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Friday, January 30, 2015

Ind. Courts - "Senate adds 5 years to appellate judge retirement age"

That is the headline to a story Dan Carden has just posted to the NWI Times website. Although Carden is a fine reporter, the ILB takes issue with the final clause of the third paragraph:

INDIANAPOLIS | The Senate has narrowly agreed to set 80-years-old as the new mandatory retirement age for Indiana Court of Appeals judges and Supreme Court justices.

Senate Bill 12, co-sponsored by state Sen. Earline Rogers, D-Gary, was approved 27-20 Thursday and now advances to the House. Two region senators voted no: state Sens. Rick Niemeyer, R-Lowell, and Brandt Hershman, R-Buck Creek.

The Indiana Constitution requires the 20 current appellate judges and justices to quit at the retirement age in effect at their last retention election, so most still will retire at age 75.

Critics of the increase claim older judges remaining on the bench are preventing younger lawyers from being appointed to their posts.

As the ILB discussed in detail in this Jan. 8th post headed "Which appellate jurists would be able to serve until age 80 under SB 12?", it appears that the only justices who would be required to retire at age 75 if this bill becomes law are: (1) Justice Dickson, who turns 75 in 2016, well before the date he would otherwise next be up for retention - Nov. 2018; and likely Justice Rucker, whose age is unavailable, but who is not up for retention again until Nov. 2022, and who likely will have turned 75 before that date.

On the Court of Appeals, five judges are eligible for retention in 2016, provided they have not turned 75 before then: Judges Najam, Friedlander*, Kirsch, Crone, and Riley. The age 80 limit then would apply in the future to those who were retained in the 2016 election.

Looking though the chart on the Jan. 8th post, it does not appear that any of the COA judges up for retention in 2020 will have turned 75 before that date, and the same goes for those up for retention in 2022 and 2024.

In sum, the only jurists who will not benefit from the bill would be Justices Dickson and Rucker.
_________
*Of the five, it is J. Friedlander who likely will turn 75 before his Nov. 2016 retention election, but his age, like that of the other COA judges, is not available.

Posted by Marcia Oddi on Friday, January 30, 2015
Posted to Indiana Courts

Ind. Decisions - "Indiana Bankruptcy Court Sanctions Creditors For Being Bad at Math"

That is the heading of this post at the blog, Creditors' Sidebar.

Posted by Marcia Oddi on Friday, January 30, 2015
Posted to Indiana Decisions

Law - "Governments Making It Easier for Citizens to Know the Law "

Tod Newcombe reported Jan. 14th in Governing in an important story that begins:

D.C.’s government -- like many other cities and states -- outsources the publication of its code, including how it's organized and updated, to private firms like WestLaw and Lexis-Nexis. While lawyers, judges and law schools pay to get access to the codes, citations and powerful search tools built into the proprietary computer platforms, the public can only view what’s in print or what appears on the District government’s website. The software developer who contacted Zvenyach, though, wanted to manipulate an electronic version of the code to add links to other documents and open up the information for broader use on the Internet. But thanks to copyright restrictions, the publisher (Westlaw) controlled the data and wouldn’t allow any alterations.

“He wanted access to the underlying data in the code for the work he was doing,” said Zvenyach. “It never dawned on us that we ought to control the data, not West[law].” [ILB emphasis]

Posted by Marcia Oddi on Friday, January 30, 2015
Posted to General Law Related

Ind. Decisions - 7th Circuit decides one Indiana case Jan. 29th

In USA v. Bailey (SD Ind., Lawrence), a 7-page opinion, Judge Hamilton writes:

Anthony Bailey pled guilty in 2011 to distributing crack cocaine. He pled guilty under a binding plea agreement subject to Federal Rule of Criminal Procedure 11(c)(1)(C) and agreed to a prison sentence of 240 months. The agreement, however, allowed Bailey to seek to modify his sentence if Congress or the Supreme Court later determined that the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, should apply to cases like his.

The district court accepted the plea agreement and imposed the 240-month sentence. Bailey did not appeal, but the Supreme Court then decided Dorsey v. United States, 132 S. Ct. 2321 (2012). Dorsey reversed a decision of this court and held that the FSA should apply to cases where the crimes were committed before the FSA took effect but sentence was imposed after it took effect. Bailey falls into this category. By then the time to file a direct appeal had expired, and in 2013 Bailey filed a pro se motion asking for a reduced sentence. The district court appointed counsel who supplemented Bailey’s motion. The court eventually denied relief using a form order designed for motions under 18 U.S.C. § 3582(c)(2), which authorizes reductions of sentences when the Sentencing Commission has retroactively amended a relevant sentencing guideline. Bailey has appealed.

The principal challenge for both counsel and the courts here has been to identify the correct procedural vehicle for considering Bailey’s request for relief. We conclude that Bai-ley’s motion is best understood as a petition for relief under 28 U.S.C. § 2255 for a sentence that was imposed contrary to law. The parties negotiated Bailey’s sentence under the im-pression that he was subject to a mandatory minimum sentence of 20 years because he committed the crimes before the FSA’s enactment. It is now clear that he was subject to a mandatory minimum sentence of only 10 years. Without consideration of any statutory minimum, Bailey’s guideline range when he was sentenced would have been 85 to 104 months in prison. We express no view on what an appropriate sentence would be. In light of the parties’ reservation of Bailey’s right to seek relief from the sentence, however, the best remedy is simply a new sentencing hearing. * * *

The district court’s denial of Bailey’s motion is reversed and the case is remanded with instructions to grant Bailey relief under § 2255 by vacating his sentence and holding a new sentencing hearing.

Posted by Marcia Oddi on Friday, January 30, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP) [1 opinion and 6 memorandum decisions]

For publication opinions today (1):

In Adam Anthony Howe v. State of Indiana , a 17-page opinion involving a pro se appellant, Judge Brown writes:

Adam Anthony Howe appeals the trial court’s order denying his petition to modify a condition of his probation. Howe raises two issues which we revise and restate as whether the court abused its discretion in denying his petition. We affirm. * * *

Howe committed the offenses in the presence of M., and the court imposed as a condition of probation that he have no direct or indirect contact with the victims. The statement of M.’s mother indicates that M. struggles with being afraid of the dark and that her mother and school deal with M.’s behaviors every day. Having knowledge of the nature of the physical altercation between Howe and her mother, the fact that M.’s grandmother was shot, and that M. was present in the residence while Howe committed the crimes, the trial court found that M. is an individual to be protected and not just the person physically injured during the January 2005 altercation. Thus, we conclude that there is a nexus between the no contact order and Howe’s crimes. We also note that Howe is mistaken in his belief that M. is not an individual to be protected as a result of his crimes because he did not attempt to find her and “was focused on just the adults.” Appellant’s Brief at 9. While M. may not have been physically injured or directly physically attacked during the altercation in February 2005, there is little doubt that a child is a protected individual when her parents engage in a physical altercation involving a firearm, her grandmother is shot, and her father is incarcerated as a result of his crimes. M. is a person eligible for protection within the meaning of Ind. Code § 35-38-2-2.3. * * *

Bailey, J., concurs.
Robb, J., concurs in result with separate opinion. [that begins, at p. 11] I respectfully concur in the majority’s determination that the trial court did not abuse its discretion in denying Howe’s petition to modify the conditions of his probation, but I do so for reasons entirely different than the majority. * * *

I believe Howe is not subject to the terms of the no-contact order until he is released from DOC. * * *

It is because Howe is not yet serving probation, however, that I agree with the majority that the trial court did not abuse its discretion in denying Howe’s motion to modify its terms. As of now, there is nothing to modify.

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of: M.B. (Minor Child) and S.B. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal opinions today (6):

Thomas W. Burton v. State of Indiana (mem. dec.)

Gary Allen Gibson v. State of Indiana (mem. dec.)

Joseph Pohl v. State of Indiana (mem. dec.)

Jon Colin Blauvelt v. State of Indiana (mem. dec.)

Matthew R. Eden v. State of Indiana (mem. dec.)

Tony Frary v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, January 30, 2015
Posted to Ind. App.Ct. Decisions

Thursday, January 29, 2015

Ind. Gov't. - "EDITORIAL: Put the facts in print"

Here are some quotes from an editorial from the Marion Chronicle-Tribune, as republished in The Economic Digest:

It is stunning how little commitment there seems to be to government transparency in Indiana.

Free speech does little good if there is no free and available flow of facts on which to base such speech. That is the problem with the latest effort to bypass required publishing the public business.

Last year the Indiana General Assembly removed the requirement that local government agencies publish their proposed budgets and proposed tax rates in newspapers as part of the notice of budget hearings. That is to become effective this year unless our representatives in Indianapolis step forward to assure citizens are notified of changes in the tax rate and government budgets.

We urge citizens to contact state senators and representatives and let them know that the public needs to continue be able to find such information in their local newspaper. We know from experience in Grant County and Marion how important it is to keep tabs on government spending.

We do not think that posting such information online goes nearly far enough. The requirement that the information be advertised in local newspapers guarantees a level of awareness that keeps local officials accountable.

Many taxpayers will not go the extra mile of hunting down public notices on the Internet. In fact, relatively few will.Stepping back and being quiet about how money is being spent and how much would make life easier for politicians everywhere. We think that is what is pushing efforts to remove the advertising requirement from the public business.

The state legislature has a chance to correct this. We call on our lawmakers to reinstate the traditional requirement of proposed budget and tax rate publication in local newspapers.

We are also opposed to the effort by Indiana state Sen. Rick Niemeyer, R- Lowell, to eliminate the publication of the tax sale list of properties.

Niemeyer says it will save counties the advertising costs. Instead, the county would be required only to publish a short notice telling people what website to visit to see the property description or parcel information.

Such a law takes public notice and public service backwards when we ought to be looking at ways of increasing communication between local government and people who foot the bill.

Electronic information can be altered or removed easily and quickly. The printed page won't change.

ILB: The ILB has to agree. We saw an ILB post yesterday how easy it can be to erase history.

Posted by Marcia Oddi on Thursday, January 29, 2015
Posted to Indiana Government

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

For publication opinions today (1):

In State of Ind., Consolidated City of Indianapolis/Marion Co., et al v. El Rodeo #11, Llc., a 10-page opinion, Judge Mathias writes:

El Rodeo #11’s property was seized by and located in Tippecanoe County when the Marion County Prosecutor’s Office filed its November 21, 2013, complaint for forfeiture. Therefore, the Marion County Prosecutor’s Office could not meet the statutory requirements for filing a forfeiture complaint under either Indiana Code section 34-24-1-3 or Indiana Code section 34-24-2-2. * * *

We reverse and remand this case to the trial court with instructions to grant Marion County’s motion to dismiss its forfeiture complaint against El Rodeo #11, and we vacate the trial court’s order granting El Rodeo #11’s motion to return insurance proceeds.

NFP civil opinions today (1):

Thomas R. Cox v. Indiana Bureau of Motor Vehicles (mem. dec.)

NFP criminal opinions today (4):

Samuel L. Hobbs, Jr. v. State of Indiana (mem. dec.)

P.A. v. State of Indiana (mem. dec.)

Deaundra Patterson v. State of Indiana (mem. dec.)

James T. Reese v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, January 29, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "A Reminder from the Seventh Circuit To Proofread the Form of the Judgment"

That's the heading of this Jan. 28th post at the Wisconsin Appellate Law Blog that begins:

The Seventh Circuit’s docket appears to be rife with cases involving little errors that turn out to have not-so-little effects. Last month we wrote about the perils of typos in security agreements; this month the Seventh Circuit issued an opinion that serves as a good reminder that parties must look carefully at the form of the judgment entered by the district court. Article III insulates the judicial branch from the “diminish[ment]” of judges’ “compensation . . . during their continuance in office”; but, alas, it does nothing to insulate the third branch from the sort of typographical errors that plague the rest of us mere mortals—a fact to which the district judge in Dual-Temp of Illinois, Inc. v. Hench Control, Inc., Nos. 14-3393 & 14-3394 (7th Cir. Jan. 23, 2015), now can attest.

Posted by Marcia Oddi on Thursday, January 29, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Still more on: Appraisal/assessment of big box stores

Supplementing this morning's earlier post, Daniel Suddeath's Jan. 27th story in the New Albany News and Tribune, here republished at Indiana Economic Digest, is headed "Major retailers' tax challenge in New Albany costs city's law firm its job." It begins:

NEW ALBANY — If New Albany loses property tax challenges to Meijer and The Home Depot, it could cost the city some significant funding. The fact that Faegre-Baker-Daniels represents The Home Depot in its appeal against the city will cost the firm at least $50,000.

Though it’s a large firm with attorneys working on both sides of the issue, the New Albany Redevelopment Commission declined to renew its $50,000 lobbying contract with Faegre-Baker-Daniels as a result of The Home Depot appeal.

“We have got to draw the line somewhere,” said Dan Coffey, a New Albany City councilman and a member of the redevelopment commission.

The city annually hires a firm to represent its interests when it comes to local government funding. There are some potential bills that could be considered at the Statehouse this session that would limit some funding for municipalities. The commission and administration agreed that lobbying to protect those funds, including tax-increment financing levies, is critical.

While Faegre-Baker-Daniels is well-equipped to lobby on behalf of the city, Coffey said the firm’s representation of The Home Depot makes it difficult to want to hire them.

“Why do I want to pay somebody who is basically cutting our throats?” Coffey asked.

Posted by Marcia Oddi on Thursday, January 29, 2015
Posted to Indiana Government

Ind. Decisions - More on: Appraisal/assessment of big box stores

Updating this ILB post from Jan. 18th, about the Dec. 1 and Dec. 31 Indiana Tax Board rulings in Meijer and Kohl's, respectively, Rachel Bunn has a $$ story today in the Bloomington Herald-Times. Some quotes:

Monroe County could lose $5.3 million in property tax revenue, thanks to two state rulings regarding how big-box retailers’ taxes are figured.

Assessor Judy Sharp broke the news to the Monroe County Council Tuesday that a December decision by the Indiana Board of Tax Review could slash assessments for all commercial and industrial buildings in the state.

The board ruled in December that an Indianapolis Meijer store should have been assessed at $30 per square foot instead of the $83 per square foot assessment it was given by Marion County. Marion County could have to pay as much as $2.4 million in overpaid taxes to Meijer. A similar decision was made in favor of a Howard County Kohl’s store.

A building is usually assessed based on how the business is being used at the time. But the ruling treats the Meijer store as if there were no business there. Sharp called it the “dark box law.”

“In other words, don’t value it as it’s in use today, but if it ever goes out of business and sits empty for a while, that’s the value that should be on it,” Sharp told the council.

More from the story:

Sharp and her staff calculated the potential loss to the county, taking assessments down to 45 percent of what the office assigned them previously. For big box stores — which include Target, area Krogers and Sam’s Club — the assessed value would drop by more than $60 million, and the county would lose about $1.8 million in tax dollars.

But Sharp said that is probably the tip of the iceberg, if the rulings are allowed to stand. Other businesses and restaurants are already appealing assessments in some counties. Based on Sharp’s calculations, lowering of other commercial building assessments — including Cook Inc., General Electric and even The Herald-Times office — could drop assessed value countywide by $112 million, resulting in a tax loss of $3.3 million shared by taxing units such as city and county governments, Ellettsville, public libraries and schools.

If that assessed value and tax money is lost, other property owners will see their taxes increase. This increase will not make up the entirety of the lost taxes, because of Indiana’s tax caps.

The caps do not change tax rates for the various taxing units, but ensure that property owners pay no more than the fixed rate set by the state — 1, 2 or 3 percent of a primary residence, secondary residence or nonresidential property’s gross assessed value, or the property value set by the county assessor’s office.

“Everybody will hit their caps almost immediately,” Sharp said of the possible property tax loss. Monroe County lost about $819,000 to the caps in 2013. * * *

Indiana assessors are asking legislators to issue emergency stops to overturn the case law.

The best case scenario would be to have a decision from the Indiana Supreme Court on one of the cases, but to do that, cases need to go through the lower court system, which can take years.

“We can’t wait three or four years to get a decision,” Sharp said, noting that some of her appeals cases have been waiting for hearings for at least a year.

“That’s what we’re up against,” Sharp said. “We can’t afford that. They’re going to break the backs of government.”

Paul Wyche of the Fort Wayne Journal Gazette had a story on Jan. 27th.

Posted by Marcia Oddi on Thursday, January 29, 2015
Posted to Ind. Adm. Bd. Decisions

Ind. Decisions - Surprising Court of Appeals Footnote

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

Scores, if not hundreds, of Indiana appellate opinions detail the greater protection—beyond the Fourth Amendment of the U.S. Constitution—provided to Hoosiers against unreasonable searches and seizures under Article 1, Section 11 of the Indiana Constitution.

Defendants often raise challenges under both provisions. Courts will sometimes address only one claim if it results in reversal. For example, the Indiana Supreme Court addressed only the Section 11 claim a few months ago in its reversal in the Carpenter case.

Before this month, however, I’ve never seen an opinion address only one provision when the Appellant does not prevail. Unless one of the claims was not preserved by an objection in the trial court or is waived for failing to present a cogent argument, the Appellant has two ways to win—and the reviewing court can’t simply refuse to address one.

Thus, footnote 2 in Michael White v. State, a January 16 published opinion, caught many, and certainly me, by surprise:

Because we affirm the trial court based on the Fourth Amendment, we will not address White’s Indiana Constitution argument.
I fully expect Mr. White’s very experienced, capable attorney to seek rehearing or transfer—and would not be surprised to see the Attorney General agree to the extent that the Section 11 claim must be addressed.

Posted by Marcia Oddi on Thursday, January 29, 2015
Posted to Schumm - Commentary

Wednesday, January 28, 2015

Ind. Gov't. - More on "Energy chairman’s gas and oil investments raise ethics questions"

Updating this ILB post from earlier today, Tony Cook of the IndyStar is now reporting "Amid ethics concerns, House energy chairman drops bill." The story begins:

Rep. Eric Koch is backing off his push to prevent local governments from regulating oil and gas drilling after potential conflict-of-interest concerns emerged regarding his personal investments in more than two dozen oil and natural gas companies.

Koch, R-Bedford, effectively withdrew the measure on Wednesday, asking House Natural Resources Chairman Sean Eberhart to let it die in committee.

Koch’s decision comes a day after The Indianapolis Star reported on potential ethical concerns surrounding his membership in at least 28 oil and gas companies, some with operations in Indiana.

Koch was not immediately available for comment, but a spokeswoman said he no longer wanted the bill to be heard because it had become a “distraction.”

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Indiana Government

Ind. Law - "State Senate OKs shipping wine direct"

Niki Kelly's story in today's Fort Wayne Journal gaszette reporting that the Senate:

... voted 40-10 with little discussion Tuesday to allow direct wine shipment to Hoosiers.

Senate Bill 113 removes the requirement of a face-to-face transaction before wineries can ship to your home.

That caveat has been in place since 2006 when a compromise was reached on the thorny issue.

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Indiana Law

Law - "Statute allowing 'erasure' of arrest records doesn't require newspapers to erase news stories." [Updated]

That is the heading to one of several links collected in this How Appealing post this afternoon, touching on an important issue. This headline: "Appeals Court Rules News Orgs Don't Have to Remove Stories When Criminal Records Are Expunged; A woman sued media organizations for libel, but there's no 'right to be forgotten' in the United States" links to a blog of The Hollywood Reporter. The opinion is from the 2nd Circuit.

The heading to this ILB post is from the heading to Eugene Volokh's post on the ruling, which concludes:

Jeffrey Bils and I filed, via the UCLA First Amendment Amicus Brief Clinic, an amicus brief on behalf of the Reporters Committee for Freedom of the Press. The brief supported the result that this court reaches, which is also consistent with decisions from Massachusetts, New Jersey and Oregon appellate courts.
[Updated at 6:06 PM] See Alison Frankel's story in Reuters, headed "No ‘right to be forgotten’ even if record is expunged: 2nd Circuit."

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to General Law Related

Ind. Gov't. - "Independent candidate to clear felony, bankruptcy, taxes before mayoral bid"

Zach Evans reports in a long story in the Evansville Courier & Press:

An Evansville man eying an independent campaign for mayor must first have a felony marijuana dealing conviction expunged from his record before he can file his candidacy.

Steven R. Wozniak said he also isn’t filing for mayor until he resolves his Chapter 13 bankruptcy payments, which include payments to the IRS for several years of unfiled tax returns.

The 42-year-old inventor intends to challenge Republican Mayor Lloyd Winnecke and Democrat Gail Riecken for the city’s executive post in November.

Per Indiana’s “second-chance” law, certain felonies can be expunged, and having a felony expungement does not disqualify a person from running for elected office in the state, including city mayor.

Wozniak’s criminal, bankruptcy and tax discrepancies were discovered by the Courier & Press during a routine candidate background check this week. * * *

Wozniak began the expungement process Tuesday. His lawyer for the process is local defense attorney Scott Danks, who is also the City Council’s attorney.

He said he expects to have his record expunged by March.

Until that’s removed from his record, Wozniak can’t file for an election in city, county or state election in Indiana. But Wozniak also will not file until his Chapter 13 bankruptcy is settled, which is contingent on selling his home, he said.

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Indiana Government

Ind. Gov't. - "Utilities want to protect monopoly status"

Kerwin Olson of the Citizens Action Coalition writes in the Muncie Star-Press this afternoon - some quotes:

Energy independence? Affordable energy? All of the above? The 2015 Indiana General Assembly stands poised to define these catch phrases as two proposals are making their way through the legislative process. Hoosiers should pay attention.

While claiming to believe in “all of the above,” our elected officials voted last year to end the Energizing Indiana program, which was creating jobs and saving ratepayers money. As a result, Gov. Mike Pence promised to deliver a strong efficiency proposal in 2015.

He delivered a bill, but it’s anything but strong. SB412, authored by Sen. Jim Merritt, does little to help consumers save energy and everything to pad the pockets of the monopoly utilities. The bill would allow the utilities to establish their own energy efficiency goals and over-collect hundreds of millions of ratepayer dollars.

SB412 will lead to efficiency programs with negligible results and will make efficiency far too expensive, effectively pricing it out of the Indiana marketplace.

HB1320, authored by Rep. Eric Koch, would allow the monopolies to write their own rules regarding your ability to generate your own power, on your own property, and to connect your rooftop solar or backyard wind turbine to the grid. Additionally, utilities would be allowed to set the prices for the power you send to the grid. The utility will then sell that same power which you generated to your neighbors at the retail prices they set. The monopolies want to rig the game and tax the sun and the wind.

See also this earlier ILB post today.

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Ind. Education Employment Relations Board and Nettle Creek School Corp. v. Nettle Creek Classroom Teachers Assoc., an 18-page opinion, Judge Bradford writes:

In 2011, Appellant Nettle Creek School Corporation (the “School Corporation”) and Appellee Nettle Creek Classroom Teachers Association (the “Association”) were engaged in collective bargaining for the 2011-2012 school year. The School Corporation and the Association (collectively, “the parties”) were unable to agree to a Collective Bargaining Agreement (“CBA”) and came to an impasse. Both sides submitted a last best offer (“LBO”) to Appellant the Indiana Education Employment Relations Board (the “Board”) after mediation failed.

The Association initiated judicial review after the Board adopted the School Corporation’s LBO. On November 27, 2013, the trial court found that the Board erroneously determined that the relevant proffered provisions of the parties’ LBOs included an improper attempt to bargain hours rather than wages. The trial court also found that the Board erroneously concluded that the Association’s LBO contained an improper attempt by the Association to bargain for an overtime compensation system that is inconsistent with both Federal and Indiana law.

Upon review, we conclude that while teachers are not entitled to earn overtime for the completion of direct teaching functions, the relevant legal authority does not exclude the bargaining for and potential receipt of additional wages for the completion of required ancillary or voluntary co-curricular duties. Accordingly, we remand the matter to the Board for further proceedings that are consistent with this opinion.

ILB: See this Jan. 5th ILB post for more on the Nettle Creek appeal.

In N.S. v. State of Indiana, an 8-page opinion, Judge Bailey writes:

N.S. was adjudicated a juvenile delinquent for having committed acts that would be Dangerous Possession of a Firearm and Possession of Marijuana, as Class A misdemeanors, if committed by an adult. He appeals the adjudication, presenting the sole issue of whether the juvenile court, having declared a search and seizure of N.S.’s property illegal, abused its discretion by admitting evidence that was a product of the illegal search. We reverse. * * *

“Generally speaking, evidence obtained pursuant to an unlawful seizure must be excluded under the fruit of the poisonous tree doctrine.” Id. at 266. This extension of the exclusionary rule bars evidence directly obtained via an illegal search as well as evidence derivatively gained as a result of information learned or leads obtained during that same search or seizure. Id. The question to be addressed is whether “the derivative evidence ‘has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Id. (quoting Wong Sun v. U.S., 371 U.S. 471, 488 (1963)). Courts generally consider the time elapsed between the illegality and the acquisition of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Id. * * *

Both the physical exhibits and D.M.’s testimony were fruit of the illegal search. When “none of [the] evidence should have been admitted … the conviction cannot stand.” Clark, 994 N.E.2d at 273. Likewise, N.S.’s adjudication as a delinquent, resting upon inadmissible evidence, cannot stand. Reversed.

In Brent Anthony Dimmitt v. State of Indiana , a 14-page opinion, Judge Bradford writes:
On December 28, 2012, a fight broke out between several people outside of a Lafayette bar. During the altercation, Appellant-Defendant Brent Dimmitt attacked and injured two men, one of whom was seriously injured. Dimmitt admitted to being the president of a criminal gang called Rebel Cause. Dimmitt instigated and took part in the fight with several other members of Rebel Cause. Dimmitt was convicted of Class C felony battery, Class A misdemeanor battery, Class D felony criminal gang activity, and being a habitual offender. Dimmitt was sentenced to consecutive terms of eight years for Class C felony battery, one year for Class A misdemeanor battery, two years for criminal gang activity, and eight years for being a habitual offender, for a total of eighteen years served and one year suspended to probation.

Dimmitt claims that (1) the trial court fundamentally erred by failing to properly instruct the jury on the elements of the charge of criminal gang activity, (2) the trial court’s sentence exceeded the maximum sentence allowed by statute, and (3) the evidence was insufficient to support the conviction for criminal gang activity. We find that Dimmitt’s sentence was erroneous in two respects: (1) the trial court erred by imposing the habitual offender sentence as a separate count rather than as an enhancement of the underlying felony and (2) the sentence exceeded the statutory limitation for consecutive terms. We reverse and remand with instructions that Dimmitt’s sentence be reduced by one year. In all other respects, we affirm.

NFP civil opinions today (3):

Indiana Law Enforcement Training Board v. Theodore D. Comer, Sr. (mem. dec.)

Steven DuPont and April DuPont, on Behalf of Minor Child M.D. v. Kiddie Academy of Fishers and Kiddie Academy Childcare Learning Centers, Inc. (mem. dec.)

Nina Ozuyener v. Korkut Ozuyener (mem. dec.)

NFP criminal opinions today (6):

Scott Hedrick-Dwyer v. State of Indiana (mem. dec.)

Cameron Williams v. State of Indiana (mem. dec.)

T.M. v. State of Indiana (mem. dec.)

Jon Holman v. State of Indiana (mem. dec.)

Shelby Makowsky v. State of Indiana (mem. dec.)

Aaron J. Taylor v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Controversial energy bill in Indiana House" and "Energy chairman’s gas and oil investments raise ethics questions" [Updated]

Alice Culp reported yesterday in the South Bend Tribune in a long story that begins:

An energy bill introduced in Indiana’s General Assembly this session is causing a bit of a stir.

House Bill 1320, authored by Rep. Eric Koch, R-Bedford, would change the current terms for utility customers who use renewable energy sources to supplement their electricity. Utilities say the bill will allow for fairness among customers. Meanwhile, opponents of the bill say utilities are trying to preserve their current market monopoly.

In 2004, the Indiana Utilities Regulatory Commission adopted rules for net metering to help encourage the growth of renewable energy and meet energy-efficiency standards. Under this system, individuals and businesses with a wind turbine or solar panels are billed for any electric energy they use from the power grid. However, if their renewable energy source produces energy beyond what they need, they can get credit for it from the utility in a manner similar to rollover minutes on a cellphone bill.

The bill, if passed, would lower net-metering rates and allow utilities to charge self-generating customers a set fee, subject to IURC approval, for use of the grid. It also provides a provision for current net-metering customers to be grandfathered in. However, any equipment added after Jan. 1, 2016, would be subject to the new rules.

Supporters of the bill say that the net-metering practice is unfair.

ILB: This is reminiscent of the bill last year that shut down "A 2-year-old program designed to cut energy consumption in Indiana homes, schools and businesses." That was 2014's SB 340, sponsored by Rep. Koch.

Today Tony Cook reports in the Indianapolis Star in a long story that begins:

Despite personal investments in at least 30 oil and gas companies, the chairman of Indiana’s powerful House energy committee plans to forge ahead with a bill that would strip local governments of their ability to regulate gas and oil drilling.

The legislation, authored by Rep. Eric Koch, R-Bedford, is stoking new concerns about potential conflicts of interest in the legislature — even as Koch and other members of a House ethics panel voted Tuesday to strengthen ethics rules.

Moments after the vote, Koch told The Indianapolis Star that he doesn’t believe his oil and gas investments represent a conflict of interest — even under the stricter language of the new ethics rules.

Those rules prohibit lawmakers from authoring or voting on legislation that “could reasonably be expected to have a unique, direct, and substantial” impact on their income or businesses in which they hold an ownership interest.

Koch said any personal financial benefit to him from his proposed legislation would be “very indirect, unsubstantial and not unique.”

But the new rules, which must still gain approval of the full House, also would require lawmakers to “conduct official duties in a manner that avoids the appearance of impropriety and bolsters public trust.”

Ethics experts say Koch’s actions fall well short of that standard.

Koch’s measure, House Bill 1321, would prevent local governments from regulating or prohibiting “oil and gas exploration, development, or production activities.” The bill is now pending before the House Natural Resources Committee.

Environmental groups oppose the measure because they say it would prevent local communities from keeping oil and gas wells away from water supplies, schools and parks. The legislation also would prevent cities and counties from putting a moratorium on hydraulic fracturing, as some communities in other states have done.

But ethics experts are concerned for another reason — Koch’s investment portfolio.

He is a member of at least 28 gas and oil companies, according to his most recent financial disclosure form.

[Updated at 12:21 PM] See also this editorial from the Bloomington Herald-Times, here reprinted in the Indiana Economic Digest, titled "Indiana House bill casts a cloud over more use of solar energy." A quote:

You have to go no further than the first sentence of the summary of the bill on the Legislature’s own website to see it’s written for the utility companies, not the consumers. The digest says the bill “Provides that the utility regulatory commission (IURC) may authorize an electricity supplier to establish certain tariffs, rates and charges, and credits with respect to the acquisition of electricity from a customer that uses distributed generation ....”

In other words, it would pave the way for utilities to establish financial policies favorable to them at the expense of those who have recognized the importance of expanding solar energy usage and committed to it by putting solar panels on their homes — and in many cases — their places of worship. Indeed, religious congregations, including some in Bloomington, who believe strongly in taking care of the Earth, have been some of the early adopters of solar power.

Though current solar users would likely be grandfathered, the changes would cut into the potential savings for new solar customers by 60 to 70 percent, the bill’s opponents say.

Utilities say they need to get more from solar customers to offset the maintenance of lines, transformers and other capital investments in the power grid. Individual solar proponents say their power generation — if their numbers are allowed to swell — would offset the need for constructing new, large utility plants, transmission and distribution infrastructure; and reduce reliance on more expensive and polluting conventional power.

Indiana should be encouraging people to embrace renewable energy such as solar. This bill does the opposite. It’s bad for Hoosiers.

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Environment | Indiana Government

Ind. Gov't. - "Indiana Senate panel backs religion-based hiring"

Dan Carden of the NWITimes reported yesterday:

Legislation permitting state and local government contracts be awarded to companies and institutions that discriminate in hiring based on religion was approved 7-0 Monday by an Indiana Senate committee.

Senate Bill 127, which advances to the full chamber, authorizes government contractors claiming a religious affiliation to hire only workers who share their beliefs, and permits those entities take steps to confirm "all employees and applicants conform to the religious tenets of the organization."

The sponsor of the proposal, state Sen. Travis Holdman, R-Markle, said he is seeking the change to restore the ability of Indiana Wesleyan University, a Christian college with a Merrillville location that hires employees on the basis of religion — as permitted by federal law — to continue receiving state workforce training grants.

The ILB last posted on a very similar measure nearly a year ago, on Feb. 24, 2014.

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Indiana Government

Ind. Courts - "Bill would bring the total number of trial court types in the state back to 7"

Bill Raftery, of the blog Gavel to Gavel, has an interesting post today on the background of Indiana trial-type courts. In part he writes:

There’s a long a fascinating history to the way in in which Indiana has organized and reorganized its trial courts, including courts that no longer exist (County Courts, Common Pleas, Quarter Sessions, Justice of the Peace) detailed in this 1997 article. The most recent iteration, the end of the state’s County Courts, occurred only recently. Still, with their end Indiana has one of the largest number of court types in the nation with at the present time 6 (Superior, Circuit, Probate, City, Town, and Small Claims Court of Marion County).

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Indiana Courts

Ind. Decisions - More on: Rare published dissent to transfer denial [Updated]

Updating this ILB post from yesterday, re the Court's 3-2 denial of a transfer petition in a case, Shell v. State, involving allegations of prosecutorial misconduct, a reader points out that the date of the COA ruling, "May 9, 2012", cited within the majority order, is incorrect, and probably is a remnant of an older order.

As the ILB indicated in later in the post: "The Court of Appeals issued its 22-page NPF opinion in Shell v. State on July 14, 2014."

[Updated at 2:42 PM] A corrected version of the Order in Shell v. State has now been posted, replacing the erroneous date reference in yesterday's version; although it is marked "Corrected" the new version bears the identical file-stamp. The docket now contains this entry:

01-28-2015

IT HAS COME TO THE COURT'S ATTENTION THAT THE PUBLISHED
ORDER HANDED DOWN ON JANUARY 27, 2015 CONTAINS A TYPOGRAPHICAL
ERROR ON PAGE 1 AND PAGE 4. SPECIFICALLY, ON PAGE 1 THE DATE OF
THE COURT OF APPEALS MEMORANDUM DECISION ISSUED IN THE CASE WAS
STATED AS "MAY 9, 2012" BUT SHOULD HAVE BEEN "JULY 14, 2014."
ON PAGE 4 THE WORD "RESPECTIVELY" SHOULD HAVE BEEN
"RESPECTFULLY." THIS INADVERTANT ERROR WAS CORRECTED IN AN
ORDER DELIVERED TO THE CLERK WITH THIS NOTICE. THE CORRECTED
ORDER CONTAINS THE WORD "CORRECTED" BENEATH THE TITLE OF THE
ORDER. NO OTHER CHANGE WAS MADE TO THE PUBLISHED ORDER DENYING
TRANSFER. NEITHER THE CORRECTED ORDER NOR THIS NOTICE ALTER ANY
DUE DATE.

THE CLERK IS DIRECTED TO (1) ENTER THIS NOTICE OF CHANGE ON
THE CHRONOLOGICAL CASE SUMMARY; (2) SERVE ALL COUNSEL OF RECORD
WITH A COPY OF THE CORRECTED ORDER AND THIS NOTICE; (3) REMOVE
THE ORIGINAL ORDER FROM THE COURT'S WEBSITE AND POST THE
CORRECTED ORDER IN ITS PLACE; AND (4) SEND A COPY OF THIS NOTICE
TO THOMSON/REUTERS, LEXISNEXIS, AND WOLTERS KLUWER.
MARK S. MASSA, ACTING CHIEF JUSTICE
(NOTICE REC'D ON 01/28/15 @ 9:43 AM) ENTERED ON 01/28/15 AB

Posted by Marcia Oddi on Wednesday, January 28, 2015
Posted to Ind. Sup.Ct. Decisions

Tuesday, January 27, 2015

Ind. Decisions - 7th Circuit decides two Indiana cases today

In USA v. Jeffrey P. Taylor (ND Ind., Lozano), a 19-page opinion, Judge Sykes writes:

In this new appeal, Taylor argues that the Double Jeopardy Clause barred the second prosecution. He also challenges the district court’s handling of strikes for cause during jury selection and certain limitations on his cross-examination of two law-enforcement officers. His final claim of error is a challenge to the district court’s determination that his conviction for violating § 1470 triggers the registration requirements of the Sex Offender Registration and Notification Act (“SORNA”). 42 U.S.C. § 16911(5)(A)(ii), (7)(I) (2012) (defining “sex offense” for purposes of the registration regime).

Taylor’s double-jeopardy claim is foreclosed by Supreme Court precedent; he has preserved it for further review. The challenge to the composition of the jury fails for two reasons: (1) Taylor used peremptory strikes to remove two of the three jurors about whom he now complains; and (2) he did not object to the third, and the judge did not commit plain error in seating that juror. The judge’s evidentiary rulings also were sound; the relevance of the excluded cross-examination was tenuous at best. Finally, a procedural impediment prevents us from reviewing the judge’s SORNA ruling. * * *

We appreciate that Taylor needs to know what his legal obligations are after his probation ends. Perhaps for this reason, SORNA requires that “[a]n appropriate official” notify sex offenders of the duty to register “shortly before” their release from custody, or if the offender is not in custody, “immediately after the sentencing of the sex offender[] for the offense giving rise to the duty to register.” 42 U.S.C. § 16917(a). The statutory language contemplates notice from the Executive Branch, not the judiciary. The Department of Justice takes the position that Taylor must register under SORNA; that much is clear from the government’s argument at sentencing and on appeal. Taylor disputes the government’s position, of course, which is why he joined the prosecutor in asking the district court to decide the question. The federal courts can issue declaratory judgments to resolve concrete disputes, of which this is one. But the district court did not issue a declaratory judgment resolving the parties’ dispute about whether SORNA applies.

In short, because the judgment does not incorporate the judge’s SORNA ruling and the government has not filed a cross-appeal contesting that omission, there is nothing for us to review. See Azeez v. Fairman, 795 F.2d 1296, 1297 (7th Cir. 1986). AFFIRMED

In Awok Ani-Deng v. Jeffboat (SD Ind., Barker), a 7-page appeal, Judge Posner writes:
The plaintiff filed a scattershot of discrimination and related claims against her former em-ployer, Jeffboat (a division of American Commercial Lines), the nation’s largest inland shipbuilder and second-largest manufacturer of barges. The district judge dismissed all the claims, some on the pleadings and the rest on summary judgment. * * *

The affidavit was entitled to no weight, as it had no foundation. * * *

Without the affidavit, the plaintiff had nothing. The district judge was therefore on sound ground in dismissing her suit. AFFIRMED

Posted by Marcia Oddi on Tuesday, January 27, 2015
Posted to Ind. (7th Cir.) Decisions

Courts - "SCOTUS docket on lawyer discipline to be public"

Lyle Denniston reports today from his own blog. Who knew? First post is from Jan. 9th.

Posted by Marcia Oddi on Tuesday, January 27, 2015
Posted to Courts in general

Ind. Decisions - Rare published dissent to transfer denial [Updated]

Henry L. Shell, Jr. v. State of Indiana is a 3-2 order filed this afternoon by the Supreme Court, denying appellant's petition to transfer. At issue were allegations of prosecutorial misconduct.

From a rare published dissent of Justice David writes, joined by Justice Rucker:

I respectfully dissent from the denial of transfer. To emphasize the significant obligation that attorneys have to follow the rules and assure that justice is properly administered, I believe we should address the issue of whether the alleged prosecutorial misconduct was harmless beyond a reasonable doubt.

In this case, the prosecuting attorney did the following: (1) openly stated to the jury that defense counsel’s “check comes from the government too, so we all work for the government here”; (2) commented three times in front of the jury and over objection on Shell’s post-arrest right to remain silent; and (3) referred to his own opinion as to Shell’s guilt during closing arguments. (Tr. at 284, 657, 662, 691.) * * *

Prosecutors must ensure that a criminal defendant’s rights are upheld by exercising only the soundest judgment and caution. Whether improper prosecutorial statements are due to carelessness or a conscious effort to test the line of what constitutes misconduct, the potential for a cumulative prejudicial impact on a defendant cannot be ignored. Even cases where fundamental error is not established do not detract from the “condemnable” nature of prosecutorial conduct in some instances. See Bernard v. State, 540 N.E.2d 23, 25 (Ind. 1989) (stating that “comments actually made by the prosecutor at the trial below were subject to interpretation as comments on the failure to testify and were therefore condemnable”).

A reviewing court must determine whether prosecutorial misconduct “placed the defendant in a position of grave peril to which he or she would not have been subjected.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) (citing Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002)). However, this is not to suggest that anything that falls just below this standard is necessarily considered appropriate. Rather, the highest degree of professionalism should continue to govern the behavior of all attorneys at all times. Walking the line of permissible and impermissible conduct creates distrust in our legal system, undermines the rights we have sworn to protect, and discourages collegiality. The profession deserves thoughtful adherence to ethical, professional, and prosecutorial standards.

Because this Court is passing up an opportunity to resolve what seems to me to be a disturbing trend, I respectively dissent from the denial of transfer.

Rucker, J., joins.

ILB: The Court of Appeals issued a 22-page NPF opinion in Shell v. State on July 14, 2014. The case comes from Miami County. Judge Crone wrote:
Shell raises numerous issues for our review, none of which constitute reversible error. Accordingly, we affirm.
At least one other petition to transfer involving allegations of prosecutorial misconduct currently is pending before the Supreme Court.

On July 7, 2014 the ILB posted a commentary by Prof. Schumm headed " Isn't it time to get serious about prosecutor misconduct?"

Posted by Marcia Oddi on Tuesday, January 27, 2015
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists

A teaching moment - Trust no one!

Professor Joel Schumm sends this West copy of a Court of Appeals ruling from Oct. 7, 2014. The case is Clark v. State. West clearly marks the decision, downloaded today, as "a not-for-publication memorandum decision" which "shall not be regarded as precedent and shall not be cited by any court."

But the same opinion, accessed today from the Courts own website, shows the ruling to be a for-publication opinion! Furthermore, a check of the case docket reveals not only no mention that this opinion was ever NFP, but that a petition to transfer the case was denied by the Supreme Court via a Dec. 19, 2014 order.

Worse, the Court website includes this:

DISCLAIMER: Opinions posted here are for informational purposes only. Official copies of opinions are available from West (Thomson/Reuters) or from the Clerk of the Supreme Court, Court of Appeals, and Tax Court.
So does this mean West has the power to make an opinion non-precedental?

Posted by Marcia Oddi on Tuesday, January 27, 2015
Posted to A teaching moment

Ind. Gov't. - "Will lawmakers learn from Behning case?"

Veteran Statehouse reporter Lesley Weidenbener has a good column today in the Indianapolis Star. Some quotes:

Ethics questions involving House Education Chairman Bob Behning rose and fell last week in just a matter of days, but the underlying issues shouldn't go away so quickly. * * *

Behning backed off and told the Ethics Committee he would no longer be pursing a contract with the testing company. He then told The Indianapolis Star – which broke the story – that he's no longer looking to lobby in other states.

"That has become very clear to me that in today's world that is just something I should not look at," Behning told The Star's Tom LoBianco when asked if he would seek any other lobbying clients.

What's worrisome is that it wasn't already clear or that it might ever have been OK.

Granted, Indiana has a part-time legislature, meaning the majority of lawmakers have full-time or part-time jobs outside their positions as elected officials. The House and Senate have lawyers, teachers, real estate agents and others who are in some way regulated or affected by state government.

And often, those lawmakers serve on the very committees that set the rules for their professions. To a large degree, that is the nature of a part-time legislature and that's why the chambers set up rules that require lawmakers to abstain from votes that affect their finances or their jobs directly.

Already, the House is working on new ethics rules that will require more transparency and impose new restrictions on executive branch employees. The proposal follows Statehouse scandals involving a lawmaker accused of privately lobbying for legislation in which he had a financial interest and a former state superintendent who allegedly used his office for political gain.

But no set of rules or guidelines can foresee every potential conflict of interest. No law can anticipate all the creative ways that public officials can try to use their office for personal gain. Instead, the public must count on the General Assembly and individual lawmakers to police themselves. That starts with common sense, something that doesn't appear to have been present in the Behning case. * * *

It's not clear what Bosma or the House Ethics Committee would have done had Behning not withdrawn his lobbying proposal. But it seems obvious what they should have done: Forced Behning to choose between representing his constituents or representing a company that could have been affected by his actions.

Hopefully in the future, lawmakers will make the right choice.

Weidenbener is executive editor of TheStatehouseFile.com.

Posted by Marcia Oddi on Tuesday, January 27, 2015
Posted to Indiana Government

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

For publication opinions today (2):

In Christopher Tiplick v. State of Indiana , a 16-page, 2-1 opinion, Judge May writes:

Christopher Tiplick appeals the denial of his motion to dismiss eleven counts of his eighteen count indictment. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Tiplick’s alleged offenses, Ind. Code § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and Ind. Code § 35-48-4-11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant definitional statutes and can be found only in the Pharmacy Board Regulations? We reverse and remand. * * *

Tiplick argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because their “numerous cross-references, undefined terms, and required monitoring of Indiana statutes and promulgations of the Pharmacy Board cannot be understood by an ordinary person.” (Br. of Appellant at 27.) We agree. * * *

Tiplick’s charging information indicated he allegedly sold and possessed a synthetic drug, identified in the probable cause affidavit as XLR11. That drug was not listed as a synthetic drug under Ind. Code §§ 35-31.5-2-321(1-8) on September 20, 2012, October 9, 2012, and October 10, 2012, the dates Tiplick’s alleged crimes occurred, and nothing in the charging information indicates which Pharmacy Board emergency rule declared XLR11 a synthetic drug pursuant to the provisions in Ind. Code § 35-31.5-2-321(9) and Ind. Code § 25-26-13-4.1 (2012). A Pharmacy Board Emergency Rule, LSA Document # 12-493(E) (“Emergency Rule”), declared XLR11 a “synthetic substance” effective September 15, 2012.12 However, Ind. Code § 25-26-13-4.1 did not authorize the Pharmacy Board to declare something a “synthetic substance” in an Emergency Rule. Instead, the Emergency Rule permits the declaration of a substance as a “synthetic drug.” While that distinction may seem trivial, we believe the technical nature of this particular statute requires precision in language. For example, the Pharmacy Board may declare a new chemical concoction used to treat a deadly disease a “synthetic substance” and such a declaration would not invoke the criminal consequences as would the Pharmacy Board’s declaration of something as a “synthetic drug.” See Brown v. State, 868 N.E.2d 464, 468 (Ind. 2007) (noting alternate, legal uses for terms and the unconstitutional vagueness stemming therefrom). This linguistic confusion only adds to the vagueness of this statutory structure. * * *

To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a “Where’s Waldo” expedition is ludicrous. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. Ct App. 2008) (“When a party’s brief fails to provide citations in support of its factual assertions, we are left to scan volumes aimlessly for asserted facts. But reading a record should not be like a game of Where’s Waldo?”). No person of ordinary intelligence could determine what behavior is prohibited by the term “synthetic drug” in Ind. Code §§ 35-48-4-10(a) and 11, based on Ind. Code §§ 35-31. 5-2-321(9) and 25-26-13-4.1, and thus the portions of Ind. Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiplick’s allegedTo require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a “Where’s Waldo” expedition is ludicrous. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. Ct App. 2008) (“When a party’s brief fails to provide citations in support of its factual assertions, we are left to scan volumes aimlessly for asserted facts. But reading a record should not be like a game of Where’s Waldo?”). No person of ordinary intelligence could determine what behavior is prohibited by the term “synthetic drug” in Ind. Code §§ 35-48-4-10(a) and 11, based on Ind. Code §§ 35-31. 5-2-321(9) and 25-26-13-4.1, and thus the portions of Ind. Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiplick’s alleged offenses are void for vagueness to the extent they rely on definitions in Ind. Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. * * *

Kirsch, J., concurs.
Bailey, J., dissents, with separate opinion. [that begins at p.13 and that concludes] Not having looked to the laws that apply to one’s actions does not excuse an individual from violating those laws. Tiplick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation. The applicable laws and regulations are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the criminal nature of the sale of XLR11 on the basis of vagueness.

In Aadil Ashfaque v. State of Indiana , a 13-page opinion, Judge May writes:
Aadil Ashfaque appeals the denial of his motion to dismiss Count I, Class D felony dealing in a synthetic drug1 and Count II, Class D felony possession of a synthetic drug. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Ashfaque’s alleged offenses, Ind. Code § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and Ind. Code § 35-48-4-11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant provisions of the Indiana Code and could be found only in the Pharmacy Board Regulations? We reverse and remand. * * *

Ashfaque argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because “[a]n ordinary person cannot be required to follow and understand Indiana’s synthetic drug statutory maze.” (Br. of Appellant at 25.) We agree. * * *

As Ind. Code §§ 35-48-4-10(a) and 11 form the basis for Counts I and II of Ashfaque’s charging information, and we hold those statutes are unconstitutionally vague based on the definition of “synthetic drug” set forth in Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Ashfaque’s motion to dismiss those charges. Reversed and remanded.

Friedlander, J., concurs.
Vaidik, C.J., dissents, with separate opinion. [which begins, at p. 10] I respectfully dissent from the majority’s holding that the statutory scheme in effect at the time of Ashfaque’s alleged crimes for dealing in and possession of synthetic drugs is void for vagueness because “[a]n ordinary person cannot be required to follow and understand Indiana’s synthetic drug statutory maze.” Slip op. at 5 (quotation omitted). I do so for the same reasons identified today in Judge Bailey’s dissent in Tiplick v. State, No. 49A04-1312-CR-617 (Ind. Ct. App. Jan. 27, 2015).
__________
I do not share the majority’s concern that Emergency Rule 12-493(E)’s use of the term “synthetic substance” instead of “synthetic drug” causes “linguistic confusion” that “adds to the vagueness of this statutory structure.”

NFP civil opinions today (6):

Stacey E. Schwarz v. Richard Schwarz and Lisa Schwarz (Mem. Dec.)

In the Matter of G.F., a Child in Need of Services, S.F. (Father) v. Ind. Dept. of Child Services (mem.dec)

In the Matter of the Termination of the Parent-Child Relationship of S.L., a Child and A.W., the Child's Mother v. The Indiana Department of Child Services (Mem. Dec.)

Michael Grantland v. Office of Clark County Treasurer, David Reinhardt and Office of Clark County Recorder, Richard Jones (Mem. Dec.)

In Re: The Paternity of R.R., J.R. (Father) v. T.G. (Mother) (mem.dec)

Rong Fan v. Summerlakes Property Owners Association, Inc.(Mem. Dec.)

NFP criminal opinions today (0):

ILB NOTE: Yesterday, which was the first day of the new opinions format, NFPs were not listed as such on the opinions page, but were so identified in the rulings themselves. Today, opinions which have previously been identified as "(NFP)" are identified on the opinions page as either "(Mem. Dec.)" or "(mem.dec)". Apparently these changes in designation this week reflect a change in the wording of Appellate Rule 65(A) (distinguishing between COA "opinions" and COA "memorandum decisions"), which I believe went into operation Jan. 1, 2015.

Posted by Marcia Oddi on Tuesday, January 27, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Monroe County Veterans Court Experiences Delays"

Indiana's veterans courts were lauded in Chief Justice Rush's State of the Judiciary speech earlier this month. However, according to this story today by Lindsey Wright at Indiana Public Media, the one planned for Monroe County can't get off the ground. That in spite of the fact that:

Special courts for veterans have already been established in several Indiana counties, including Floyd, Porter, Grant and Vanderburgh counties.

Posted by Marcia Oddi on Tuesday, January 27, 2015
Posted to Indiana Courts

Monday, January 26, 2015

Ind. Courts - "Courts seek funds for statewide e-filing availability"

Dan Carden of the NWI Times reported today [ILB emphasis added]:

In the not-to-distant future, all Indiana court documents could be filed electronically and accessed by anyone with an Internet connection at no charge.

That's the vision for e-filing Indiana Chief Justice Loretta Rush shared with members of the General Assembly in her first State of the Judiciary address earlier this month.

"Imagine the hours and costs required to shepherd tens of millions of pages of paper as they are filed and refiled, delivered and mailed, stored and shuffled, copied and recopied, and on and on throughout Indiana courts and agencies each year," she said. "Pennies of additional investment now will reap dollars of savings in future records management costs."

Supreme Court Justice Steven David and Court of Appeals Judge Paul Mathias are heading the state court system's e-filing effort. * * *

"E-filing is the direction we are going, it's the direction we have been going, and we intend to pursue it with much vigor," David said. "We believe the people of Indiana deserve an e-filing system."

Mathias agreed.

"In a Facebook world, the basic level of service that Indiana citizens expect from their government is electronic access, and e-filing will bring that level of access to Indiana's citizens and taxpayers," he said.

The court system is requesting an additional $5 million a year from the Legislature to purchase an unlimited, statewide license for e-filing software that would enable litigants to submit paperwork electronically to the court and their opponents, as well as permitting court clerks and the public to access the records.

Under the plan, e-filing would be rolled out to a few pilot counties later this year, including at least one county using the court's Odyssey case management system and one running a different system, as well as the state's appellate courts.

Older court records would not immediately be added to the system, if ever.

Lake County could be among the first to get full e-filing since it already has been experimenting with electronic court records, under Supreme Court supervision, for several years.

David said the idea is to "get it right, then get it everywhere," but he said much depends on whether state lawmakers share the court system's vision.

For example, while David and Mathias said the courts will push ahead with e-filing even if they don't get their full funding request, they'd prefer not having to force users to pay fees for accessing records like the federal PACER e-filing system that charges 10 cents for each page viewed.

"Our interest is to make e-filing as widely accessible to as many entities as possible at the lowest possible cost," Mathias said. "We believe e-filing is the new basic level and the new basic responsibility of government services in the court system." * * *

Republican Gov. Mike Pence did not include money for court e-filing in his proposed state budget, but he also did not spend some $600 million in anticipated revenue. He said he was leaving it up to lawmakers to decide how to allocate some of that extra money.

Mathias said he is optimistic because so far he only is getting positive responses to the court's e-filing proposal.

"Those in leadership positions understand immediately that this is not the future, this is today, and this is the way that the court system can be as accessible as other branches of government and as everything else in our Internet-age lives," Mathias said.

ILB: The ILB found this statement interesting, given that we have three equal branches of government: "Gov. Mike Pence did not include money for court e-filing in his proposed state budget."

Carden's story today appears to answer some of the questions the ILB posed in this Jan. 21st post, but everything is still totally preliminary.

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to E-filing | Indiana Courts

Ind. Ciourts - Communications issues involving the Disciplinary Commission and local judges, prosecutors

Friday afternoon, after the ILB posted this Supreme Court disciplinary ruling, D.J. Mote, Chief Deputy Prosecutor, Jefferson County, sent the ILB this note, and granted permission to post:

Hopefully, the Commission will refer Mr. Safrin’s case to the local prosecutor’s office. There is no rule requiring them to do so. The Commission will typically treat a grievance as confidential under Ind.Admission and Discipline Rule 23.

If an attorney resigns his or her license before a verified complaint is filed, a prosecutor may only learn of conversion of client funds if the victim thinks to contact law enforcement. Or if a prosecutor reads about it in on ILB.

It happened to us. We learned a local attorney was under investigation for conversion of client funds. He resigned his license before they filed a verified complaint. So once he resigned, the Supreme Court lost jurisdiction over him. And since everything is confidential until a verified complaint is filed, it wasn't accessible. And there is nothing requiring the commission to tell us anything.

We read about it in the local paper (!). We ended up sending a letter to Witte asking if the Court would please release the grievance to us so we could investigate. They ultimately did.

I discussed our concern that an attorney could use the rule to avoid criminal responsibility, or worse, the public might see it as the attorney was being protected by the Court. The staff said there may be some discussion about a rule change, but I don't know where that is.

We ended up referring our case to the FBI.

ILB: So it seems communications problems may exist in both directions. The ILB recalls reading this Aug. 16, 2013 article by Mr. Witte that includes:
A judge who has entered a criminal guilty finding against a lawyer has an affirmative duty to report the conviction to the Disciplinary Commission. * * *

Many times a court’s failure to report a conviction is exposed through the felony OWI offense. After the felony OWI is reported to the Commission it is discovered that the underlying first offense was never reported by either the offender or the judge. For the offender, this can result in a violation of Admis. Disc. R. 23 §11.1(a)(2) which aggravates the situation.

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Courts

Ind. Gov't. - Some Senate bills on calendar today

The Senate convenes at 1:30

2nd Reading, Senate (see entire calendar here)

SB 94 Statute of limitations for rape. Crider, Charbonneau, Steele
SB 113 Direct wine sales. Boots, Alting, Messmer
SB 368 Uniform Fiduciary Access to Digital Assets Act. Waltz, Bray, Young R Michael

3rd Reading, Senate

SB 12 Judicial retirement age. Buck, Rogers, Kruse

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Government

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

For publication opinions today (4):

In Curt Pearman d/b/a Greenwood Professional Park v. T. Ryan Jackson and Kristin M. Jackson, a 17-page opinion, Sr. Judge Sharpnack writes:

Issue. Whether the trial court correctly determined that, standing alone, holding over and paying rent did not constitute the exercise of the option to renew the lease, and that the lease requirement of a written notice of renewal was not waived. * * *

The clear and unambiguous terms of the lease agreement support the trial court’s conclusion. Affirmed.

NFP civil opinions today (1):

O'Neal Flat Rolled Metals, Llc. v. Major Tool and Machine, Inc., Tishman Construction Corp., Permasteelisa N.A. Corp., Et. Al. (NFP)

NFP criminal opinions today (2):

Ronnie Lewis v. State of Indiana (NFP)

Ralph Hughett v. State of Indiana (NFP)

ILB NOTE: These opinions are the first in the new format. This morning, NFPs were not listed as such on the opinions page, but were so identified in the rulings themselves. Unfortunately, the opinions include a break at the end of each line (as in the dockets) rather than at the end of each paragraph, imposing extra steps on anyone pasting quotes. Here, for instance, is a quote from today's opinion, without the breaks removed from the end of each line:

If Lessee shall occupy the Premises without or with Lessor’s consent
after the expiration of the term of this lease and rent is accepted from
Lessee such occupancy and payment shall be construed as an
extension of this lease for the term of one month only from the date of
such expiration and occupancy thereafter shall operate to extend this
lease for but one month at a time unless other terms of such extensions
are endorsed hereon in writing and signed by the Parties hereto. If
either Lessor or Lessee desire to terminate said occupancy at the end
of any month after the termination of this lease the Party desiring to
terminate shall give the other Part at [least] thirty (30) days written
notice to that effect. However, the Lessor shall not be required to give
any such notice if Lessee has failed to pay the rent in advance when
due. Failure to give such notice [on] the part of Lessee shall obligate it
to pay rent for an additional calendar month following the month in
which the Lessee vacates the Premises.

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Constitutional proposal would clear way for commission to draw districts"

Maureen Hayden, CNHI State Reporter, writes today:

INDIANAPOLIS — The last time lawmakers raised the issue of changing the state Constitution, they set off a volatile debate about whether same-sex couples had the right to marry. The emotionally charged conversation overshadowed much of last year’s work.

This year, lawmakers are again talking about changing the Constitution. But on a public interest level, it may be a snoozer — despite its potential impact.

The proposal alters the Constitution to remove the General Assembly’s power to decide how state and federal legislative districts are drawn every 10 years. Instead it clears the way for an independent commission to draw those maps.

Similar efforts are underway elsewhere in varied forms, but the impetus is the same — take the partisanship out of a process that favors incumbents and the party in power.

The idea has long been championed by the public watchdog group Common Cause Indiana and its tenacious policy director, Julia Vaughn. She reasons that the current system, which uses sophisticated computerized mapping to track the leanings of voters, amounts to politicians choosing voters instead of the other way around.

“It’s the ultimate conflict of interest for politicians to draw their own districts,” she says.

Her allies in the cause may seem surprising. They’re the Republican leaders with super-majorities in both chambers - House Speaker Brian Bosma and Senate President David Long.

Long has started the process to change the part of the Constitution that mandates the Legislature “fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census.”

It’s a lengthy process, requiring consecutive votes in separate sessions of the Legislature before going to voters, most likely in 2018.

Meanwhile, Bosma wants his colleagues to undertake a two-year study of how other states have moved toward independent redistricting. * * *

Long and Bosma say it’s about bolstering confidence and participation in the elections.

Last November, only 30 percent of Indiana’s 4.5 million registered voters bothered to cast ballots.

For some, there wasn’t much reason: In 44 state House races, the incumbent went uncontested.

The agonizingly long process of getting to an independent commission will take heat from the debate. But there may be opponents. Sen. Brandt Hershman, the Republican majority leader in the Senate, has been openly scornful of the push for independent redistricting, calling it one of the most overblown issues in Indiana politics.

Overblown or not, it could be messy. Other states have struggled to figure out what an “independent” commission looks like. Appointments to such commissions can still be political.

In California, the independent commission created by voters in 2008 has taken heat for maps that Republicans say favor Democrats. Latino groups, meanwhile, feared newly drawn districts would dilute their voting power.

Arizona’s redistricting commission — now the focus of a federal court challenge – came under fire when it was revealed that its mapmaking consultant had ties to President Obama’s 2008 campaign.

All of which explains why Long and Bosma are pushing this issue now — six years before the next redistricting.

“It’s time to take a hard look at how other states are doing this, their successes and failures,” Long said. “If we’re going to seriously look at how we redraw our districts in 2021, we have to get to work on it now.”

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending January 23, 2015

Here is the Clerk's transfer list for the week ending Friday, January 23, 2015. It is three pages (and 32 cases) long.

Two transfers were granted last week, both Rule 56(A) transfers, bypassing the Court of Appeals:

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Transfer Lists

Ind. Law - Some bills being heard in committee this week

Some bills being heard in Senate Committee this morning (see calendar for more info):

SB 127 - Religious exemption in state and local contracts. CIVIL LAW, 9:30

SJR 2 - Right to hunt, fish and harvest wildlife. NAT RESOURCES 10:00

Some bills being heard in House Committee this morning (see calendar for more info):

HB 1453 - Hunting preserves. NAT'L RESOURCES 10:00

Tuesday:

HB 1090 - Background checks for drivers for hire. EMPLOYMENT 10:00

Code of Ethics - STATUTORY COMMITTEE ON ETHICS 10:00

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Law

Ind. Gov't. - "IDEM cites erosion problems on Section 4 of I-69"

The Sunday Bloomington Herald-Times contains a very long $$$ story (partsof it may be accessed here) by Michael Reschke on environmental violations related to I-69 construction. Some quotes:

Failure to install proper sediment control measures. Failure to utilize runoff control measures. Failure to take corrective action in a timely manner since it took 17 days to address issues associated with a stream and a sinkhole.

Those are some of the Water Quality Certification observations in just one report prepared by the Indiana Department of Environmental Management.

The Herald-Times requested all Rule 5 violations pertaining to Section 4 of Interstate 69, the 27-mile stretch of highway from Naval Support Activity Crane to Bloomington. IDEM denied some records related to the request, but provided access to 14 reports ranging from March 2013 to September 2014. In addition, IDEM provided two reports indicating previous issues had been resolved.

IDEM reports document a series of continuing erosion problems in Section 4 of the I-69 construction project. Yet no fines have been assessed, and it’s hard to determine whether all deficiencies in the reports have been corrected. * * *

Soil erosion and sedimentation in local waterways have been a concern for area residents and environmentalists since the I-69 project began. They’ve complained that in areas where trees and other vegetation have been cleared for the highway, bare soil is being washed away when it rains and entering local waterways. They have documented streams that once ran relatively clear now looking like chocolate milk, and even brown water coming from the faucet of one man whose drinking water came from a natural spring on his property.

Rule 5 is intended to prevent things like that from happening.

“The purpose of this rule is to establish requirements for stormwater discharges from construction activities of one acre or more so that the public health, existing water uses and aquatic biota are protected,” according to the statute.

The reports show contractors not only violated Rule 5, but in some instances, neglected areas of concern for several months. According to an inspection summary in a report dated Aug. 27, 2014, an inspection of two segments of Section 4 showed “significant erosion and sediment control work needs to be conducted.” The report continued, “The sediment discharges were noted on May 22, 2014, and have not been cleaned up nor has the area been stabilized. This area needs to be immediately brought into compliance and should take precedence over other work on the project site.”

According to a report dated April 11, 2014, several items identified as being in need of corrective action in previous reports had not been addressed. “Based on the items observed on-site, corrective action is not being initiated and oversight to ensure follow through by the contractor is absent.”

The observations listed in the report include things such as an earthen dam that was built in a tributary to Indian Creek without authorization that resulted in an unpermitted discharge of fill material.

At multiple locations, Gohmann Construction Inc. built temporary crossings on Indian Creek, which failed after a rainfall of about 0.44 inches. The crossings were reconstructed, but the contractor left rip-rap material from the failed crossings in the stream channels. That material was deposited downstream and had not been addressed by the contractor nor the Indiana Department of Transportation.

Attempts to find out the current status of those ongoing problems were unsuccessful. In a phone interview Wednesday, IDEM spokesman Barry Sneed said he would have to check on those specific reports. A reporter emailed the reports to Sneed, but did not receive a response by the deadline for this story. A phone call to Sneed on Friday was not returned.

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Environment | Indiana Government

Ind. Courts - "Herx lawyer no stranger to complex, tough cases"

Rebecca S. Green and Niki Kelly of the Fort Wayne Journal Gazette had this long story Sunday - some quotes:

Kathleen DeLaney goes to work in a 1920s home where creaky wood floors are part of the charm of the sleepy neighborhood.

No cubicles or high-rise elevators for the small, female-owned law firm located outside the hustle of downtown Indianapolis.

Instead, DeLaney’s upstairs office is warm and inviting – from the fluffy white rug to the pictures of her kids on the walls. Even her office chair is unconventional – an exercise ball chair gifted by her husband.

Those unconventional choices extend beyond the office chair to types of cases. DeLaney & DeLaney, the firm she founded in 2002 with her mother, Ann, handles everything outside of criminal law, family law and bankruptcy.

“I like the variety, and I find it intellectually stimulating not to be doing the same thing every day,” Kathleen DeLaney said. “I like to learn new things.”

That variety has built a very conventional and sturdy reputation for DeLaney, who recently squared off against the Fort Wayne-South Bend Roman Catholic Diocese and scored a nearly $2 million jury verdict in a gender discrimination case. * * *

Kathleen DeLaney knew she wanted to be a lawyer from a very young age. Both her parents are lawyers: her mother Ann, a former Marion County deputy prosecutor, and her father Ed, a retired partner from Barnes & Thornburg who represented the Federation of Bosnia and Herzegovina in the Dayton Peace Accords.

“I had good role models,” she says of her parents. “They led by example. They kept a balance between work life and family life. Work hard but smart.”

She has tried, with success, to do the same. The 46-year-old mother of three is married to Jim Strenski, who handles insurance litigation at Cantrell, Strenski & Mehringer.

Having studied international relations at Georgetown University, DeLaney postponed her second year of law school to spend about two years in London as a U.S. foreign service officer.

When she finally got back to what is now Indiana University’s Maurer School of Law, DeLaney left an impression on her professors with her analytical mind and writing ability.

“Those are traits that serve one well as a lawyer,” said Daniel Conkle, a professor of law at the school, focusing on law and religion and the First Amendment. “She was an outstanding student.” * * *

The amount of the jury’s award has been reduced from the original $1.9 million to $543,803, and DeLaney & DeLaney waits to hear what of its fees will be recovered.

The diocese has done more than hint at an appeal and last week petitioned the court to set aside the jury verdict or have a new trial on the amount of damages.

So the case of Emily Herx v. Fort Wayne-South Bend Roman Catholic Diocese is probably far from over.

In the month since the case’s conclusion at the district court level, DeLaney still receives about three media inquiries a day, along with an increase in potential client calls, particularly from the Fort Wayne area.

If she wanted to be at a bigger firm, she could be.

She doesn’t.

When asked about any possible interest in politics, DeLaney shuts down the idea with a quick no.

She says her sister is a doctor, her brother is a politician, and she is a lawyer – just as she likes it.The amount of the jury’s award has been reduced from the original $1.9 million to $543,803, and DeLaney & DeLaney waits to hear what of its fees will be recovered.

The diocese has done more than hint at an appeal and last week petitioned the court to set aside the jury verdict or have a new trial on the amount of damages.

So the case of Emily Herx v. Fort Wayne-South Bend Roman Catholic Diocese is probably far from over.

In the month since the case’s conclusion at the district court level, DeLaney still receives about three media inquiries a day, along with an increase in potential client calls, particularly from the Fort Wayne area.

If she wanted to be at a bigger firm, she could be.

She doesn’t.

When asked about any possible interest in politics, DeLaney shuts down the idea with a quick no.

She says her sister is a doctor, her brother is a politician, and she is a lawyer – just as she likes it. * * *

But DeLaney lights up a bit when the possibility of serving as a judge comes up.

“Those opportunities are few and far between, but it would be an incredible honor,” she said.

In the meantime, DeLaney loves digging into the law – including drafting briefs and doing legal research.

But nothing beats standing up before a judge and jury. During the Herx case, she said, “I was energized during that closing argument.”

Her dedication to fighting that particular battle resonates with Herx.

“I still struggle today to find the words to thank her. Even through all this, she’s still working constantly with me,” Herx said. “I’ve never seen someone so committed.”

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Courts

Ind. Courts - " EDITORIAL: Keep current retirement age for jurists"

From a Jan. 20th NWI Times editorial:

Indiana state Sen. Earline Rogers wants to set a retirement age of 80 for future Court of Appeals judges and Supreme Court justices.

While we recognize that people over age 75 can still work hard and contribute — Rogers, at age 80, is Exhibit A — we also appreciate the value of a fresh perspective.

Senate Bill 12, co-sponsored by Rogers, nearly died in a Senate committee last week as senators debated the merits of fresh ideas versus long experience that can feed wisdom.

Sen. Randy Head, R-Logansport, age 46, said older judges are staying on the bench too long, preventing younger attorneys from gaining judicial experience.

Head's argument won over three other members of the Senate Judiciary Committee, but five others, including Sen. Lonnie Randolph, D-East Chicago, supported the higher retirement age Rogers proposes.

Randolph is a co-author of SB 12.

The legislation wouldn't affect existing justices who would hit age 75 before facing a retention vote. They would still retire at 75 as scheduled, regardless of the fate of this legislation.

A 2013 Senate proposal to eliminate the retirement age altogether was passed 36-12 in the Senate but never got a vote in the House.

This year's legislation would apply only to the five Indiana Supreme Court justices and the 15 Court of Appeals judges, but Head makes a good point about getting fresh blood in those positions.

A mandatory retirement age is a somewhat arbitrary number, to be sure. But someone age 75, especially someone on the bench, should be able to retire comfortably.

This isn't about shoving experienced jurists aside; rather, it's a desire to get younger viewpoints on the issues.

Let’s keep the retirement age for judges and justices at 75.

ILB: SB 12 is on the Senate 3rd reading calendar today. See also this ILB post from Jan. 8.

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Courts

Ind. Law. - "Allow wineries to ship to customers"

That is the headline to this story by Chris Morisse Vizza in the Jan. 23rd Lafayette Journal & Courier. Some quotes:

State Sen. Ron Alting may not be a fan of Sunday alcohol sales, but on Friday he said he's the proud co-author of a bill that would allow Indiana wineries to ship their products to customers in and out of state.

Currently, Hoosier wineries can only ship their products to customers they have met face-to-face who've filled out paperwork and provided identification proving they are 21 years or older.

Senate Bill 113
would eliminate the in-person visit, but customers would be required to provide identification when an order is placed and again in person when the wine is delivered to their doorstep.

The change clears the way for Indiana's nearly 100 wineries to grow exponentially, he said. * * *

The bill unanimously passed the Senate Public Policy committee, which Alting chairs. He expects it will win approval from the full Senate and move through the Indiana House with no problem.

Rick Black, co-owner of Wildcat Creek Winery in Tippecanoe County, said he and his wife have been journeying down to the statehouse for five years trying to get similar legislation through the General Assembly.

"When we found out this was the first bill to be heard by his committee, we knew it finally had a chance," he said. "This is the greatest thing since sliced bread for us."

Posted by Marcia Oddi on Monday, January 26, 2015
Posted to Indiana Law

Courts - "Indiana church sues JPMorgan for millions"

According to this KCCI8 News, Des Moines story by Heather Long (NEW YORK (CNNMoney), Christ Church Cathedral, which is the church on the Indianapolis Circle:

... is suing JPMorgan Chase for millions.

The church claims that JPMorgan intentionally mismanaged its funds, which shrank in the past decade. Meanwhile, the fees the church paid JPMorgan skyrocketed.

The church has had to scale back its charitable work in Indianapolis and abroad because of an alleged $13 million in losses caused by JPMorgan. After many hours of prayer and frustrating dialogue with the bank, Christ Church decided to fight. * * *

Founded in 1837 in the heart of Indianapolis, the Episcopal congregation has a large trust fund, thanks to Eli Lilly, Jr., who built his family's pharmaceutical company Eli Lilly into a power player. Lilly, Jr. gifted the church 10% of his massive estate in the 1970s.

Not wanting to burden the church with handling such a large endowment, Lilly appointed three banks -- Indiana National Bank, American Fletcher National Bank and Trust and Merchants National Bank & Trust Company of Indianapolis -- as trustees. They were all located within a few blocks of the church.

The plan was to keep the money in reliable local hands, but that imploded after JPMorgan acquired two of the three banks in 2004.

Suddenly a Wall Street bank that's headquartered hundreds of miles away was calling the shots.

The church's investments began to change rapidly once JPMorgan took control. Almost overnight, the church's fairly mundane portfolio of stock and bond funds was replaced with a litany of JPMorgan's own funds, according to the court filing.

JPMorgan changes the church investments: By 2007, JPMorgan even started adding so-called alternative investments -- structured notes, derivatives and hedge funds. Complex investments like those usually result in higher fees for JPMorgan.

The church paid over five times more in fees -- rising to $177,800 by 2013 from $35,000 a year in 2004. And that was just the basic management fee. There were other fees that JPMorgan tacked on, although the bank never fully disclosed those despite repeated requests from the church, the lawsuit alleges. * * *

When JPMorgan took over the church's trust fund in the summer of 2004, it had $34.6 million. By December 2013, the value fell to $31.6 million, according to the lawsuit. For context, the Dow Jones Industrial Average rose over 50% during that time frame.

The losses meant the church wasn't able to do as much for downtown Indianapolis or places around the world. The church is a key supporter of a food bank, a homeless shelter and a center of abused women, and it gave aid to Haiti.

"We've had to cut staff and cut back on the amount of money we give away to the community," says Rev. Carlsen. "The cutbacks have been real."

JPMorgan fires back: JPMorgan is fighting the lawsuit, claiming the church is "cherry picking" the details. The bank denies poor performance. * * *

The church repeatedly tried to become more involved in the management of the funds despite the restrictions in Lilly Jr.'s will. By the end of 2013, JPMorgan voluntarily stepped down as trustee and an Indiana court appointed Christ Church Cathedral Foundation as the new trustee.

"It's not cherry picking...It's like they got cherry juice all over them," says Linda Pence of Pence Hensel, the law firm representing Christ Church Cathedral.

The church is seeking to recover $13 million in investment losses from JPMorgan, plus legal costs.

The story ends with:
A bigger debate: The Indianapolis church isn't alone. Sandscrest Foundation, a retreat center in West Virginia, has filed a similar lawsuit against JPMorgan for mismanagement of a charitable trust.

At the heart of these cases is a bigger debate about conflicts of interest when big banks serve as trustees of foundations and have the ability to use client money to buy the bank's own investment products.

Posted by Marcia Oddi on Monday, January 26, 2015
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 1/26/15):

Next week's oral arguments before the Supreme Court (week of 2/2/15):

Thursday, Feb. 5

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/26/15):

Next week's oral arguments before the Court of Appeals (week of 2/2/15):

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, January 26, 2015
Posted to Upcoming Oral Arguments

Friday, January 23, 2015

Ind. Decisions - Supreme Court issues order late this afternoon in case of Muncie City Judge

In In the Matter of the Honorable Dianna L. Bennington, Judge of the Muncie City Court, a one-page order accepting the facts and discipline agreed to by the Commission on Judicial Qualification and Respondent, accompanied by the 18-page Statement of Circumstances and Conditional Agreement for Discipline, all justices concur:

Accordingly, Dianna L. Bennington is hereby PERMANENTLY BANNED from serving in any judicial capacity of any kind, including but not limited to service as a judge pro tempore, temporary judge, or private judge Within five (5) days of this Order, Respondent shall submit her resignation to the Governor, which resignation shall be effective immediately.
According to p. 17 of the combined documents:
The parties agree that the appropriate sanction in this matter on Counts I, II, IV, V, VI, VIII, IX, X, XI, XII, and XIII is a permanent ban from judicial office but that Respondent should be permitted to retain her license to practice law.
Here is a list of earlier ILB posts on the Muncie City Judge.

Posted by Marcia Oddi on Friday, January 23, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court suspends Carmel attorney without automatic reinstatement

In In the Matter of Ronald A. Safrin, a three-page, 5-0 order, the Court writes in part:

Count 1. Respondent maintained two attorney/client trust accounts ("Trust Accounts"), neither of which were registered as an Interest on Lawyers Trust Account ("IOLTA"). Respondent did not notify the banks that the Trust Accounts were subject to overdraft reporting to the Commission. On his Attorney Annual Registration Statements from 2008 through 2011, Respondent falsely stated that he was exempt from maintaining an IOLTA.

Over several years, Respondent shared signatory authority for the Trust Accounts with another lawyer, who stole money from the Trust Accounts. This resulted in overdrafts, which were not reported to the Commission because the accounts were not registered as IOLTA accounts. By failing to properly register the Trust Accounts as IOLTA accounts, Respondent enabled the other lawyer to steal client funds from those accounts.[1] * * *

Discipline: Respondent's repeated dishonesty in his Attorney Annual Registration Statements and in his communications with the Commission are serious ethical violations. "It is a perversion of the disciplinary enforcement mechanism when a lawyer intentionally places false statements of fact before the Commission." Matter of Shumate, 626 N.E.2d 459, 461 (Ind. 1993).

The parties propose the appropriate discipline is suspension for six months, without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning February 28, 2015. * * *
__________
[1] The attorney who stole money from the Trust Accounts has resigned from the practice of law.

ILB: See also this ILB post from a year ago where another Carmel attorney with the same last name had resigned from the bar.

Posted by Marcia Oddi on Friday, January 23, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decides one Indiana case today, re duty to indemnify and defend

In Visteon Corporation v. National Union Fire Insurance (SD Ind., Young), an 11-page opinion, Judge Posner writes:

Visteon, a large manufacturer of automotive parts, with manufacturing facilities scattered around the world but its headquarters in Michigan, brought this diversity suit for breach of contract against the National Union insurance company. Visteon had bought a liability insurance policy from National Union providing worldwide liability coverage between 2000 and 2002. The policy contains an exclusion for liability resulting from pollution caused by Visteon, but the exclusion is expressly made inapplicable to liability arising from a “Completed Operations Hazard.” National Union has refused to indemnify or defend Visteon from suits arising from pollution caused by one of Visteon’s plants. * * *

The plant in question was in Connersville, Indiana. In 2001, and thus during the insurance coverage period, the powerful toxic solvent TCE that was used to clean machin-ery in the plant was discovered to have leaked into the soil and groundwater. Neighboring landowners sued Visteon for damages caused by the leakage. Visteon expended millions of dollars to settle the suits and additional millions to clean up the pollution that the leakage had caused. When National Union refused either to defend Visteon or to reimburse it for any of the costs it had incurred, Visteon filed this suit in an Indiana state court; National Union removed the case to fed-eral district court.

A dispute soon arose between the parties over whether Indiana or Michigan law governed the substantive issues in the case. Visteon wanted Indiana law to apply because Indiana does not enforce standard pollution-exclusion clauses, and the insurance policy included as we noted such a clause; Indiana requires that for such a clause to be enforceable the policy must “specify what falls within its pollution exclu-sion.” State Automobile Mutual Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845, 851 (Ind. 2012). TCE is one of the pollutants that must be specified, and it was not specified in the policy that National Union had sold to Visteon. Michigan law, however, does enforce the more general kind of pollution-exclusion clause found in the policy, City of Grosse Pointe Park v. Michigan Municipal Liability & Property Pool, 702 N.W.2d 106, 114 (Mich. 2005), and so Michigan was National Union’s pre-ferred choice for the governing law. The district court ruled that Michigan law governed.

A second question addressed by the district court was whether, under Michigan law, Visteon’s liability from the TCE leak was within the scope of the Completed Operations Hazard clause of the insurance policy, an exception as we mentioned to the pollution-exclusion clause. The district court ruled that Visteon was not entitled to coverage under that clause and so dismissed Visteon’s entire suit. Having thus struck out in the district court, Visteon has appealed to us. * * *

[The present litigation] arises from the insurance contract between Visteon and National Union, and the contract is not limited to Visteon’s Connersville plant—it covers all of Visteon’s plants, the world over. The Indiana Supreme Court has decided that in the case of an alleged breach of a contract insuring against liability for environ-mental contamination that could occur at different sites, Indiana will follow what is called the “uniform-contract-interpretation approach,” which “applies the law of a single state to the whole contract even though [the contract] covers multiple risks in multiple states,” and the single state that is chosen will usually be “the state having more insured sites than any other.” National Union Fire Ins. Co. of Pittsburgh, PA v. Standard Fusee Corp., 940 N.E.2d 810, 813, 815–16 (Ind. 2010) (emphasis added). * * *

We’re left with Michigan. Its law, as the district court found, determines whether National Union is liable to Viste-on for the liabilities that Visteon incurred as a result of the contamination resulting from the leak of TCE from its Indiana plant.

The insurance policy excludes coverage for damages caused by “the actual or threatened discharge, dispersal, seepage, migration, release or escape of pollutants anywhere in the world”—which obviously encompasses the TCE leak. With Michigan enforcing pollution-exclusion clauses, Viste-on is left to argue that what happened in Connersville is within an exception (part of the Completed Operations Haz-ard clause that we mentioned) to the pollution-exclusion clause for damages “occurring away from premises you own or rent and arising out of … Your Work except … work that has not yet been completed or abandoned.” So the question is whether the TCE leaked by the Connersville plant was a result of completed “work.” * * *

All these cases hold that pollution arising from ongoing op-erations (including manufacturing, as in several of the cases cited above) isn’t covered by the Completed Operations Hazard clause, even though these are cases in which the insureds were completing their performance of particular sales contracts with customers.

We note finally that the pollution-exclusion clause is unambiguous, and therefore National Union had no duty to defend Visteon against the suits brought against it by neighboring landowners who experienced losses because of the leak of TCE from Visteon’s Connersville plant.

Visteon has failed to make a case. The judgment in favor of National Union is therefore AFFIRMED.

Posted by Marcia Oddi on Friday, January 23, 2015
Posted to Ind. (7th Cir.) Decisions

Courts - Audio of the oral argument last week of Indy attorney before the SCOTUS

Updating this ILB post from Jan. 15, here, via Oyez.org, is the audio of the Mellouli drug deportation appeal, argued by Indy attorney Jon Laramore before the SCOTUS on Wed., Jan. 14th, 2015.

Here is the SCOTUSblog case file.

Posted by Marcia Oddi on Friday, January 23, 2015
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

J.K. v. T.C.

In Adam Nagel and Emily Nagel v. Northern Indiana Public Service Company, a 26-page opinion, Judge Barnes writes:

Adam and Emily Nagel appeal the trial court’s refusal to impose discovery sanctions against Northern Indiana Public Service Company (“NIPSCO”) and the trial court’s grant of summary judgment in favor of NIPSCO. We affirm in part, reverse in part, and remand. * * *

The trial court did not abuse its discretion in refusing to sanction NIPSCO with default judgment for its purported delays in providing discovery to the Nagels. However, the trial court erroneously granted summary judgment to NIPSCO. There are genuine issues of material fact as to whether NIPSCO owed Adam a duty of care and whether it breached that duty. We affirm in part, reverse in part, and remand for further proceedings.

Jerome Perry v. State of Indiana, a 4-page opinion, Judge Crone writes:
Jerome Perry appeals the three years of home detention imposed by the trial court following his conviction for class D felony receiving stolen goods. Perry asserts that the trial court’s sentence does not accord with Indiana law and that his sentence should have been six months. Finding that the trial court properly applied the law in sentencing Perry, we affirm.
In Dorvae Barnett v. State of Indiana, a 7-page opinion, Judge May writes:
Dorvae Barnett appeals the five-year enhancement of his sentence for Class C felony reckless homicide based on Barnett’s knowing use a firearm in the commission of that crime. Barnett presents two issues, which we restate as: 1. Whether the finding Barnett used a firearm was erroneous as a factual matter; and 2. Whether the finding that he used a firearm was improper as a matter of law.
We affirm.
NFP civil opinions today (2):

In the Matter of the Adoption of K.L., K.D. v. S.W. & M.W. (NFP)

In the Matter of: V.B., P.B. & B.B., Children Alleged to be Chins and A.B. v. The Ind. Dept. of Child Services (NFP)

NFP criminal opinions today (7):

Thomas J. Thacker v. State of Indiana (NFP)

Ataul Shafeek, Jr. v. State of Indiana (NFP)

Aaron Johnson v. State of Indiana (NFP)

Douglas Hobbs v. State of Indiana (NFP)

James Mayhugh v. State of Indiana (NFP)

Larry Gentry v. State of Indiana (NFP)

Howard Jackson v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 23, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Attorney General presentation before House Ways & Means yesterday

Yesterday, Jan. 22nd, the House Ways & Means Committee heard the biennial budget request of Attorney General Zoeller. (The AG did not make an earlier optional presentation before the State Budget Committee.)

AG Zoeller began his presentation by pointing out that Indiana is one of 6 states where the AG is a legislative officer, not a constitutional officer. Thus, he said, there is no two-term limit on the AG.

Here is a copy of of the operating budget summary, and the 17-page slide presentation.

Some interesting points from the archived video of the testimony, which you may view for yourself:

At about 7:38 the AG says he is requesting an increase in general fund funding to cover the transfer of Dept. Child Services (DCS) appellate legal work "which we have now taken on in OAG, along with all the other appellate work. There is no appellate work that goes on anywhere in state government that is not part of our office."

Beginning at 15:20 Rep. Porter asks for an update on the tobacco settlement. The AG responds that "we did take a hit" of $120M/yr for the next 10 years. In response to another question, the AG replies that we did bring in a law firm to help with the arbitration. (ILB - If interested in this topic, you should listen for yourself.)

At 26:35 Rep. Klinker asks - "Does your office benefit from those various national AG settlements we read about. AG Zoeller's response begins, "We do." If the ILB understands correctly, it appears that such settlement money does not go to the general fund to be appropriated out by the General Assembly. The ILB is also unaware of any way to review these various settlements and an accounting of their disposition within state government.

No questions were asked dealing with the filing of amicus briefs in national cases and related issues.

Posted by Marcia Oddi on Friday, January 23, 2015
Posted to Indiana Government

Thursday, January 22, 2015

Ind. Courts - "La Porte County welcomes new judges"

From the Michigan City News-Dispatch, a story by Jessica O'Brien that reports:

MICHIGAN CITY — The changing of the guard in La Porte County courts was celebrated on Wednesday, recognizing the retirement of two judges and the robing of four incoming judges.

The ceremony recognized the retirements of Judges William Boklund of La Porte County Superior Court No. 4 and Kathleen Lang of Superior No. 1. Both chose to step down at the end of their terms in December, retiring from the bench and now serving as senior judges. * * *

The four incoming judges were ceremonially robed in the courtroom on Wednesday, signifying their transition into judgeship – all either elected or appointed to their positions late last year.

Judge Greta Friedman of La Porte County Superior Court No. 4 received her robe from husband, Shaw Friedman; Judge Michael Bergerson of La Porte County Superior Court No. 1 from son, Michael Bergerson; Judge Jeffrey Thorne of La Porte County Superior Court No. 3 from Senior Judge Steven King; and Magistrate Pamela Munsey from daughter, Kaylen Krause.

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Indiana Courts

Ind. Gov't. - "Sunday alcohol sales campaign manager charged with drunken driving"

So reports Tony Cook this afternoon in the Indianapolis Star. Some quotes:

Megan Robertson, the Republican political operative who was hired to run the campaign to legalize Sunday carryout alcohol sales, is facing drunken driving charges after police say her vehicle crashed into a Near Eastside fast food restaurant on Christmas Eve. [ILB emphasis]

Robertson, 32, lost control of her Chevrolet Equinox and struck a Hardee's restaurant at 921 E. Washington St., according to a probable cause affidavit. Robertson told police she was on her way home from a Fountain Square bar at about 1 a.m. after drinking two beers.

A breathalyzer test later showed she had a blood alcohol content of 0.168 percent, the affidavit said. That is more than twice the legal limit of 0.08 percent for driving in Indiana. * * *

Robertson was hired late last year to help run the campaign to repeal Indiana's ban on Sunday alcohol sales at grocery, liquor, convenience and drug stores. The campaign is being led by Hoosiers for Sunday Sales, a coalition of national grocery chains and business groups such as the Indiana Chamber of Commerce.

Ms. Robertson earlier headed Freedom Indiana which last session led the fight against a constitutional amendment prohibiting gay marriage.

A long post at the blog Advance Indiana includes: "Robertson has a string of prior traffic arrests for speeding, failure to wear a seat belt and operating a vehicle while her driver's license was suspended, the most recent of which occurred on September 25 of last year."

Here is an expanded version of the Star story at Fox59.

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Indiana Government

Ind. Gov't. - More on: General Assembly will hold voluntary ethics training session today

Updating this ILB post from Jan. 14th, the ILB doesn't know whether Rep. Behning attended the training, but as Tom LoBianco reported in a long, front-page story in this morning's Indianapolis Star:

A veteran lawmaker who oversees education in the Indiana House of Representatives has formed a lobbying company to represent education clients, raising potential ethical questions at a time when state lawmakers are considering sweeping new ethics rules.

House Education Chairman Robert Behning, R-Indianapolis, formed Berkshire Education Strategies last June, and has continued leading the House education committee since then. Behning said Wednesday that he is looking to represent student testing company Questar in Oklahoma and would like to sign up more clients. But he added that he was doing everything possible to ensure he only represents clients out of state, and not in Indiana. * * *

Behning said he is looking to sign up more clients, but said he did not see a problem because the work would not directly coincide with his role running the Indiana House Education Committee. He said that he had a draft contract for Questar prepared by an ethics lawyer at Barnes and Thornburg and that he submitted it to members of the House Ethics Committee for consideration.

Behning said Questar flew him to its Minneapolis headquarters for two days of discussions three months ago, but he emphasized that he has not signed any contract with Questar yet and is awaiting word from the ethics panel.

House Speaker Brian Bosma, R-Indianapolis, said he "discouraged" Behning from trying to sign up any education clients, but also said he could not tell lawmakers what to do in their private lives.

"We don't dictate to people what they do in their private business lives," Bosma said. "We can encourage or discourage it. I'd say we discouraged this one. But citizen legislators are free to engage in the business activities they choose to engage in."

Bosma noted that new rules require lawmakers to recuse themselves from any action when they have a personal or business interest at stake. He said that if one of Behning's clients from out of state were to appear before his committee in Indiana, it would be hard for Behning, as chair of the committee, to completely separate himself from the situation.

The story notes:
Behning's decision to start a lobbying firm comes at a sensitive time for House lawmakers, who are considering ethics reform in the wake of a trio of Statehouse scandals involving former House Speaker Pro Tem Eric Turner, former Indiana Department of Transportation Chief of Staff Troy Woodruff and former Superintendent of Public Instruction Tony Bennett.

Bosma, R-Indianapolis, has made ethics reform a centerpiece of the House Republican agenda this session. He also called in the director of the National Conference of State Legislature's ethics program to run a one-hour training program with lawmakers last week.

In a story this afternoon, LoBianco writes:
House Speaker Brian Bosma, R-Indianapolis, said new ethics rules and a reform measure are aimed at the exact questions raised by Behning's actions.

"This is precisely the type of thing that we're trying to bring to light, both for the public and to the members of the ethics committee. I didn't know we were going to have a dry run on it so quickly," Bosma said Thursday.

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Indiana Government

Ind. Law - Watch out for new improved variations on "foreign clients with cashiers' checks" scam

Ted A. Waggoner writes today to the ISBA General Practice, Solo and Small Firm Section:

I have spoken with a lawyer in Indiana, who came way too close to falling for what the lawyer describes as a well designed and elaborate scam.

He was ready to open a non-IOLTA trust account, when the banker asked to see the check drawn on Chase Bank. The check was a fraudulent Cashier's Check, drawn on a phony account, but through the name of a European business that did check out.

The lawyer does business work and knew to run the traps on such items, but between the website, LinkedIN accounts, etc. so was rattled by the quality of the scammers.

The banker said that was the second such check they had seen from a lawyer that day. IF you have been involved in something like this, call Chase and the Police.

Be careful, be very careful.

Ted A. Waggoner
Peterson Waggoner & Perkins, LLP
Rochester, IN

ILB: See also this Aug. 7, 2012 ILB post headed "Despite Warnings, Lawyers Still Fall for Collection Scam," and its links.

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Indiana Law

Ind. Gov't. - "Backlog of records crowding Miami Co. Courthouse"

Carson Gerber reported Wed. in the Kokomo Tribune:

PERU – Storage space is starting to run out at the Miami County courthouse due to a backlog of court documents.

Miami County Clerk Tawna Leffel-Sands said eight years worth of records, including marriage certificates, court filings and voter information, is packed away in boxes that are stacked in hallways, attics and offices, and it’s starting to pile up.

“I’ve got books and files strewn all over this courthouse and I can’t get rid of them,” she said. “I’m running out of room.”

The reason? The state requires counties to hold on to official documents for a specific period before they can be placed on microfilm and destroyed.

Leffel-Sands said a Miami County addendum to state code requires the clerk’s office to keep records for 5 years before they can be microfilmed.

She said the county used to microfilm its own documents, but that stopped happening in 2007, when the machine broke and was never replaced.

Since then, the county has held onto every document filed in the clerk’s office.

To clear up space, the county could pay the state or hire an outside company to microfilm the documents. But with thousands of books and records to be scanned, it wouldn’t be cheap.

Leffel-Sands estimates it would cost $500,000 to have every document microfilmed. Just microfilming the marriage books would cost $18,000, she said.

Having recently cut $1.5 million from its 2015 budget due to a severe revenue shortfall, Miami County doesn't have that kind of money.

Leffel-Sands said the county could save money by microfilming records in house, but her office doesn’t have the equipment or the manpower to do it after two full-time positions in the clerk’s office were eliminated during the budget cuts.

“I don’t see our office ever doing this,” she said.

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Sin-Mi Ward v. University of Notre Dame, an 11-page opinion, Sr. Judge Sharpnack writes:

Sin-Mi Ward appeals from an order of the Worker’s Compensation Board (“the Full Board”) deciding her application for adjustment of claim against the University of Notre Dame (“Notre Dame”) for disability benefits arising from a work related injury. The Full Board adopted the findings and decision of the single hearing member awarding Ward permanent partial impairment (“PPI”) benefits after finding that she had reached maximum medical improvement from her injury. We affirm.
In Daniel Lee and Hui Luo Lee v. GDH, LLC , a 16-page opinion, Sr. Judge Sharpnack writes:
Daniel Lee, a plumber, was injured on the job at a construction site. He and his wife, Hui Luo Lee, sued several companies involved in the construction project, including GDH, LLC. The Lees appeal the trial court’s grant of summary judgment in favor of GDH. We affirm.
In Brian Weigel v. April Weigel, a 9-page opinion, Sr. Judge Sharpnack writes:
Brian Weigel appeals the trial court’s valuation of his hoof trimming business upon the dissolution of his marriage to April Weigel. * * *

For the reasons stated, we conclude that the trial court neither abused its discretion in valuing the hoof trimming business nor in ordering Brian to pay a portion of the expert’s fee for valuation of the business and presentation of testimony at the final hearing. Affirmed.

In Arthur Barnard III v. Menard, Inc.; Menard, Inc., and Blue Line LP, Inc. v. Capitol Specialty Insurance Corp., a 21-page opinion, Judge Baker writes:
Arthur Barnard was allegedly physically attacked by a Blue Line loss prevention officer outside a Menard store. The loss prevention officer suspected that Barnard had stolen something from the store. Barnard was injured and incurred medical expenses as a result of the incident. He filed a complaint against Menard and Blue Line, and Menard and Blue Line later filed third-party complaints against their insurer, Capitol Specialty Insurance Corporation (Capitol), invoking the insurer’s duties to defend and indemnify. The trial court granted summary judgment in favor of Menard on Barnard’s complaint and in favor of Capitol on the third-party complaints.

We find no error in the summary judgment order in favor of Menard on Barnard’s complaint. With respect to the third-party complaints against Capitol, we find that it was erroneous to grant summary judgment in favor of Capitol and that, instead, summary judgment should have been entered in favor of Menard and Blue Line with respect to Capitol’s duty to defend. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

NFP civil opinions today (1):

Bogunia Electric, Inc., d/b/a Mr. Electric and Steven Bogunia v. James Yakym (NFP)

NFP criminal opinions today (6):

Santiago Valdez v. State of Indiana (NFP)

Thomas Allen Beavers v. State of Indiana (NFP)

Joshua Adam Spears v. State of Indiana (NFP)

Malcolm L. Russell v. State of Indiana (NFP)

Shawn J. Riggle v. State of Indiana (NFP)

Jason Lee Schwartz v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Jason Young v. Hood's Gardens, Inc., a 6-page, 5-0 opinion, Justice Dickson writes:

When a person engages a contractor for the performance of work exceeding $1,000 in value but fails to take certain steps to assure that the contractor complies with the Indiana Worker's Compensation Act, that person is secondarily liable to the same extent as the contractor for worker's compensation benefits payable to an employee of the contractor injured in an accident arising out of and in the course of the contracted-for work. This case presents an issue of first impression: whether the predicate $1,000 in value is determined solely by the amount of money paid to the contractor or also includes the value of other consideration received by the contractor in connection with the services provided. We hold that the $1,000 monetary threshold may include the ascertainable value of ancillary consideration received by the contractor. * * *

To prevail on its motion for summary judgment, the business must establish that the tree removal work for which it hired the contractor had a value of $1,000 or less and that this fact was free of factual dispute. Under the applicable statute, the value of this work is to be determined by considering both the monetary payment and ancillary consideration received by the contractor, namely the $600 contract price and the value of the wood received. As the moving party, the business failed to designate evidence establishing that the undisputed value of the ancillary con-sideration (the wood received) plus the $600 monetary payment did not exceed $1,000. Furthermore, the plaintiff designated testimony by the contractor that the value of the wood received was more than the $600 received. The business was not entitled to summary judgment.

Conclusion. We conclude that the "value" attributable to the performance of work that triggers secondary liability under Indiana Code section 22-3-2-14(b) includes both direct monetary payment as well as any ancillary consideration received for the work. Finding a question of fact as to the value of the wood received by the contractor Discount Tree Extraction in connection with the performance of its work, we reverse the grant of summary judgment to the business, Hood's Gardens, and remand for further proceedings.

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Repeal of wine shipment rules heads to Senate"

Updating this ILB post from yesterday, Niki Kelly of the Fort Wayne Journal Gazette reports this morning:

The Senate Public Policy Committee voted 9-0 to repeal a requirement established in 2006 that consumers make a face-to-face purchase at a winery before ordering online or by mail.

The requirement has been in place since 2006, when a sticky compromise was reached creating a direct wine shipper’s permit.

“This is a win for your constituents,” said Lisa Hayes, lobbyist for the Indiana Winery and Vineyard Association. “The law hasn’t worked. Technology has changed. The environment has changed.”

Sen. Phil Boots, R-Crawfordsville, the author of the bill, said allowing remote wine shipping will help Indiana wineries that are hamstrung by the face-to-face requirement. And he said there is ample provision in the bill to require verification of a person’s age.

But those representing the other parts of the so-called three-legged stool of alcohol in Indiana – the wholesalers and direct retailers – oppose the bill. * * *

The hearing was highlighted by the issue’s complicated history.

Indiana wineries shipped their products directly to customers for decades. But in May 2005, the Alcohol and Tobacco Commission issued an enforcement bulletin saying the practice was illegal.

The bulletin was in response to a U.S. Supreme Court ruling that states cannot treat in-state and out-of-state wineries differently. And because it was against Indiana law for out-of-state wineries to ship to Indiana customers, the in-state wineries lost that perk as well.

Lawsuits were filed, and eventually lawmakers created the direct wine shipper’s permit, which is available to Indiana wineries as well as those in other states. The stated purpose was to ensure that buyers are of legal age, but it also favored in-state wineries in theory.

But Hayes said that isn’t what happened. Instead, of the existing 172 direct seller permits, only 19 are held by Indiana wineries. That means many out-of-state wineries have taken advantage of the law.

“Indiana wineries got hurt in 2006,” she said. “We will grow with this.”

Senate Bill 113 – which now goes to the full Senate – requires customers to provide their name, valid delivery address and telephone number, and proof from a state or federal issued government ID that the consumer is at least 21.

The proof of age can be faxed, emailed, scanned or provided in person or by a third-party vendor. Consumers also can provide a statement under penalty of perjury.

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Indiana Government

Indiana Decisions - More on: The Emily Herx case isn't over yet

Updating this ILB post from Jan. 19th, Rebecca S. Green of the Fort Wayne Journal Gazette reported Jan. 21st that:

The local Roman Catholic Diocese wants a judge to toss out the recent jury verdict awarding a former teacher hundreds of thousands of dollars in a discrimination case.

In paperwork filed late last week, attorneys for the Fort Wayne-South Bend Catholic Diocese asked U.S. District Judge Robert L. Miller Jr. to rule in their favor.

They argued there was insufficient evidence presented during the trial showing that the church discriminated against former language arts teacher Emily Herx when officials at St. Vincent de Paul Catholic School declined to renew her contract after she underwent a third round of in vitro fertilization.

No reasonable jury, they contend, could have found in Herx’s favor given the evidence her side presented at trial. * * *

The week before Christmas, a federal court jury agreed with her, awarding her a total of $1.9 million, including $1.75 million for compensatory damages for pain and suffering; $125,000 for medical care; $75,000 for lost wages and benefits; and $1 for punitive damages.

This month, Miller reduced the amount of the judgment to a total of $543,803. That figure was not nearly as low as had been requested by the diocese.

In their motion, diocesan attorneys argue in much the same way that they argued throughout the case at the district and appellate court levels: that Herx not only failed to present sufficient evidence to prove gender discrimination took place, but that the decision not to renew her contract was religiously based and not one a jury should weigh in on.

“It was for the Church to decide whether Herx’s contract should be non-renewed for failing to comply with Church teachings, not a court or jury,” diocesan attorneys argued.

In confronting similar arguments earlier in the case, Herx’s attorneys contested that the religious views of her employers did not trump Herx’s right to try to become pregnant through whatever method she chose.

Herx’s attorneys argue that she was the victim of discrimination because the church did not approve of the manner in which she tried to get pregnant.

“The (Civil Rights Act) must protect the rights of women to attempt to have children through all methods,” her attorneys wrote in their response to the earlier motion for summary judgment.

“Otherwise, it would allow employers to substitute their judgments for those of their employees’ doctors and give them the right to ban certain types of medical procedures.”

And today in a new story Green reports in part:
If U.S. District Judge Robert Miller wasn’t going to set aside the verdict, diocesan attorneys argued for a new trial on the amount of money awarded.

So Herx’s attorneys filed a response to that, reiterating again all the reasons that they won at the summary judgment stage, won at the appellate level and won at trial. * * *

In documents filed late Wednesday, Herx’s attorneys said the jury’s verdict was fully justified.

“The Diocese ignores critical evidence including, most importantly, (Rev. John) Kuzmich’s admission at trial that ‘Herx had the option of either continuing the treatment and losing her job or stopping the treatment and losing the chance at a pregnancy,’ ” wrote Kathleen DeLaney.

“This admission alone is enough evidence for a jury to conclude that the Diocese discriminated against Herx on the basis of her gender and attempts to become pregnant.”

Posted by Marcia Oddi on Thursday, January 22, 2015
Posted to Ind Fed D.Ct. Decisions

Wednesday, January 21, 2015

Ind. Gov't. - "ESPN sues Notre Dame over police records"

Margaret Fosmoe has just posted to the South Bend Tribune a long story that begins:

SOUTH BEND — ESPN has filed a lawsuit against the University of Notre Dame claiming the university violated Indiana's public records law by refusing to release campus police records.

The suit alleges that Notre Dame officials violated Indiana's Access to Public Records Act by refusing to release Notre Dame Security Police records requested by ESPN. The case was filed Jan. 15 in St. Joseph Superior Court.

The suit was filed on behalf of ESPN Inc., the sports media company based in Bristol, Conn., and ESPN reporter Paula Lavigne, who requested the records.
Lavigne in September and November 2014 made formal requests to Notre Dame for police incident reports and logs related to student athletes, but was turned down both times.

As evidence in the lawsuit, ESPN submitted two written opinions by Indiana Public Access Counselor Luke Britt.

ILB: Readers may recall this Dec. 19, 2014 post, quoting an earlier Fosmoe story on the public access counselor's opinion. A PAC opinion, as it turns out, was issued to ESPN on Oct. 31, 2014 and another on Jan. 5, 2015.

From Fosmoe's story today:

Early this month, Britt — an attorney appointed by Indiana's governor to advise on public access matters — issued an opinion stating Notre Dame has violated Indiana's public records law if it has withheld police records requested by ESPN about possible campus crimes.

That came several weeks after Britt initially put Notre Dame on notice about its handling of police records after complaints filed by ESPN and the South Bend Tribune. In the earlier opinion, Britt said he believes the Notre Dame Security Police fall under the jurisdiction of Indiana's public records law, and should comply fully with the law, just like other professional police departments in Indiana. Britt also said his opinion applies to police departments operating at other private universities in Indiana.

In his earlier opinion, Britt wrote that NDSP has the same requirements to maintain and release public records as all other police agencies in the state.
"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," Britt wrote at the time.

Three previous access counselors had issued opinions stating that professional police departments at Indiana private universities did not meet the definition of public agencies and thus were exempt from the state's public records law.

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to Indiana Government

Courts - "Federal Appeals Court Slapped Over Lengthy ‘Unpublished’ Ruling"

Tony Mauro, The National Law Journal, reports today in a long story that begins:

U.S. Supreme Court Justice Clarence Thomas on Tuesday sharply criticized a federal appeals court for issuing a lengthy opinion that was nonetheless unpublished, which he called a "disturbing aspect" of the case before the high court.

The comment could revive a decades-old debate over so-called "unpublished opinions" of appeals courts, which are sometimes cursory and don't have precedential value. According to the most recent statistics available, 88 percent of the 37,820 opinions issued by federal appeals courts in 2013 were categorized as "unpublished"—a misnomer because most are actually available through the court that issued them or through online data services.

Thomas, joined by Justice Antonin Scalia, criticized the U.S. Court of Appeals for the Fourth Circuit for issuing a 39-page unpublished opinion after full briefing and argument. That did not meet established criteria for issuing unpublished opinions, Thomas said.

"By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published," Thomas wrote.

Thomas added, "It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the circuit."

Mauro's story ends:
Controversy over unpublished opinions divided the federal judiciary a decade ago, with judges—including the Ninth Circuit's Alex Kozinski—arguing that ending them would vastly increase the workload of judges by requiring them to put more research into even the most cursory rulings.

But the late Judge Richard Arnold of the Eighth Circuit and others argued that issuing decisions without precedential value was unconstitutional.

In 2005 the Supreme Court issued a rule that did not end the practice, but said lawyers could cite unpublished opinions. That did not stem the flow of unpublished opinions in most courts.

ILB: That is the same proposal that the Indiana Supreme Court last year turned down, one that would not have ended the NFP practice, but that would have permitted Indiana attorneys to cite unpublished opinions. (The ILB has for years urged that NFP opinions be eliminated entirely.)

Here, via The National Law Journal, is Justice Thomas' language on the "unpublished" issue:

True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit. Minor v. Bostwick Labs., Inc., 669 F. 3d 428, 433, n. 6 (CA4 2012). But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published. The Fourth Circuit’s Local Rule 36(a) provides that opinions will be published only if they satisfy one or more of five standards of publication. The opinion in this case met at least three of them: it “establishe[d] . . . a rule of law within th[at] Circuit,” “involve[d] a legal issue of continuing public interest,” and “create[d] a conflict with a decision in another circuit.” Rules 36(a)(i), (ii), (v) (2015). It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to Courts in general

Ind. Decisions - Tax Court posts 11 opinions dated Jan. 20th

The Tax Court has posted 11 separate 9-page opinions, all of them granting the Marion County Assessor's motions to dismiss, and except for the names of the petitioners, all appear to have the same wording, ending with:

In challenging the Indiana Board’s interlocutory order, _____’s appeal falls into a class of cases that the Court does not have jurisdiction to hear. See Ispat Inland, 784 N.E.2d at 482. To the extent that _____ has not established that extraordinary circumstances excuse it from exhausting its administrative remedies, the Court hereby GRANTS the Assessor’s Motion to Dismiss For Lack of Jurisdiction and REMANDS the matter to the Indiana Board for action consistent with this opinion.
Here are the opinions:

Three Fountains Cooperative, Inc. v. Joseph P. O'Connor, Marion County Assessor

Yorktown Homes South, Inc. v. Joseph P. O'Connor, Marion County Assessor

Three Fountains West, Inc.v. Joseph P. O'Connor, Marion County Assessor

Mayfield Green Cooperative, Inc. v. Joseph P. O'Connor, Marion County Assessor

Lakeview Terrace Cooperative, Inc. v. Joseph P. O'Connor, Marion County Assessor

Grandville Cooperative, Inc., v. Joseph P. O'Connor, Marion County Assessor

Riley-Roberts Park, Lp v. Joseph P. O'Connor, Marion County Assessor

Harvard Square Cooperative, Inc. v. Joseph P. O'Connor, Marion County Assessor

Retreat Cooperative, Inc. v. Joseph P. O'Connor, Marion County Assessor

Southwood Cooperative, Inc.v. Joseph P. O'Connor, Marion County Assessor

Troy Manor Cooperative, Inc. v. Joseph P. O'Connor, Marion County Assessor

[Updated 1/23/15] For more, see this article by Brent Auberry at JDSupra.

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Sandra Elaine Lappin v. Anthony Alex Timmerman (NFP)

Sally Brodie v. Viking Development, LLC (NFP)

NFP criminal opinions today (3):

Karen K. Hardison v. State of Indiana (NFP)

Benjamin T. Haines v. State of Indiana (NFP)

Julius Q. Armstead v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - New federal magistrate for SD Indiana

From the news release:

INDIANAPOLIS, Indiana (January 21, 2015): The Honorable Richard L. Young, Chief Judge of the United States District Court for the Southern District of Indiana, is pleased to announce the selection of New Albany attorney Van T. Willis as part-time United States Magistrate Judge. * * *

Once appointed, he will fill the vacancy created by the passing of The Honorable Michael G. Naville, who served the court from November 1995 to September 2014.

As the Magistrate Judge in the New Albany Division of the Southern District of Indiana, Mr. Willis will preside over preliminary criminal proceedings in that division. He will also continue in the private practice of law as a senior partner with the firm of Kightlinger & Gray, LLP. He has been with the firm since 1991, and his primary areas of practice are civil rights, corporate and business law, employment, insurance defense litigation, trademark and copyright infringement, and worker’s compensation. Prior to joining Kightlinger & Gray, from 1989 to 1991, Mr. Willis served as a law clerk to United States District Judge Gene E. Brooks.

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to Indiana Courts

Ind. Courts - "CJ Rush's forward-thinking plans" and some ILB thoughts about e-filing

This editorial appears in today's Fort Wayne Journal Gazette [ILB emphasis added]:

No matter how it turned out, the State of the Judiciary speech last week by Indiana Chief Justice Loretta Rush would have been of special note. Appointed last August, Rush is the first woman to lead the state’s high court, and this was her first chance to lay out her hopes and plans to improve the judicial system.

Rush reassured her audience that “your Indiana judiciary is strong.” But she went on to outline some ideas for the court to “stay modern and responsive.”

She asked the legislature for help funding an e-filing system for courts statewide that could be used to file and share documents digitally. The Journal Gazette’s Niki Kelly reported that the cost might be $5 million.

But the increased speed and ease of access that such a system would bring to legal business in Indiana could justify the cost, especially if it could be user-funded by a small increase in court fees.

As Rush pointed out, the proposal will have a positive effect on Indiana’s business climate, as would her proposal to create a system of business courts to “bring together judges experienced in handling business and commercial law cases to preside over a specialized docket.”

Among those Rush credited with developing the business court idea was Allen Superior Court Judge Craig Bobay.

In the Indiana Forefront blog, former Indiana Supreme Court Justice Ted Boehm wrote approvingly of Rush’s proposal. Noting that it may take awhile for the details of the plan to emerge, Boehm said such courts are blossoming and evolving in other states, including Michigan. “Many business courts now handle a variety of forms of complex litigation,” he wrote. “Typically, any lawsuit between two businesses, even if only a contract dispute, is deemed a ‘business’ case, and many states add specific subject matters such as securities litigation.”

Typically, “business court” is not a single, statewide court, but a subset of designated judges in high-traffic areas of the state, according to Boehm. “Experience in other states seems to establish that there is a benefit to having experienced judges handling cases involving extensive discovery, multiple parties or subject matters that come along only infrequently.”

Rush also used her speech to celebrate and encourage other types of specialty courts that concentrate on offering help to people with special circumstances and needs, such as foster-care programs for children, drug courts and veterans courts.

Allen County has been among the leaders in those courts, starting a veterans court last year.

Rush’s calls for innovation and better use of technology made for an auspicious debut of the new leader of the state’s judiciary.

WISHTV 8 reported last evening [ILB emphasis added]:
Major changes could be coming to courthouses across Indiana, designed to make life a little easier.

Chief Justice Loretta Rush wants to do away with paper shuffling and go electronic. A Supreme Court technology team is moving the effort forward. They hope to make all court records available online, for all 92 counties in the state.

“The Facebook generation does almost all of its important business online,” said Court of Appeals Judge, Paul D. Mathias. “We think court business is some of the most important business to make accessible online.”

If the court receives funding from the General Assembly, they’ll move forward with five pilot programs across the state. Their ultimate goal is to put e-filing in place with no extra fees for customers and little to no cost at the local level.

“With e-filing and the consequences of e-filing, you won’t have to go to the courthouse,” said Justice Steven David with the Indiana Supreme Court.

The new system will help everyday people, attorneys and clerks.

“I think e-filing would be great,” said attorney Julie Andrews. “Probably conserve some paperwork and legwork. If it’s e-filing, it’s immediate.”

Another Indiana attorney agrees, “Anything we file with the federal government is easier because it’s e-filing, rather than physically coming over here to do it.”

Across the country, 15 to 20 other states are already pushing papers out the door. Indiana leaders are closely looking at the current model in Texas.

Judge Mathias says e-filing in the courts is just the latest entity to switch over.

“When you look at Bureau of Motor Vehicles, you look at services they provide online. Hunting and fishing licenses can be obtained online,” said Judge Mathias. “All of these things are a new, basic level of electronic access that this generation has come to expect.”

Right now there is no specific timeframe, everything will depend on how much funding they can get from the General Assembly. Talks in both houses are ongoing.

An earlier, May 22, 2014 story in the Indianapolis Star, by Tim Evans, reported:
Indiana court officials spent more than a decade investigating e-filing opportunities and have monitored pilot projects in Marion and Lake counties.

“The court is appreciative of the ground work completed by the pilot counties,” said Indiana Supreme Court Justice Mark Massa, who chairs technology projects for the courts. “The initial work demonstrates that e-filing is beneficial to litigants, lawyers, judges, clerks and their staffs.”

Court officials did not release cost estimates for the project. Indiana Court of Appeals Judge Paul D. Mathias, who chairs a committee established in 2006 to look at the transition to e-filing, said a number of options for covering the cost are being investigated. Among them: user fees and cost savings. * * *

The next step for state officials is to seek bids for an e-filing manager to provide the centralized system for accepting filings and getting documents to the appropriate court system. That manager will be required to work with multiple e-filing service providers that operate the front-end systems attorneys will use to get documents to the e-filing manager. The division of state court administration will coordinate the process, including certification of those front-end providers.

The e-filing manager selected for the project also will be required to maintain a basic filing system for indigent Hoosiers.

“We will not,” Mathias said, “allow e-filing to be a barrier to access to the court system.”

ILB thoughts: The ILB strongly supports the concept of e-filing. It is unquestionably the way to go. But so far, few details have been provided, and we have seen no hard $$ numbers, nor where the $$ would come from.

In her presentation before the State Budget Committee on Dec. 17th, Chief Justice Rush said the state-wide license for e-filing would be $5.1 million. Is that one-time or annually? And it would seem there have to be other costs involved in implementing electronic filing statewide in addition to the license to utilize the vendor's software.

Of course, there may also be savings in eliminating paper - which raises the question, will these records be entirely electronic, or will there be backup paper files? And will printers simply replace copiers in creating paper copies for those reviewing the documents?

There is mention of a fee increase to finance electronic filing. What are the details, to whom would it apply? Would this be in addition to the $2.00 increase in the Automated Recordkeeping Fee the Court is requesting in order to keep it at its current $7.00 level? It is currently scheduled to go to $5.00 on 7/1/15. (An ILB post titled "Changes to the Annual Automated Record Keeping Fee Through the 21st Century" is planned.)

Another important question: How would electronic filing impact public access? Would the public be able to more easily access documents filed at the trial level? Right now the public can track the progress of cases in many counties online at no cost using MyCase, but obtaining, for example, a copy of a complaint, or a court ruling, is a different matter. Many courts in Indiana currently charge $1.00/page for paper copies of documents provided at the Courthouse. (See this 1/16/14 Supreme Court order of a model for providing copies of electronic documents approved for Henry County.)

At the appellate level, electronic copies of the opinions of the Court of Appeals and Supreme Court have been available for a number of years at no charge. But briefs, motions, and many orders are not electronic and are $1.00/page at the Statehouse.

In contrast, you currently can electronically access the dockets and all non-confidential documents filed in the federal courts via PACER. The cost to the public is $0.10/page, which many national writers argue is prohibitive.

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to E-filing | Indiana Courts

Ind. Gov't. - Bill to raise service of process fees now on 3rd reading in Senate

In a long Washington Ind. Times-Herald story from Jan. 16th, Mike Grant reported:

Daviess County Sheriff Jerry Harbstreit is beginning his fourth term as the county's top cop and most of his energy during that time behind the badge has been about enforcing the law. Now, with Harbstreit also serving as President of the Indiana Sheriff's Association he is also putting his voice to testimony before the Indiana legislature that most likely will change some of those laws.

Earlier this week he went before an Indiana Senate Committee looking to change the money sheriff's departments get paid for the delivery of legal papers. "This law was last changed in 2006," said Harbstreit. "Then it raised the service fee from $12 to $13. The bill before the Senate now would raise that amount to $25. When you consider that many surrounding states charge up to $60 this proposal is reasonable."

Harbstreit was testifying as President of the Sheriff's Association. He points out that the Indiana Association of Counties is also supporting the bill that will put an additional $2.4 million into county general funds around the state. The bill, sponsored by Senator Phil Boots of Crawfordsville, was approved in committee by a 7-2 vote and will return to the full Senate for second reading.

The paper service bill is part of a much larger agenda the Indiana Sheriff's Association is trying to move through the General Assembly during this session.

The bill, SB 217, is now on third reading in the Senate. From the digest:
Requires a sheriff to collect a service of process fee of $25 instead of $13 from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff. Provides that a sheriff may collect an additional fee for post-judgment service.

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to Indiana Government

Ind. Gov't. - Direct wine sales bill being heard in committee this afternoon

Today, Wed., at 1:30 PM in Rm. 431, the Public Policy Committee will hear SB 113, Direct wine sales. The bill would reduce the restrictions. The videostream for Rm. 431 will be here.

[Updated at 1:18 PM] Niki Kelly of the FWJG has a story about the upcoming hearing here.

Posted by Marcia Oddi on Wednesday, January 21, 2015
Posted to Indiana Government

Tuesday, January 20, 2015

Ind. Law - IU McKinney among the campuses that excel in producing national lawmakers

That according to a long article by Karen Sloan in The National Law Journal. Here are some quotes about McKinney (my school):

More than half of the top 20 Congressional feeder law schools are public institutions with strong regional reputations that supply large portions of their home states' congressional delegations. For example, the University of Alabama School of Law, the University of Kentucky College of Law and the University of South Carolina School of Law each have four alumni in Congress, all representing the states where they studied law.

U.S. Rep. Andy Barr (left), a Republican 2001 graduate of Kentucky Law, credits a strong alumni network with helping position the school's graduates for leadership. "Not only did I receive a great legal education there, but you meet a lot of people who end up practicing all over the commonwealth of Kentucky and you develop those personal and professional relationships," Barr said. "You continue that throughout your career."

Indiana University Robert H. McKin­ney School of Law is another example of a regional school that serves as a pipeline into Congress. It has four alumni serving there, comprising more than one-third of Indiana's delegation.

McKinney is in an ideal position to produce leaders as the only law school in the capital city of Indianapolis and more than 80 percent of its students come from within the state, dean Andy Klein said. The school has a robust law and state government program, each year placing between 40 and 50 students in externships within state government, he said.

"We train more than 50 percent of the lawyers who practice in the state of Indiana," Klein said. "Our connection to state government and our exclusivity in the capital city means that our graduates hold leadership positions in Washington and throughout the state." In addition to its three House members and U.S. Sen. Dan Coats, also a Republican, Indiana McKinney can claim the governor, attorney general and three of five state Supreme Court justices as alumni.

McKinney works hard to keep alumni involved and invites them back to campus to help inspire the next generation of students, said U.S. Rep. Susan Brooks, a Republican who graduated in 1985 and now serves on the law school's board of visitors.

"Those that graduate, I would say, were always encouraged to give back to law students and to provide them with opportunities," Brooks said. "I've hired a lot of law students as interns in every position I've had. I created an internship program within my congressional office at home for law students."

While delivering McKinney's commencement address last year, Brooks encouraged students to keep in contact with the school and their classmates because they're likely to become the next wave of Indiana leaders. * * *

And the lawyers in Congress arrived from many different career paths within the profession, Brooks said. She pointed to the lawyers in Indiana's delegation who have worked in private practice, as federal prosecutors and as Indiana's secretary of state, among other jobs. One — Coats — served as U.S. ambassador to Germany.

That said, serving in Washington with three other McKinney alumni has its perks, Brooks said. "It does add a bit of camaraderie among our delegation," she said. "We all passed through those doors."

Posted by Marcia Oddi on Tuesday, January 20, 2015
Posted to Indiana Law

Ind. Decisions - Richmond attorney and former law blogger suspended

In three rulings dated Jan. 16, 2014, in In the Matter of Edward T. Kemp, the Court has ordered:

E. Thomas Kemp was one of the original Indiana law bloggers. Here, for example, is an ILB reference from 2005, but his site is apparently no longer active.

[More]
Here is Kara Kenney's report on WRTV6.

Posted by Marcia Oddi on Tuesday, January 20, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Still more on: Which appellate jurists would be able to serve until age 80 under SB 12?

Updating this ILB post from Jan. 8, SB 12, which would extend the retirement age for certain members of the Supreme and Appellate court to age 80, is eligible for 3rd reading today. The Senate convenes at 1:30.

Posted by Marcia Oddi on Tuesday, January 20, 2015
Posted to Indiana Courts

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

For publication opinions today (1):

In Jeri Good v. Indiana Teachers Retirement Fund, a 9-page opinion, Judge Crone writes:

Jeri Good was a member of the Indiana Teachers Retirement Fund (now a part of the Indiana Public Retirement System (“INPRS”)) for twenty-nine and a half years and left her INPRS-covered job. Five months later, she purchased a half-year of additional service credit from INPRS, which made her eligible to receive retirement benefits starting at age fifty-five based on thirty years of service. Shortly before she turned fifty-five, Good contacted INPRS to ask about the consequences of delaying her application for retirement benefits. An INPRS employee told Good that her benefits would be paid retroactively but failed to inform her that, pursuant to statute, they could be paid retroactively only up to six months before her application date. Based on the information provided by the INPRS employee, Good delayed filing her application for one year and requested benefits retroactive to her fifty-fifth birthday. INPRS determined that she was entitled to only six months of retroactive benefits. Good filed an administrative appeal, which was decided in INPRS’s favor. She then petitioned for judicial review of that decision, which the trial court affirmed.

On appeal, Good does not dispute that Indiana law limits an INPRS member to six months of retroactive retirement benefits. Instead, she contends that she is entitled to additional retroactive benefits based on the theories of equitable estoppel, unjust enrichment, and breach of fiduciary duty. We conclude as follows: (1) equitable estoppel is inapplicable because the facts regarding Good’s retirement were equally available to both parties and she is charged with knowledge of the law regarding retroactive benefits; (2) unjust enrichment is also inapplicable in light of that imputed knowledge; and (3) her fiduciary duty claim fails because there is no indication that the INPRS employee was a fiduciary. Therefore, we affirm.

NFP civil opinions today (1):

In the Matter of the Term. of the Parent-Child Relationship of C.W. & A.W. and J.W. v. The Ind. Dept. of Child Services (NFP)

NFP criminal opinions today (5):

Nathaniel E. Moffett v. State of Indiana (NFP)

Nathaniel J. Richardson v. State of Indiana (NFP)

Heather L. McDaniel v. State of Indiana (NFP)

Roy Dale Weber v. State of Indiana (NFP)

Ritchie Townsend v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 20, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - COA announces a new opinion format

Here it is. Look for it Jan. 26th.

Posted by Marcia Oddi on Tuesday, January 20, 2015
Posted to Indiana Courts

Stage Collapse - Bringing the ILB up to date on events relating to the 2011 State Fair stage collapse

On Jan. 14, 2015 the Court of Appeals issued an opinion in J.P. et al. v. Mid American Sound, et al., where the challenge, denied by the Court, was that the Indiana Tort Claims Act (ITCA) cap of five million dollars as applied to J.P. violated the open courts clause of the Indiana constitution, and that J.P.was in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. As reported by Dan Carden of the NWI Times on Jan. 14th:

The sole person to reject the state's settlement offer for injuries suffered in the 2011 State Fair stage collapse cannot sue Indiana, because it already has paid other victims the maximum damages permitted by law.

The Indiana Court of Appeals ruled 3-0 Wednesday that Jordyn Polet, of Cincinnati, who suffered $2,601 in immediate injuries at the fair and potentially up to $100,000 in total injuries, has no legal recourse, because there is no money available for her to recover.

Under the Tort Claims Act, the state only is liable for damages of up to $700,000 per person, or $5 million per incident, regardless of how many people were affected. * * *

State officials split the $5 million by paying heirs of those killed $300,000 each and paying 65 percent of medical bills for the injured.

A supplemental $6 million appropriation ultimately permitted payments of $700,000 to families of the dead and 100 percent of medical bills for the injured.

Polet turned down the $1,691 initially offered to pay 65 percent of her medical bills, making her ineligible for any additional money under the supplemental appropriation.

The appeals court affirmed the constitutionality of the state's liability cap as a legitimate legislative tool for protecting the state treasury from a multitude of lawsuits.

Ken Kusmer reported for the AP on the same day:
A three-judge panel rejected arguments by Jordyn Polet of Cincinnati that the cap, known formally as the Indiana Tort Claims Act, violates the Indiana Constitution and that the girl was treated differently than other claimants who sued the state. Polet, who rejected the state's offer of $1,690, was the only claimant not to settle with the state.

"One of the main concerns the ITCA was intended to address was protection of the public treasury from a multitude of tort lawsuits," said the unanimous opinion written by Judge Melissa May. "The aggregate liability cap is a rational means to achieve the legitimate legislative goal of protecting the public treasury." * * *

One of the teen's attorneys, Robert Peck, said before speaking to Polet and her family that he likely would appeal the case to the Indiana Supreme Court. He said the Court of Appeals found that Polet had a valid cause of action but also that the state had immunity from her lawsuit.

"I think that's a fundamental error," Peck said in a telephone interview. * * *

Indiana Attorney General Greg Zoeller's office defended the liability cap in the case.

"Unlike a private company being sued for damages, state government under sovereign immunity cannot be sued except under the limitations and deadlines the Legislature permits, since this is taxpayers' money and the taxpayers did not cause the loss," Zoeller said in a statement.

The ILB wrote about "The 1963 Coliseum Explosion, the end of sovereign immunity, and the enactment of the tort claims statute" in this Sept. 6, 2011 post, citing Perkins v. State, 252 Ind. 549 (1969) and Campbell v. State, 284 N.E.2d 733 (1972). State v. Rendleman, 603 NE 2d 1333 (1992), an opinion by Justice Krahulik which is cited in Mid-American, contains on-point discussion beginning at p. 1335 and continuing through the end of the opinion.

Earlier, as Chris Sikich reported in this Dec. 19th Indianapolis Star story,:

The law firm representing victims of the Indiana State Fair stage collapse on Friday announced it had reached a settlement totaling nearly $50 million.

The settlement, announced by Kenneth J. Allen Law Group, includes claims from the seven deaths and 58 injuries in the Aug. 13, 2011, collapse.

In all, 19 companies were part of the settlement. A 20th company named in the class-action lawsuit, ESG Security, is headed toward trial in 2015.

The settlement includes the previously announced $11 million paid by the state of Indiana.

"In fully settling a few months after the tragedy in order to put the victims first, the Attorney General's Office has encouraged the private parties to make efforts to resolve their remaining disputes," Indiana Attorney General Greg Zoeller said in a statement. "We hope their private settlement now allows the victims and their families to find peace and move forward."

In what the law firm called a historic decision, the settlement includes Alisha Brennon, the domestic partner of Chicagoan Christina Santiago, who was killed in the collapse.

"We believe it is the first time a lesbian couple in a civil union has been treated like any other couple for the purposes of wrongful death recovery," said Bryan Bradley of the Kenneth J. Allen Law Group, in a prepared statement. "We are proud to have overcome another hurdle in the struggle for equal treatment regardless of sexual preference."

However, Zoeller said the $700,000 the estate of Christina Santiago received from the State of Indiana was paid by virtue of the fact that Ms. Santiago was a person who died in the incident, and was not based on her marital status.

On Monday, attorneys for victim Jordyn Polet asked the Indiana Court of Appeals to throw out the law that limits the amount of damages the state can give out after a tragedy.

Posted by Marcia Oddi on Tuesday, January 20, 2015
Posted to Stage Collapse

Ind. Decisions - Transfer list for week ending January 16, 2015

Here is the Clerk's transfer list for the week ending Friday, January 16, 2015. It is two pages (and 23 cases) long.

One transfer was last week:

Posted by Marcia Oddi on Tuesday, January 20, 2015
Posted to Indiana Transfer Lists

Monday, January 19, 2015

Ind. Courts - More on: The biennial budgeting process provides a look at the Indiana Court's plans

In this Jan. 12th post, the ILB wrote about what it had gleaned to that point about the future plans of the Indiana Courts, including:

What have we learned so far - Supreme Court

Here is Chief Justice Rush's presentation to the Budget Committee on Dec. 17th, which was first on the agenda and lasted about 45 minutes. Much reference is made to slides, the ILB is attempting to obtain copies of the slides from the Supreme Court Public Information Officer. Without them the discussion is difficult to follow. Here are some points of interest to the ILB, but you may learn more if you listen for yourself.

The ILB submitted an informal FOIA request to the Court on Jan. 11th, in advance of the post, but has never received the Dec. 17th slides. Eventually, the ILB contacted the State Budget Agency, which responded promptly with the best version it had, which was nondigital. Here is the 8-page document. The ILB had been particularly interested in seeing the slides on the Automated Recordkeeping Fee and the Sources of Court funding as referred to by the CJ, in hopes that they would provide more information:
The CJ, referring to a slide, went through the Automated Recordkeeping Fee, how much is collected, and how much the Court actually receives, and what will happen when $2 of the fee is sunsetted, but the discussion seemed confusing. [see, starting at 14:37 and 17:00-19:10]

At 21:50, the CJ discussed a slide titled "How are your courts funded?"

The two slides referenced are on p. 4 of the handout, but really provide little detail.

Posted by Marcia Oddi on Monday, January 19, 2015
Posted to Indiana Courts

Ind. Courts - Boehm on CJ Rush's proposal for a business court

Former Indiana Supreme Court Justice Ted Boehm wrote in Indiana Forefront yesterday:

In her inaugural State of the Judiciary address, Chief Justice Rush mentioned the Court’s initiative to study the creation of “a business court model” to offer more efficient handling of complex lawsuits.

An Indiana Business Court is a concept that has been knocking around for several years. It is good to hear that the Supreme Court and its committee of trial judges are now moving forward to design a plan for this state. It may take some time, before we have a finished plan. Michigan adopted its business court plan in 2012 after forming a study committee in 2003.

Originally, a “business court” was understood as the Delaware model, where for over 100 years the Chancery Court was given exclusive statewide jurisdiction over internal corporate disputes. Because so many national corporations are organized in Delaware, the Chancery Court achieved national preeminence as the go-to court for major corporate law cases.

In the 1990s, business courts began to blossom across the country, and now exist in one form or another in many states.

In most states, the subject matter of cases handled by business courts has been expanded well beyond the original Delaware model, and many business courts now handle a variety of forms of complex litigation. Typically any lawsuit between two businesses, even if only a contract dispute, is deemed a “business” case, and many states add specific subject matters such as securities litigation.

The “court” is usually not a single trial court with statewide jurisdiction like the Indiana Tax Court. Rather, most states have designated business courts as divisions of one to three existing trial courts in areas with a volume of business cases.

Michigan, for example, has given jurisdiction over categories of cases deemed complex to a few judges in three counties that include Detroit, suburban Detroit and Grand Rapids.

Experience in other states seems to establish that there is a benefit to having experienced judges handling cases involving extensive discovery, multiple parties, or subject matters that come along only infrequently. But there is no uniform pattern across the United States. The configuration of a business court plan for this state requires a detailed study of Indiana’s caseloads to identify what kind of cases are appropriate to reserve to specialized judges. The same study also needs to figure out where a business court or courts should be located.

ILB: Here, from the transcript of her State of the Judiciary, is the text of the CJ's statement on business courts:
Second, to fulfill our promise of justice for businesses in Indiana, we are looking at improving how we process complex civil cases. The Court is currently working on the development of a business court model focused on complex commercial litigation. Creating this specialty court will bring together judges experienced in handling business and commercial law cases to preside over a specialized docket with business-specific resources. Our goal in this endeavor, along with the introduction of electronic filing, is to promote an attractive, predictable and consistent climate for doing business in Indiana. Many thanks to Justice David, Judge Heather Welch, Judge Craig Bobay and their committee for all their work here.

Posted by Marcia Oddi on Monday, January 19, 2015
Posted to Indiana Courts

Ind. Courts - "Check given to church from estate bounces"

That is the headline to this Anderson Herald Bulletin story today by Ken de la Bastide that begins:

For the second time in his career, an Anderson attorney is in a court dispute over the administration of an estate.

And now, attorney Stephen Schuyler is being called to task over a check he wrote to East Lynn Christian Church to settle the estate of the late Sarah Wilding. The check reportedly bounced, according to court documents.

Schuyler was appointed administrator of Wilding’s estate in 2012. Wilding died on April 20, 2012, and her will specified that remaining assets be paid to the church.

On Oct. 13, 2014, Court Commissioner Jason Childers in Madison Circuit Court Division 6 signed an order in which Schuyler agreed the church was owed $77,387.13 from Wilding’s estate.

Attorney Patrick Cunningham, representing East Lynn Christian Church, 522 E. 53rd St., filed a motion with the court on Oct. 30 stating the funds had not been received. A hearing was set for Nov. 26 but Schuyler failed to appear.

Another hearing was set for Dec. 10 where Schuyler again failed to show up. An arrest warrant was issued but the court approved a seven-day stay on the warrant being issued.

On Dec. 16, Schuyler gave a check to the church for $78,387.17. Several days later it was returned by Ameriana Bank for insufficient funds.

Cunningham requested a hearing on behalf of the church as a result of the bounced check and a hearing was set for last Wednesday. Schuyler failed to appear for the hearing. The court denied his request for a continuance and granted Cunningham’s request to seek a warrant.

Posted by Marcia Oddi on Monday, January 19, 2015
Posted to Indiana Courts

Law - Advocate sues the IRS "for not releasing nonprofit tax forms in electronic, searchable formats"

This story, by Natasha Lindstrom, was in the Jan. 15th Pittsburgh Tribune. Some quotes:

The push to force the Internal Revenue Service to release nonprofit tax forms in electronic, searchable formats moved forward this week.

U.S. District Court Judge William H. Orrick, of the Northern District of California, said he intends to rule against the IRS and in favor of plaintiff Carl Malamud, founder of Public.Resource.org. Orrick's action could be a landmark ruling for transparency of tax-exempt organizations.

“We're totally gratified by the motion order, but it is premature to celebrate,” said Malamud, the open records advocate responsible for getting Securities and Exchange Commission data online in the 1990s. * * *

Malamud sued the IRS in June 2013, when the agency denied his public records request seeking tax returns in the format that nine nonprofits used for online submission.

The tax forms, called Form 990s, are public documents.

Here is some useful explanation from Suzanne Perry in a June 16, 2014 article at Philanthropy.com:
The group wants to obtain some specific Forms 990s, the informational tax documents filed by nonprofits, in a format that can be read by computers.

In theory, that shouldn’t be difficult since the nine nonprofits involved— including the American National Standards Institute, the New Horizons Foundation, and the International Code Council—submitted the forms electronically. But the IRS converts all 990s, no matter how they were filed, into [ILB - scanned PDF] images, rendering them useless for digital operations like searching multiple forms for information­.

That means watchdog groups and those that provide information on charities, like Charity Navigator, GuideStar, and the Urban Institute, have to spend money to manually enter the data they get from the IRS before making it available to the public, even if it has previously been digitized.

The lawsuit against the IRS, filed by Public.Resource.Org, aims to end that practice.

The long Philanthropy.com article is particularly valuable in that it goes on to detail the uses to which the information may be put.

Lydia DePillis of the WAPO reported on June 18, 2014:

Nonprofit tax filings -- known as Form 990s -- are, technically, public. Sure, you can go to a service like Guidestar and pay to pull the full PDF file for each individual group, scanning through data fields until you come across juicy tidbits like salaries, revenue and expenses.

But here's what you can't do: You can't search all nonprofits by each of those fields, like you can with lobbyist disclosures and campaign donations, which has allowed groups like the Sunlight Foundation and Center for Responsive Politics to build amazing data-crunching tools for learning how politicians and special interests are linked.

The 990s are probably even more important than all those fundraising reports. The nonprofit sector is way bigger than the influence industry, bringing in $1.87 trillion and sitting on $4.3 trillion in assets in 2009, which accounts for 9.2 percent of all wages and salaries paid in the United States. As the Aspen Institute argued in a paper earlier this year, if their 990s were made available in machine-readable format, it would be a lot easier to spot fraud and abuse, see where charitable resources are being deployed and understand their role in the economy.

Posted by Marcia Oddi on Monday, January 19, 2015
Posted to General Law Related

Indiana Decisions - The Emily Herx case isn't over yet

The last ILB post on the case was Jan. 13th, headed "Award in Herx case decreased: Diocese to pay $543,803."

On Jan. 17th Rebecca S. Green reported in the Fort Wayne Journal Gazette:

Moments after the jury announced its verdict in the case of Emily Herx versus the Fort Wayne-South Bend Roman Catholic Diocese, finding in favor of the former school teacher, the diocesan attorney said the diocese would likely appeal the verdict.

And even though the case is officially closed, according to the U.S. District Court docket, local attorney Cathleen Shrader filed paperwork Friday to represent the church.

Shrader is a partner at Barrett & McNagney and lists appellate practice as her top practice area, according to the firm’s website. * * *

The week before Christmas, a federal jury announced it sided with Herx in her lawsuit accusing the diocese of discriminating against her when it terminated her contract after it became known she underwent in vitro fertilization. The medical procedure is used to treat infertility and is condemned by Catholic teaching. * * *

After the verdict, the diocese asked that the judgment be reduced to $300,000 per a statutory cap. On Monday, U.S. District Judge Robert L. Miller Jr. reduced the amount of some of the compensatory damages but increased the amount of the award for lost benefits and wages, for a total of $543,503.

On Tuesday, Herx’s attorney, Kathleen DeLaney, filed her request for a fee recovery, arguing that federal law entitles the winning side in a discrimination case to recoup the costs of the case.

Her fees included her work of 523 hours. Nine other attorneys and paralegals also worked on the case, contributing more than 2,580 hours of work. Legal costs totaled $756,000.

No paperwork has been filed announcing a movement of the case to the federal 7th Circuit Court of Appeals in Chicago, but when diocesan attorney John Theisen spoke to the media after the conclusion of the trial, he practically promised an appeal.

He said 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 Monday, January 19, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Gov't. - "Lawyers, analysts at LSA are Legislature's 'unsung heroes'"

Maureen Hayden, CNHI Statehouse Bureau, has a good story today in the Anderson Herald Bulletin about the Legislative Services Agency. Some quotes from the long story:

For agency director George Angelone, its identity as the Legislature’s nonpartisan research arm is critical.

It’s legislators who craft and debate and settle on what they think is the best public policy. In turn, it’s his veteran staff – more than half have been there more than a decade – do the grunt work for whatever proposal comes before them, no matter how sane or wacky.

“We understand that’s our role,” said Angelone, a lawyer and certified accountant with an MBA. “If someone crosses the line “ — into policy advocacy — “they just have to leave.”

Angelone — a trim, former marathon runner — is meticulous. He can be unmovable when he and his staff are pressured by partisan interests.

Supporters of Sunday alcohol sales, for example, were infuriated when the agency’s analysis estimated only minimal tax revenues from the extra day of sales.

The agency concluded that consumers would just shift their habits instead of buying more alcohol – an argument that’s helped to kill the bill in years past.

Still, Angelone says staffers who leave the agency don’t go because of politics or policies.

It’s because “the work can be grueling,” he said.

Over the Christmas holidays, in advance of the session’s start in early January, the halls of the Statehouse were nearly empty. But the Legislative Services Agency’s offices on the third floor bustled.

That’s because legislators often wait until a mid-December deadline to turn in proposals, most of which must be drafted into code-complying language before they’re edited and printed.

In the last week of December, the agency’s staffers churned out 600 bills. Many celebrated Christmas Eve at their Statehouse desks, took off Christmas Day, then returned to work through the weekend.

On New Year’s Day, they were calling legislators at home to get final approval on drafts of bills.

“We’ll do whatever work is necessary to get the job done and do as good a job as we can,” said Angelone, who’s spent 24 years with the agency.

Posted by Marcia Oddi on Monday, January 19, 2015
Posted to Indiana Government

Ind. Decisions - "Department Of Revenue Barks Up The Wrong Tree (Again)"

The entire heading of the article today by Brent Auberry of Faegre Baker Daniels in JDSupra is "Department Of Revenue Barks Up The Wrong Tree (Again): Indiana Tax Court Allows Claim For Compensatory Damages To Proceed." The subject is the Dec. 31st Tax Court ruling in Garwood v. IDOR, which was summarized here by the ILB.

Today's brief article gives a good capsule overview of all the Garwood opinions.

Posted by Marcia Oddi on Monday, January 19, 2015
Posted to Ind. Tax Ct. Decisions

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

From Sunday, January 11, 2015:

From Saturday, January 10, 2015:

From late Friday afternoon, January 9, 2015:

Posted by Marcia Oddi on Monday, January 19, 2015
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/19/15):

Wednesday, Jan. 21

Next week's oral arguments before the Supreme Court (week of 1/26/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/19/15):

Next week's oral arguments before the Court of Appeals (week of 1/26/15):

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, January 19, 2015
Posted to Upcoming Oral Arguments

Sunday, January 18, 2015

Law - "Wisconsin Supreme Court disbars 'Light Hero' lawyer"

This is a Jan. 16th story from the Milwaukee Journal Sentinel, reported by Cary Spivak, that has Indiana connections. Some quotes [emphasis added by ILB]:

The state Supreme Court Friday pulled the plug on Emory Booker, disbarring the Milwaukee lawyer who called himself the "Light Hero."

Booker, a former assistant Milwaukee County district attorney, targeted financially strapped people desperately looking for court help to keep their lights on. He used to advertise his services by putting fliers on central city lampposts proclaiming, "Don't be a We Energies victim," and directing them to his law office.

In 2013, regulators charged Booker with 47 counts of misconduct, including making false statements, overcharging clients, failing to provide competent legal services and engaging in conduct "involving dishonesty, fraud, deceit or misrepresentation." The disbarment comes more than four years after the Office of Lawyer Regulation received its first complaint about Booker. * * *

The Friday action is the first discipline handed down by state regulators against Booker. He has, however, been chastised by federal courts and, in 2013, he was ordered to return $36,768 to clients he was hired to represent in bankruptcy court.

The Journal Sentinel in 2012 first reported on Booker's tactics, and on complaints about him voiced by clients and court officials. Several clients said that they paid Booker and thought he was their bankruptcy attorney, only to later learn he was not.

Booker argued the clients were not hiring him to be their bankruptcy lawyer. Rather, he said, he simply provided clients with an analysis to determine whether they should file for bankruptcy. He then referred them to an Indiana bankruptcy petition preparer, a non-lawyer who, for $75, fills in bankruptcy filings but is banned from providing legal advice.

The state Supreme Court, however noted Friday that in many cases Booker did not conduct a "meaningful review as to the debtor's suitability for bankruptcy." The court noted "much of the information that Attorney Booker provided to his clients was inaccurate."

In one three-month period, 140 bankruptcies were filed by people who used the Indiana service, the Supreme Court said, pointing out that Booker helped prepare the filings even though he was never listed as the person's attorney.

The June 3, 2012 J-S story includes:
Booker, however, offered a spirited defense of his work before the various judges, arguing that he was only doing a "suitability analysis" to determine whether a client should file for bankruptcy. Then, he and courthouse officials said, he would ship the paperwork to a nonlawyer known as a bankruptcy petition preparer who collected $75 to put together the client's paperwork. * * *

Kelley ordered that Booker refund his $233 fee and that Crystal Neal of 1st Choice Bankruptcy Preparation return her $75 fee to Hill. The Laotto, Ind., firm prepares many of the bankruptcy filings for Booker's clients.

A google search for "Crystal Neal of 1st Choice Bankruptcy Preparation" led to Fort Wayne listings.

Bankruptcy petition preparers are strictly regulated by federal laws. These national guidelines issued by the DOJ spell them out. See particularly #10, beginning on p. 3, which begins:

A bankruptcy petition preparer is not an attorney and is not authorized to practice law. As defined by statute and case law, the activities that constitute the practice of law in the bankruptcy court include, but are not limited to, the following: ...

Posted by Marcia Oddi on Sunday, January 18, 2015
Posted to General Law Related

Ind. Decisions - Appraisal/assessment of big box stores

The 50-page Dec. 1, 2014 Indiana Board of Tax Review decision in Meijer Stores LP v. Marion County Assessor is the subject of a long Jan. 17th story in the IBJ, reported by Kathleen McLaughlin. A few quotes:

Big-box retailers could see their Indiana property-tax bills slashed in half because of a recent court decision that favored Meijer over Marion County.

The Indiana Board of Tax Review ruled in December that the East 96th Street Meijer store—one of the most successful in the state—should have been assessed in 2012 at the equivalent of $30 per square foot, not the $83 per square foot assigned by Marion County. * * *

Assessors value retail real estate based on the current condition of the business, but big-box chains are pushing to have their buildings compared to others that have been vacated and sold. Appraisers across the country refer to the big-box chains’ approach as the “dark store theory.”

In the Meijer case, the Michigan-based company’s appraiser compared the store at 8375 E. 96th St., near Fishers, to a former Lowe’s in Anderson and shuttered Wal-Mart stores in Lafayette, Clarksville and Bloomington.

“Sure, the fully functional store’s worth more than the empty store, but the additional worth is in the business being conducted there. It’s not from the real estate,” said Stephen Paul, a partner at Faegre Baker Daniels who represented Meijer at the state review board, and who also represents Target, Home Depot and Lowe’s.

Yet assessors typically consider a business’s income when assigning value to commercial and industrial property.

If higher courts agree with the review board, “then every large manufacturing facility will be valued as a flea market,” said Mark GiaQuinta of Haller & Colvin LLP in Fort Wayne, which represents the Allen County Assessor’s Office. * * *

Indiana’s law was created to protect farmers from skyrocketing property values as commercial property encroaches on agricultural land, Paul said. That means that if a farm is operating next to a shopping mall, it still will be valued as a farm.

While that standard seems to call for valuing a retail store in its current condition, the review board said current use should be defined in a broad sense. In past cases, the board noted, the Indiana Tax Court has found no difference between a building that’s used by a Wal-Mart or Lowe’s and one that’s used by a retailer with a lower credit rating, such as Hobby Lobby or Big Lots.

There is much worth reading in the IBJ story.

Although the ruling was issued Dec. 1st, no other papers appear to have picked it up, although the ILB has found that several reporters anticipated it.

Grace Schneider reported March 26th in the Louisville Courier Journal that:

Home Depot executives contend that Floyd County assessors have “grossly overestimated” the value of their property on State Street, and the retail giant is seeking a tax refund estimated at more than $435,000.

Floyd and New Albany officials have teamed to battle the store’s tax appeal, just as they intend to fight a separate appeal by Meijer on Charlestown Road. * * *

The dispute is significant for Floyd and the TIF because big-box retailers have begun to file blanket appeals of their assessments. In Indiana, Meijer is appealing several years of its tax assessment for its Charlestown Road property, as well as assessments at more than 100 other stores in Indiana.

If they succeed, it’s devastating for counties and TIF districts because those entities rely on the money to repay bond debt and fund local government, said Tom Morlan, a tax consultant and appraisal expert hired by New Albany to assist with the challenge.

Next “it’s Kohl’s, then it’s Penney’s…it’ll be a tsunami,” he said.

County assessors across Indiana and in other states are fighting the same battles, said Judy Sharp, Monroe County assessor and president of the Indiana County Assessors Association. “Every big company is finding it very lucrative to appeal their assessment.”

Vivian Sade reported Nov. 7th in the Fort Wayne Journal Gazette:
FORT WAYNE — Meijer Stores has appealed its tax bills for all Indiana stores, including three in Fort Wayne.

Meijer Stores LTD Partnership filed the latest appeals for 2012 property assessments on its Fort Wayne stores in February, Allen County Assessor Stacey O’Day said Wednesday.

In addition to the Dec. 1, 2014 Meijer opinion, linked at the beginning of this post, on Dec. 31, 2014 the Indiana Board of Tax Review issued a 54-page decision in Kohl's Indiana LP v. Howard County Assessor, that begins:
The parties offered valuation opinions from two experts who fundamentally disagree about how a built-to-suit big-box store like the subject property should be appraised. Much of the dispute lay in the experts’ differing interpretation of Indiana’s true tax value standard. The Assessor’s expert viewed that standard as being closely focused on the business model of the property’s current owner—Kohl’s. That led him to give little weight to approaches other than the cost approach and to recognize no external obsolescence, despite the oversupply of retail properties and the economic recession and slow recovery that spanned the valuation dates at issue. By contrast, the expert for Kohl’s focused much less on the owner and its business model and more on the property’s general retail use. And unlike the Assessor’s expert, she did not view the property as special purpose. We are more persuaded by the opinions of the expert for Kohl’s, which more closely follow the Indiana Tax Court’s interpretation of true tax value and more appropriately characterize the nature of the property.
See also starting at p. 38 of the ruling.

Posted by Marcia Oddi on Sunday, January 18, 2015
Posted to Ind. Adm. Bd. Decisions

Courts - "Kentucky Supreme Court justices question legality of Louisville laws"

Jason Riley reports for Louisville WDRB:

LOUISVILLE, Ky., (WDRB) --When Olivia Johnson's dog, Franklin, was confiscated after attacking another dog in 2011, Johnson ended up with more problems than just trying to save to her pet.

She became a convicted criminal.

In 2012, Johnson was sentenced to 90 days in jail and ordered to pay a $250 fine after a Jefferson District Court judge found her guilty of a misdemeanor for violating a city ordinance by failing to “restrain a dangerous dog” -- even though the dog had been in Johnson's mother's care at the time. The judge also gave Metro Animal Services the discretion to euthanize Franklin.

David Neihaus, an attorney for Johnson, appealed the ruling, arguing, in part, that while the Metro Council has the right to make ordinances that can impose civil fines or take Franklin away, it can't “make somebody a criminal.”

“The determination of what's a crime and what's not is done at the state level,” Neihaus said during a 2012 court hearing. “The Metro Council cannot create misdemeanors.”

And last month, at least three members of the Kentucky Supreme Court agreed, writing in an order that the Kentucky General Assembly, not the Metro Council, has “exclusive authority to enact and define crimes and criminal penalties.

“In the present case, Louisville Metro is essentially rewriting the Kentucky Penal Code,” Justice Bill Cunningham wrote in the Dec. 18 order, which was released last week.

The order, while not legally binding, should be a “clarion call to the legislature to remove any doubt as to where the authority to enact a criminal statute and fix its penalties lies,” Justice Mary Noble wrote.

And Cunningham wrote that the Supreme Court itself should act “today before untold others are convicted and sentenced to incarceration for crimes they did not commit.”

The opinion of the justices appears to represent a shift in the thinking of the high court and would be a “drastic change” for many Metro Council ordinances, including the dangerous dog law, said Pat Mulvihill, director of the civil division in the Jefferson County Attorney's Office.

However, Mulvihill said, the Supreme Court opinions of the three justices represented a minority of the court and isn't binding. Because of a legal technicality, the entire court could not rule on the legality of the criminal ordinances.

Later in the story:
The opinions from the Supreme Court justices weren't just suggesting change in Jefferson County.

Cunningham wrote that there is no shortage of these laws across the state and pointed out the “astounding incongruity in criminal ordinance and punishments” among various Kentucky counties.

Lexington's vicious dog ordinance, for example, carries only a fine but no jail time. But in Louisville, dog owners like Johnson can face stiffer penalties than someone who is convicted of selling a firearm to a minor.

Meanwhile, other cities have ordinances that create crimes the justices deemed absurd – and exclusive only to those places.

In Newport, Kentucky, for example, spitting on the sidewalk is a misdemeanor crime, according to its city ordinance.

In Fort Thomas, selling dyed chicks or rabbits is a misdemeanor.

“Surely the citizens do not expect to face disparate treatment from place to place for the same acts because one city makes certain conduct a crime, another merely makes that conduct a violation,” Noble wrote.

Posted by Marcia Oddi on Sunday, January 18, 2015
Posted to Courts in general

Ind. Gov't. - "Illinois Gov. Rauner in driver's seat on Illiana Expressway" [Updated]

Updating this ILB tweet from Jan. 13th:

Indiana Law Blog ‏@indianalawblog Jan 13
@nwi This is big! New Illinois Gov. Rauner's order puts planned Illiana Expressway on hold: http://bit.ly/1KHeNH3
the Illiana Expressway, which had looked to be a done deal, is now in limbo.

From Keith Benman's Jan. 15th NWI Times story:

The Indiana Department of Transportation is taking a wait and see approach on the Illiana Expressway, as new Illinois Gov. Bruce Rauner mulls whether to proceed with the 50-mile toll road.

"We are waiting to see what our friends in Illinois have to say on the Illiana, and you will know when we know," INDOT Deputy Commissioner for Northwest Indiana Rick Powers told a Thursday meeting of the Northwestern Indiana Regional Planning Commission.

In his first act after taking office Monday, Rauner suspended planning and development of major interstate highway construction projects pending a "careful review" of costs and benefits. That order included the Illiana Expressway, which received final federal approval last month.

Many earlier ILB posts, dating back as far as 2007, on this controversial project.

[Updated 1/19/15] See also this long, excellent 1/15/15 story by Carrie Napoleon and Susan Lafferty of the Gary Post-Tribune.

Posted by Marcia Oddi on Sunday, January 18, 2015
Posted to Indiana Government

Ind. Decisions - More on: Supreme Court schedules oral argument in "Elkhart 4" appeal

As the ILB reported nearly two weeks ago, on Jan. 5th, oral argument in the "Elkhart 4" appeal is officially scheduled for THURSDAY, FEBRUARY 26, 2015 AT 10:30 AM. The Court has informed the parties that it is particularly interested in argument on issues relating to application of Indiana Code section 35-42-1-1, the felony murder statute, to this case.

The ILB has earlier posted the transfer petitions and responses. The docket in the Sparks/Layman case does not show that transfer has been granted. The Supreme Court will decide whether to grant transfer and issue an opinion, or to allow the Court of Appeals opinion to stand, after the oral argument.

Posted by Marcia Oddi on Sunday, January 18, 2015
Posted to Indiana Decisions

Friday, January 16, 2015

Courts - SCOTUS agrees to hear 6th Circuit SSM appeals

A few minutes ago the SCOTUS granted cert to four same sex marriage challenges, from Michigan, Ohio, Tennessee, and Kentucky. These are the 6th Circuit cases, and they were consolidated. Briefs of petitioners are due Feb. 27, respondents' briefs are due March 27, replies due April 17. Questions:

Posted by Marcia Oddi on Friday, January 16, 2015
Posted to Courts in general

Ind. Gov't. - Current IDOR SSM Tax filing guidance, such as it is

The ILB has located this Ind. Dept. of Revenue announcement:

Added 10/16/14 - Same Sex Marriage

Effective with the [U.S.] Supreme Court decision (10-6-14) not to hear the Indiana (and others) case, taxpayers in same-sex marriages from states that recognize them are now able to file their taxes in Indiana as married filing separately or jointly. We will accept all such individual income tax filings effective immediately.

If taxpayers who followed our original guidance and filed as single individuals want to amend their filings to file as married filing separately or jointly, they may do so by filing an IT-40X for 2013 taxes filed in 2014.

If there are no other changes in the future, in 2015 we will be accepting same-sex married couples individual tax filings as married filing separately or jointly for anyone legally married in the states that recognize those marriages for 2014 taxes.

Basically the same information was repreated today in this document, January 2015 Tax Dispatch, on p. 16 of 36, but the ILB found it difficult to access.

The ILB wrote at length about the SSM filing question on March 11, 2014, in a post headed " "Conflicting state and federal policies will likely cost Indiana same-sex couples more when they file their tax returns this year, experts say"."

By Oct. 14, 2014
, IDOR's Same-Sex Marriage Tax Filing Guidance, issued Nov. 21, 2013, referenced in the March 11, 2014 ILB post, has been removed.

Posted by Marcia Oddi on Friday, January 16, 2015
Posted to Indiana Government

Law - AG Holder today barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred

This is BIG! This ILB post from last Sat., Jan. 10th, quoted a Washington Post report that:

Leaders of the House and Senate Judiciary committees on Friday called on the Justice Department to end the sharing of civil seizure proceeds with local and state police, a change that with few exceptions would cut the flow of hundreds of million of dollars annually to departments in every state.

In a letter to Attorney General Eric H. Holder Jr., the lawmakers said they think money from Justice’s Equitable Sharing Program, the federal government’s largest civil asset forfeiture initiative, may be encouraging heavy-handed tactics by local and state police agencies.

A link to the letter was included.

This afternoon Robert O'Harrow Jr., Sari Horwitz and Steven Rich of the WAPO are reporting, in a long story:

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.

The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. * * *

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. [ILB - or in Indiana's case, the common school fund.]

Posted by Marcia Oddi on Friday, January 16, 2015
Posted to General Law Related

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

For publication opinions today (1):

In K.B. and M.B. (Minor Children), and M.W. B. (Father) v. The Indiana Department of Child Services, an 18-page opinion, Judge Riley concludes:

In light of the foregoing, we conclude that the trial court’s Order adjudicating Children as CHINS is not erroneous.
In Michael White v. State of Indiana, a 10-page opinion, Judge Riley concludes:
We conclude that although the underlying arrest constituted a misdemeanor, the strip search incident to White’s arrest was justified because of the officers’ reasonable suspicion that weapons or contraband would be introduced into the jail due to the lingering odor of marijuana which engulfed White even after having been transported to the APC. See Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014), trans. denied (noting that the odor of raw marijuana indicates that it has not been smoked and therefore still may be in the defendant’s possession). The strip search did not violate White’s Fourth Amendment rights.2
NFP civil opinions today (0):

NFP criminal opinions today (1):

James Lee Atwood v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 16, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Court: ISP trooper lied about meth case"

Pam Tharp reports in today's Richmond Palladium-Item about a ruling by Union County Circuit Court Judge Matthew Cox. Some quotes:

LIBERTY, Ind. – Criminal charges filed against a Liberty man for allegedly cooking meth were dropped last week because an Indiana State Police trooper allegedly lied to obtain a search warrant for the man’s home.

Derek Kassens, 29, was charged in February 2014 with possession of methamphetamine (a Class B felony). He also was charged with possession of precursors, possession of paraphernalia, maintaining a common nuisance and neglect of a dependent (all Class D felonies).

Kassens was arrested after ISP Trooper Nate Raney received a warrant to search the suspect’s Glade Montgomery Road home. Raney is a member of the state police’s Methamphetamine Suppression Section, whose mission, according to a state police statement, is to proactively investigate methamphetamine crimes.

Last month, Union County Circuit Court Judge Matthew Cox granted a defense motion to suppress the results of the search. Former Deputy Prosecutor Ronald Rychner then filed a motion to dismiss the case, which Cox granted on Jan. 5. * * *

In his order granting the motion to suppress the evidence obtained by searching Kassens’ house, Cox wrote that the essential facts alleged in the search warrant application were “simply false, untrue and known by Raney to be untrue.”

“The court finds that Raney intentionally misled the court by claiming that the December (2013) tip (Union County Sheriff’s) Deputy (Shaun) Tudor received specifically named any one individual,” Cox wrote. “Deputy Tudor truthfully testified that the tip he received in December did not mention any specific names and that he told Raney that it did not mention any specific names. The Court finds that Raney’s inclusion in the search warrant affidavit of specific names, when he knew none were provided to Tudor, was a deliberate and intentional misrepresentation to the court and was critical to the finding of probable cause.”

On at least five occasions in a video, Tudor specifically asked the tipster if he had personally observed a meth lab at Kassens’ home and the tipster specifically denied doing so, according to court documents.

“Based upon the foregoing facts and the testimony of the witnesses, the court finds that Raney intentionally misled the court in his affidavit by falsely claiming (a source),” Cox’s order said.

The affidavit Raney presented to the court listed the names of four people who allegedly were cooking meth at Kassens’ home, despite the fact that Tudor did not receive any names from the person who provided the tip.

When officers searched Kassens’ home last year they found meth and many supplies and paraphernalia used to make the drug, according to court documents.

“The fact that Raney knows the statutory requirements for obtaining a search warrant and the law relevant thereto and simply ignored them belies any notion of good faith,” Indianapolis attorney Andrew Maternowski wrote in his memorandum in support of the motion to suppress. “The fact that Raney fabricated significant details to buttress the tip and link it to other information in the affidavit shows his true intent in misrepresenting the truth to the court.”

Posted by Marcia Oddi on Friday, January 16, 2015
Posted to Ind. Trial Ct. Decisions

Law - Illinois prisoner "Tyrone Hood Is Free From Prison. Reporter's Story Led To Clemency"

In a Dec. 22, 2014 FWJG story, reporter Niki Kelly explained [emphasis added]:

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.

This morning NPR broadcast this fascinating 7-minute story headed: "Tyrone Hood Is Free From Prison. Reporter's Story Led To Clemency." The blurb:
Before Ill. Gov. Quinn left office, he granted Hood's clemency petition. Steve Inskeep talks to Hood and Nicholas Schmidle, who wrote in The New Yorker that Hood had been wrongfully convicted.
Here is that August 4, 2014 New Yorker story that asked: "Did the Chicago police coerce witnesses into pinpointing the wrong man for murder?" And here is the Jan. 13, 2015 follow-up, headed Freedom for Tyrone Hood." But Hood was not pardoned, he was granted clemency. As the Cook County state’s attorney’s office spokeswoman states in the Jan. 13th story:
“We were surprised by today’s commutation by the former Governor, but there is a post-conviction petition pending in this case and it remains the subject of review by this office.” Hood’s record will continue to reflect a murder conviction. His name will only be cleared if the state’s attorney’s office finds insufficient evidence to uphold the conviction and dismisses the charges.

Posted by Marcia Oddi on Friday, January 16, 2015
Posted to General Law Related

Thursday, January 15, 2015

Ind. Decisions - Supreme Court decides a second case today, re accomplice liability instruction

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

A jury instruction setting forth the elements of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with specific intent to kill the victim, engaged in conduct constituting a substantial step toward such killing. Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991). Similarly, when attempted murder is premised on accomplice liability, the jury is required to be instructed that the State must prove beyond a reasonable doubt that the defendant acted with specific intent to kill. Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001) (citing Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000)). But in this case, although the trial court properly instructed Ruben Rosales’s jury on the elements of attempted murder, it failed to inform them that the State had to establish beyond a reasonable doubt that Rosales acted with specific intent to kill when he knowingly or intentionally aided, induced, or caused another person to attempt murder. This error was compounded during closing arguments when the State repeatedly insisted that specific intent to kill was not required for accomplice liability to attempted murder. Subsequently, the jury found Rosales guilty of attempted murder, but the general verdict form made it impossible to determine whether direct or accomplice liability formed the basis of their collective decision.

On appeal, Rosales argues that the trial court committed fundamental error by giving an instruction permitting the jury to convict him of attempted murder as an accomplice without the specific intent to kill. Our careful review of our case law leads us to conclude that under the circumstances of this case Rosales is correct. * * *

A divided panel of the Court of Appeals affirmed the trial court. Rosales v. State, 3 N.E.3d 1014, 1019 (Ind. Ct. App. 2014) (Crone, J., dissenting). We granted Rosales’s petition to transfer, thereby vacating the opinion below pursuant to Ind. Appellate Rule 58(A), in order to resolve an issue of first impression before this Court: whether an accomplice liability instruction was fundamentally erroneous for not stating that an accomplice to attempted murder must have the specific intent to kill when he or she knowingly or intentionally aids, induces, or causes another to attempt murder, where it is unknown if the defendant was convicted of attempted murder on the basis of accomplice liability or direct liability. * * *

Looking for guidance on an issue of first impression, the majority below relied on Thomas to reach its conclusion. However, in this case, reliance on Thomas was misplaced. * * *

[T]he State’s repeated insistence that Rosales’s specific intent to kill did not matter, coupled with the inaccurate jury instruction on accomplice liability, is enough to make a fair trial impossible and constitute fundamental error. We therefore reverse Rosales’s conviction for attempted murder and remand this case to the trial court for a new trial.

Nevertheless, going forward, when an individual is tried for attempted murder as an accomplice, we recommend that Pattern Jury Instruction 2.11(a) be given. This instruction—titled “Aiding, Inducing or Causing Attempted Murder”—instructs the jury, among other things, that the State must prove beyond a reasonable doubt that the defendant acted with the specific intent to kill when he or she knowingly or intentionally aided, induced, or caused another person to engage in conduct constituting a substantial step toward attempting to murder another person. Consistent with our case law, this instruction informs the jury of the State’s burden to prove beyond a reasonable doubt all the elements of attempted murder under an accomplice liability theory—especially the defendant’s specific intent to kill—in order to convict the defendant. And when the defendant is tried under both direct and accomplice theories of liability for attempted murder, this instruction becomes crucial to safeguarding against the error we found in this case.

We reverse Rosales’s conviction for attempted murder and remand to the trial court for a new trial and other proceedings consistent with this opinion.

Posted by Marcia Oddi on Thursday, January 15, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court decides one today, re jury deadlock, retrial and claims of double jeopardy

In Jeffrey A. Cleary v. State of Indiana, a 16-page, 5-0 opinion, Justice David writes:

On November 4, 2010, and for what was not the first time in his life, Jeff Cleary drank and then chose to get behind the wheel of his car. Unlike in the past, however, this time his decision led to the tragic death of a sixty-three-year-old man.

The State charged Cleary with multiple offenses related to his drunk driving. A jury returned guilty verdicts on some offenses, but reported that it was deadlocked on others. Cleary was then retried on all the offenses and found guilty as-charged by a second jury. We find no violation of either Indiana’s statutory or constitutional double jeopardy protections, and therefore affirm. * * *

Cleary appealed, arguing that his second prosecution should have been barred by double jeopardy, that the trial court abused its discretion in admitting evidence of Cleary’s blood draw, and that his fourteen-year sentence was inappropriate in light of his character and the nature of the offense. The Court of Appeals affirmed, Cleary v. State, 2 N.E.3d 765, 766 (Ind. Ct. App. 2014), with Judge Crone dissenting as to Cleary’s double jeopardy claim, id. at 773. We granted transfer and summarily affirm the Court of Appeals with respect to its resolution of Cleary’s evidentiary issue and request for sentence revision. Cleary v. State, 7 N.E.3d 992 (Ind. 2014) (table); Ind. Appellate Rule 58(A)(2). We write only on Cleary’s claim of a double jeopardy violation. * * *

[T]he fact that Cleary’s jury affirmatively deadlocked on his greater offenses is significant—and fatal to his claim—for several reasons. For one thing, it takes his case out of the scope of the implied acquittal doctrine. And as a consequence, the statutory provisions upon which Cleary relies do not bar his retrial. Second, in both Indiana and federal jurisprudence, hung juries do not create double jeopardy implications. As such, this aspect of his claim must also fail. * * *

Cleary’s first jury’s deadlock on the most serious of his charges, paired with its finding of guilt as to the lesser offenses, did not equate to an implied acquittal of those more serious offenses under Indiana Code § 35-41-4-3, nor did it violate the Indiana Constitution’s double jeopardy protections to retry Cleary on the greater offenses upon which the jury was deadlocked. We therefore affirm his convictions and sentence.

Posted by Marcia Oddi on Thursday, January 15, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

For publication opinions today (3):

In Walgreen Co. v. Abigail E. Hinchy, a 4-page opinion on rehearing, Judge Baker goes through the three claims of error made by Walgreen and concludes:

The result we reached in our original opinion stands.
In Corey Phelps v. State of Indiana , an 8-page opinion, Judge Robb writes:
Corey Phelps appeals his maximum eight-year sentence for possession of cocaine, a Class C felony, raising one issue for our review: whether the trial court abused its discretion when it imposed the maximum sentence for a Class C felony after expressing disagreement with the jury’s verdict finding Phelps not guilty of a Class A felony. Concluding the trial court abused its discretion, we reverse and remand with instructions to vacate Phelps’s sentence and to sentence him to a term of six years executed at the Department of Correction. * * *

We conclude the trial court abused its sentencing discretion and that the trial court’s stated disagreement with the jury’s not-guilty verdict concerning a greater offense renders the trial court’s maximum sentence a suspect enhancement. We remand with instructions that Phelps’s sentence be vacated and that the trial court sentence Phelps to six years with the Department of Correction. Furthermore, we direct the trial court to correct the order of judgment of conviction, which erroneously indicates that Phelps was convicted of a Class A felony.

In David Paul Brown v. State of Indiana, an 11-page opinion, Chief Judge Vaidik writes:
David Paul Brown appeals his conviction for Class D felony theft. He contends that his trial counsel was ineffective for failing to object to a portion of his videotaped interview with a detective as hearsay and for not tendering a jury instruction on criminal conversion as a lesser-included offense of theft. Although defense counsel should have requested an admonishment regarding the portion of the interview containing the detective’s statements, we find no prejudice in light of the other evidence presented at trial. In addition, we find that defense counsel was not ineffective for not tendering a jury instruction on criminal conversion as a lesser-included offense of theft because counsel employed a reasonable all-or-nothing trial strategy. We therefore affirm the trial court.
NFP civil opinions today (1):

Karen E. Fielder v. Brandon E. Fielder (NFP)

NFP criminal opinions today (5):

Angelo P. Dove v. State of Indiana (NFP)

Jarrez Hughley v. State of Indiana (NFP)

Sean Patrick Hogan v. State of Indiana (NFP)

Travis Lunsford v. State of Indiana (NFP)

Leeshawn Rodgers v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 15, 2015
Posted to Ind. App.Ct. Decisions

Courts - More on: Two cases with Indiana connections being argued today before the SCOTUS [Updated]

Updating this ILB post from yesterday, Sara Randazzo has a long post in the WSJ Law Blog on the 7th Circuit appeal in Wellness International, headed "Supreme Court Weighs Power of Bankruptcy Judges." It begins:

The Supreme Court appeared open Wednesday to clarifying the powers of nearly 1,000 judges in the federal court system, a group whose constitutional authority has come into question since a 2011 high-court decision involving the late Playboy playmate Anna Nicole Smith.

Depending on how the court rules in a case argued Wednesday, the bankruptcy-court system could remain mired in confusion over when it has the power to offer final judgments on certain issues. By extension, the ruling could also curtail the ability of the federal magistrate system to handle some of the work of district-court judges.

“This case is enormously important for the workload of the federal district courts,” said Erwin Chemerinsky, a constitutional scholar and dean of the law school at the University of California, Irvine.

Bankruptcy-court judges have worked under a cloud of uncertainty since a 2011 Supreme Court decision that found bankruptcy judges only have the authority to offer a final ruling on a dispute that “stems from the bankruptcy itself”—a phrase whose definition has become cause for much debate. Other issues, the court ruled, must be decided by the district court.

During arguments Wednesday, the justices questioned why the court should limit the powers of the bankruptcy court when district-court judges routinely sign off on decisions reached by arbitrators—independent parties not affiliated with the court system—that litigants use as an alternative to the courts to settle disputes.

“The arbitrator case seems to me much more threatening to the integrity of the federal judicial system than a system of bankruptcy courts which are, from the very beginning all the way through, supervised by—by district courts,” Justice Elena Kagan said.

Unlike district-court judges, who are confirmed by the Senate and who serve for life under Article III of the Constitution, bankruptcy judges are appointed by the federal appellate courts and serve 14-year terms.

How Appealing has collected together links to stories on both of yesterday's oral arguments here. Among the stories on the Mellouli drug deportation appeal, argued by Indy attorney Jon Laramore, is this one from Robert Barnes of the Washington Post that includes:
Laramore’s argument did not start out well. Justice Samuel A. Alito Jr. told him to pretend he was back in high school: What noun is “relating to a controlled substance” modifying?

Laramore acknowledged that the answer was probably “law.”

“If it modifies ‘law,’ then I think you’ve lost the case,” Alito replied.

But other justices weren’t so sure. * * *

By the end of the argument, even Alito was wondering whether Mellouli’s charge was really a proper reading of the broad Kansas law. Under such a definition, Alito said, a baggie, a pocket or a glove compartment could be considered paraphernalia if the same drugs were temporarily stored in each.

[Assistant Solicitor General Rachel P.] Kovner said that illustrated why immigration officials needed leeway, because otherwise they might have trouble deporting someone convicted on a paraphernalia charge even if cocaine were stored there.

Responded Kagan: “If he had cocaine in his sock, he would probably be convicted of possession of cocaine.”

[Updated at 7:43 PM] Here is a good argument recap at SCOTUSblog.

Posted by Marcia Oddi on Thursday, January 15, 2015
Posted to Courts in general

Ind. Courts - "Dearborn Co. Council Wants Further Discussion On Courthouse"

Mike Perleberg of EagleCounty 99.3 reported yesterday in a story that begins:

Plans for an expansion of the Dearborn County Courthouse in Lawrenceburg are being put on hold – for now – over concerns that architects’ proposals may be more than what is needed.

“More” as in close to double the square footage that may have been previously recommended.

Meeting for the first time since a presentation from architects with DLZ Services and Maxwell Construction in November, Dearborn County Council members voiced concerns Tuesday evening that the options they’ve been presented may be too pricey and not adequately address the parking problem around the county government campus.

Council members did not deny that new space is needed for crowded county workers at the current courthouse in Lawrenceburg. But, some council members did have questions for the architects.

“I have a serious problem with some of this,” said council member Dennis Kraus, bringing up a previous email from project leaders that said about 20,000 more square feet was needed.

“From what I’ve seen it’s anywhere from 30,000 to 40,000 or more square feet. I have a hard time understanding how it gets to be twice as big,” Kraus said.

Scott Carnegie, an architect with DLZ Services, explained that most of the square footage in the expansion structure is in an unfinished basement. He said the 20,000 square foot space need estimate from Maxwell construction were of net square footage – in other words not accounting for walls, doors, and other objects – while DLZ’s estimate of the expansion was for gross square footage.

Carnegie added that a basement area was necessary because of the topography of the land between the 1870 courthouse and the administration building. Without a basement, part of the area would have to be filled in with dirt to support the structure.

Councilman Bill Ullrich suggested that perhaps the unfinished basement could instead become a parking garage beneath the annex.

If and when it comes time to fund construction, council may be leaning towards using all or some of its roughly $8 million in riverboat savings. But some council members are hesitant.

“We’re going to come to a point where we are going to be out of riverboat money and we’re going to be laying people off in this county. I don’t want to be on this board and have to make that decision where we build an $11 million courthouse while we lay 100 people off,” said councilman Charlie Keyes.

The story includes a link to the architects' 30-page presentation.

Posted by Marcia Oddi on Thursday, January 15, 2015
Posted to Indiana Courts

Ind. Gov't. - "My view: Rethink plan for justice center" in Marion County

This letter from Les Zwirn is a retired Methodist Hospital executive, IndyCAN volunteer and executive director of Better Health for Indiana is in today's Indianapolis Star:

According to Mayor Greg Ballard, one of his major accomplishments is the financing and construction of the new $750 million Eskenazi Hospital. This project won overwhelming bipartisan community approval as a ballot referendum, was completed on time and within budget, was financed through low-cost municipal bonds and philanthropic contributions, and is poised to play a key role in reforming the local health system.

Yet, for reasons hard to understand, Ballard seems to think our community lacks the vision, know-how and collaborative spirit to plan, finance and build the proposed $500 million Criminal Justice Center complex. The mayor’s planning process has been so secretive that mistrust and finger-pointing among City-Council Council members and the media have become routine. The proposal pays minimal attention to basic urban design principles or operational efficiency issues, and has largely ignored the potential for the center to be a catalyst for reforming our broken criminal justice system.

The mayor’s proposal is based on a risky, unproven financing and construction approach called P3 (Public-Private Partnership). This approach avoids public participation through a referendum or transparent citizen participation, creates counter-productive financial incentives to fill 1,000 unneeded jail beds, and ensures that guaranteed out-of-state corporate profits take precedence over local investments in violence prevention.

The mayor’s proposal has other serious flaws:

First, the proposal endorses bad public policy in that it creates financial incentives to increase mass incarceration and makes no provision for establishing a “community benefit” fund to shift resources from jails to community-based programs that address the root causes of violence and recidivism. IndyCAN, a coalition of over 20 faith congregations, is strongly advocating for the creation of such a fund, even if the risky P3 financing approach is eventually approved.

Second, the proposal is based on bad urban design principles and fosters too much inefficiency in the way our local and state criminal justice will operate. The proposal departs from a nearly half-century of bipartisan urban design progress. As urban planner/architect Bruce Race observes in a Jan. 3 Indianapolis Business Journal article, “Missing are five of the most basic urban design elements: a long-term street and open-space framework that the justice facility fits into, a land-use plan, a transportation plan, an infrastructure plan and related financing action plan, and community participation in creating the plan.”

The proposal leaves us with an outdated and inadequate City-County Building. It splits the civil courts off from the criminal courts, thereby impeding the ability of our local courts to work together. And, by not including the state appellate courts in the planning process, the opportunity to free up room in the Statehouse is lost.

Third, the proposal has lacked citizen participation and oversight. Consequently, IndyCAN is recommending “the assignment of a Criminal Justice Center Oversight Committee. ... Such an oversight process has been proven to identify problems before they become costly crises.”

Fourth, the proposed decision timeline calling for the City-County Council to approve the project in March is premature and ill-advised. The council would be both wise and courageous to delay any decision on the project until two things happen: the state legislature approves the budget for funding local corrections programs in April; and a Citizen Oversight Committee is appointed and used to come up with a Plan B that reworks the deal so that it is holistic and balanced.

Our best hope as citizens who care about the epidemic of violence and mass incarceration in our city is that the council steps up to its responsibility and acts in a bipartisan way to come up with Plan B, even if this means that construction of the center is delayed until after Ballard leaves office.

Posted by Marcia Oddi on Thursday, January 15, 2015
Posted to Indiana Government

Ind. Gov't. - "Are Pardons Becoming More Politically Acceptable?"

On Dec. 22, 2014, the ILB posted quotes from Niki Kelly's story, "In 2 years, Pence yet to grant 1st pardon." On Monday Gov.. Pence pardoned three people, according to this story from Ken de la Bastide of the Anderson Herald Bulletin. Some quotes:

ANDERSON – Former Anderson resident Marquita Braxton is among the first three people granted a pardon by Gov. Mike Pence.

Pence had not issued any gubernatorial pardons during his first two years as governor. On Friday, he issued pardons for three people. * * *

In addition to Braxton, Pence issued pardons for Stephanie Davis, for a 1999 felony theft conviction in Lake County, and White County resident Hans Schmitter, for 1992 convictions for theft, residential entry and receipt of stolen property.

Today Governing has a long story by Alan Greenblatt that begins:
Last Friday, on his last full business day in office, Illinois Gov. Pat Quinn pardoned 232 ex-offenders.

That same day, in neighboring Indiana, Gov. Mike Pence issued three pardons -- the first during his two years in office.

Which governor’s actions were standard? Until recently, it would have been easy to pick Pence. For decades now, governors have been sparing with pardons, not wanting to be perceived as lenient and worrying about the political risks that can come with pardoning people who go on to commit further crimes.

But gubernatorial pardons may be about ready to start making a comeback. As part of the broader rethinking of criminal justice strategies, in which concerns about rehabilitation, exonerations and expungement of records have become part of the mix, more governors seem willing to embrace their historic role of offering clemency to those who have earned it.

Posted by Marcia Oddi on Thursday, January 15, 2015
Posted to Indiana Government

Wednesday, January 14, 2015

Ind. Courts - More on: State of the Judiciary today

The ILB will post the transcript and video archive here when they become available.

It will also be broadcast on a number of radio and TV stations during this week - here is the list.

[Updated] Here is the transcript of today's speech. Here from the final third:

So what is new on the horizon for the judicial branch in 2015?

First, I bring you very exciting news from the Indiana Supreme Court technology team led by Justice David and Judge Paul Mathias — 2015 will be the year that we begin the move to statewide electronic filing in Indiana courts. E-filing will transform the way Hoosiers interact with the courts. It will allow litigants, attorneys, businesses and other government agencies to interact with the courts electronically. What does this mean? Many examples of court programs discussed this afternoon depend on the ability to enter, store, retrieve and share information in a timely and cost effective way. Imagine the hours and costs required to shepherd tens of millions of pages of paper as they are filed and refiled, delivered and mailed, stored and shuffled, copied and recopied, and on and on throughout Indiana courts and agencies each year!

We’re excited to rollout e-filing this year and we’re asking for your assistance to make it successful. Our judiciary operates on less than 1% of the total state budget. We are fully committed to fiscal responsibility with taxpayer dollars, and a state investment in court technology, including electronic filing, offers us the best option for improving our courts while conserving our limited financial resources. Pennies of additional investment now will reap dollars of savings in future records management costs. And if our Indiana judicial system is to be on the right course, we must act now.

Second, to fulfill our promise of justice for businesses in Indiana, we are looking at improving how we process complex civil cases. The Court is currently working on the development of a business court model focused on complex commercial litigation. Creating this specialty court will bring together judges experienced in handling business and commercial law cases to preside over a specialized docket with business-specific resources. Our goal in this endeavor, along with the introduction of electronic filing, is to promote an attractive, predictable and consistent climate for doing business in Indiana. Many thanks to Justice David, Judge Heather Welch, Judge Craig Bobay and their committee for all their work here.

A third endeavor on the Court’s horizon is an initiative that will refine how we determine whether those arrested on low-level offenses should sit in jail awaiting trial. The Court authorized pilot programs starting this year to improve the way courts make pre-trial release decisions. New practices can yield wide-ranging benefits, such as significant taxpayer savings for jail operations; improving arrestee appearance rates at trial; minimizing wealth-based disparities as to pre-trial release and enabling people to return more quickly to family and work while ensuring public safety. I appreciate the vision and work of Justice Dickson and this hardworking committee chaired by Judge John Surbeck and consisting of judges, probation officers, lawyers, and legislators including Senator Brent Steele and Representative Jud McMillin.

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Indiana Courts

Ind. Gov't. - Did Gov. Pence think he was back in Congress when he called for a balenced budget amendment?

Déjà vu all over again?

After watching Governor Pence's surprising, and puzzling, call last evening for a balanced budget amendment to the Indiana Constitution, the ILB checked YouTube and quickly found a number of similar calls by Pence for a balanced budget amendment, but they were made when he was in the U.S. Congress and were aimed at the Constitution of the United States. Below is one from 11-18-2011:


Niki Kelly reports in the Fort Wayne Journal Gazette today that Republican legislative leaders last evening may have been a bit miffed by the Governor seeking to impose unwarranted additional controls on another branch of government. From the story:
Gov. Mike Pence surprised everyone during his State of the State address Tuesday with a request to pass a constitutional balanced budget amendment. * * *

The balanced budget proposal was puzzling since many lawmakers have pointed for years to a constitutional provision on debt as a balanced budget requirement.

And Republican legislative leaders downplayed the idea as good policy but a footnote to the speech.

“Remarkably, Indiana is one of the few states in the country that does not have a balanced budget requirement in its constitution. It is a tribute to the public servants in this room that Indiana has adhered to that practice in recent years even though it is not required,” Pence said.

He said adding the requirement to the constitution will assure Hoosiers that Indiana will spend wisely, and “unlike Washington, D.C., we won’t bury our children and grandchildren under mountains of debt.”

Pelath, of Michigan City, called it a “rhetorical flourish. It’s a solution in search of a problem. We know how to manage our books.”

Bosma said lawmakers could reinforce existing provisions on the budget but said the proposal was not the most important thing he heard.

And Senate President Pro Tem David Long, R-Fort Wayne, said the legislature will take a minimalist approach on any amendment so it doesn’t hamstring future lawmakers.

Bosma and Long bristled when told the Pence administration pointed to the 2010-11 budget as unbalanced because of spending from reserves and one-time federal stimulus money. State tax collections plummeted then due to the recession. Long said every state was in crisis then, and “we’re going to approach this cautiously.”

A constitutional amendment must pass two separately elected General Assemblies and then win a public vote by Hoosiers. If the legislature passes it in 2015 and 2017, then the public could have its say in 2018.

The details of how a balanced budget constitutional amendment would work were unclear, but Pence staffers said it would likely focus on recurring revenue meeting recurring spending and not one-time appropriations for capital projects.

States such as Illinois and California have a balanced budget requirement but have been fraught with financial problems in recent years.

Article 10. Finance, of the Indiana Constitution provides at Section 5:
No law shall authorize any debt to be contracted, on behalf of the State, except in the following cases: to meet casual deficits in the revenue; to pay the interest on the State Debt; to repel invasion, suppress insurrection, or, if hostilities be threatened, provide for the public defense.
This interesting, 19-page Indiana Law Journal article from 1933, "The Borrowing Power Under the 'Casual Deficit' Proviso of the Indiana Constitution," by Frank G. Bates, centers on actions taken by the General Assembly in 1873, and the decision of the Supreme Court in Hovey v. Foster (1889) 118 Ind. 502.

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Indiana Government

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

In USA v. Dwan Taylor (SD Ind., Magnus-Stinson), a 12-page per curiam opinion, the panel writes:
Dwan Taylor appeals the denial of his motion to suppress drugs and guns that the police found in his storage locker pursuant to a search warrant. Indianapolis police learned the location of the storage locker by monitoring a Global Positioning System (“GPS”) unit that they attached to his car without a warrant in 2011. That was before the Supreme Court held that attaching a GPS device to a car for purposes of gathering information was a search under the Fourth Amendment. See United States v. Jones, 132 S. Ct. 945 (2012). Because the officers used the GPS monitor in objectively reasonable reliance on binding appellate precedent in effect at the time, the suppression motion was properly denied.

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In J.P. et al. v. Mid American Sound, et al., a 12-page opinion, Judge May writes:

Jordyn Polet was injured when the stage collapsed at a concert at the Indiana State Fair. Polet declined the State’s settlement offer, and the State distributed, to the claimants who were willing to settle, all the money available under the Indiana Tort Claims Act (ITCA) cap of five million dollars. After her parents sued the State and others, the State asserted, as an affirmative defense, that the ITCA made it immune to Polet’s claim.

Polet moved for partial summary judgment on the State’s affirmative defense it was immune under the ITCA. The trial court denied her motion. Polet argues the limits on the State’s aggregate tort liability, as applied to her, violate the Indiana Constitution’s open courts and equal privileges guarantees. * * *

The application of the ITCA aggregate liability cap to Polet did not violate the open courts clause of the Indiana constitution, nor was Polet in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. We accordingly affirm.

In Christopher Schmidt v. Indiana Insurance Co., C&F Insurance Group, Llc, and Bart Stith, an 8-page opinion, Judge May writes:
Christopher Schmidt appeals summary judgment for Indiana Insurance, C&F Insurance Group, and Bart Stith (collectively, “Appellees”). He presents multiple issues for our review, which we consolidate and restate as whether the trial court erred in granting summary judgment because there were genuine issues of material fact. We reverse in part, affirm in part, and remand. * * *

Summary judgment was not proper for Agents because Schmidt designated evidence that gave rise to a genuine issue of material fact. However, as Schmidt did not do so in response to Indiana Insurance’s motion for summary judgment, summary judgment for Indiana Insurance was proper.

In In Re: The Marriage of Gertiser; Kevin Gertiser v. Anne Stokes (formerly Gertiser), a 7-page opinion, Judge May writes:
Kevin Gertiser appeals the denial of his petition to terminate the spousal maintenance he pays to his ex-wife, Anne Stokes. Kevin asserts the court abused its discretion by continuing the spousal maintenance and by ordering him to pay Anne’s attorney fees. We reverse and remand. * * *

Although the trial court is correct that Anne’s ability to earn income has not changed, the court abused its discretion by denying Kevin’s petition to terminate spousal maintenance because it did not consider the substantial income and assets now available to Anne pursuant to her marriage to Paul. Accordingly, the trial court should have terminated the spousal maintenance. Additionally, following the statutes regarding modification of child support, modification may be retroactive to the date of filing the petition. See Ind. Code § 31-16-8-1 (states the circumstances wherein such an order may be modified). See also Ind. Code § 31-16-16-6(b)(1) (a court may modify an obligor’s duty to pay after notice of the petition has been served). * * *

The trial court ordered the attorney fees “[b]ecause of the wide disparity in the party’s incomes.” (App. at 16.) As noted above, when including all resources available to Anne, no such disparity exists. Rather, Anne has more resources available to pay attorney fees than does Kevin. Accordingly, the trial court abused its discretion in ordering such fees be paid by Kevin. See Bartlemay v. Witt, 892 N.E.2d 219, 232 (Ind. Ct. App. 2008) (attorney fees held to be erroneous when order relied on erroneous factual findings).

NFP civil opinions today (4):

Celebration Worship Center, Inc. v. Patrick Tucker and Carolyn P. Tucker a/k/a Patty Tucker (NFP)

In the Matter of the Term. of Parent_Child Relationship of: K.N. and M.B. v. The Ind. Dept. of Child Services (NFP)

Terry McMillian v. Donna McMillian (NFP)

Do.D. v. De.D. (NFP)

NFP criminal opinions today (5):

Michael Brown v. State of Indiana (NFP)

Anthony Ervin v. State of Indiana (NFP)

Dominique Hughes v. State of Indiana (NFP)

Adam White v. State of Indiana (NFP)

Travis Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - General Assembly will hold voluntary ethics training session today

The House of Representatives and Senate will hold a joint, voluntary ethics training session on Wednesday, January 14, 2015, at approximately 3:15 pm in the House Chamber. Peggy Kerns, Director of the Center for Ethics in Government at the National Conference of State Legislatures will be the presenter.

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Indiana Government

Ind. Gov't. - Proper redaction, what's not to know!

Nearly 7 years ago, the ILB had a long post headed "GE Suffers a Redaction Disaster." The gist of the GE story was that the company's attorneys had filed on PACER many pages of blacked-out confidential information, specifically, according to The Connecticut Law Tribune story:

Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required. * * *

In 2005, the Department of Defense suffered through a similar dispersion of classified information. Redacted segments of an investigative report on the shooting death of an Italian journalist by U.S. soldiers in Iraq could be copied and pasted from a PDF into a Word document.

As the ILB wrote at the time:
This is not a new problem, there have been a number of similar stories over the past several years.
The post goes on to quote from stories as far back as 2003 (the ILB's beginning date) - this one is from a British publication, The Register, about a U.S. Dept. of Justice redaction blunder:
It turns out the report began its life as a Microsoft Word document, and whoever was in charge of sanitizing it for public release did so by using Word's highlight tool, with the highlight color set to black, according to an analysis by Tim Sullivan, CEO of activePDF, a maker of server-side PDF tools. The simple and convenient technique would have been perfectly effective had the end product been a printed document, but it was all but useless for an electronic one. "Using Acrobat, I'm actually able to move the black boxes around," says Sullivan. "The text is still there."
Federal courts have had e-filing for years. It is coming to Indiana state courts. And of course many digital and paper documents that are not e-filed contain redactions. Failure by an attorney to properly redact confidential information in documents shared with others may lead to consequences.

The 7th Circuit has three links on its front page, leading to materials labeled: Redaction Methodology Suggestions; NSA: Redacting with Confidence; and Metadata: Word 2007 or Word 2010.

The SD Indiana links to a very good page from the ED Calif. titled "How to Redact."

Jones Day in 2011 published a 7-page article headed "New Risks Every Litigator Should Know." The subhead: "While the repercussions of e-filing failure can be severe, protecting yourself — and your client — is relatively simple." Page 4 has a section on improperly handled confidentiality issues and the consequences. It is definitely worth reading!

Given this history, it was with surprise that the ILB read this long $$$ story reported by Lindsey Erdody in the Jan. 10 Bloomington Herald-Times [emphasis by ILB]:

It’s as simple as clicking one button.

That’s how easy it is to uncover redacted information in some of the records publicly released by the city of Bloomington.

The city’s legal department realized the issue earlier this week with records that had been shared through Google Drive, which allows Google users to upload and share documents with other users. The city has used Google Apps for Government since February 2010, according to Information and Technology Services Director Rick Dietz.

The legal department has used the file sharing system approximately six times for larger public records requests instead of copying files onto a disk or hard drive, according to assistant city attorney Greg Small. The Herald-Times has received multiple record requests in that format.

Public agencies are allowed [sic.] to redact certain sensitive information, such as Social Security numbers, trade secrets and confidential financial information, for example. Agencies also have “discretionary exemption” over items such as notes expressing opinion on office policy, calendars with notes and performance reviews.

Small said there were three instances where the shared files had redactions, but none of the released documents in question have confidential information included.

Until this week, city attorneys would redact sensitive information in documents electronically, then send the records to the person who had requested it. The city has not revealed the exact method it was using to redact files.

The Herald-Times’ testing of documents it has received in response to records requests indicates the problem isn’t exclusive to Google Drive, as it appears in most PDFs, but not all. There are several techniques to uncover the redacted text, some as easy as clicking a single key.

“It’s one of those unfortunate things,” city corporation counsel Margie Rice said on Wednesday. “We’re lawyers. We’re not ITS people.”

The Center for Wildlife Ethics, a conservation group, requested a long list of files surrounding the proposed Griffy Lake deer cull, which that group shared with Bloomington Advocates for Nonviolent Innovative Deer Stewardship. Steve Wagschal, treasurer for the Bloomington group, said he learned about the faulty redacting from someone who was copying and pasting quotes from the documents.

“This is a huge issue. In addition to the questionable suppressions of information regarding the deer cull, I’m concerned that the city has probably poorly redacted countless documents about other issues to other people,” Wagschal said via email. “Some of this information may be very sensitive and private. It is in the public interest that the city be held accountable and address the poor redaction problem publicly and under the scrutiny of the media.”

Rice said the city prefers to fulfill public records requests electronically because it saves time, money and paper. Public agencies are not required by law to share information in this way, but it is an option.

Upon discovering that redacted information could be uncovered, the city turned off access to Google Drive. Any PDFs that had been downloaded already or sent via email aren’t recoverable, Rice said, but the city could retrieve the records sitting in shared folders on Google Drive.

“And I think it’s my responsibility to make sure that’s right,” Rice said.

Records that were shared in that format are being printed, redacted by hand, scanned and returned to the person who had requested them.

In the opinion of the ILB, Google Drive is not the problem here, it is failure of the city attorneys to properly redact that information (and only that information) which is required by law to be treated as confidential.

An editorial by Bob Zaltsberg in the Sunday H-T includes:

Simply put, the electronic procedure undertaken by city employees made it very easy for the recipient of the public records to see what was behind the bold, black lines that covered some of the type in a process called redaction. Redaction is allowable under specific circumstances.

This discovery opens multiple doors for inquiry. First, did the city provide anyone with confidential information — such as Social Security numbers — expressly prohibited from being released? Any entity that did so knowingly would be in violation of state law. Doing so by mistake, as would seem to be the case if the city has done this, is not unlawful, simply careless and concerning.

Second, was all the material redacted really qualified for being blacked out from public view under Indiana law? We can say with confidence that a quick look at a few documents leads us to serious questions about why the material should have been withheld from the public. Particularly ironic is advice about how to keep a meeting from needing to be open to the public under the Open Door Law.

It will take time to get to the bottom of this one. But it’s important to get there to make sure the city is following the letter and the spirit of the Access to Public Records Act.

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Indiana Courts | Indiana Government | Indiana Law

Ind. Courts - State of the Judiciary today at 2 PM

Chief Justice of Indiana Loretta Rush will deliver the State of the Judiciary address this afternoon at 2 PM in the House Chambers. Watch it here.

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Indiana Courts

Courts - Two cases with Indiana connections being argued today before the SCOTUS

The first is Wellness International Network, Limited v. Sharif, a 7th Circuit opinion. Here is the SCOTUSblog case file. At issue is the constitutional jurisdiction of bankruptcy courts: "whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III."

The second is Mellouli v. Holder, an 8th Circuit opinion being argued by Indianapolis attorney Jon Laramore. Here is the SCOTUSblog case file.

Posted by Marcia Oddi on Wednesday, January 14, 2015
Posted to Courts in general

Tuesday, January 13, 2015

Ind. Courts - Amendment proposed to Article 7, the Judicial Article

Senator Michael R. Young has introduced SJR 15, proposing an amendment to Article 7 of the Constitution of the State of Indiana concerning courts and court officers. Main changes proposed:

Posted by Marcia Oddi on Tuesday, January 13, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

Thrasher Buschmann & Voelkel, P.C. (TBV) v. Adpoint, Inc., Joel Hall, and Mary Hall is a 21-page opinion in a dispute over attorney fees. Judge Brown concludes:

TBV has not shown that it is entitled to summary judgment on this basis.

We conclude that the court erred in granting summary judgment in Adpoint’s favor based upon res judicata and collateral estoppel. We remand for a hearing to consider the amount Adpoint still owes TBV for its representation in the Underlying Litigation.

CONCLUSION. For the foregoing reasons, we affirm the court’s denial of TBV’s motion for summary judgment, reverse the court’s grant of Adpoint’s cross-motion for summary judgment, and remand for proceedings consistent with this opinion.

In In Re the Visitation of L-A.D.W; R.W. v. M.D. and W.D. , a 29-page opinion, Judge Pyle writes:
Appellant/Respondent, R.W. (“Father”), appeals the trial court’s order granting Appellees/Petitioners, M.D. (“Grandmother”) and W.D. (“Grandfather”) (collectively, “Grandparents”), grandparent visitation with his minor daughter, L.W. Grandparents are the parents of L.W.’s mother (“Mother”). They acted as caregivers for L.W. during significant periods of her life and petitioned for grandparent visitation after Mother died from cancer. The trial court found that, although Father was a fit parent, Grandparents had rebutted the legal presumption that his decisions about Grandparents’ visitation were in L.W.’s best interests because there was evidence that he intended to deny grandparent visitation absent a court order. As a result, the trial court awarded Grandparents scheduled visitation.

On appeal, Father argues that the trial court erred in granting Grandparents visitation because (1) it did not give his decisions regarding visitation special weight; (2) it misrepresented the amount of visitation he had allowed Grandparents; and (3) Grandparents did not rebut the presumption that his decisions concerning L.W.’s interests were in her best interests. Alternately, he argues that the amount of visitation the trial court awarded Grandparents exceeds that contemplated by the Grandparent Visitation Act. Because the trial court did give Father’s decisions regarding visitation special weight, did not misrepresent the amount of visitation Father had allowed and intended to allow Grandparents, and did not err in concluding that Grandparents had rebutted the presumption in favor of a fit parent’s decisions regarding grandparent visitation, we conclude that the trial court did not err in granting Grandparents visitation. However, we agree that the trial court abused its discretion in the amount of visitation it awarded Grandparents, and we remand to the trial court to amend the amount of visitation awarded.

NFP civil opinions today (4):

In Re the Matter of the Paternity of: A.M. by Next Friend, E.D.A. v. B.K.S. (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of C.C.K., Minor Child, and his Mother C.F., C.F. v. Indiana Department of Child Services (NFP)

Michael A. Patton v. Stardust Transportation, LLC (NFP)

Timothy McNamara, Tamara Goodfellow, and Teresa Melton v. Zollman Farms, Inc., Testamentary Trust of Jack D. Roller, and Thomas Michael Carr (NFP)

NFP criminal opinions today (3):

Charles Farrell, III v. State of Indiana (NFP)

Megan N. Kinsel v. State of Indiana (NFP)

Willie Hawkins v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - "Award in Herx case decreased: Diocese to pay $543,803"

Updating this ILB post from Dec. 20, which was headed ""Jury sides with fired teacher: $1.9 million judgment against Catholic diocese"," Rebecca S. Green of the Fort Wayne Journal Gazette reports this morning:

A federal judge entered a judgment of $543,803 against the Fort Wayne-South Bend Catholic Diocese on Monday.

The judgment brings down the $1.9 million awarded to former diocesan school teacher Emily Herx in her federal civil rights lawsuit.

However, it was a good bit more than the diocese argued it should have to pay after it lost the case brought by Herx, a former language arts teacher at St. Vincent de Paul Catholic School. The diocese declined to renew her teaching contract for the 2011-12 school year after Herx became pregnant using in vitro fertilization. * * *

After a four-day trial in December, a federal jury in Fort Wayne awarded Herx a total of $1.9 million, with $1.75 million going for compensatory damages for pain and suffering, and medical care for $125,000. They awarded her another $75,000 for lost wages and benefits and $1 for punitive damages.

After the trial, the diocesan attorneys argued the award should be capped at $300,000, and keep medical care compensation at roughly $35,000, according to court documents.

Herx’s attorneys agreed the compensatory damages for pain and mental suffering should be no more than $300,000 under the law, but argued that the $125,000 for medical care was not subject to the limits of the cap.

In a ruling issued Monday afternoon, U.S. District Judge Robert L. Miller Jr. agreed with both sides.

He reduced the compensatory damage award to $299,999 and left the punitive damage award at $1, bringing that total to $300,000, according to court documents.

Miller then increased the award for lost wages and benefits to $118,803, and included $22,853 in post-termination out-of-pocket health care costs, according to court documents.

Miller’s calculations brought the new total awarded to Herx to $543,803, according to court documents.

In a separate document, also filed Monday, Herx’s attorney Kathleen DeLaney filed a bill of costs, outlining some of the expenses accrued during the case and asked they be applied against the diocese.

Those expenses totaled $10,184 and included $2,583 in copying costs and $6,632 in obtaining recorded transcripts, according to court documents.

Posted by Marcia Oddi on Tuesday, January 13, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - "Transgender inmate's lawsuit raises questions on prison health care"

That is the headline to a Indianapolis Star story today reported by Kristine Guerra. Some quotes from late into the long story:

[Christa Allen] filed her medical malpractice complaint in March 2009 against doctors Richard Hinchman, Richard Tanner and Jeffery Smith, who treated her during her incarceration at Rockville and at the Indiana Women's Prison, where she was later transferred. A review panel decided the doctors did not breach their standard of care.

Allen then filed a medical malpractice lawsuit against the three doctors in January 2012 in Marion Superior Court. She asked for unspecified monetary damages.

The case was dismissed because Allen failed to provide an expert testimony to rebut the review panel's opinion. More significantly, the court ruled that physicians who provide care to prisoners should follow a "different, lower standard of care," according to documents.

The Indiana Court of Appeals ruled otherwise. In their Nov. 10 opinion, the appellate judges acknowledged that correctional doctors face budgetary and security concerns that others practicing outside prison don't. But such concerns about the use of a stent or a vibrator, they said, are nebulous. * * *

The doctors on Dec. 9 filed a petition asking the appellate judges to rehear the case. No decision has yet been announced.

ILB: Here is the 19-page, Nov. 10, 2014 Court of Appeals opinion in Allen v. Hinchman, et al. Judge Baker writes:
In this case, we are asked to determine whether the standard of care for doctors treating incarcerated persons is a different, lower standard of care than that applied to their professional counterparts practicing outside prison walls. We find that it is not. The standard of care for doctors practicing in Indiana prisons is no different than the standard of care for doctors practicing within the general population.

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

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

From p. 16 of the opinion:
[W]e recognize that medical care in the DOC involves additional considerations not present in a hospital or general care facility. However, we cannot find that physicians practicing in prisons may deviate from the standard of care without reasonable, articulable concerns. In short, we do not find that physicians practicing in prisons may determine the standard of care based on the circumstances and concerns facing them with regard to individual patients, especially when such concerns remain vague and nebulous. To do so would be to empower prison physicians to determine for themselves what standard of care should apply based on each individual case, a practice we will not endorse.
Here is the docket in the case. The last action as of this morning: Appellant Allen's motion for an extension of time to file a response to Appelles' petition for rehearing was denied Jan. 12, 2015.

Posted by Marcia Oddi on Tuesday, January 13, 2015
Posted to Ind. App.Ct. Decisions

Monday, January 12, 2015

Ind. Decisions - Supreme Court issues one disciplinary ruling 1/8/15

In In the Matter of Leah S. Fink, an order filed late on Jan. 8 and posted today, the Court ordered "that Respondent be suspended from the practice of law in this State, effective immediately."

A subscription site, Law360, has a story by Gavin Broady that begins:

Law360, New York (January 12, 2015, 5:17 PM ET) -- The Indiana Supreme Court has issued an emergency suspension order barring an Indiana criminal lawyer and former state bench candidate from practicing law while she awaits the outcome of felony charges for allegedly running a methamphetamine production laboratory with her boyfriend.
The ILB had a post Aug. 17, 2011, headed "Corydon attorney arrested for manufacturing meth."

A June 3, 2014 story by Grace Schneider in the Louisville Courier Journal is headed "Corydon lawyer re-arrested on meth charges." Some quotes:

A former public defender and well-known Corydon defense lawyer already facing charges that she made and sold methamphetamine in Harrison County was arrested early Tuesday on similar drug charges in Clark County.

Leah Fink now faces new charges of maintaining a common nuisance, manufacturing meth and possessing precursors for meth. She was released from the county jail in Jeffersonville after posting bond of $1,505. * * *

Early Tuesday, Harrison County police officers investigating a burglary happened upon Fink and Ripperdan at 1006 Robin Lane in Jeffersonville. They obtained a search warrant after seeing evidence of meth production and returned with Jeffersonville officers, Harrison County Sheriff Rod Seelye said.

Investigators found an active meth lab inside a detached garage. They also found evidence of “multiple active labs” previously on the premises, including some items in Fink’s car, Seelye said.

“Obviously, they’re back doing what they were doing before,” the sheriff said.

The pair was arrested without incident and an Indiana State Police team which dismantles meth labs was called to the scene.

Harrison deputies first arrested Fink with Ripperdan following a two-month investigation and raid at her mother’s home in the 500 block of Eastridge Road in Corydon in 2011. Fink worked nearly two decades as a defense lawyer in Harrison and Floyd counties, and also served several years as a public defender in Harrison Superior Court.

She made an unsuccessful bid in the 2008 Democratic primary for Harrison Superior Court judge, losing to current Judge Roger Davis. More than a decade ago, she was president of a board of directors for House of New Beginnings, Corydon’s first halfway house to help men recovering from drug and alcohol addiction.

Some interesting language from last week's order:
With the [Supreme Court Disciplinary Commission’s] petition and Respondent’s motion still pending, on December 31, 2014, the parties filed an “Agreement to Interim Suspension.” Under the terms of that agreement, Respondent’s law license would be suspended pendente lite but Respondent would not be prohibited from maintaining a presence in a law office during the period of her interim suspension. This provision of the agreement runs contrary to our rule that a suspended attorney “shall not maintain a presence or occupy an office where the practice of law is conducted” following the effective date of suspension. See Admis. Disc. R. 23(26)(b); see also Admis. Disc. R. 23(11.1)(b)(8). Accordingly, the Court rejects the parties’ agreement.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Transfer list for week ending January 9, 2015

Here is the Clerk's transfer list for the week ending Friday, January 9, 2015. It is one page (and 15 cases) long.

One transfer was granted last week:

In addition, transfer was "dismissed" in In the Matter of the Termination of the Parent-Child Relationship of S.G., minor child, and K.G., the mother, and S.L., the father, K.G. v. Indiana Department of Child Services. This was a Sept. 30, 2014 NFP opinion. The record shows the Court granted Appellant's motion to dismiss Appellant's petition to transfer.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Indiana Transfer Lists

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

For publication opinions today (2):

In David Anderson, Comm., Joe Wray, Comm., and Board of Trustees, Brown Co. Fire. Prot. Dist. v. Susanne Gaudin, Janet Kramer, And Ruth Reichmann, a 14-page opinion, Chief Judge Vaidik writes:

In 2007 the Brown County Commissioners enacted an ordinance establishing a county-wide fire-protection district. In 2011 the Commissioners amended the ordinance, reducing dramatically the scope of the ordinance and the powers granted to the Board of Trustees. County-resident freeholders first filed suit for declaratory judgment, and then the Commissioners and the freeholders filed cross motions for summary judgment, asking the trial court to determine whether the amended ordinance was a valid exercise of the Commissioners’ authority. The trial court granted summary judgment in favor of the freeholders, finding that the amendment was a de facto dissolution of the ordinance, in contravention of the Fire District Act and this Court’s opinion in Gaudin v. Austin, 921 N.E.2d 895 (Ind. Ct. App. 2010).[1] On appeal, the Commissioners contend that the amended ordinance was a valid exercise of their authority. We affirm the trial court, finding that the “amendment” made to the ordinance amounted to a de facto dissolution, and that the Commissioners did not have the authority to amend the ordinance at all.
____________
[1] The Indiana Supreme Court granted transfer in Gaudin in October 2010. Thereafter the Court issued an order stating that Chief Justice Shepard did not participate in the case, and writing in relevant part as follows: “After oral argument and further review, of the four members of this Court able to participate in this case, two Justices believe that the result reached by the trial court was correct, and two Justices are of a contrary belief.” Therefore, the Supreme Court reinstated this Court’s decision pursuant to Indiana Appellate Rule 58(C). Gaudin v. Austin, 936 N.E.2d 1241 (Ind. 2010).
ILB: The opinion, in a dispute that has a lot of history (eg this 11/17,10 ILB post), contains a number of other significant footnotes.

In Randy Corn v. Junior P. Corn, Bonnie D. Corn and Benjamin Corn , an 18-page opinion, Judge Bailey writes:

Randy Corn (“Randy”) appeals, and Junior P. Corn (“Junior”), Bonnie C. Corn, and Benjamin P. Corn (“Benjamin”) (collectively, “the Corns”) cross-appeal the trial court’s order finding Randy and the Corns to be tenants-in-common of a thirty foot-wide lane (“the lane”) running through the Corns’ property and into Randy’s property.

We conclude that the trial court misconstrued the deed provisions relevant to conveyance of the lane, and that fee simple title to the lane rested solely in Randy. But because there is evidence to suggest the existence of a prescriptive easement permitting the Corns to use the lane, and because Randy sought a permanent injunction against such use, we accordingly reverse the trial court’s finding that Randy and Junior were tenants in common as to the lane and remand for consideration of each party’s claims as to 1) the existence and scope of any prescriptive easement, and 2) a permanent injunction.

NFP civil opinions today (1):

In the Matter of the Civil Commitment of: R.S. v. Gallahue Mental Health Services (NFP)

NFP criminal opinions today (4):

Robert C.W. Getchell v. State of Indiana (NFP)

Wesley A. New v. State of Indiana (NFP)

Curtis Williams v. State of Indiana (NFP)

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

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Cost of South Bend wiretapping legal fight at $800,000 and counting"

That is the headline to this Sunday story by Madeline Buckley of the South Bend Tribune. Some quotes:

SOUTH BEND — The city and the Common Council together have spent almost $800,000 on attorney fees so far in the ongoing wiretapping litigation, a legal quagmire that is not done racking up costs.

The expensive litigation begs the question: Was it worth it?

“We’re all frustrated with the cost and length of these legal proceedings, but things have now reached the point that only the courts can draw the line decisively on whether these recordings can be accessed without violating federal laws,” Kara Kelly, spokeswoman for the mayor’s office, said in a statement.

Between the council and the city, the funds paid four law firms to work on the cases related to what has colloquially been called the police tapes. The city also settled three lawsuits in connection to the tapes for another $810,000, making the total cost of the matter about $1.6 million.

And the meter is still running.

The legal battles are rooted in a South Bend Police Department practice of recording some officers’ phone lines that generated heated controversy in 2012 when Mayor Pete Buttigieg demoted then-police chief Darryl Boykins. * * *

So far, the Common Council has spent $110,139, and still owes $86,557. The council hired the local firm May Oberfell Lorber to argue the phone tap did not violate federal law.

The city has spent $581,911 and contracted three law firms at different phases in the matter: Faegre Baker Daniels, Dixon Wright and Associates and Stephen Cowen. The city’s attorney fees also include settlement negotiations with the four officers, as well as DePaepe and Boykins, who also sued the city.

The city settled for $500,000 with the officers, $75,000 with Boykins and $235,000 with DePaepe. The settlement money comes from a different pool of funds, though it’s still taxpayer money. To pay for settlements, each city department pays into a fund that acts as an insurance fund for the city. The city used money from the general fund for the attorney fees.

But the last remaining legal question is whether the tap on Young’s line was illegal, which would determine whether anyone can listen to the content without breaking the law. The city, joined by the four officers, battled the council on that question during a two-day trial in August.

U.S. District Judge Joseph Van Bokkelen has not yet ruled on the case. The judge did not return a call requesting the status of the case.

Here is a SBT graphic, showing the distribution of legal fees.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Indiana Courts

Ind. Gov't. - Ind. Gov. & AG urge SCOTUS to terminate Hoosiers health insurance subsidies

Dan Carden of the NWI Times reported Sunday in a story that begins:

INDIANAPOLIS | Gov. Mike Pence and Attorney General Greg Zoeller are asking the U.S. Supreme Court to effectively cancel the private health insurance policies of more than 100,000 Hoosiers by the end of June.

The Republicans recently submitted a friend-of-the-court brief to the nine justices supporting a lawsuit that seeks to deny federal subsidies provided by the Affordable Care Act, also known as Obamacare, to individuals purchasing health insurance in states, like Indiana, that have not established a state-run insurance marketplace.

In the filing, written by Indiana Solicitor General Thomas Fisher, a Jasper County native, the state argues any plain text reading of the 2010 health law clearly requires state creation of an insurance marketplace as a condition of that state's citizens receiving federal subsidies to purchase health insurance policies through the marketplace.

Pence ruled out Indiana establishing a state health marketplace, also known as an exchange, in one of his first pronouncements after winning election in November 2012.

The Republican-controlled General Assembly similarly has refused to create an Indiana insurance marketplace.

The governor has said he has no interest in reversing that action even though approximately 118,000 Hoosiers now receiving health insurance subsidies, worth on average $4,000 each, will lose that money — and likely their health insurance — and may even have to pay back past subsidies, if Pence's argument prevails at the Supreme Court.

The story includes links to the Indiana amicus brief plus:
A separate Indiana lawsuit challenging the subsidies and employer mandate, filed in October 2013 by Zoeller of behalf of the state and 39 school corporations, including East Porter County School Corp., is on hold until the Supreme Court rules in King v. Burwell.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Indiana Government

Ind. Gov't. - "National Guard: Domestic abuse and the halls of justice"

Excellent Sunday Indianapolis Star front-page story by Tony Cook about our Indiana Guard and its handling of allegations of domestic abuse.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Indiana Government

Ind. Courts - The biennial budgeting process provides a look at the Indiana Court's plans

This General Assembly will enact a budget for Indiana government, FYs 2015-16 and 2016-17. All three branches of government will be covered by this biennial budget.

The public participation of the Supreme Court in the budgeting process provides insights into the current and future operations of the Indiana courts not readily available elsewhere.

State Budget Committee Hearings

The formal budget-making process began late in the summer of 2014 with submissions to the State Budget Agency, followed by presentations before the State Budget Committee.

Here is a list of the 2015-17 Budget Committee hearings/presentations that includes links to each agency's submissions:

The presentations before the Budget Committee are video-archived here.

Governor's Recommended Budget

Here is the recommended budget bill that Governor Pence submitted to the General Assembly last week. As you will see, the Governor's recommended budget, as in the past, covers all three branches of government.

Pages 9 (line 49) through 12 (line 38) cover the Judicial Branch.

House and Senate Hearings

The second phase of the budget process is legislative adoption of the budget. The House Ways and Means Committee holds hearings on the proposed budget before sending the budget bill to the floor, and after the bill passes the House, the Senate Appropriations Committee, in a similar manner to the House Ways and Means Committee, conducts public hearings with selected agencies before issuing a committee report. One can anticipate the the Indiana courts will present their budget requests before each house committee.

What have we learned so far - Supreme Court

Here is Chief Justice Rush's presentation to the Budget Committee on Dec. 17th, which was first on the agenda and lasted about 45 minutes. Much reference is made to slides, the ILB is attempting to obtain copies of the slides from the Supreme Court Public Information Officer. Without them the discussion is difficult to follow. Here are some points of interest to the ILB, but you may learn more if you listen for yourself.

The implementation of electronic filing was the lead-off topic. The CJ said [at 5:18] a crucial step for state technology is to implement electronic filing in all our courts statewide. She said they were looking at 3 or 4 pilots, at $2M for the first year and $4M for the second, and that an unlimited license for all e-filing statewide would be $5.2 million. Ch. Kenley asked where that was in the budget request. CJ: Line 60, trial court operations, but that also includes probation salaries. Ch: Could you break it down by electronic filing and probation?

Ch: $5.2 million, is there a tangible savings offset somewhere in the budget? If 90% of savings are, for example, going to be savings in personnel at the county level, the counties are actually not going to fire anyone. So should the counties pay some of this $5.2 million? In other words, the counties won't produce any savings unless you require them to.

The CJ talked about the Odyssey program [14:00], saying the Tax Court had recently gone on the Odyssey system, and the COA would next month.*

The CJ, referring to a slide, went through the Automated Recordkeeping Fee, how much is collected, and how much the Court actually receives, and what will happen when $2 of the fee is sunsetted, but the discussion seemed confusing. [see, starting at 14:37 and 17:00-19:10]

At 21:50, the CJ discussed a slide titled "How are your courts funded?"

There is an interesting discussion with Senator Tallian beginning at 23:50 re the CJ's proposal that the salaries of county chief probation and deputy probation officers be picked up by the State.

What have we learned so far - Tax Court

Here is Tax Court Judge Wentworth's Nov. 19th presentation to the State Budget Committee. It begins at 55:40 of Part I.

Judge Wentworth talked about her court's achievements and about the court's "special role in creating a body of law in a very important area".

The discussion of the Tax Court backlog begins at 1:01:07.**

Judges Wentworth reported that the backlog was in the high 30s, and that the oldest case was over a year old. She said the time should be measured from the time the court took a case under advisement, not the time it was filed.

Judge Wentworth said the solution was not another judge, but another law clerk. She said that law clerks were the drivers of output in an appellate court. The amount of work done is directly related to the number of law clerks. Judges manage a case before it comes under advisement (has a hearing, and she said she sets hearings as soon as a case is fully briefed), but after that it is the law clerks. She is asking for another law clerk, plus an intern.
___________
* The ILB had a long, critical post on this switchover on Dec. 3, 2014. Note also that the switch seems to directly contradict the plans presented in the Supreme Court's operating budget request for the 2013-2015 biennium, which is why the Dec. post was headed "One step forward followed by two steps back for the appellate docket."

** The ILB posted "A look at the Tax Court" on Sept. 2, 2014, focusing on the Court's backlog, and updated the post on Nov. 18th.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Indiana Courts

Ind. Courts - More on: Which appellate jurists would be able to serve until age 80 under SB 12?

Updating this ILB post from Jan. 8, SB 12, which would extend the retirement age for certain members of the Supreme and Appellate court to age 80, is eligible for 2nd reading today. The Senate convenes at 1:30.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Indiana Courts

Ind. Gov't. - Senate and House Committee meetings this week

This morning at 10 AM the Senate Agriculture Committee will hear SB 249 which, per a WTHR story quoted in this ILB post last Friday, "would make it illegal for an Indiana county, municipality or township to adopt any ordinance or rule that would prohibit a farmer from constructing a livestock facility in an area zoned for agricultural use." You can watch the meeting here.

Here is the current Senate Committee Schedule for this week.

Here is the current House Committee Schedule for this week.

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Indiana Government

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

From Sunday, January 11, 2015:

From Saturday, January 10, 2015:

From Friday afternoon, January 9, 2015:

Posted by Marcia Oddi on Monday, January 12, 2015
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 1/12/15):

Next week's oral arguments before the Supreme Court (week of 1/19/15):

Wednesday, Jan. 21

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 1/12/15):

Monday, January 12

Thursday, January 15 Next week's oral arguments before the Court of Appeals (week of 1/19/15):

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, January 12, 2015
Posted to Upcoming Oral Arguments

Saturday, January 10, 2015

Law - "Federal lawmakers urge end to program sharing forfeited assets with state and local police"

The Washington Post over the past few months has run a long series on the problems of civil asset forfeiture, many stories from which have been linked to in ILB posts.

Today WAPO reporter Robert O'Harrow Jr. writes in a story that begins:

Leaders of the House and Senate Judiciary committees on Friday called on the Justice Department to end the sharing of civil seizure proceeds with local and state police, a change that with few exceptions would cut the flow of hundreds of million of dollars annually to departments in every state.

In a letter to Attorney General Eric H. Holder Jr., the lawmakers said they think money from Justice’s Equitable Sharing Program, the federal government’s largest civil asset forfeiture initiative, may be encouraging heavy-handed tactics by local and state police agencies.

Equitable Sharing allows police who seize property under federal civil law to keep up to 80 percent of the proceeds, while Justice and other participating federal agencies can keep 20 percent or more. In 2012, the most recent year of complete data available to The Washington Post, seizures worth more than $1.5 billion in cash, cars and other property were processed through the program.

“We are concerned that these seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities,” the letter said.

The WAPO story links to the letter to AG Holder. A quote from the letter:
One area that we find particularly problematic involves “adoptive seizures” and “equitable sharing.” Under this arrangement, state and local law enforcement agencies bring property seized under state law to a federal seizing agency for federal forfeiture and then can receive up to 80% of the proceeds of the resulting forfeiture. We are concerned that these seizures might circumvent state forfeiture law restrictions, create improper incentives on the part of state and local law enforcement, and unnecessarily burden our federal authorities.

In a recent meeting with representatives of the Department of Justice, we were told that the Department is in the midst of an internal, top-to-bottom review of its entire asset forfeiture program. As part of this review, we encourage you to consider discontinuing “adoptive seizures” and “equitable sharing.”

Nothing in the statutes governing forfeiture requires that you engage in equitable sharing.

ILB: Relevant here is this ILB post from Aug. 30, 2011, that begins: "In several earlier entries on asset forfeiture in Indiana, mention has been made that rather than sending a portion of money seized to the Indiana common school fund, locals might instead enter into a more advantageous relationship with federal authorities."

Posted by Marcia Oddi on Saturday, January 10, 2015
Posted to General Law Related

Environment - More on: Industrial hog farms in the spotlight in Indiana

Updating yesterday's long ILB post, a reader has sent a link to a Nov. 13, 2014 post by Jeff Lorenzo in his blog, Indiana Real Property & Environmental Law Report, headed "Suit Filed Challenging Jackson County BZA’s CAFO Approval." The post links to a complete copy of the complaint in McDonald vs. Jackson County BZA, filed Nov. 6, 2014.

Posted by Marcia Oddi on Saturday, January 10, 2015
Posted to Environment

Friday, January 09, 2015

Environment - Industrial hog farms in the spotlight in Indiana

Bob Segall of Indiana WTHR 13 has a very long story, with video, headed "Emotions running high in Indiana farm fight." The story is set in Jackson County. Some quotes:

Hubert Brumett is a World War II veteran who is now facing yet another battle.

He is fighting to protect his Jackson County home from who's about to move in next door.

Thousands of hogs and a huge swine barn are planned for the farm field right behind Hubert's house – and family members say it may force the 93-year-old into a nursing home.

"It just breaks my heart to see this," said Brenda Brumett, Hubert's daughter-in-law. "He fought for his country. He worked hard. He raised his children. Give him the dignity to live on his own land and end his life the way he wants to live."

Brumett's plight is just the latest example of a growing showdown across a state. On one side: farmers, the agricultural industry and lawmakers trying to protect Indiana's position as a leading state for farming. On the other: homeowners in rural areas who say they are now left practically helpless to protect their families, homes and quality of life from the realities of modern agriculture. * * *

Another Jackson County family has submitted an application to build a hog barn nearby. Very nearby.

The facility would sit about 600 feet – 250 steps – from Brumett's bedroom window. It's designed to be longer than a football field. The concentrated animal feeding operation, commonly referred to as a CAFO, will hold 4,000 swine and a million gallons of their manure. * * *

Hundreds of families live near the proposed CAFO, with more than 100 homes located within about one mile of the site. * * *

A few weeks later, after the community learned about the CAFO plans next door, Walker's home value dropped to $121,500.

"My appraised value went down $54,000 the day [the Jackson County Planning Commission] decided it was OK to give them a variance to put that in back there by my property line," Walker said, trying to hold back tears. She paused her interview with WTHR to cry for a moment, then dried her eyes and continued. "It's been really stressful. I've had zero interest in my land since this was announced – zero. I'm putting it in God's hands now."

It's an emotional issue that affects communities all across Indiana.

"Don't have an option"

Indiana currently has more than 1,800 concentrated feeding operations throughout the state, and the Indiana Department of Environmental Management says it receives 60 to 70 new applications each year – mostly for large-scale pork, beef and poultry operations.

As some of the CAFOs inch closer and closer to more populated areas, nearby residents have few options to prevent such farms from moving into the neighborhood.

According to state regulations, a CAFO can be placed just 300 feet from an existing home and 100 feet from a neighbor's property line.

In recent months, dozens of Jackson County residents attended public hearings to voice strong opposition to the new hog farm. The county planning commission and zoning board unanimously approved the proposal anyway, citing adequate setbacks from neighbors. The proposal can next go to IDEM for final approval.

State regulators say they sympathize with nearby homeowners but cannot consider most of their concerns when reviewing the application.

"I can understand their frustrations and certainly feel for them," said IDEM deputy commissioner Bruce Palin. "But the odors and the property values, none of those are a part of the regulatory requirements that we can take into consideration in deciding whether to issue an approval for a confined feeding operation. If [applicants] satisfy the design criteria and have proper setbacks from wells, waterways, roads and structures, we really don't have an option to deny a permit."

Legal challenge

Some homeowners in Jackson County are now turning to the courts, trying to fight back with a lawsuit.

They have filed a complaint in Jackson County Circuit Court, hoping a judge will reverse the zoning board's decision and deny approval for the large-scale hog barn. * * *

"We certainly are not ashamed of the project we've proposed. It's perfectly legal and it's necessary," said Kyle Broshears.

"We are doing what we're required to do, and then some," added his wife, Leah.

The Broshears are the family trying to build the controversial CAFO in Jackson County.

They say it shouldn't be controversial at all. Nine other hog CAFOs, nearly identical to the facility proposed by the Broshears, already exist in Jackson County – and one of them is less than a mile and half away.

"No one has complained about those," said Kyle, arguing that home values near the existing CAFOs have not experienced sharp declines. "I can understand how people would have a concern, but I don't believe this farm or any other that's already here in the county will be what they're saying it will be… and we do not support the idea that there will be any health effects to be had from this facility. * * *

The Broshears Family Farm LLC hog barn would be a state-of-the-art facility with a concrete-lined manure pit under the floor, according to the proposal.

"Everything is contained inside the building 100 percent. There should be no manure leaving this building unless we specifically and purposely want to leave this building," Kyle explained.

Much of the manure will be applied to farm fields surrounding the CAFO, which are owned by Leah's parents. The Broshears admit an odor from the facility will be inevitable.

"There will be smell, and there's no technology to date that can eliminate the smell of manure from pigs," Kyle said. But he's confident the hog farm will not a pose a health threat to neighbors – so confident, he plans to have his entire family spend a large amount of time inside the CAFO. * * *

The Broshears and other CAFO farmers may be getting a big shot in the arm from state lawmakers, who have a history of supporting industrialized agriculture in Indiana. With several farmers serving in the General Assembly – and with the urging and backing of powerful industry lobbying groups such as the Indiana Farm Bureau and Indiana Pork Producers – bills to protect and grow the state's multi-billion dollar CAFO industry have been plentiful. This year's legislative session is no different.

Senate Joint Resolution 12, introduced today by Sen. Brent Steele (R – Bedford), would amend the Indiana constitution to guarantee "the right of the people of Indiana to engage in diverse farming and ranching practices" and stipulates "the General Assembly may not pass a law that unreasonably abridges the right of farmers and ranchers to employ or refuse to employ effective agricultural technology and livestock production and ranching practices."

One day earlier, Sen. Jean Leising (R – Oldenburg), a farm owner and chair of the Senate Agriculture Committee, introduced Senate Bill 249. The bill would make it illegal for an Indiana county, municipality or township to adopt any ordinance or rule that would prohibit a farmer from constructing a livestock facility in an area zoned for agricultural use.

The proposed legislation is good news for farmers, who often face a hostile reception from longtime residents who don't want a CAFO in their neighborhood.

But those residents – many who have lived in their homes for generations, long before large industrialized CAFOs began to spread across the Indiana landscape – say there are no lawmakers introducing legislation and protections for them. They worry what the future will bring.

"It's not a matter of 'Do we want to farm?' or 'Do we want to live here?' We already live here. There's already farms all around," Walker said. "I am not against farming. I'm against putting something of that magnitude with that impact into a neighborhood where there are 400 people going to be impacted by it."

"Yeah, this really has nothing to do with farming," said Brenda Brumett. "We're all farmer people. Almost every one of us. Dad, he was a farmer. But why should he have to give up his home that he's lived in all these years for someone else to make a profit? He fought for our freedom. Where is his freedom and his choice? Why should he have to give that up?"

The story links to a map showing the location of Indiana CAFOs and an Excel database that lists all active CAFO and CFO permits issued by the Indiana Department of Environmental Management.

Also today, Ryan Sabalow of the Indianapolis Star reports on:

State Sen. Jean Leising’s Senate Bill 249 [which] would prevent a county, municipality or township “from adopting an ordinance, resolution, rule, policy or other requirement” that prohibits building any livestock structure, so long as it’s to be built in an area zoned for agriculture and the operator follows state laws.

Some environmentalists and local government leaders say they’re deeply troubled by the Oldenburg Republican’s bill, which they say amounts to a state power grab on behalf of Indiana’s powerful farm lobby.

Attorney Kim Ferraro, the Hoosier Environmental Council’s water and agriculture policy director, says the bill could block any local oversight of what she calls factory farms.

“It’s one thing to want to be a state that promotes agriculture,” Ferraro said. “It’s a whole other thing to completely strip the rights of local governments and citizens to protect themselves from harm.” * * *

Ferraro, the environmentalist attorney, said state lawmakers already have passed farm-friendly laws to encourage large-scale confined livestock operations in Indiana.

For instance, she said, a “right to farm” bill passed last year makes it much more difficult for local governments to use ordinances to prohibit new farming operations.

Plus, she said, laws passed in previous sessions have made it extremely difficult for a neighbor to win a nuisance lawsuit against a large confined livestock operation.

The bill also irks some county leaders.

In eastern Indiana’s Jay County, commissioners discussed a possible moratorium on CAFOs but decided against it last fall, said former Commissioner Milo Miller Jr., who stepped down Jan. 1 after a 24-year stint on the board.

He described Leising’s bill as a “bunch of crap.”

“They say they want the counties to have local control, but it’s ‘Do it our way,’ ” Miller said. “What kind of local control is that? Who knows what’s best in the county? The state legislature or county officials?”

The bill has a strong chance of advancing since Leising chairs the Agriculture Committee.

The committee will discuss the bill at 10 a.m. Monday in Statehouse Room 130, 200 W. Washington St.

ILB readers may recall a number of highly publicized lawsuits challenging pork and dairy producers in Randolph County, contending that the Indiana Right to Farm Act, which barred nuisance claims, was unconstitutional, failed in trial court in July, 2014. See this post from July 16, 2014 and this one from July 17th.

The winning attorney in the cases, Gary Baise, wrote this Nov. 19th article for the Pork Network, headed "Another CAFO legal attack." He writes about the new lawsuit, in Jackson County, reported above in the WTHR 13 story:

On November 6, 2014, a new legal action was filed in Indiana’s Jackson County. The case involving numerous plaintiffs is filed not only against the CAFO, but the Jackson County Zoning Board of Appeals and its members. The complaint requests that a court disapprove the application of Kyle Broshears, to construct a new CAFO. Generally, complaints are filed once the CAFO is operating. * * *

In Jackson County, plaintiffs’ attorney takes a different course of action. The November complaint attacks the decision of the Jackson County Board of Zoning Appeals for approving a special exception to Mr. Broshears and his operation. Plaintiffs ask that the court reverse the Board of Zoning Appeals and annul its prior decision approving the CAFO operation. Further, the plaintiffs want a finding that they have been prejudiced by the granting of the CAFO application and void any permits that might have already been granted.

Plaintiffs presumably are aware of the Lindsey v DeGroot Dairy, LLC case, where the constitutionality of the Right to Farm Act was upheld and also established that certain violations were not negligence as a matter of law.

Again, in 2013, the U.S. Court of Appeals 7th Circuit held that plaintiffs had no case against Country View Family Farms, LLC by saying that even though nonfarming neighbors had arrived in the general area before the hog farm was built, the Indiana Right to Farm Act applied and protected the CAFO operator.

Plaintiffs in the Jackson County case apparently are aware of all these losses. They are attempting to kill the project before any concrete is poured. Plaintiffs claim the zoning board illegally granted a special exception to build the CAFO in Jackson County. They claim the exception is “…illegal; was not supported by substantial evidence and was not warranted by the facts; was an abuse of discretion; was arbitrary and capricious; and was unauthorized and contrary to the purposes and provisions of the zoning ordinance and Indiana law.”

Posted by Marcia Oddi on Friday, January 09, 2015
Posted to Environment

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

For publication opinions today (1):

In Jerome Sheckles v. State of Indiana, a 16-page opinion, Judge Bailey writes:

Sheckles raises three issues for our review. We restate these as four issues:
I. Whether Sheckles was deprived of his right to a speedy trial under Criminal Rule 4(C);
II. Whether the trial court erred when it declined Sheckles’s request to require the State to identify a confidential informant;
III. Whether Sheckles’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated by certain evidentiary rulings; and
IV. Whether the State laid an adequate foundation under the “silent witness theory” for the admission into evidence of a video recording. * * *

Sheckles was not deprived of his right to a speedy trial under Criminal Rule 4(C). The trial court did not err when it denied Sheckles’s request for disclosure of the confidential informant’s identity. Sheckles’s confrontation rights were not violated. The trial court did not abuse its discretion when it admitted into evidence the video recording of the controlled buy. Affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (1):

Mason Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 09, 2015
Posted to Ind. App.Ct. Decisions

Thursday, January 08, 2015

Ind. Gov't. - More on "Fight over banned Americus quarry back on"

Updating this ILB post from Jan. 2nd, Hannah Smith of the Lafayette Journal & Courier is reporting late this afternoon that:

On Thursday afternoon, Rogers Group, Inc., filed a lawsuit against Tippecanoe County, the Board of Commissioners, the Area Board of Zoning Appeals, the Area Plan Commission and the county’s building commissioner.

Rogers Group claims that the county commissioners did not have the authority to pass the ordinance last July that effectively kept the group from digging a quarry near Americus. The claim also states that commissioners did not have authority to enforce the ordinance.

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Indiana Government

Courts - Details of plans for federal court cutbacks - in space, libraries ...

From the U.S. Courts, this announcement headed "First Year of Space-Cutting Initiative Yields Major Successes." a sample:

The Judicial Conference endorsed the space-reduction goals in September 2013. Since that time, the nation’s 12 regional circuits have submitted plans for meeting the five-year target. Dozens of specific projects are underway, involving appellate, district and bankruptcy courts, and probation and pretrial services offices.

Thirty court library spaces are being scaled back or closed by 2018. Dozens of court offices have been identified for relocation from leased commercial buildings to federally owned space. And seven court facilities without full-time resident judges were identified for downsizing or closure. Under the Judiciary’s five-year space reduction plan, about 870,000 square feet are to be eliminated by September 2018.

[h/t Michelle Olsen @AppellateDaily]

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Courts in general

Ind. Decisions - More on: Judge Magnus-Stinson Enters Final Ruling re PPINK Health Center in Lafayette

Updating ILB posts from yesterday quoting from the Indiana Attorney General's, and the Indiana ACLU's, news releases (here and here), the ILB has now obtained the actual documents from the federal court:

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Which appellate jurists would be able to serve until age 80 under SB 12?

Senate Bill 12 was passed out of committee earlier this week by a vote of 5-4, and will be eligible for 2nd reading next week. (Although during the past few years the retirement age of 70 was removed for trial court judges, this session's bill addresses appellate judges.) The bill simply changes the current retirement age of 75 to 80:

Sec. 8. (a) Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) eighty (80) years of age.
Would the change apply to the current Court of Appeals and Supreme Court justices, or only to their successors?

The answer is, it would apply to current jurists, but only after their next successful retention election. Those who turn 75 before then would have to resign upon attaining age 75.

Indiana's appellate jurists are retained by the voters for 10-year terms. The Ind. Const., Art. 7, Sec. 10: "terms of ten years". And from Art. 7, Sec. 10:

Sec. 11. * * * Every such justice and judge shall retire at the age specified by statute in effect at the commencement of his current term.
So no one on either the current Supreme or Appellate Court would benefit from the change, until after he or she had been retained in a retention election occurring after the new law had taken effect.

Five judges are eligible for retention in 2016, provided they have not turned 75 before then: Judges Najam, Friedlander, Kirsch, Crone, and Riley. The age 80 limit would apply in the future to those who were retained in the 2016 election.

At the other end of the spectrum, Chief Justices Rush, Justice Massa, COA Judge Pyle, and Tax Court Judge Wentworth were retained in the 2014 general election. Only if they do not turn 75 before the 2024 retention election would the new age 80 limit thereafter apply to them.

In practical terms, it is difficult to determine who on the current courts will benefit from the change because so many of the jurists have not made their ages publicly available, despite that fact that the age limit is a part of the law. Three of the current justices provide their year of birth in their official biographies; none of the court of appeals judges currently do so.

An interesting side-note: The ILB has been published for well over a decade now, and during that time three (of the 5) Supreme Court justices have resigned or retired: Chief Justice Shepard, Justice F. Sullivan, and Justice Boehm. Each left well before they reached age 75; two were in their early 60s.

Three (of the 15) Court of Appeals judges (Sharpnack, P. Sullivan, Darden), and the Tax Court judge (Fisher) have retired during the same period. I believe all were approaching age 75.

How would the Supreme Court be impacted?

Justice Appointed by Birth Yr. Next Retention Age at Next Retention Comments
Rush, C.J. Daniels, 2012 1958 Nov. 2024 66 SB 12 applies thereafter
Dickson Orr, 1986 1941 Nov. 2018 __ Turns 75 in 2016
Rucker O'Bannon, 1999 __ Nov. 2022 __ __
David Daniels, 2010 __ Nov. 2022 __ __
Massa Daniels, 2012 1961 Nov. 2024 63 SB 12 applies thereafter

How would the Appellate Court be impacted?

Judge Appointed by Birth Yr. Next Retention Age at Next Retention Comments
Bailey O'Bannon, 1998 __ Nov. 2020 __ __
Baker Bayh, 1989 __ Nov. 2022 __ __
Najam Bayh, 1992 __ Nov. 2016 __ __
Bradford Daniels, 2007 __ Nov. 2020 __ __
Friedlander Bayh, 1992 __ Nov. 2016 __ __
Kirsch Bayh, 1994 __ Nov. 2016 __ __
Barnes O'Bannon, 2000 __ Nov. 2022 __ __
Crone Kernan, 2004 __ Nov. 2016 __ __
Mathias O'Bannon, 2000 __ Nov. 2022 __ __
May O'Bannon, 1998 __ Nov. 2020 __ __
Pyle Daniels, 2012 __ Nov. 2024 __ __
Riley Bayh, 1994 __ Nov. 2016 __ __
Brown Daniels, 2008 __ Nov. 2020 __ __
Robb O'Bannon, 1998 __ Nov. 2020 __ __
Vaidik, C.J. O'Bannon, 2000 __ Nov. 2022 __ __

How would the Tax Court be impacted?

Judge Appointed by Birth Yr. Next Retention Age at Next Retention Comments
Wentworth Daniels, 2011 __ Nov. 2024 __ __

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Indiana Courts

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

For publication opinions today (2):

In Tajuanda Berry v. State of Indiana, a 7-page opinion, Judge Pyle writes:

Tajuanda Berry (“Berry”) appeals her sentence, after a bench trial, for Class A misdemeanor trespass. On appeal, she claims that the trial court erred by ordering her to stay away from all properties managed by the Indianapolis Housing Agency (“IHA”). She asks that this Court vacate the order because the order is overly broad and not related to any rehabilitative goal or maintenance of public safety. Concluding that the trial court’s statement was not part of its imposed sentence, we affirm Berry’s sentence. * * *

Here, the trial court advised Berry that she could be charged with felony trespass if she went back to Barton Tower or any other IHA property. In fact, the trial court specifically said, “You will not get anything in writing it is me telling you[.]” * * *

Given the trial court’s statements and the fact that Berry’s only other obligation to the trial court was community service work, we find that the trial court was reminding Berry of IHA’s ban and not imposing its own stay away order.

In Scott Hitch v. State of Indiana, a 9-page opinion, Judge Baker writes:
Scott Hitch, who was convicted of class A misdemeanor Battery by a jury, appeals the trial court’s determination that he committed a crime of domestic violence. Hitch argues that the trial court’s domestic violence determination infringed upon his Sixth Amendment right to a jury trial when it found a fact that increased the penalty for his conviction beyond the statutory maximum in violation of Blakely v. Washington. 542 U.S. 296 (2004). Finding that the trial court’s determination that Hitch committed a crime of domestic violence required it to find a fact that increased the penalty for Hitch’s conviction beyond the statutory maximum, we reverse. * * *

We reverse the trial court’s domestic violence determination and remand for proceedings consistent with opinion if the State so desires.

NFP civil opinions today (1):

Joel Bryce Granberry v. The Bank of New York Mellon Renovations by Russell Llc. (NFP)

NFP criminal opinions today (1):

Kristopher Souter v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Frank Jacobs v. State of Indiana, a 6-page, 5-0 opinion, Justice Rucker writes:

After a bench trial Frank Jacobs was convicted of criminal deviate conduct and criminal confinement. On appeal Jacobs argued, among other things, the trial court erred in limiting his cross-examination of a witness concerning the credibility for truthfulness of the alleged victim. Finding no error we affirm the judgment of the trial court. * * *

Jacobs appealed raising the following restated issues: (1) whether the trial court erred when it excluded testimony regarding G.L.’s truthfulness; (2) whether the trial court erred when it denied Jacobs’ request to present his son as a sur-rebuttal witness; and (3) whether Jacobs’ convictions subjected him to double jeopardy. Agreeing with the State’s concession on the point, the Court of Appeals granted Jacob relief with respect to his third issue and remanded this cause to the trial court with instructions to vacate Jacobs’ conviction for Class C felony criminal confinement. See Jacobs v. State, 2 N.E.3d 116, 123 (Ind. Ct. App. 2014), vacated. Concerning issues two and three [ILB: sic, probably means "issues one and two"] , the Court of Appeals concluded the trial court erred but the error was harmless. Having previously granted transfer we address whether the trial court erred when it excluded testimony regarding G.L.’s truthfulness. In all other respects, we summarily affirm the opinion of the Court of Appeals. * * *

Indiana Evidence Rule 608 provides that the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation for truthfulness but that specific instances may not be inquired into or proven by extrinsic evidence. Here, Jacobs’ evidence was not in the form of opinion or reputation, and therefore was not admissible under Rule 608(a). Instead, Jacobs attempted to delve into specific instances of G.L.’s conduct, namely, whether G.L. had lied to his mother on prior occasions; Rule 608(b) specifically prohibits inquiring into or proving specific instances by extrinsic evidence. See Beaty v. State, 856 N.E.2d 1264, 1269 (Ind. Ct. App. 2006), trans. denied (“Indiana cases have consistently held that Evidence Rule 608(b) prohibits the introduction of evidence regarding specific instances of misconduct.”). In addition, the limited exception referenced in the last sentence of Rule 608(b) is not applicable because G.L.’s mother did not testify as to G.L.’s truthfulness. * * *

In sum, the trial court did not abuse its discretion by prohibiting evidence of specific instances of conduct regarding G.L.’s truthfulness.

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Ind. Sup.Ct. Decisions

Courts - "SCOTUS to meet again to decide on hearing gay marriage"

Lawrence Hurley of Reuters is reporting in a story that begins:

The nine justices of the Supreme Court, who opted in October not to take up the issue of state bans on gay marriage, are set to meet behind closed doors on Friday to consider once again whether to hear any cases on the contentious issue.

The court has five cases pending concerning same-sex marriage prohibitions in Ohio, Tennessee, Michigan, Kentucky and Louisiana.

The legal issue is whether the state bans violate the U.S. Constitution's guarantee of equal protection under the law. An announcement could be made as soon as Friday after the justices meet as part of their customary private deliberations over which new cases to hear.

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Courts in general

Ind. Courts - More on: Gov. Pence appoints 3rd District citizen member of Judicial Nominating/Disciplinary Commission

Updating this post from yesterday, announcing that Gov. Pence was appointing Rudy Yakym III to the Indiana Judicial Nominating Commission, replacing Jean Northernor whose term has expired, this makes the 6 member Commission all male, except for the chair, who by law is the Chief Justice, currently Loretta Rush (who was appointed to the Court by Gov. Daniels).

During his time in office, Gov. Daniels' citizen appointments to the Commission included two women. During one period, two of the three citizen members were women. So far, Gov. Pence has appointed three men.

This post from July 26, 2010 gives a good deal of background about the Commission.

The Commission is chaired by the Chief Justice. Three "non-attorney citizen" members are appointed by the governor for three-year terms. Three attorney members are elected by the attorneys of the state. NO woman has ever been elected by her peers as an attorney member.

Posted by Marcia Oddi on Thursday, January 08, 2015
Posted to Indiana Courts

Wednesday, January 07, 2015

Ind. Decisions - 7th Circuit decides one Indiana case today, reversing decision of SSA and District Court

In Daniel Minnick v. Carolyn Colvin (ND Ind., Van Bokkelen), an 18-page opinion, Judge Bauer writes:

Plaintiff-Appellant, Daniel P. Minnick (“Minnick”), suffers from a number of serious medical problems, including fibromyalgia, chronic obstructive pulmonary disease (“COPD”), and degenerative disc disease. In 2010, he applied for disability insurance benefits under the Social Security Act. After the Disability Determination Bureau (“DDB”) denied Minnick’s claim in December 2010, Minnick requested an administrative hearing before an Administrative Law Judge (“ALJ”). The ALJ determined that Minnick is not disabled within the meaning of the Social Security Act. The Appeals Council denied Minnick’s request for review, rendering the ALJ’s decision final. 20 C.F.R. § 404.981. Minnick then sought review in the district court, which affirmed the ALJ’s decision on September 27, 2013. We conclude that the ALJ made a number of errors in her consideration of the record and therefore reverse and remand Minnick’s case for further proceedings. * * *

Our task is to determine whether substantial evidence supports the ALJ’s conclusion. We believe that it does not. For the reasons discussed above, we REVERSE the judgment of the district court upholding the Acting Commissioner’s decision to deny benefits to Minnick and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Wednesday, January 07, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - ACLU: "VICTORY! Judge Enters Final Ruling for PPINK Health Center in Lafayette"

Supplementing this ILB post from earlier today with AG Zoeller's reaction, here is the just-received ACLU of Indiana news release, reacting to the same actions by U.S. District Judge Jane Magnus-Stinson:

Indianapolis -After more than a year in which the fate of a Lafayette, Ind. health center was in potential jeopardy, a federal judge today put to rest the question of whether the state of Indiana can constitutionally implement a law that regulates a clinic offering non-surgical abortion more strictly than physicians' offices providing the exact same procedure.

U.S. District Judge Jane Magnus-Stinson entered a permanent injunction and final judgment in favor of the American Civil Liberties Union of Indiana's case on behalf of Planned Parenthood of Indiana and Kentucky, saying the state law passed by the Indiana General Assembly in 2013-Indiana Code §16-18-2-1.5(a)(2) and §16-21-2-2.5(b)-is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment.

"We are pleased that Judge Magnus-Stinson has entered a final judgment in this case," said ACLU of Indiana Legal Director Ken Falk. "We hope this is the end of legislative efforts to unconstitutionally regulate abortions and abortion providers."

"We're happy that this case is resolved, and that we can continue providing services in Lafayette uninterrupted, just as we have done for nearly 50 years," said Betty Cockrum, president and CEO of Planned Parenthood of Indiana and Kentucky. "Non-surgical abortion is a safe, highly regulated procedure, and laws such as this do nothing to protect a woman's health and safety. We're grateful to our partners at ACLU of Indiana for so ably demonstrating that this law was unconstitutional."

"We are pleased that this final ruling will allow our client to continue providing the excellent care that their patients seek in Indiana," said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project.

The ruling in Planned Parenthood of Indiana and Kentucky, Inc., v. Commissioner, Indiana State Department of Health, et al
. 1:13-cv-01335-JMS-MJD, was issued on Jan.7, 2015 in the U.S. District Court, Southern District of Indiana, Indianapolis Division.

Posted by Marcia Oddi on Wednesday, January 07, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - Gov. Pence appoints 3rd District citizen member of Judicial Nominating/Disciplinary Commission

From the Governor's press release:

Indianapolis – Governor Mike Pence today named Rudy Yakym III to the Indiana Judicial Nominating Commission.

Yakym, of Granger, will represent the Third District on the Indiana Judicial Nominating Commission, replacing Jean Northernor whose term has expired.

The Governor appoints three out of the seven members of the Commission, which recruits and interviews applicants to fill vacancies on the appellate courts and submits candidates to the Governor for appointment.

Currently, Yakym works as Senior Vice President for Bradley Company. Yakym, who graduated from Indiana University South Bend, sits on the university’s Alumni Board of Directors. He will serve a three-year term through December 31, 2017.

Posted by Marcia Oddi on Wednesday, January 07, 2015
Posted to Indiana Courts

Ind. Decisions - AG points out that the GA "could revise the challenged statute" re abortion clinics

From a press release issued this afternoon by Attorney General Zoeller [ILB emphasis]:

INDIANAPOLIS – There have been recent legal developments in a lawsuit challenging the 2013 state law that regulated nonsurgical abortion clinics the same as surgical abortion clinics but differently from physicians’ offices.

On December 3, 2014, in U.S. District Court, Judge Jane Magnus-Stinson granted partial summary judgment to the plaintiffs, finding the clinic statute violated the Constitution’s Equal Protection Clause. The judge did not rule on the plaintiffs’ due process claim, however, and did not issue a final judgment. The Court assigned the case to a magistrate judge for further proceedings, and invited the parties to confer as to whether a trial in June 2015 on the due process claim was necessary.

Having conferred, attorneys for the State defendants and the plaintiffs on Tuesday filed a joint motion to make final the U.S. District Court’s December 3 ruling, meaning the Court can proceed with issuing a final injunction. Further litigation in the trial court on the due process claim is unnecessary, and even if successful in the trial court would not result in implementation of the 2013 state law, given the court’s ruling on the equal protection claim; so legally it is appropriate that a final judgment be issued now, not later.

It would not be legally possible to pursue any appeal until and unless a final judgment were entered by the U.S. District Court. Separately, the joint motion today provides options to other branches of government: For example, it leaves open the possibility that the Legislature, if it so decides, could revise the challenged statute that distinguishes between nonsurgical abortion clinics and physicians’ offices in order to address the equal protection issue the Court identified. Any legislative revision would be entirely up to the 2015 Indiana General Assembly.

“Our duty is to defend the policymaking authority of the people’s elected representatives in the Legislature from lawsuits that plaintiffs’ lawyers file seeking to limit that authority. After conferring with our clients, this action was deemed appropriate and my office will continue to keep our state government clients apprised of developments in this unique and complicated case,” Indiana Attorney General Greg Zoeller said.

In the lawsuit, Planned Parenthood of Indiana and Kentucky v. Indiana State Department of Health and Tippecanoe County Prosecutor, the plaintiffs’ lawyers challenged the statute the Legislature passed, Senate Enrolled Act 371 of 2013, now known as Public Law 136-2013, which required certain physical facilities and fixtures in nonsurgical abortion clinics to be consistent with requirements in surgical abortion clinics, but which expressly exempted physicians’ offices. The State in its legal argument had contended the Legislature may constitutionally regulate nonsurgical abortion clinics differently from physicians’ offices.

The result of the December 3 ruling and Tuesday’s joint motion is that the current status quo is unchanged: An earlier injunction the U.S. District Court issued in November 2013 remains in effect, the plaintiff has not been required to make any physical plant changes or renovations to its clinic in Lafayette, Ind.

ILB: Here is the ILB's Dec. 13th post on this ruling, and the Dec. 4th post that includes a link to the order. To implement the option pointed out in today's release, it looks like the GA might either ease the restrictions on clinic(s), or extend them equally to doctors' offices. Or it could do nothing ...

Posted by Marcia Oddi on Wednesday, January 07, 2015
Posted to Ind Fed D.Ct. Decisions

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

For publication opinions today (2):

In In the Matter of the Mental Health Proceedings of B.M. v. Indiana University Health Hospital , an 11-page, 2-1 opinion, Judge Mathias writes:

B.M. appeals the Monroe Circuit Court’s order involuntarily committing him to a mental health facility. Specifically, B.M. argues that Indiana University Health ("the Hospital”) did not present sufficient evidence to support his involuntary commitment. We affirm.

On March 28, 2014, B.M. placed a 911 call from the Ellettsville Library to the police because he was worried that people were obtaining his personal information through a social network. The police transported B.M. to the Hospital where he was examined by an emergency room physician and a social worker. Both the physician and the social worker believed that B.M. was psychotic and paranoid and a potential threat to the safety of others. Therefore, the Hospital filed an application for emergency detention. The trial court authorized B.M.’s emergency detention and he was admitted to the Hospital. * * *

In Indiana, a court may order a temporary commitment of not more than ninety
days for an individual who is mentally ill and either dangerous or gravely disabled. Ind. Code § 12-26-6-1. B.M. argues that the Hospital failed to prove, by clear and convincing evidence, that he is a dangerous individual, and therefore, the trial court’s involuntary commitment order is not supported by sufficient evidence. * * *

No evidence in the record indicates that B.M. has actually harmed anyone, but a
trial court is not required to wait until an individual commits a physical act before determining that the individual poses a substantial risk of harm to others. M.Z. v. Clarian Health Partners, 829 N.E.2d 634, 638 (Ind. Ct. App. 2005), trans. denied (citation omitted). See e.g., In re Commitment of T.K. v. Dep’t of Veterans Affairs, 993 N.E.2d 245, 250 (Ind. Ct. App. 2013) (concluding that evidence of threats and hostility towards hospital staff and T.K.’s denial that he suffers from mental illness established that T.K. was a danger to others). For all of these reasons, we conclude that the trial court’s finding that B.M. is a danger to others is supported by sufficient evidence. We therefore affirm the trial court’s order of commitment.

CRONE, J., concurs.
RILEY, J., dissents with opinion. [which begins on p.9, and which concludes] Even though B.M. is irritable and hostile, a commitment cannot be based solely on his display of idiosyncratic behavior, albeit maybe unusual and even undesirable, without any display of danger to himself or others. As no clear and convincing evidence confirms that B.M.’s displayed aggression derived from his delusions, I cannot conclude that B.M. is dangerous within the perimeters of the involuntary commitment statute. Because “[t]here is no constitutional basis for confining a mentally ill person who is not dangerous[,]” I would reverse the trial court’s order of involuntary commitment. See Commitment of J.B., 581 N.E.2d at 451.

In In the Matter of: L.C. (Minor Child), Child in Need of Services and S.C. (Father) v. The Indiana Department of Child Services , a 17-page, 2-1 opinion, Judge Mathias writes:
L.C. was adjudicated a Child In Need of Services (“CHINS”) by the Marion Superior Court. L.C.’s father, S.C. (“Father”), appeals. Father presents two issues in his appeal, but we address a single dispositive issue, namely, whether Father’s due process rights were violated when the juvenile court adjudicated L.C. a CHINS before the conclusion of the fact-finding hearing. * * *

Father claims that the juvenile court violated his due process rights by depriving him of “a meaningful CHINS hearing.” * * *

In this case, the procedure employed by the juvenile court with respect to Father’s fact-finding hearing has been expressly rejected by the Indiana Supreme Court. * * *

While S.S. is helpful in its explanation of the inherent conflicts caused by the CHINS statute, our supreme court’s analysis in In re K.D. controls the facts and circumstances here. * * *

Because Father challenged the allegations in the CHINS petition, due process requires the completion of a fact-finding hearing, including the presentation of evidence and argument by both parents, if present in person or by counsel, before L.C. is adjudicated a CHINS.

Conclusion. For all of these reasons, we conclude that the juvenile court erred by adjudicating L.C. a CHINS before the completion of the fact-finding hearing. We therefore reverse the juvenile court’s adjudication and remand this cause for a new fact-finding hearing. Reversed and remanded with instructions.

NAJAM, J., concurs.
BRADFORD, J., dissents with opinion. [ which begins at p. 10] I believe that Father received all the process that was due to him. Despite the
timing of various occurrences in this case, Father has failed to establish that he was denied a meaningful opportunity to be heard. Consequently, I must respectfully dissent. Because I cannot join the majority’s procedural disposition of this case, I would reach the questions of whether the juvenile court’s findings supported its conclusion and whether the juvenile court’s disposition was appropriate. On those questions, I would affirm the judgment of the juvenile court.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Mishael Johnson v. State of Indiana (NFP)

Michael Hall v. State of Indiana (NFP)

Lumaz L. Thompson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 07, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Appellate jurists could serve till 80 under proposed bill [Updated]

Updating this post from Jan. 5th, the ILB just watched the video of the Senate Judiciary Committee's vote on SB 12, authored by Senator Buck, which would raise the age for retirement for Indiana appellate jurists from 75 to 80. Buck said the only change from his same bill last year was that last year there was no age limit.

The sound was bad. There was no public testimony. One senator, who I could not identify, commented that raising the the retirement age lessened the opportunity for younger attorneys to fill the seats. I could not hear the vote, but the bill moved to the floor in less than two minutes.

[Updated at 10:29 AM]
Via Twitter:

Randy Head ‏@Randy_Head 2m2 minutes ago
@indianalawblog The vote was 5-4. I spoke against the bill on the grounds you mentioned. I will try to address the sound issue.

Posted by Marcia Oddi on Wednesday, January 07, 2015
Posted to Indiana Government

Ind. Gov't. - "State Board of Tax Review denies property tax exemption to Portage Chamber"

Bob Kasarda of the NWI Times reported yesterday on an always contentious issue:

VALPARAISO | The Greater Portage Chamber of Commerce has failed to convince the state to overrule a local board and grant the group tax-exempt status for its downtown office building.

The Indiana Board of Tax Review said the chamber did not meet its obligation of showing that more than half of the building and/or its operations are dedicated to charitable purposes.

"The predominant use of the property is the Chamber's work in promoting its members and economic development," according to the decision issued Friday.

The outcome of the appeal could have an impact on the Greater Valparaiso Chamber of Commerce, which has a tax exemption on its building. * * *

The Greater Portage Chamber of Commerce did not have an immediate reaction Tuesday, but Executive Director Terry Hufford argued in July during a local hearing before the tax board that, while the chamber does not directly contribute money to charitable causes and focuses primarily on chamber-related business, its contribution to the community qualifies under the law for the exemption.

In addition to promoting the community and encouraging economic development, the chamber solicits donations for and uses its resources to aid several charitable efforts including the Gabriel's Horn Homeless Shelter, a local food pantry and a student-in-need lunch program, he said.

Attorney Christopher Buckley, who represents the Porter County assessor's office, lauded the chamber's efforts during the same hearing, but said they do not qualify for a tax exemption under the law.

Both he and chamber attorney Gregg Sobkowski agreed there are no prior cases dealing with the question of whether chambers of commerce are entitled to tax exemptions.

"The chamber has indicated a number of worthwhile and philanthropic endeavors in which it participates, but those activities are only relevant if they form the predominate use of the property," according to the state decision. "When asked to estimate what proportion of resources were allocated between charitable and Chamber purposes, Mr. Hufford affirmed that it was definitely more than half that went to Chamber purposes." * * *

"When the exempt activities are 'merely incidental' to the main purpose of the organization, and the organization 'primarily serves the private interests of an organization's members,' a public subsidy is not warranted," according to the tax board.

ILB: The decision is not yet available on the IBTR website; when it is, it will be located here.

Posted by Marcia Oddi on Wednesday, January 07, 2015
Posted to Indiana Government

Tuesday, January 06, 2015

Indiana Courts - Marion County Courts opening late tomorrow - Wednesday, Jan. 7 [Updated]

ILB has obtained this message:

Good afternoon! By order of the Circuit Court Judge, Judge Lynch, due to extreme temperature conditions, the Marion County Circuit and Superior Courts will operate on a delay tomorrow, Wednesday, January 7, 2015, opening at 12 noon.

The media will be notified, and the court phone line of 317-327-2800 will be updated to reflect this change of operation hours.

Please let me know if you have questions. Thank you!

Paige Bova Kervan, SPHR
Director of Human Resources, Marion Superior Court
200 E. Washington Street, T1221
Indianapolis, IN 46204

ILB: Also: Trash pickup in Indy moved forward one day, no pickup tomorrow.

[Updated]
Marion county Clerk's Office will open at 10 AM tomorrow, Wed.

Posted by Marcia Oddi on Tuesday, January 06, 2015
Posted to Indiana Courts

Ind. Decisions - Supreme Court decides one today, re authority of Civil Rights Commission

In Fishers Adolescent Catholic Enrichment Society, Inc. v. Elizabeth Bridgewater o/b/o Alyssa Bridgewater, an 11-page, 4-1 opinion, Justice Dickson writes:

The authority of the Indiana Civil Rights Commission is limited to that delegated by statute. Here, in responding to allegations of discrimination arising from an inter-group squabble over the type of meal to be served to a group member's allergic child, the Commission exceeded its authority because the alleged discriminatory practice did not relate to education, a statutory prerequisite for the Commission's exercise of authority. * * *

In this case, the Commission considered the merits of Mrs. Bridgewater's disability discrimination claim but dismissed this claim after determining that FACES "met its burden of making a reasonable accommodation . . . by agreeing to allow food to be brought from home." Conclusion of Law No. 8, Appellant's App'x at 521. As to the retaliation discrimination claim, the Commission found that FACES committed an unlawful discriminatory practice and ordered remedial sanctions. The Commission's consideration of the merits of either discrimination claim was clearly erroneous because both claims fell outside the Commission's statutory authority and 7 thus should have been dismissed outright. See Ind. Code § 4-21.5-5-14(d); Regester v. Ind. State Bd. of Nursing, 703 N.E.2d 147, 151 (Ind. 1998) (stating that a reviewing court may vacate an administrative board's decision when "the conclusions reached by the board are clearly erroneous").

Conclusion. The Commission lacked authority to take any action other than the dismissal of these claims arising from an intra-group squabble over the type of meal to be served to a member family's child at an "All Souls' Day Masquerade Ball" dinner-dance social event—an incident not related to education and thus not within the Commission's prerequisite statutory authority. We vacate the Commission's final order and remand this cause with instructions to grant the motion to dismiss filed by FACES as to both claims.

Rush, C.J., and David and Massa, JJ., concur.

Rucker, J., dissents in part with separate opinion. [which begins, at p. 8] I agree with the majority that the Bridgewater disability discrimination claim fails because the alleged discriminatory practice—excluding one of the Bridgewater children from a meal at the Masquerade Ball due to her disability—did not “relat[e] . . . to education” within the meaning of Indiana’s Civil Rights Act. Ind. Code § 22-9-1-3(l). However, I disagree that the Bridgewater retaliation claim is somehow derivative of and thus depends upon the disposition of the discrimination claim. Therefore on this issue I respectfully dissent. * * *

Essentially, retaliation under the Act is a separate act of discrimination regardless of the outcome on the merits of the underlying complaint. Thus even though FACES prevailed on Bridgewater’s disability discrimination claim, it was nonetheless subject to the Bridgewater retaliation discrimination claim. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 180-81 (2005) (recognizing that the objective of preventing discriminatory practices “would be difficult, if not impossible, to achieve if persons who complain about . . . discrimination did not have effective protection against retaliation. . . . Without protection from retaliation, individuals who witness discrimination would likely not report it . . . and the underlying discrimination would go unremedied” (internal quotation omitted)).

Today the majority rewrites Indiana’s Civil Rights Act, places an untenable burden on the Commission, and along the way ignores without explanation relevant federal precedent. I therefore cannot join its opinion. Instead I would affirm in part the Commission’s decision.

Posted by Marcia Oddi on Tuesday, January 06, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - 7th Circuit decided one Indiana case Jan. 5th

In USA v. Tommy Webster (ND Ind., Miller), a 14-page opinion, Judge Rovner writes:

On May 9, 2012, Tommy Lee Webster, Jr. was charged in a superseding indictment with five counts, including: possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c); manufacture of marijuana, in violation of 21 U.S.C. § 841(a)(1); possession with intent to deliver cocaine base, in violation of 21 U.S.C. § 841(A)(1); and possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). A jury convicted him on all counts, and he was sentenced to 168 months’ imprisonment followed by three years of supervised release. Webster now appeals that conviction. * * *

AFFIRMED.

Posted by Marcia Oddi on Tuesday, January 06, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (2):

Joseph C. Lehman v. Firstsource Advantage, LLC (NFP)

Danny's Sports Bar Chicago Style Pizza v. Todd Schuman (NFP)

NFP criminal opinions today (1):

Jennifer Suits v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 06, 2015
Posted to Ind. App.Ct. Decisions

Law - Some experts "predict that online privacy will be a luxury by 2025."

The Pew Research Center has a new 79-page report, released Dec. 18, 2014, titled "Digital Life in 2025: The Future of Privacy." Here is the overview.

Chandra Johnson, of the Deseret News National Edition, reports in a story headed "Experts say privacy soon to be a 'luxury'".

Posted by Marcia Oddi on Tuesday, January 06, 2015
Posted to General Law Related

Ind. Gov't. - "Students cover more of their public university tuition now than state governments"

That is the headline to a story today in the Washington Post, reported by Danielle Douglas-Gabriel. It begins:

Students are paying a bigger chunk of the bill just as more of them are going to public colleges. The number of students enrolled in public colleges rose by 20 percent from the 2002-2003 school year to 2011-2012, according to the report. Meanwhile, median state funding per student fell 24 percent, from $6,211 in fiscal year 2003 to $4,695 in fiscal year 2012.

Although states began reducing their contributions to higher education costs a decade ago, the GAO said the collapse of the financial markets in 2008 caused a precipitous decline. State budgets were rocked by the recession and legislatures responded by slashing higher education funding by 23 percent per student, according to the Center on Budget and Policy Priorities, a think tank.

Left in the lurch, universities raised tuition to make up for the funding shortfall. As a result, the sticker price at public colleges has increased an average 28 percent above the rate of inflation since the 2007-2008 school year, according to the budget think tank. The trouble is that federal grant aid and other free money has not kept pace with the cost of going to school.

The story is based on a new, 45-page United States Government Accountability Office report, titled "State Funding Trends and Policies on Affordability."

Posted by Marcia Oddi on Tuesday, January 06, 2015
Posted to Indiana Government

Ind. Gov't. - "Ohio same-sex couples marrying in Wayne County"

Louise Ronald had this story in yesterday's Richmond Palladium-Item; it has now been picked up by other papers. Some quotes from the long story:

More than half the same-sex couples who were issued marriage licenses in Wayne County in 2014 were from Ohio.

An examination of records from Oct. 7 — when the U.S. Supreme Court declined to consider an appeal of a ruling by the U.S. District Court for the Southern District of Indiana requiring the state to license and recognize same-sex marriages — through Dec. 31 showed a total of 37 same-sex couples applying for licenses from the Wayne County Clerk’s Office. * * *

59.4 percent of the same-sex marriage licenses went to couples in which both partners reside in Ohio. Only 29.7 percent went to couples from Indiana. * * *

Clerk Debra Berry isn’t surprised.

“Ohio doesn’t allow them to have same-sex marriages, so of course they would come to Indiana,” she said.

Berry has been a bit surprised, however, to see how far some of the couples have traveled to get their licenses.

Many come from the greater Dayton area or points north such as Sidney, Xenia and West Milton. But some are from Columbus and points east.

“I was kind of surprised that we had a couple from Columbus,” Berry said.

In conversations with other clerks, Berry said she has heard similar reports from other border counties — both along the Ohio line and the Kentucky line.

ILB: Although Indiana law requires at least one member of a couple applying for a marriage license to reside in the county, the same requirement does not apply if neither individual is a resident of Indiana:
IC 31-11-4-3. County of residence or solemnization; place to obtain license
Sec. 3. Individuals who intend to marry must obtain a marriage license from the clerk of the circuit court of the county of residence of either of the individuals. If neither of the individuals who intends to marry is a resident of Indiana, the individuals must obtain the marriage license from the clerk of the circuit court of the county in which the marriage is to be solemnized.
As added by P.L.1-1997, SEC.3.

Posted by Marcia Oddi on Tuesday, January 06, 2015
Posted to Indiana Government

Monday, January 05, 2015

Ind. Courts - Still more on "Convenience Stores Pursue Legal Action to be able to Sell Cold Beer"

Updating this ILB post from June 16, 2014, which links to Chief Judge Richard L. Young's ruling denying the Indiana Petroleum Markets and Convenience Store Association their request for a preliminary injunction of IC 7.1-5-10-11, which prohibits the sale of cold beer by the holder of a beer dealer permit, and granting the State's motion for summary judgment, the 7th Circuit will hear oral argument in the appeal on Wed., Jan. 7th: (14-2559) Indiana Petroleum v. Johnson. You will be able to listen to the MP3 later in the day via this page.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - "Darren Vann's mental health an issue in hearings"

Elvia Malagon had a long story in the Jan. 3rd NWI Times on Darren Vann's mental health and potential death penalty changes. Vann allegedly has confessed to multiple killings. Some quotes:

[E]ven if records show Vann has a history of mental illness, the state can still seek the death penalty, said Andrea Lyon, dean of Valparaiso University Law School.

Indiana law states a defendant with mental retardation can be exempt from the death penalty. Lyon said mental illness, though, is legally different from mental retardation as defined in the statute.

Lyon said the defense could argue Vann isn't fit for trial or claim insanity. However, Lyon said it's difficult to prove a defendant is insane and not fit for trial. She said the bar is low to determine if someone is fit for trial.

During Vann's last court hearing, he waived his right to be present during future court hearings unless he is required to attend.

"I'll probably leave it in my attorneys' hands most of the times," Vann said in court.

If Vann is found competent and convicted, information about his mental health could be presented during the second phase of a trial, Lyon said. The second phase is where jurors hear evidence about why the death penalty should be sought as punishment.

Joel Schumm, a law professor at Indiana University Robert H. McKinney School of Law in Indianapolis, said defense attorneys can present information about a defendant's childhood, mental illness or military service as mitigating evidence for why a defendant should not receive the death penalty.

Even if a defendant is found to have mental health problems, the jury and court can decide aggravating factors in the case outweigh evidence about mental illness.

That was the case for Joseph E. Corcoran, 39, who is one of Indiana's 14 death row inmates. According to court records, experts determined Corcoran had a personality disorder. He was convicted of killing four people July 26, 1997, in Allen County.

The Indiana Supreme Court upheld his conviction in 2002, though Corcoran is still appealing his sentence. Justice Robert Rucker, a Gary native, wrote a dissenting opinion stating the rationale for excluding executions of mentally retarded defendants is as compelling as reasons for why seriously mentally ill defendants should be excluded from capital punishment.

"As a society, we have always treated those with mental illness differently from those without," Rucker stated. "In the interest of human dignity, we must continue to do so ... I believe that executing a convict with a severe mental illness is a cruel and unusual punishment."

If Vann is convicted and given the death penalty, Hoffmann said any issues surrounding mental illness could again arise by defense attorneys arguing against a defendant's competency for execution.

Hoffmann said the federal standard calls for a death row inmate to understand not only what is being done but also why he or she is receiving the death penalty. He said the legal community has recently debated what exactly the standard means.

"Is it enough if he understands the words or does he have to appreciate it," Hoffmann said. "There has not been much clarity from the Supreme Court [of the United States] about how to apply that standard."

The uncertainty surrounding the standard is one reason why an execution was recently put on hold in Texas, Hoffmann said.

Joseph Hoffmann, the Harry Pratter Professor of Law at Indiana University Maurer Law School, said it's unusual for a defendant to choose not to be present during hearings. He said Vann's absence can later be argued as a reason for why Vann is not competent to stand trial.

"It's sort of an indication that there was something wrong," Hoffmann said.

Cases such as Vann's are difficult for presiding judges, he said.

"How do you give that person a fair trial while also respecting his rights? That's a challenge."

Hoffmann said the legal standard for competency boils down to if a defendant understands what is going on in the courtroom and if he or she can provide information to the defense attorney.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Indiana Courts

Ind. Law - Future appellate jurists could serve till 80 under proposed bill

SB 12, Judicial Retirement Age, is scheduled to be heard in the Senate Judiciary Committee on Wed., Jan. 7 at 10AM, R. 130.

The bill simply changes the current retirement age of 75 to 80.

However, as pointed out in the ILB post from Jan. 9, 2013, the Ind. Const., Art. 7, Sec. 11 reads in part:

Sec. 11. * * * Every such justice and judge shall retire at the age specified by statute in effect at the commencement of his current term.
So no one on either the current Supreme or Appellate Court would benefit from the change, until after he (or she, although the Constitution does not take "her" into account) had been retained in a retention election occurring after the new law went into effect.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Indiana Courts

Ind. Decisions - Supreme Court schedules oral argument in "Elkhart 4" appeal

Yes, if that heading looks familiar, you also saw in on the Dec. 9th ILB post, quoting a story from the Elkhart Truth that the argument had been tentatively scheduled.

Because of scheduling conflicts with at least one of the attorneys, the argument has now been officially scheduled for THURSDAY, FEBRUARY 26, 2015 AT 10:30 AM. See the docket entry here. Several items in the first paragraph are of interest. (The boldface is in the original):

The Court has determined that the above-captioned cases warrant a consolidated oral argument, but the appeals are not consolidated for any other purpose. The Court informs the parties that it is particularly interested in argument on issues relating to application of Indiana Code section 35-42-1-1, the felony murder statute, to this case. The argument will be conducted in the Courtroom of the Indiana Supreme Court, 317 Statehouse, 200 West Washington Street, Indianapolis, Indiana. The argument will be sixty (60) minutes in length, equally divided between appellant(s) and the appellee(s). If there are multiple appellants or appellees, the parties shall divide the time among themselves as they deem appropriate. Any entity granted amicus curiae status may argue without further motion, but only with the consent of the party or parties with whom the amicus is substantively aligned. Additional time will not be added for multiple parties or for the participation of amici.
As anticipated in the earlier ILB post (which also links to the briefs), the Supreme Court has scheduled oral argument without granting transfer, which means that the Court of Appeals opinion(s) have not been vacated.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Indiana Decisions

Environment - "Drainage big concern in I-69 construction"

Fascinating story today in the $$ Bloomington Herald Times, reported by Michael Reschke. A few quotes:

With more than 100 karst features between the right of ways along Section 4 of Interstate 69, drainage is a big concern.

The Indiana Department of Transportation doesn't want runoff from the construction site — and the highway, once it's built — to enter into subterranean waterways, but it doesn't want to totally destroy them either, said Chriss Jobe, construction area engineer for the Department of Transportation. To accomplish this, construction crews must build drainage systems for the surface water and special treatment for the karst features along the route.

Karst, by definition, is an irregular limestone region with sinkholes, underground streams and caverns. Water forms those features by eroding the rock over thousands of years. In southern Monroe County, the limestone is very close to the surface, so it doesn't take much excavating to reach one of those features. * * *

Each treatment is specific to the size and location of the feature, but the basic concept is the same. The first step is often excavation. Some sediment may have naturally migrated into the feature over time, or the previous property owner may have dumped waste into it, Jobe said.

Once the feature is cleared of sediment and debris, aggregate material, like limestone rocks, are placed in the feature. The intent is to fill the void, but still allow water to pass through.

"We want to maintain hydraulic conductivity," Jobe said. "We don't want to negatively impact the hydraulics of the drainage."

Next, a heavy plastic or geomembrane lining might be placed on top. That might then be capped off with concrete.

"We don't want surface water flowing into the sub-surface feature," Jobe said.

Sealing the kartst features from above is just one step in that process. The other step is to control the water that will eventually run off the smooth surface of the highway.

Most of Section 4 will have ditches on either side of the highway for drainage. Along those ditches will be 120 permanent detention basins and 50 permanent spill containment basins.

Both detention and containment basins are designed to slow the velocity of water flowing down the roadside ditches. They're essentially small ponds where water will pool up before spilling over at a specific point. That's all detention basins are designed to do, but containment basins go a step further.

Placed near environmentally sensitive areas, containment basins have a filter made from sand wrapped in geotextile, which is like a heavy cloth, Jobe said. Limestone aggregate is then placed around the sand.

"It's designed so if there's a spill, it will hold or filter any spill from entering a natural body of water," Jobe said.

In addition to the ditches and basins, there are pipes and box culverts that allow streams and creeks to continue as they normally would. They're also designed to mimic the natural creek beds.

"They're sumped below ground level, so over time, the natural substrate will fill the bottom so the wildlife is not impacted by the concrete," Jobe said.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Environment

Ind. Courts - No updates yet today [Updated]

For those looking for new opinions or orders, transfer lists, etc., as of this moment all of the Indiana Courts' website still says Wednesday, December, 31, 2014.

[Updated at 1:19 PM]

Indiana Courts ‏@incourts 1m1 minute ago There were no transfer dispositions for week ending January 2, 2015.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Indiana Courts | Indiana Transfer Lists

Ind. Decisions - "Should teachers qualify for OT for, for example, grading tests after hours?"

Oral argument before the Court of Appeals in the case of Ind. Education Employment Relations Bd. v. Nettle Creek Classroom Teachers Assn is set for this Thursday afternoon.

The newest issue of the $$ weekly newsletter, Indiana Education Insight, has a good preview of the case, which it writes is the:

... first teacher collective bargaining dispute to reach the appellate level since the General Assembly enacted sweeping changes to the collective bargaining law in 2011.

The major issue in this highly anticipated case is whether teachers who work additional hours beyond the expected work day - performing essential duties such as grading papers and preparing lesson plans - are entitled to receive overtime pay.

Later in the long article:
The appellate court will have to figure out how to harmoniously reconcile the two interrelated laws that are at the heart of this case. One limits collective bargaining to teacher salary, wages, and wage-related benefits; the other requires a regular teacher's contract to contain the required hours per day expected to be worked by teachers.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Upcoming Oral Arguments

Law - "Businesses are watching online reviews and, increasingly, striking back with retraction demands — even lawsuits"

Tim Evans, the Indianapolis Star's consumer advocate, posted this long, interesting story Nov. 15th. Some quotes:

An off-the-cuff statement to a friend in a coffee shop isn't likely to get you in trouble, but the same statement posted online is going to be seen by a lot more people — and attract a lot more attention, explained James P. Nehf, a law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

"The Internet and social media offer anyone the ability to communicate with a wide audience almost immediately with a few taps on a keyboard or touch screen," he said.

"That means you can promote a business, person or a cause a lot more effectively than before, but you can also denigrate a person, business or cause just as effectively."

That new reality helps explain why businesses are responding to bad reviews with increasing vigor. The best advice to avoid hassles or a lawsuit, Nehf said, is to think twice before hitting the send button.

"Give honest opinions and try not to make assertions of fact unless you have a good basis for believing it is true," he suggested. "This can take a little thought. You're better off saying, 'to me, the rice pilaf had a very unpleasant taste,' instead of, 'the rice pilaf was rancid.'"

Websites that host reviews and gripes are generally immune from lawsuits under the federal Communications Decency Act of 1996, which Nehf said was implemented in an effort to foster community forums.

There also are laws in Indiana and about 30 other states that help defend critics from lawsuits aimed at silencing them, but they don't offer the same blanket immunity enjoyed by the Web hosts. The anti-SLAPP — it stands for Strategic Lawsuits Against Public Participation — laws have been used to protect against defamation lawsuits spurred by negative reviews.

"The laws typically allow the defendant to file a motion to dismiss the defamation case on the grounds that the communication was protected under the anti-SLAPP statute," Nehf said. "A court is supposed to rule on the motion quickly so the defendant does not have to incur a lot of litigation costs."

Nehf said the law "is not a license to be vindictive or to make up falsehoods" and post them on a website. It does, however, protect people who express an honest judgment, he said, "if they have a reasonable basis for taking a particular view, even if their view is not totally accurate or can be disputed."

A related concern, Nehf said, is when a website includes a "non-disparagement" clause in its contracts — typically tucked deep in the fine print that none of us read before clicking the "accept" or "agree" button when making a purchase.

"You click 'I agree' ... and later post a negative review on some consumer review website because you got ripped off. The seller hears about it, contacts you and demands $3,500 for breaching a contract provision in which you 'agreed' not to disparage the business in any way, and if you did, you 'agreed' to pay $3,500 in damages," Nehf explained.

That's what happened in the Utah case I mentioned earlier.

Generally speaking, Nehf said, provisions in consumer "clickwrap" agreements online are enforceable just like any other contract, but not if they result in unfair surprise and are unreasonable. Nehf said online "non-disparagement" clauses have been challenged as unfair and unconscionable in a few cases, but courts have not agreed on their legality.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to General Law Related

Ind. Gov't. - "Online access to historic newspapers is growing"

Margaret Fosmoe of the South Bend Tribune has this long article reporting:

For history buffs, it’s getting easier to access historic Indiana newspapers to learn about the state and Michiana region’s past.

That’s because of Hoosier State Chronicles, a website operated by the Indiana State Library that provides free, searchable access to more than 30 historic Indiana newspapers. The papers cover more than 80 years of news, with publication dates ranging from 1840 to 1922.

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Indiana Government

Ind. Gov't. - Some stories and editorials on 2015 legislative issues

A number of good stories and editorials from this weekend about the upcoming legislative session have been collected by the Indiana Economic Digest:

Posted by Marcia Oddi on Monday, January 05, 2015
Posted to Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Next week's oral arguments before the Supreme Court (week of 1/12/15):

Webcasts of Supreme Court oral arguments are available here.


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

Thursday, January 8

Next week's oral arguments before the Court of Appeals (week of 1/12/15):

Monday, January 12

Thursday, January 15 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, January 05, 2015
Posted to Upcoming Oral Arguments

Friday, January 02, 2015

Ind. Law - Bill to abolish use of grand juries by county prosecutors back again this session

Kristine Guerra and Jill Disis today have a long story in the Indianapolis Star on grand juries. A few quotes:

With a few exceptions, federal charges have to be filed by way of grand jury indictments. The jurors look at the facts of the case, question the witnesses and determine if a person more than likely committed a crime. If an indictment is reached, the case goes to trial like any other criminal case.

Practices vary among about half of the states that use grand juries. As many as 23 people sit on the grand jury in New York, Colorado, Georgia, Maryland and Massachusetts. That number can be as few as three in Connecticut and two in Wyoming. In Indiana, six people sit on the jury.

In Marion County, the use of grand juries is rare. The agency averages about four grand jury indictments out of about 40,000 criminal cases filed annually in the past five years.

The Marion County cases typically involve issues of self-defense, such as Schlenkert's case, police-action shootings and public corruption. The cases involve witnesses with conflicting versions of what happened and long-term investigations with multiple people involved, Marion County Prosecutor Terry Curry said.

"It's usually just some sort of unique circumstances that justify using the grand jury," Curry said. "In those situations, we think it's appropriate to essentially set the circumstances out in front of citizens like you would a (trial) jury and let them know what the applicable law is, and they can make a determination." * * *

Curry dismisses any notions that prosecutors wield too much sway over the process. Intentionally presenting incomplete evidence to stir a jury toward an indictment is fruitless, he said, and would result in a case that's impossible to prosecute.

"Every single criminal case, from both the prosecution and defense perspective, has both 'good facts' and 'bad facts,'" Curry said. "It would make no sense to ignore or conceal bad facts in the grand jury phase when you know it will be necessary to ultimately address those same facts in a resulting prosecution." * * *

Indiana Sen. Mike Delph underscores [his] concern with grand juries: the power of prosecutors. The Carmel Republican has introduced bills to abolish the use of grand juries in Indiana. Delph said he plans to introduce legislation again this year.

"If you're a target or a witness or someone that's contributing to the decision-making process of the grand jury, you have very little rights," Delph said. "The person in charge of the grand jury room has complete and absolute control over you."

Delph believes the system is a useless layer of government meant to shield prosecutors from having to make politically controversial decisions.

"I think the grand jury system is more about protecting the prosecutor than anything," he said. "Prosecutors should not be allowed to hide behind the secrecy of the grand jury process."

The ILB recalls this post from Feb. 4, 2013, nearly two years ago, headed "Little-understood grand jury system under debate," quoting from a very long story by Virginia Black in the South Bend Tribune. I've checked and that earlier story remains freely available here.

Posted by Marcia Oddi on Friday, January 02, 2015
Posted to Indiana Law

Ind. Gov't. - "Can the Tax Assessor Waltz into Your Home or Business?"

That is the heading of this Dec. 30th article by Donald Morgan of Faegre Baker Daniels, writing in JDSupra. Some quotes:

Without consent, a warrant, or certain exigent circumstances coupled with probable cause, the state cannot enter your home to ensure compliance with public health and safety requirements (for instance, a housing or fire code), Camara v. Mun. Court of the City and Cnty. of San Francisco, 387 U.S. 523, 534 (1967), or even to investigate a murder, Moore v. State, 827 N.E.2d 631, 638-39 (Ind. Ct. App. 2005). Yet, for property tax purposes, can section 6-1.1-4-15(b) permit assessors to waltz right in as long as they first announce their intention? [ILB: Incidentally, the short article uses "waltz" three times.]
The ILB recalls the question with respect to local health/environmental inspectors.

Posted by Marcia Oddi on Friday, January 02, 2015
Posted to Indiana Government

Ind. Gov't. - "Fight over banned Americus quarry back on"

Dave Bangert had the update in the Lafayette J&C on Dec. 23rd. A quote:

Rogers Group Inc. completed its land use request for property at 8032 Old Indiana 25 N. that has been on file with the Tippecanoe County Board of Zoning Appeals since July, said Andy Williams, Rogers Group vice president.

The move set up a potential showdown between the Rogers Group, Americus-area neighbors who have been fighting the proposed quarry for more than a year and county commissioners who crafted a quarry ban specifically to stop the 524-acre plan along the Wabash River.

Here are earlier ILB posts.

Posted by Marcia Oddi on Friday, January 02, 2015
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana case Dec. 31st

In State Farm Life Ins. v. Troy Jonas, et al (SD Ind., Lawrence), a 7-page opinion, Judge Easterbrook concludes:

Several times the Supreme Court has encountered the contention that a dispute about the allocation of costs, attor neys’ fees, or other post-­filing expenses justifies adjudication of a suit that is otherwise not within federal jurisdiction. For example, in Diamond v. Charles, 476 U.S. 54 (1986), an inter venor who had been ordered to pay the prevailing side’s le gal fees contended that this kept the controversy alive, even though the only litigants with standing had dropped out, since if the judgment were reversed on the merits the award of fees would fall with it. The Justices held, however, that awards of legal fees and other post-­filing procedural events could not supply a case or controversy. 476 U.S. at 68–71. The Court followed up by holding that a litigant cannot sidestep the need for a controversy on the merits by bringing suit for the costs of bringing suit. Steel Co. v. Citizens for a Bet ter Environment, 523 U.S. 83, 107 (1998). See also Lewis v. Con tinental Bank Corp., 494 U.S. 472 (1990).

When this litigation began, there was no justiciable con troversy. The current disputes about the rate of interest and whether State Farm must pay the attorneys’ fees that Troy has incurred in this litigation do not retroactively create ju risdiction. Troy must turn to state court in order to seek any further award—though we hope that what we have said in this opinion will enable the parties to settle.

The judgment of the district court is vacated, and the case is remanded with instructions to dismiss for lack of subject matter jurisdiction.

Posted by Marcia Oddi on Friday, January 02, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Court: U.S. Steel not to blame for drowsy driver crash"

Dan Carden of the NWI Times reports today on the Court of Appeals decision Wed. in the case of Rodriguez v. U.S. Steel (ILB summary here, 2nd case). Some quotes:

Judge Edward Najam Jr., writing for the appellate panel, rejected Rodriguez's claim that U.S. Steel overworked Faught in such a way that the company should be viewed similar to a bar knowingly sending a drunk driver out on the roads.

"Working hours do not necessarily affect a person in the same way that alcohol does. While significant consumption of alcohol, in itself, inevitably leads to impairment, many factors other than long working hours may contribute to fatigue," Najam said. "We cannot say that U.S. Steel either knew or should have known that Faught was fatigued such that he could endanger third-party motorists."

While the court agreed with Rodriguez that such an accident potentially is foreseeable, it found public policy considerations "strongly" weigh against requiring employers check each of their employees for fatigue at the end of the workday.

"It is not clear how an employer could monitor employee fatigue, much less how an employer could determine whether such fatigue was job-related or, for that matter, whether the fatigue is sufficient to intervene and attempt to prevent the employee from leaving the employer’s premises, even if the employer had the authority to do so," Najam said.

Posted by Marcia Oddi on Friday, January 02, 2015
Posted to Ind. App.Ct. Decisions