid-2013 there was progress. On June 19, 2013, the ILB posted:
Remember the dread appellate online docket? Where you have to carefully type in a case number, filling one box at a time? Where if you get more than one case pulled up, there IS NO BACK KEY, you have to start over to access the docket for each case?

There is hope! There is a new, beta Appellate Case Search. I just put it to the test and it passed. I pasted in the case number of yesterday's legislative fines decision, "49S00-1201-PL-53." No problem.

Then I pasted in the lower case number, from the Marion County court - 49D10-1106-PL-23491. Again no problem, and I pulled up three cases. I could easily look at one, then use the BACK KEY to look at the next - no need to start over!

In addition, you could sort the docket you pulled up by most recent entry either first or last.

And there was/is much more! In fact, using the pull-down menus, the new docket provides everything promised by Clerk Smith in his 2011 article re Phase II.

The Bad News. Now for the "two steps back." Notice that the top of the new docket page now states:

NOTICE: As of November 28, 2014, Tax Court case dockets are available at mycase.in.gov. Case dockets in the Supreme Court and Court of Appeals will move to mycase.in.gov in early 2015.
So I looked at the Tax Court docket, now moved to mycase.com. I selected "Indiana Tax Court" from the pull-down menu, and "Civil, Family & Probate Case Records."

My first realization: CAPTCHA! I would have to fill in the box for every search.

Second, none of the wealth of search options provided by the current "new" appellate docket.

I typed in the name of one of the more active tax court appeals, "Garwood" and from the two cases numbers displayed, selected "82T10-1208-TA-00046". And there was the docket.

Third, the display is awful. Compare this sample of the Garwood case moved to mycase:


to that of an appellate case still using the current appellate docket display:

Fourth, I can link to the dockets I pull up in the current docket. That means I can include the link in a post, or more importantly, if I am an attorney following a list of cases, I can simply bookmark or otherwise collect a list of the links. I don't have to go through the whole retrieval process each time I want to check on my cases.

With the mycase docket, there is no linking directly to a docket once you have found it. You have to go through the entire process each time, beginning with CAPTCHA. You can't save cases to avoid looking them up over and over again.

So these are some of the reasons this entry is headed "One step forward followed by two steps back for the appellate docket." At least two steps back...

Posted by Marcia Oddi on Wednesday, December 03, 2014
Posted to Indiana Courts

Law - "‘Serial’: An investigative journalism podcast becomes a cultural obsession"

That is the headline of this lengthy Nov. 13th Washington Post story by Stephanie Merry. A few quotes:

Rabia Chaudry had never listened to a podcast until “Serial.” Now, every Thursday morning, the first thing she does before getting out of bed is pick up her phone and start streaming the latest episode.

It’s not what Chaudry envisioned when she contacted Sarah Koenig last year in the hopes that the journalist would revisit a 15-year-old murder case. Chaudry had stumbled upon Koenig’s long-ago reporting for the Baltimore Sun, and thought some new coverage — or “something like ‘Dateline’” — might help free her younger brother’s friend, Adnan Syed, who is serving a life sentence plus 30 years for murdering his ex-girlfriend, Hae Min Lee. * * *

“I didn’t listen to podcasts and I didn’t know how big they were,” she recalled. [But now] Chaudry isn’t the only one with a first-thing-Thursday appointment with the multi-part true-crime investigation. “Serial,” produced by “This American Life” and WBEZ Chicago, has reigned supreme on iTunes’ top podcast list since it launched Oct. 3, each episode downloaded or streamed at least 1.2 million times — though that could include multiple listens by some avid followers. Unusual for both a podcast and a work of journalism, it has blossomed into a minor watercooler event, spawning the kind of multimedia chatter and analysis that often surrounds a prestigious HBO drama.

A long Dec. 1 story by Juliet Linderman of the AP is headed "Case Highlighted in Podcast Moves through Appeal."

Here is the homepage for Serial
, where you can listen to the entire series, plus access related materials - maps, timelines, cell phone call logs, etc.

Posted by Marcia Oddi on Wednesday, December 03, 2014
Posted to General Law Related

About the ILB - Easy access to the ILB on your iDevice

The ILB received this message this morning:

I am a newly admitted attorney but have appreciated your blog since starting law school. Prof. Schumm turned me onto it during my first year writing course.

I am also new to the smartphone world and would love to know if you have considered making an Indiana Law Blog app? If so, what are the hurdles of creating it?

Here was my response:
It is pretty easy if you have an iPhone or iPad and the Safari browser. You probably also can do it on an Android, but I don't have one to try.

In my iPad I just opened Safari and pulled up the ILB. Then I opened the box with the arrow pointing up in the right-hand corner of the screen. You will get a number of options, including in the second row "Add to Home Screen." Tap that and an ILB icon will be added to your home screen's icons.

Another option would be to make the ILB your browser home page.

Posted by Marcia Oddi on Wednesday, December 03, 2014
Posted to About the Indiana Law Blog

Tuesday, December 02, 2014

Ind. Courts - "Seventh Circuit Motions Panels Seizing Merits Cases?"

7th Circuit practitioner? Don't miss How Appealing's collection of links here.

Posted by Marcia Oddi on Tuesday, December 02, 2014
Posted to Ind. (7th Cir.) Decisions

Courts - "West Virginia Coal Country Sees New Era as Donald Blankenship Is Indicted" But now a gag order [Updated]

That is the headline to this long, interesting Nov. 30th story by Trip Gabriel in the NY Times. A few quotes:

Legal experts call the case against Mr. Blankenship, a figure both feared and renowned for his power in West Virginia, a turning point after a century in which the power of coal barons over politicians, courts and the economy protected them.

“Those responsible for managing mines in a way that caused multiple deaths were never held responsible,” said Patrick McGinley, a law professor at West Virginia University. “It shocks the conscience.”

The Charleston Gazette, a newspaper with a history of reporting on coal’s costs to the state, said simply, “This indictment is momentous.” * * *

Paradoxically, Mr. Blankenship’s own political influence has played out on an epic scale. His manipulation of West Virginia’s highest court in a civil case against him was rebuked by the United States Supreme Court in 2009, and inspired the John Grisham novel “The Appeal.”

See also earlier ILB posts under the heading: "The plot of John Grisham's latest novel may have already come to life in W. Va."

Now today Alison Frankel has posted a column in her Reuters "Analysis & Opinion" column headed: "Reverse the outrageous gag order in Don Blankenship criminal case." Read it. Here is a sample:

Yet under a gag-and-seal order issued the day after Blankenship’s indictment by U.S. District Judge Irene Berger of Beckley, West Virginia, no one with an actual connection to the case – not Blankenship, his lawyers, prosecutors, potential witnesses, investigators, victims or their families – is permitted to speak publicly about the case.

Nor are documents from the case available through the federal courts’ electronic records system. If you try to view them, you receive a message, “This image is not available for viewing by non-court users.” Even the indictment, which the Justice Department emailed to journalists and posted publicly at the West Virginia U.S. attorney’s website, can’t be viewed or downloaded from the court. The U.S. attorney’s office also took it down after the gag-and-seal order was issued. My link comes from the Justice Department’s old email announcing charges against Blankenship. And the only reason I’m able to link to the gag order is that the Gazette obtained a copy from the court clerk in Beckley – the only document the clerk’s office said it was authorized to provide – and posted it online.

Neither side asked for the gag order. Judge Berger issued it on her own initiative. She said in the order that she was taking extreme precautions “to insure that the government and the defendant can seat jurors who can be fair and impartial and whose verdict is based only upon evidence presented during trial.” (The brief description of the gag order on the public electronic docket doesn’t include this explanation and – just to remind you – the order itself is not available through the court’s public records website. We only know the judge’s reasoning because the clerk emailed the gag order to the Gazette.)

On Monday, a coalition of media organizations, including The Wall Street Journal, The Charleston Gazette and National Public Radio, moved to intervene in the Blankenship case to ask Judge Berger to vacate the gag and seal order. As of Tuesday afternoon, even a description of their motion wasn’t yet listed on the Blankenship docket. Once again, I’m relying on a Gazette link to the document.

[h/t @barbberg]

[Updated at 7:49 PM] Here is more, a long W.Va. Gazette story by Ken Ward Jr., headed "Media outlets challenge Blankenship gag order." It has several links, including to the 2-page gag order.

Posted by Marcia Oddi on Tuesday, December 02, 2014
Posted to Courts in general

Ind. Gov't. - "AP Exclusive: Bennett Probe Called for Prosecution" [Updated]

Tom LoBianco of the AP reports in a long story this afternoon that:

A months-long investigation into former Indiana schools Superintendent Tony Bennett's use of state staff and resources during his 2012 re-election campaign found ample evidence to support federal wire fraud charges, according to a copy of the 95-page report viewed by The Associated Press.

Despite the recommendation that charges be pursued, Bennett has never faced prosecution for such charges[,] which could have carried up to 20 years in prison.

The investigation, which was completed by the inspector general's office in February, found more than 100 instances in which Bennett or his employees violated federal wire fraud law.

That contrasts sharply with an eight-page formal report issued in July that said the office found minimal violations, resulting in a $5,000 fine and an admonishment that Bennett could have avoided fines by rewriting rules to allow some campaign work on state time. * * *

The report also cites the successful prosecution of former Lake County Surveyor George Van Til as a blueprint for prosecution. Van Til, a Democrat, pleaded guilty last December to six counts of wire fraud and admitted to using county employees for campaign work between 2007 and 2012.

From a second AP story, also by LoBianco:
The Indiana inspector general's office built a strong case in alleging former schools Superintendent Tony Bennett engaged in wire fraud through extensive use of public resources for his 2012 re-election campaign, according to a document viewed by The Associated Press. A local prosecutor declined to take the case, and the office settled with Bennett for $5,000 in July. [ILB emphasis]

The inspector general's investigation, which covers the 2012 calendar year, found more than 100 instances among 14 employees to support the wire fraud allegations. Former Bennett chief of staff Heather Neal had 17 violations, the document showed[,] the most among employees.

Among the findings:

  • Misuse of state-issued/campaign SUV and driver:

    The investigation checked mileage logs, fuel card purchases and Bennett's calendar to come up with 21 instances in which Bennett misused the state vehicle. * * *

  • Staff used for political work on taxpayers' dime:

    Indiana's ghost employment laws bar state workers from doing political work on state time and prohibit state officials from directing their employees to do campaign work. But the investigation found multiple instances of state employees doing political work while being paid by taxpayers. * * *

  • Payments constituting wire fraud violation:

    Wire fraud charges are frequent in public corruption cases, built by showing that the state transfer of payment to employees via their bank violates federal rules.

    The investigation includes detailed automatic financial transfers between the state of Indiana and banks for the 14 employees and Bennett. The biweekly paychecks violated federal wire fraud law because they covered time spent on political activities, the report says.

  • [Updated Dec. 3] See also this front-page Indianapolis Star story by the AP's LoBiano, that reports:
    Marion County Prosecutor Terry Curry, tasked with investigating public corruption at the Statehouse, said his investigators looked at evidence collected by the state and their own investigation but decided it was "minimal" and "inappropriate to pursue any type of criminal charges." He added that the inspector general's punishment made it less likely for his office to pursue charges.

    A spokesman for the U.S. attorney's office declined comment Tuesday.

    Posted by Marcia Oddi on Tuesday, December 02, 2014
    Posted to Indiana Government

    Ind. Courts - On the Road or in the Statehouse: A Look at 2014 Oral Arguments Before the Indiana Court of Appeals

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

    As detailed in this post from last June, oral arguments are relatively rare at the Indiana Court of Appeals, occurring in only about 4% of appeals (or 70-80 cases each year). Some lawyers file motions for oral argument, while the court sets argument on its own in many cases. In 2012, 65% of requests for oral argument were denied. Many arguments are held in the Court of Appeals courtroom in Indianapolis, while a few dozen arguments each year occur at “high schools, colleges, law schools and other venues to give Hoosier a close-up look at the court in action.” This June 2014 press release announced the 400th such “Appeals on Wheels” argument since the Court’s 2000-01 centennial anniversary.

    This post offers some perspective and analysis of 56 (19 criminal and 37 civil) oral arguments held so far in 2014.*

    Appeals on Wheels

    Of the 56 arguments, 29 (52%) were held on the road. Perhaps most surprising is how rarely lawyers in criminal cases appeared in the Court of Appeals courtroom (just 2 cases or 11%). Not surprisingly, roadshow arguments are far more common in criminal cases (17 or 89% of the argued cases) than civil cases (12 or 32% of the argued cases). The Court of Appeals, typically the judge assigned to write the opinion, selects the cases that will be heard "on the road." The issues in many of the civil cases are simply too complex for a high school, college, or in some cases even a law school audience to easily grasp.

    Judges approach roadshow arguments differently -- and lawyers should as well. Questions at a Statehouse argument will truly be for the benefit of the judges; at least some questions at a high school argument will be for the benefit of the audience. For example, the first question I was asked at my first oral argument before a high school audience several years ago was “What is a deposition?” I’ve since tried better to tailor my introduction more toward the audience, providing a quick summary of facts and explaining any terms that might be confusing.

    When lawyers who did not request argument receive an order setting their case for an “Appeals on Wheels” argument, some have wondered if their case is truly argument-worthy or if it merely had the potential to keep the attention of high school or college students -- and is otherwise a hopeless cause.

    The statistics suggest most arguments are not simply a dog and pony show for the benefit of the audience. Rather, the Appellants have plenty of reason for hope that they will prevail. In the 17 roadshow arguments in criminal cases, the Appellant prevailed (at least in part) in 8 (or 47%) cases. That’s far better than the usual odds of obtaining a reversal in only 15% of all criminal appeals, as reported in the Court of Appeals’ annual reports.

    Cases with truly meaty issues worthy of oral argument almost always yield a published opinion, but a surprisingly high percentage of the roadshow criminal arguments (35% or 6 cases) were decided by unpublished memorandum decisions. Five of these were affirmed, and only one was reversed.

    Although Appellants generally prevail in about 35% of civil cases, the 12 Appellants in civil cases argued on the road fared about the same -- with 33% obtaining reversals. Only one of those 12 opinions was issued NFP, suggesting there truly was a weighty issue at stake in the argued civil cases.**

    Filing a Request

    Few of the roadshow arguments -- only 33% (4/12) in civil cases and 24% (4/17) in criminal cases -- were set after a request by counsel. I can’t speak to the strategy of others, but my view is to request argument in winnable cases where I think some questions linger or the judges might need a little extra nudge or contemplative time to agree. (Or occasionally I may think that listening to the other side justify its position for 20 minutes will lead the judges to my corner, although I’d never put it that way in a motion for oral argument.) I don’t ask in cases where it seems clear I should win based on the briefs (and there are unfortunately not many of these) or cases where a win seems nearly impossible—and thus oral argument would be painful.***

    I’ve had at least a few cases that I thought would be particularly interesting to a high school or college audience. In some of these cases, I’ve filed a motion requesting oral argument, specifically mentioning the prospect of a roadshow argument and my willingness to argue the case anywhere, anytime. Some of those motions have been granted, leading me to such places as Boys State in Angola in Northwestern Indiana or Oakland City University in the southwestern part of the State.

    Lawyers as Predictors of Success

    Finally, lawyers who request oral argument are only slightly more likely to prevail than those who are summoned sua sponte by the Court of Appeals. Of the five requests in criminal cases, one was from an Appellee (David Lott Hardy) who prevailed in securing an affirmance. The four requests from criminal defendants split evenly -- with 2 affirmances and 2 reversals. Thus, the overall success rate was 60%.

    Of the 23 requests from Appellants in civil cases, Appellants obtained a reversal in 43% of cases. Appellees were successful in securing an affirmance in 33% (1/3) of the cases in which they requested argument.
    ____________
    *My analysis is limited to cases in which the Court of Appeals issued a decision by the end of November. Thus, these statistics do not include five pending cases argued in October or any of the November arguments.

    **Looking at all argued civil cases (Statehouse and roadshow), 92% (34 cases) were published.

    ***Indigent defendants in criminal cases have the right to court-appointed counsel on appeal, and the Indiana Supreme Court has made clear that counsel must file an advocative brief on their behalf. Sometimes this means raising the least bad issue.

    Posted by Marcia Oddi on Tuesday, December 02, 2014
    Posted to Schumm - Commentary

    Ind. Courts - "Jeffersonville abolishes city court as judge cries foul"

    Updating what turns out to be a long list of ILB entries mentioning the "Jeffersonville City Court," dating back to 2006, WAVE 3 News reports today in a story that begins:

    The Jeffersonville City Council voted overwhelmingly Monday to abolish the city's court, which has seen a dramatic decline in cases as its judge accused others of a conspiracy.

    The 7-0 vote came despite pleas from Judge Ken Pierce, who tried to explain potential cost-cutting moves to council members. Pierce's opponents said his court's $437,000 budget wasn't justifiable because it handles fewer than half the cases it did two years ago.

    “This is just a step we feel we need to take to close down an inefficient and underutilized court,” said Councilman Matt Owen, the Republican who sponsored the legislation.

    City court collections have fallen from $176,000 in 2009 to just $87,000 last year, according to numbers provided by Pierce. He blamed the Indiana State Police for diverting their Jeffersonville arrest cases away from the court because of a vendetta against him.

    Posted by Marcia Oddi on Tuesday, December 02, 2014
    Posted to Indiana Courts

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

    For publication opinions today (3):

    In The Huntington National Bank v. Car-X Associates Corp., a 13-page, 2-1 opinion, Judge Brown writes:

    The Huntington National Bank (“Huntington”) appeals the trial court’s denial of its motion to set aside default judgment in favor of Car-X Associates Corp. (“Car-X”). Huntington raises one issue, which we restate as whether the court erred or abused its discretion in denying its motion to set aside default judgment. * * *

    Finding that Huntington has established that it was entitled to relief from the default judgment by demonstrating excusable neglect and a meritorious defense, we conclude the trial court abused its discretion in denying Huntington’s Trial Rule 60(B)(1) motion to set aside the default judgment.

    CONCLUSION. For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. Reversed and remanded.

    BRADFORD, J., concurs.
    BARNES, J., dissents with separate opinion. [that begins, at p. 11] I understand the reasoning of my colleagues in the majority here. I respectfully do not agree with it. I do not believe that Huntington proved that excusable neglect led to its delay in responding to Car-X’s complaint, as required to grant a motion for relief from judgment under Indiana Trial Rule 60(B)(1). * * *

    Excusable neglect to me is just that: excusable neglect, not just neglect. It is something that can be explained by an unusual, rare, or unforeseen circumstance, for instance. One employee’s maternity leave is not such a circumstance and should not be used as an excuse for delaying judicial proceedings beyond the clear deadlines set by our Trial Rules, especially where a large and sophisticated party such as Huntington is concerned. I would defer to the trial court’s exercise of its discretion in this matter, and I vote to affirm its denial of Huntington’s motion for relief from judgment.

    In Beverly S. Stillson v. St. Joseph County Health Department , a 19-page opinion, Judge Najam writes:
    Beverly Stillson appeals the trial court’s grant of summary judgment in favor of St. Joseph County Health Department (“SJHD”) on Stillson’s complaint alleging retaliatory discharge. Stillson presents a single issue for our review, namely, whether there are genuine issues of material fact that preclude summary judgment. We reverse and remand for further proceedings. * * *

    The facts are sufficient to raise a genuine issue of material fact as to whether SJHD’s true motive for terminating Stillson’s employment was her refusal to treat patients without diagnoses being made or to otherwise exceed the scope of her nursing license. As we noted earlier, the question of retaliatory motive is a question properly for the trier of fact. See Frampton, 297 N.E.2d at 428. And, again, summary judgment is not a summary trial and it is not appropriate merely because the non-movant might appear unlikely to prevail at trial. Hughley, 15 N.E.3d at 1003-04. The trial court erred when it granted SJHD’s summary judgment motion.

    In Kevin Soucy v. State of Indiana, a 7-page opinion, Judge Bailey writes:
    Appellant-Petitioner Kevin C. Soucy appeals the denial of his petition for post-conviction relief, which challenged his convictions following his pleas of guilty to two counts of Intimidation, as Class D felonies, for which he received an aggregate sentence of six years.1 We address the sole dispositive issue: whether Soucy was denied the effective assistance of counsel when Soucy pled guilty to offenses of which he was apparently actually innocent. We reverse.
    NFP civil opinions today (3):

    Richard Ray v. Twin Lakes Regional Sewer District (NFP)

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

    Cyndi L. Turnpaugh v. Douglas W. Turnpaugh (NFP)

    NFP criminal opinions today (2):

    Cindy A. Hylman v. State of Indiana (NFP)

    Roy E. Disney v. State of Indiana (NFP)

    Posted by Marcia Oddi on Tuesday, December 02, 2014
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - "In vitro case ruled fit for trial: Diocese arguments rejected"

    Updating this ILB post from yesterday, Rebecca S. Green reports today in the Fort Wayne Journal Gazette - the story begins:

    With a ruling Monday afternoon from the U.S. 7th Circuit Court of Appeals, a case stemming from the use of in vitro fertilization by a local Roman Catholic school teacher will head to trial later this month.

    On Monday, the federal court in Chicago ruled the Fort Wayne-South Bend Catholic Diocese did not meet the high bar to be spared the risks inherent with going to trial.

    The move lets stand an earlier ruling by U.S. District Judge Robert L. Miller Jr. in September. He ruled that the Fort Wayne-South Bend Catholic Diocese might have discriminated against a former language arts teacher when it did not renew her contract after she underwent in vitro fertilization.

    Miller ruled the diocese did not violate Emily Herx’s rights under the Americans with Disabilities Act because she sought treatment for infertility.

    But because those treatments were related to her gender, her termination might have been an act of sexual discrimination, the judge said.

    He also denied the diocese’s defenses that its actions were protected by the First Amendment to the Constitution. In addition, Miller found the teachings of the church regarding in vitro fertilization were not gender-neutral.

    The diocese also appealed his decision that the diocese’s beliefs about in vitro fertilization, its morality and how those beliefs are applied to employees should be presented to a jury.

    Herx sued the diocese in spring 2012, claiming she had been the victim of discrimination when diocesan officials fired her from her teaching job at St. Vincent de Paul School in Fort Wayne after she underwent in vitro fertilization.

    Posted by Marcia Oddi on Tuesday, December 02, 2014
    Posted to Ind. (7th Cir.) Decisions

    Ind. Decisions - Fort Wayne "to pay $15,000 in police shooting; 23-year-old slain carrying toy gun; force ruled justified"

    Interesting story Nov. 25th in the Fort Wayne Journal Gazette, reported by Rebecca S. Green, that begins:

    The city of Fort Wayne will pay $15,000 to the estate of a man killed by police in late December 2010.

    Originally filed in Allen Superior Court, the lawsuit was transferred to federal court. It was filed by Alana Jones, the mother of Yahree Cavin's son.

    Cavin, 23, was fatally shot by police inside a duplex at 2020 S. Harrison St. on Dec. 20, 2010.

    According to documents filed Friday in U.S. District Court, the case was dismissed, having been settled by an agreement between both parties.

    Robert Keen, the city's attorney in the case, said the city will pay $15,000 to the estate and make no admission of fault. No finding of fault was made by the court, either.

    Posted by Marcia Oddi on Tuesday, December 02, 2014
    Posted to Indiana Decisions

    Environment - "Delaware Co. Commissioners warned of Mounds Lake ‘stardust’"

    Updating several earlier ILB posts on the enormous, proposed Mounds Reservoir (Mounds Lake map via Star-Press) project, Keith Roysdon reports today in the Muncie Star-Press in a story that begins:

    Opponents of the Mounds Lake Reservoir project made their case to the Delaware County commissioners on Monday.

    The commissioners didn’t comment on the anti-reservoir presentation and no vote concerning the project had been on the agenda. Officials in Delaware and Madison counties had been asked to support the project by its creators in previous meetings and have been sending — and will continue to send — representatives to meetings on the project.

    “We urge you to study this issue and not be hypnotized by the stardust thrown your way,” opponent Sheryl Myers told the commissioners.

    The Mounds Lake project, which would see a portion of White River expanded through Madison and Delaware counties by construction of a dam in Anderson, is in an early analysis stage funded by a $600,000 state grant. If the project goes forward, it would take years to complete.

    The proposal calls for a seven-mile-long, 2,100-acre, 13-billion-gallon reservoir stretching from the heart of Anderson in Madison County into Salem Township and Yorktown in Delaware County. Proponents cite the project's potential economic development impact as well as its capacity to provide a water source for Central Indiana.

    Opponents, including those at Monday’s commissioners meeting, say the project would have a negative impact on the area, including the ecosystem, housing and residents who will move if the project goes forward. * * *

    Kevin Tungesvick, a Madison County botanist, said 478 native plant species would be negatively impacted by the project. A third of Mounds State Park, including the nature preserve, would be flooded, he said.

    Posted by Marcia Oddi on Tuesday, December 02, 2014
    Posted to Environment | Indiana Government

    Monday, December 01, 2014

    Ind. Courts - Bankruptcy Judge Frank J. Otte prepares to retire

    The ILB does not mention many retirements, but this one is noteworthy to me because Frank, as I called him then, before he became "Your Honor," was my next door neighbor in the 1970s. Naturally the mailman had a problem with "Otte" and "Oddi" in adjourning houses! From the press release:

    After 28 years of service as a United States Bankruptcy Judge, including two years in recall status, and a 48 year career in the law, the Honorable Frank J. Otte will retire on December 31, 2014. In recognition of his achievements and contributions to the bench and bar, the United States Bankruptcy Court for the Southern District of Indiana will host a private retirement celebration in Judge Otte’s honor on Friday, December 5.

    The United States Court of Appeals for the Seventh Circuit appointed Judge Otte to a 14-year term as a Bankruptcy Judge for the Southern District of Indiana on October 1, 1986, and he was reappointed to a second term on October 1, 2000. Judge Otte served as Chief Judge from July 1, 1996, to June 29, 2003. He assumed recall status on January 1, 2013.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Courts in general

    Courts - A number of amendments to the Federal Rules of Practice and Procedure and official bankruptcy forms became effective Dec. 1

    Here is the list.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Courts in general

    Courts - SCOTUS enthused about case involving "interpretive rule"; also a report on the Elonis argument [Updated]

    For you administrative law junkies out there (including myself), a quote from Mark Walsh's SCOTUSblog post today on Justice Ginsburg back at work:

    Once she took her seat, though, Justice Ginsburg seemed to be right at home. SCOTUSBlog artist Art Lien says that she appeared to be sporting a new, wider-than-normal jabot. (Whether the decorative cream-colored neckpiece the Justice wore today is technically a jabot is beyond my or Art’s fashion expertise.)

    While many in the courtroom were in anticipating the second case scheduled for argument today – Elonis v. United States, about threats on Facebook – the Justices themselves took with enthusiasm to the first case. In Perez v. Mortgage Bankers Association, the banking industry is challenging whether the Department of Labor followed the Administrative Procedure Act (APA) in issuing an “interpretive rule” making mortgage-loan officers eligible for overtime pay instead of following more formal rulemaking procedures.

    The four members of the Court who have served on the U.S. Court of Appeals for the District of Columbia Circuit, which handles a lot of APA cases, seemed especially into the argument, as was Justice Stephen G. Breyer, a First Circuit alum who pronounced the case “fascinating” and suggested he could write “a new treatise on administrative law in this subject.”

    Lyle Denniston has posted an Argument Analysis on SCOTUSblog on this morning's oral argument in Elonis.

    [Updated] Here is Nina Totenberg's NPR story this afternoon, after the oral argument, book-ending her story from this morning.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Courts in general

    Ind. Decisions - 7th Circuit decides one Indiana case today - on issue in Emily Herx case

    In Emily Herx v. Diocese of Fort Wayne-South Bend (ND Ind., Miller), a 13-page ruling, Judge Sykes writes:

    A Catholic school in Fort Wayne, Indiana, discharged a language-arts teacher because she underwent in vitro fertilization in violation of the moral teaching of the Catholic Church. She sued the school and the local diocese alleging that they unlawfully discriminated against her because of her sex and disability. The case comes to us from an order denying the defendants’ motion for summary judgment. Because that decision is nonfinal, the plaintiff has moved to dismiss for lack of appellate jurisdiction. For the reasons that follow, we grant the motion. * * *

    We express no opinion on the merits of the district court’s summary-judgment decision. We hold only that the Diocese has not made a persuasive case for expanding the scope of the collateral-order doctrine to cover the interlocutory decision rendered here. We do not question the importance of the interests the Diocese has asserted. But those interests will not be irreparably harmed by enforcement of the final-judgment rule. See McCarthy, 714 F.3d at 975 (explaining that “to be appealable as a collateral order the order must (unless reversed) wreak irreparable harm on the appellant”). Because the district court’s decision is not effectively unreviewable on an appeal from a final judgment, the collateral-order doctrine does not apply. We grant Herx’s motion and DISMISS the appeal for lack of jurisdiction.

    ILB: Here is a long list of earlier ILB entries on the Herx case.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Ind. (7th Cir.) Decisions

    Environment - "A fine layer of gray dust coats nearly every surface in the parts of this SW Ind. town nearest the Bear Run Mine, the largest surface coal mine east of the Mississippi"

    Some quotes from a very long front-page story in the Sunday Indianapolis Star, reported by Ryan Sabalow, dateline Sullivan County, Ind:

    Since 2012, state environmental regulators have received numerous complaints from neighbors about dust. In spite of rules that say mines must contain dust inside the property boundaries, no action has been taken. A gap in Indiana regulations says that state officials must personally see dust to take action, but in four inspections, officials said no dust was visible. In essence, state regulators tell residents that if inspectors don't see the dust clouds, they didn't happen.

    The Star reviewed at least 10 videos shot by a neighbor of massive clouds of dust escaping the mine. In some of the videos, the wind can be heard howling, tree branches swaying, in spite of insistence from Peabody and state regulators that the mine does not blast on windy days.

    In 2013, the U.S. Environmental Protection Agency took enforcement action based on the dust complaints and numerous poor air-quality readings, but there is no resolution in sight.

    A university public health scientist has taken samples near the mine and found potentially alarming levels of dust in the air and of inflammation in residents' blood, a possible indicator of health problems caused by breathing fine particulate matter.

    "We never bargained for any of that when we moved in here," said 26-year-old Joshua Pugh, who, like many people living in this part of the state, is reluctant to complain. After all, he is a coal miner.

    So when he speaks with worry about the blasts from Bear Run — explosions that shake his family awake, vibrate windows, knock items off walls and coat his home with dust — he does so almost grudgingly.

    And he's not alone.

    Peabody officials insist the mine is safe, and state regulators say they've not documented any violations during their inspections.

    "Bear Run Mine operates in a safe, environmentally sound manner and complies with all state and federal air, land and water quality permits," Peabody said in a prepared statement.

    But, in the heart of Indiana's coal country, where the local newspaper posts mine-blasting notices and no one flinches at the ubiquitous booms, the Pughs and a growing number of their neighbors have become unlikely allies with the fiercely anti-coal Sierra Club.

    Together, they're urging state and federal officials to step in and force Bear Run to do something about the choking dust.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Environment

    Ind. Courts - "ACLU of Indiana Seeks to Restore Access to Award-Winning Human Rights Publication"

    That is the heading to a news release issued this morning by the ACLU of Indiana. Some quotes:

    Indianapolis-The publishers of an award-winning magazine that reports on the rights of prisoners and criminal justice issues is seeking to restore access to its publication to residents of a privately run prison in New Castle, Indiana.

    The American Civil Liberties Union of Indiana, along with attorneys from the organization publishing the magazine and attorneys from the Chicago law firm of Loevy and Loevy, brought the case on behalf of Prison Legal News, a project of the Human Rights Defense Center, against The GEO Group, a Florida company that runs the New Castle Correctional Facility, and the facility's superintendent.

    The suit contends that the prison is violating the plaintiff's First and Fourteenth Amendment rights by preventing distribution of the magazine without showing a valid reason to withhold it from prisoners and by failing to afford the project notice and an opportunity to be heard when the publication is denied. Prison Legal News wants distribution of the magazine to resume and seeks an award for damages.

    "There is no rational constitutional basis for the prison to deny access to this publication, which is distributed across the country and is a vital resource for those who are incarcerated," said Ken Falk, ACLU of Indiana Legal Director. "The denial violates the most fundamental of rights - the right to engage in speech on matters of public concern and the right of due process."

    "It is alarming that a private, for-profit prison corporation is using Indiana tax dollars to censor publications that critically report on criminal justice news," said PLN Editor Paul Wright. "The State of Indiana has hired GEO Group to imprison its citizens and now GEO is violating the First Amendment constitutional rights of PLN with that authority and with no oversight by the state." * * *

    The case, Prison Legal News v. The GEO Group, Inc., 1:14-cv-1957was filed on Nov. 26, 2014 in the U.S. District Court for the Southern District of Indiana, Indianapolis Division.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Indiana Courts

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

    For publication opinions today (1):

    In Columbus Specialty Surgery Center v. Southeastern Indiana Health Organization, Inc., and Columbus Regional Health, an 8-page opinion, Judge Bradford writes:

    On September 3, 2013, Appellant-Plaintiff the Columbus Specialty Surgery Center, LLC filed a complaint alleging that insurance provider the Southeastern Indiana Health Organization, Inc. committed defamation per se by allegedly informing the Seymour Community School Corporation that CSSC had “declined” to participate in SIHO’s network. The trial court subsequently dismissed CSSC’s defamation claim against SIHO without prejudice after determining that CSSC had failed to state a claim upon which relief can be granted. We affirm.
    NFP civil opinions today (0):

    NFP criminal opinions today (3):

    Ritchie Hodges v. State of Indiana (NFP)

    Tommy Grubb v. State of Indiana (NFP)

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

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Ind. App.Ct. Decisions

    Ind. Decisions - Transfer list for week ending November 28, 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 28, 2014. It is two pages (and 15 cases) long.

    One transfer was granted last week:

    The Court denied Rule 56(A) transfer (emergency transfer skipping the COA) in the case of Town of Zionsville, Indiana v. Town of Whitestown, et al.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Indiana Transfer Lists

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

    Updating this ILB post from Nov. 26th, see also this Dec. 1st Nini Totenberg story on NPR's Morning Edition; it is nearly 7 minutes long. A sample:

    One of Elonis's Facebook posts directed at his estranged wife read "Fold up your protective order and put in your pocket. Is it thick enough to stop a bullet?" * * *

    At the end of the trial, the judge instructed the jury that to convict, it must find that Elonis' Facebook posts constituted true threats, meaning that in context "a reasonable person would foresee that the statements would be interpreted...as a serious expression of an intent to inflict bodily injury."

    Elonis was convicted and sentenced to 44 months in prison. He appealed all the way to the Supreme Court, contending that under the Constitution and the federal threat statute, a jury must find not just that a reasonable person would interpret the words as threatening, but that Elonis actually intended his words to be threatening.

    "If the question had been what did he intend, did he intend to place her in fear, it would've been an entirely different trial," says attorney John Elwood, who will argue the case in the Supreme Court on Monday.

    Lyle Denniston of SCOTUSblog has a lengthy argument preview, "Social media as a crime scene," for the argument which takes place at 11 AM today.

    Posted by Marcia Oddi on Monday, December 01, 2014
    Posted to Courts in general

    Ind. Decisions - Upcoming oral arguments this week and next

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

    Next week's oral arguments before the Supreme Court (week of 12/8/14):

    Monday, Dec. 8

    Webcasts of Supreme Court oral arguments are available here.


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

    Next week's oral arguments before the Court of Appeals (week of 12/8/14):

    Tuesday, December 9

    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, December 01, 2014
    Posted to Upcoming Oral Arguments