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Saturday, February 28, 2015

Ind. Gov't. - "Nickeled and dimed, Purdue staff seethes"

That is the title of Dave Bangert's Sunday Lafayette Journal & Courier column. Earlier J&C stories reported:

From Bangert's Sunday column, which is subheaded "Austerity in an age of President Mitch Daniels' tuition freezes challenges traditional assumptions about what a campus job means. Today's case in point: Purdue's proposed paid time-off policy.":
Seething through the standing room only crowd on the ballroom's hardwood floor was a sense that the new paid time-off policy unveiled 10 days ago in the name of austerity and tuition freezes might be the nickel and dime that breaks the camel's back.

Or to put it another way, it's just another microaggression on staff compensation on a campus where the unofficial recruiting motto traditionally has been: The pay might not be the best, but the benefits are great.

As one catcall summed up from the back of the ballroom: "Not anymore."

"I'm really steamed," said Candy Sheagley, who works for Purdue's libraries. "Please, do not take away what we have worked so hard to earn."

Purdue has a situation on its hands. * * *

"The choices we've made have not been made to hurt staff, I promise you, but to help staff," Trent Klingerman, Purdue's interim vice president of human resources, told a restless crowd Friday.

But the more Klingerman attempted to answer questions and promise that tweaks were still possible, the more groans he got from a room fixated on the number 25.

Starting in July, hourly workers would get 25 days each year for any combination of sick time, personal time and vacation. Currently, they get a combined 31 days.

The six days lost were one thing. But the new policy also makes it so unused time off among those 25 days no longer carries over to the next year. Klingerman told the crowd that the average employee used 20 days of paid time off. Do the math, and that's 11 days of time off banked, in most cases. * * *

Daniels has made himself a popular man in many corners of campus and across the nation for vowing to find ways to keep tuition flat and a Purdue education affordable. Students who arrived in West Lafayette since Daniels was announced as Purdue's president in June 2012 haven't experienced a tuition increase.

But part of that growing concern is that Daniels has pitted students and their parents against faculty and staff.

No tuition increase plays well among the student body staring down historic levels of debt. But someone has to cover that cost.

On Friday morning in the South Ballroom, there was little doubt about how that was trickling down to those lowest on the pay scale.

And they ticked off the ways, one by one: small or no pay increases in recent years; a rise in the number of private vendors; the introduction of high-deductible health insurance plans; job consolidations that have left those remaining to pick up more, making it less likely to use all of their annual allotment of vacation time even if they wanted to.

And now a huge shift in paid time off.

Posted by Marcia Oddi on Saturday, February 28, 2015
Posted to Indiana Government

Friday, February 27, 2015

Courts - Get ready for next week's SCOTUS Obamacare argument

Listen to the smart anaylsis by Emily Bazelon, John Dickerson, and David Plotz at this week's Slate's Political Gabfest podcast. It is the first segment, about 14 minutes. There are also a number of links to sources mentioned in the show.

SCOTUSblog's Friday roundup has a number of links to coverage and commentary of the case, King v. Burwell.

Posted by Marcia Oddi on Friday, February 27, 2015
Posted to Courts in general

Ind. Gov't. - Lake, LaPorte Counties plan to buy parts of bankrupt tollroad

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

CROWN POINT | Lake and LaPorte county commissioners have prepared a final bid to buy the bankrupt Indiana Toll Road designed to give Lake at least $5 million a year and a voice in the highway's future operation.

A joint statement by the two counties' officials, released Friday morning, insists taxpayers can only benefit from the deal and won't be at risk if toll road revenues fail to repay what is estimated to be a $4.5 billion loan needed to purchase the 157-mile highway from its previous owners.

The Toll Road's western-most section passes through Hammond, Gary and Lake Station in Lake County; Portage and Chesterton in Porter County; and New Durham and Center Townships in LaPorte County. It continues east to the Indiana-Ohio border.

Porter, St. Joseph and the three other counties crossed by the Toll Road are not part of the proposed partnership.

Lake and LaPorte are proposing to partner with private investors and a professional management team that would undertake daily highway operations.

Lake County Commissioner President Roosevelt Allen, D-Gary, stated both counties have "engaged lawyers, financial advisers, underwriters and other consultants at little or no cost to the counties to help us submit a competitive bid. This is a win-win for our taxpayers if we can succeed."

Posted by Marcia Oddi on Friday, February 27, 2015
Posted to Indiana Government

Ind. Courts - Judicial Center's Legislative Update: 8th weekly installment. And more

Marking the session's midpoint, the February 27th weekly installment of the Legislative Update for the 2015 legislative session is a series of topical charts detailing the status of bills of interest to the judiciary that passed on third reading, available here.

And here, via IndyBar, is a Feb. 27th report on bill status of bills being monitored by the association.

Interestingly, neither list includes SB 523, which makes changes in the Marion County small claims courts, and which passed the Senate on Feb. 26.

Posted by Marcia Oddi on Friday, February 27, 2015
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 10 NFP memorandum decisions)

For publication opinions today (3):

In Mary Ann Crider v. Robert Crider , a 9-page opinion, Judge Riley writes:

[Issue] Whether the trial court erred in its calculation and division of the marital estate. * * *

[W]e find that the trial court clearly erred by including the Florida Property as marital property, and we remand with instructions for the trial court to recalculate and redistribute, if necessary, the marital estate. * * *

[T]he tax debt is a marital liability and should have been considered by the trial court in fashioning an equitable division of property. * * *

Because Wife’s accounts were valued as of the Filing Date, her subsequent payment of the total tax debt effectively reduced her share of the marital estate, which is clearly inconsistent with the trial court’s intended distribution scheme. Therefore, we remand with instructions for the trial court to include the tax debt in the marital estate and to determine what portion, if any, should be allocated to Husband.

CONCLUSION. Based on the foregoing, we conclude that the trial court erred by including the Florida Property and by excluding the IRS debt in its calculation and distribution of the marital estate. Reversed and remanded for further proceedings.

In State of Indiana v. John J. Arnold , a 14-page opinion, Judge Crone writes:
The State of Indiana appeals the trial court’s grant of John J. Arnold’s motion to set aside his habitual offender enhancement. The State contends that the trial court erred in refusing to vacate Arnold’s entire plea agreement when it vacated his habitual offender enhancement. We conclude that Arnold’s motion to set aside habitual offender enhancement should be treated as a petition for postconviction relief and that the trial court’s judgment should be reviewed as an award of postconviction relief. We also conclude that the vacatur of Arnold’s habitual offender enhancement would frustrate the basic purpose of the plea agreement, and therefore the trial court erred in not setting the entire agreement aside. Accordingly, we affirm in part, reverse in part, and remand.
In Tyrone Shelton v. State of Indiana , an 11-page opinion, Judge Riley writes:
[Issue] Whether the trial court abused its discretion by admitting evidence that was seized during the course of a warrantless search. * * *

Based on the foregoing, we conclude that the trial court acted within its discretion in admitting the evidence seized from Shelton’s property because Officer Flanagan’s search was justified by the combination of a reasonable suspicion that Shelton engaged in criminal activity and a search condition contained in his agreement with Community Corrections. Affirmed.

NFP civil decisions today (5):

In Re: The Adoption of B.J.P., Minor Child, B.W. and J.P. v. N.C. and K.C. (mem. dec.)

In re The Support of J.B.W. and M.A.W., A.A.W. v. A.D.P. (mem. dec.)

In re the Estate of Joyce Hunter ; Jeffrey Barnes v. Dawn Renee Hunter, and Regina McKinney (mem. dec.)

Stan Kruse v. DeKalb County Plan Commission (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: D.C., G.C. & S.C., Minor Children, A.C., Mother and D.C., Father v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

Myron D. Killebrew v. State of Indiana (mem. dec.)

Carl Louis Moore, Jr. v. State of Indiana (mem. dec.)

Colleen Chaplin v. State of Indiana (mem. dec.)

Kenneth L. Kemp, Jr. v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Friday, February 27, 2015
Posted to Ind. App.Ct. Decisions

Env't. - "Developer gives up 37-year fight for Mallard Lake landfill near Anderson"

From a Feb. 23rd AP story:

ANDERSON (AP) – Developers who fought for 37 years to build a landfill near a lake and an elementary school have dropped their efforts for good.

Bex Farms Inc. and its affiliate, 600 Land Inc., have withdrawn their application to renew the landfill permit for a 13-acre site near Mallard Lake and Killbuck Elementary School, the Herald Bulletin reported Sunday.

The Indiana Department of Environmental Management said the application was withdrawn last week.

Activists have fought the proposed landfill since 1979, claiming the project would hurt the region's economy and environment. The Killbuck Concerned Citizens Association battling the project in administrative, trial and appeals courts, zoning hearings, the Legislature and other venues. The city of Anderson also opposed the landfill.

Here is a long list of earlier ILB posts on the proposed landfill, the most recent from 2011.

Posted by Marcia Oddi on Friday, February 27, 2015
Posted to Environment

Courts - "Some who file formal complaints against N.Car. judges could be sent to prison"

John Monk has the story in The State. A few quotes:

Some worry such a law would go too far.

Lee Coggiola, head of the Supreme Court’s Office of Disciplinary Counsel, said such a law would have a “chilling effect on the public’s right to file a complaint.”

The current process for screening and evaluating complaints against judges provides transparency and accountability for the judicial system and anything that might tamp down on those values would not be helpful, Coggiola said. Her office screens complaints against judges and conducts investigations where warranted.

South Carolina Press Association executive director Bill Rogers echoed Coggiola’s sentiments.

“People have the right to criticize judges,” Rogers said. “People do get emotional about judges, and they should have their say without risk of being fined.”

Posted by Marcia Oddi on Friday, February 27, 2015
Posted to Courts in general

Thursday, February 26, 2015

Ind. Gov't. - State Police resist public access to a 1972 video recording [Updated]

A video recording they have shown hundreds of times.

That information is from a Feb. 20th PAC response to: Formal Complaint 15-FC-17; Alleged Violation of the Access to Public Records Act by the Indiana State Police. Some quotes:

On December 16, 2014, you submitted to the ISP a public records request seeking access to a copy of records related to the 1972 Bull Island rockfest (a.k.a. the Erie Canal Soda Pop Festival and the Labor Day Soda Pop Festival), particularly an unedited copy of a video recording taken by the ISP. * * *

On December 17, 2014, Capt. Dave Bursten responded to your request by email, denying access to the records. The ISP maintained the records sought relate to investigatory records and fall under an exemption Ind. Code § 5-14-3-4(b)(1). You also take exception with the categorization of the records as investigatory as the ISP did not have jurisdiction over Bull Island; it is Illinois territory. * * *

The ISP has denied any institutional knowledge the film had been shown in the past, however, you have provided an Indiana State Police bulletin from 1973 announcing the film had been shown 249 times to a total of 30,000 people from 1970-1973.

ISP has also determined the video displays many scenes of illicit activity. The release of the video could “result in possible civil action against the State” by those individuals recorded. ISP has used its discretion to withhold the record on the basis the harm of disclosure outweighs public interest. * * *

ANALYSIS * * *

While I believe the information you request falls under the category of investigatory records as it was originally compiled in the course of an investigation of a crime (or for crime prevention purposes), the nature of the record changed course after it was displayed multiple times to the public.

I do not agree with ISP’s argument a record does not lose its status for discretionary release just because it has been released in one capacity at a point in time. To release to one group or groups, but deny others could be viewed as arbitrary and capricious. Without a compelling reason for doing so, if a record is intentionally released as a disclosable public record, then an agency can no longer exercise that particular discretion ex post facto. From the information provided in the form of the State Police newsletter from 1973, it is clear the video has been shown many times to interested members of the public.

Release to a court or other law enforcement agency in the investigation process notwithstanding, a record is deemed disclosable once released as a public record. The bell, as it is said, cannot be un-rung. The ISP clearly demonstrated the video as a cautionary depiction of illegality in the past and has therefore consented to its release.

ISP also argues:

ISP determined that significant portions of the video display images of illicit drug use, nudity, and sexual intercourse occurring at the festival. The individuals engaged in these activities could result in possible civil action against the State by these individuals. ISP scrutinized its decision and used our discretion to withhold the record as investigatory, and believes that the harm of disclosure outweighs the public interest of transparency in this case.
The Access to Public Records Act does not have a privacy clause with the exception of narrow exceptions such as social security numbers and confidential financial information. Embarrassment of individuals voluntarily engaging in illegal and illicit acts is not an exception to disclosure. Likewise, the mere threat of a lawsuit is not an exception either. Moreover, the proposition a lawsuit would be successful is dubious as there is no expectation of privacy for engaging in lewd or illegal acts in public.

CONCLUSION. Based on the foregoing, it is the Opinion of the Public Access Counselor the Indiana State Police should release the entirety of the Bull Island video upon request.

[Updated] Well, it turns out this was a well-known event in Indiana history. The ILB quickly found this YouTube video, really a slide-show with music: "Erie Canal Soda Pop Festival - Bull Island Illinois 1972." Wikipedia has an entry.

And here is a long 2008 Evansville Living article by Maureen Hayden (now CNHI statehouse reporter) and Jessica Levco with the heading:

On Labor Day weekend, September 1972, two concert promoters put on a rock show in the spirit of Woodstock, but they were woefully unprepared for the overrun of more than 200,000 people. They came. They saw. They got stoned. Two people died. Its official name was the Erie Canal Soda Pop Festival, but for those who witnessed the mayhem, it is remembered simply as Bull Island.
Finally, in 2012 Sean McDevitt had a long feature in the Evansville Courier & Press, headed "Woodstock on the Wabash: The Bull Island rockfest, 40 years later."

Posted by Marcia Oddi on Thursday, February 26, 2015
Posted to Indiana Government

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

In Betty Ruth Nelson v. Peggy Holinga-Katona, Lake Co. Auditor (ND Ind., Van Bokkelen), a 3-page opinion, Judge Bauer writes:

Plaintiff‐Appellant, Betty Ruth Nelson (“Nelson”), a former employee of the Lake County Auditor’s office, brought suit under 42 U.S.C. § 1983 against Defendants‐ Appellees, Peggy Holinga Katona, individually and in her official capacity as Lake County Auditor, and Lake County Indiana, individually and severally (“the Appellees”). Nelson alleged that she was unlawfully terminated from her job by the Appellees in retaliation for her political support of Barack Obama. After a full trial, the court entered judgment against Nelson in accordance with the jury’s verdict. On appeal, Nelson challenges the sufficiency of the evidence supporting the jury’s verdict. Because Nelson failed to file any post‐verdict motions—a necessary first step for our analysis of the facts—we affirm.

Posted by Marcia Oddi on Thursday, February 26, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 8 NFP memorandum decisions)

For publication opinions today (5):

In Julie M. Fetters v. Jay M. Fetters, a 12-page opinion, Judge Barnes writes:

Julie Fetters appeals the trial court’s division of property in her divorce from Jay Fetters, following its decision to enforce a premarital agreement into which the parties entered. We reverse and remand.

The restated issue before us is whether the premarital agreement is unconscionable. * * *

Here, the facts are largely undisputed. Indeed, in his brief Jay expressly agrees with Julie’s statement of the facts in her brief, with one exception. Namely, it is undisputed here that Jay commenced an illicit sexual relationship with Julie when she was fourteen years old and he was twice her age. When Julie became pregnant when she was fifteen, Jay found himself under police investigation for his conduct. In a successful attempt to evade prosecution, Jay proposed marriage to Julie, and she accepted. However, he also asked Julie to sign a premarital agreement disavowing any claim to any of his property, no matter how long they stayed married. Julie, being just sixteen years old, had no property of her own at the time and would accumulate very little during the marriage. She also dropped out of school upon marrying Jay and having their first child and has not since obtained her GED. Julie did not obtain independent legal advice regarding the premarital agreement, and she had difficulty understanding it in part because of her own poor reading skills. The only matter of dispute between the parties is whether Jay’s attorney read the document to Julie as opposed to a legal secretary. * * *

We have not discovered any case remotely similar to this one, either in Indiana or elsewhere. We readily conclude that this premarital agreement is unconscionable as a matter of law. Although it does not appear Jay is highly educated, there still was a gross disparity in life experience between him and Julie. Indeed, Jay apparently violated criminal laws intended to protect minors by carrying out his illicit sexual relationship with Julie. See I.C. § 35-42-4-9 (1995) (defining crime of sexual misconduct with a minor but providing as defense that child is married). And, he personally benefitted greatly by marrying Julie and avoiding prosecution, with no comparable benefit to Julie. Rather, Julie dropped out of school and did not further her education, while either caring for the couple’s children or working at low-wage jobs. Also, the property division portion of the agreement was entirely one-sided in Jay’s favor, as he was the only party bringing any assets into the marriage.

Furthermore, Indiana law has long held that contracts entered into by a minor are voidable at the option of the minor while he or she remains a minor, or within a reasonable time after reaching majority. * * *

In sum, after considering all of the circumstances surrounding the premarital agreement’s execution and its one-sided nature in favor of the dominant party, Jay, we conclude that the agreement was unconscionable at the time of its execution. * * *

Having found the premarital agreement unconscionable, we must also address the trial court’s alternate conclusion that Julie is “barred by laches and estoppel” from challenging the agreement because she failed to disavow the agreement for nearly fourteen years after she turned eighteen. * * *

The trial court erred in concluding that the parties’ premarital agreement is not unconscionable and that Julie is time-barred from challenging it. We conclude that the agreement is unconscionable, Julie is not barred from challenging it, and it therefore is void. We reverse the trial court’s division of property in the parties’ dissolution and remand for the trial court to divide the marital property in a manner consistent with the general laws governing such division.

In Skyline Roofing & Sheet Metal Company, Inc. v. Ziolkowski Construction, Inc. and United Union Roofers, Waterproofers and Allied Workers Local #26, a 16-page opinion, Judge Riley writes:
Skyline raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court properly concluded that Skyline failed to establish a genuine issue of material fact that Ziolkowski violated Indiana’s Antitrust Act by unlawfully restraining open and free competition in bidding for a public project to build a new middle school. * * *

Based on the foregoing, we conclude that Skyline established a genuine issue of material fact that Ziolkowski violated Indiana’s Antitrust Act by unlawfully restraining open and free competition in bidding for a public project to build a new middle school. Reversed and remanded for further proceedings.

In Indiana Bureau of Motor Vehicles v. Jennifer M. Gurtner, a 14-page opinion, Judge Mathias writes:
The Indiana Bureau of Motor Vehicles (“BMV”) appeals the order of the Marshall Superior Court granting a petition for judicial review filed by Jennifer M. Gurtner (“Gurtner”) after her license was suspended for failure to provide proof of financial responsibility following an automobile accident. On appeal, the BMV claims that the trial court was without authority to grant the petition because the controlling statute provides the trial court with no discretion to overturn the suspension. Concluding that Gurtner did not adequately avail herself of the available statutory remedies, we reverse. * * *

This case sets forth facts that were not really contemplated by the licensure statutes in effect at the time. Gurtner and the trial judge involved did the best they could do under unusual circumstances. That said, Gurtner failed to take advantage of the existing statutory remedies that would have provided her with an opportunity to explain why her failure to maintain financial responsibility was not her fault. Accordingly, we cannot say that the suspension of her license was accomplished without adequate due process. Reversed.

In In the Matter of the Civil Commitment of R.P. v. Optional Behavior MHS , Judge Riley concludes:
Based on the foregoing, we conclude that the trial court properly ordered R.P.’s involuntary commitment because he presented a danger to others pursuant to I.C. § 12-26-6-1. Affirmed.
In Thomas L. Arflack v. Town of Chandler, Indiana; Chandler Town Council; and Town of Chandler Advisory Plan Commission, a 15-page opinion, Judge Riley writes:
Appellant-Plaintiff, Thomas L. Arflack (Arflack), appeals the trial court’s grant of Appellees-Defendants’, Town of Chandler, Chandler Town Council, and Town of Chandler Advisory Plan Commission (collectively, Chandler), motion to dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). We reverse and remand for further proceedings.

Arflack raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in dismissing Arflack’s complaint for failing to state a claim pursuant to Indiana Trial Rule 12(B)(6).

In its brief, Chandler raises one issue, which we restate as: Whether the trial court’s order to dismiss was a final, appealable judgment. * * *

Based on the foregoing, we conclude that the trial court’s order to dismiss was a final, appealable order and the trial court erred by granting Chandler’s motion to dismiss based on a failure to state a claim. * * *

Baker J. concurs
Vaidik, C.J. concurs in result with separate opinion [which begins, at p. 14] The majority concludes that the trial court’s dismissal order was a final, appealable order and the court erred by granting Chandler’s motion to dismiss based on a failure to state a claim. I agree with this result; however, I write separately because I believe the majority improperly resolves the ultimate issue of whether Arflack could only be removed for cause and was entitled to written notice of his removal from the Town Council.

A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint, not the facts that support it.

NFP civil decisions today (3):

Tonya Windell v. Portfolio Recovery Associates, LLC (mem. dec.)

Beth Marquardt v. Rick L. Barnes and State of Indiana (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of K.E., Child and J.E. (Father) and S.S. (Mother) v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (5):

Larry Lefler v. State of Indiana (mem. dec.)

Stephen Schauf v. State of Indiana (mem. dec.)

Marco Webster v. State of Indiana (mem. dec.)

D'Andre Driver v. State of Indiana (mem. dec.)

Brandy L. Lawson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 26, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Bills shot down left and right in session"

Niki Kelly, the Fort Wayne Journal Gazette's long-time Statehouse reporter, reports this morning in a long story - some quotes:

In the last 24 hours before a key legislative deadline, bill after bill went down to defeat Tuesday and Wednesday.

Some were publicly trounced with dozens of red buttons glaring on the vote board.

Others were quiet burials as the authors of the legislation knew the expected outcome and declined to call the bill for consideration.

The topics were wide-ranging – education, vaccines, speed cameras, annexation, alcohol regulations, cremation, civics testing and more.

“That tends to happen toward the end of each segment (of the legislative session),” House Speaker Brian Bosma said. “People get tired. The day gets long, and if there’s something that rubs them the wrong way, they’ll cast a no vote. We’ve had some good bills go down that way.”

Even though House Republicans spent hours in caucus Wednesday, he said head counts were taken only on a few bills.

Instead, it’s up to authors to call a bill or not. And they usually know the landscape of whether something will pass or fail.

On Tuesday, Rep. Tom Dermody, R-LaPorte, said he clearly didn’t have the votes on a Sunday alcohol sales bill. So it is now dead for the session.

On Wednesday, Rep. Bob Behning, R-Indianapolis, passed on an education bill involving ISTEP+ and letter grades for small schools after seeing a wide-ranging education bill get defeated hours earlier.

The latter bill was House Bill 1072, which gave more power over student data to the State Board of Education, changed teacher evaluation methodology, tweaked how school’s A-to-F grades work and made changes to the ISTEP+ test.

It was defeated 51-42 – a surprise to many. It was a Republican bill, and the GOP has a supermajority of 71 in the House. * * *

Another bill that died was an attempt to use cameras on school buses to catch people passing the buses when the “stop” sign is fully extended. A separate provision allowed cameras to issue speeding fines in work zones.

That bill came up late Tuesday night, and one Republican termed it “gotcha government.”

A Democrat called it an “ACLU meets tea party moment here,” saying it will breed contempt for government.

Bosma halted the bill in the middle of the debate, and the author did not call it down again Wednesday.

But it wasn’t just the House killing bills.

The Senate voted 28-22 to defeat a constitutional amendment defining the “right to farm and ranch.”

Sen. Brent Steele, R-Bedford, has pushed the measure to protect small family farms from animal rights and environmental groups opposing some farming practices.

Much of the discussion centered on whether state and local governments could reasonably regulate confined feeding operations or other farms under such a measure.

Sen. Tim Lanane, D-Anderson, said two state laws already protect farmers so there is no need for a constitutional amendment.

The Senate also voted 33-17 against requiring Hoosier students to pass a civics test to graduate high school.

Senate President Pro Tem David Long, R-Fort Wayne, said this was a matter of bad timing. While he supports the importance of civics knowledge, he said it was inconsistent to add a test at a time that many lawmakers and Hoosiers are upset with the number of tests students are taking.

For more on the 'right to farm' defeat, see this IndyStar story by Ryan Sabalow. And this story from the Muncie Voice on the involvement of Forrest Lucas in pushing the amendmemt.

Posted by Marcia Oddi on Thursday, February 26, 2015
Posted to Indiana Government

Ind. Gov't. - "Businesses and nonprofits have twisted the idea of religious freedom, arguing that it provides the right to discriminate"

That is a quote from an article yesterday in The Guardian, by Louise Melling, headed "More courts are telling businesses: stop using religion to discriminate." A few quotes:

[Since Hobby Lobby] lower courts and commissions have been stepping up and ruling against companies that try to use the freedom of religion argument as a pretext for discrimination against LGBT people and women.

Religious freedom is integral to this country. It must - and will – be protected. But what is being increasingly recognized is that religious freedom gives us all a right to our beliefs. This right, though, like all our rights, has limits. Those limits come into play when acting on our beliefs harms others.

Religious liberty can’t be used by businesses to turn away lesbian and gay couples seeking to celebrate a relationship, or by religiously associated nonprofits who treat women employees like second-class citizens by denying contraceptive coverage. The promise of equality is not real or robust if it has exceptions. * * *

When there were calls in congress and courts across the country to let businesses turn away African Americans because of religious beliefs, the answer was a resounding “no.” The answer should be the same today.

Businesses and nonprofits have twisted the idea of religious freedom, arguing that it provides the right to discriminate. They’d like the right to put up a big sign that says, “We don’t serve your kind here,” and claim that’s okay simply because of their religious beliefs.

The growing response from courthouses and government bodies has been a loud and clear, “No.” This shift promises that religious freedom will be protected – and the promise of equality will too.

But another [and perhaps more realistic] view of that response comes from a long, perhaps dynamic, post by Jeff Guo in the Washington Post's GovBeat that surveys the status of pending legislation in the states. Some quotes:
[T]he fight over gay rights continues in conservative corners of the country, where legislators are advancing laws that would, intentionally or not, ensure that gay people can be refused service, fired or evicted simply for being gay.

There are no national laws protecting against these forms of discrimination, so the matter has been left up to individual communities. A growing list of cities, for instance, are passing gay anti-discrimination ordinances, which has raised the ire of their more conservative state houses.

In this year’s legislative session, similar bills in several states are striking back against gay rights.

The proposed state laws fall into two categories. Some are anti-anti-discrimination measures that would prevent a state’s cities or counties from creating protections for gay people. * * *

In another, more classic category are laws that would protect people who discriminate against gay people on religious grounds. There has been tremendous legal murkiness concerning when and in which contexts religious rights trump gay rights. These religious freedom bills would have religious rights triumph, always.

Yesterday, Indiana’s Senate passed SB 101, a broadly written bill that would shield anybody from laws infringing on the practice of their religion.

Posted by Marcia Oddi on Thursday, February 26, 2015
Posted to Indiana Government

Ind. Gov't. - "Sen. Jean Leising persists in pursuing making cursive writing a requirement"

That is the headline of a good story in the Anderson Herald Bulletin by Maureen Hayden, CNHI Statehouse Bureau Chief. Some quotes:

After three failed attempts, Sen. Jean Leising, R-Oldenburg, is again trying to write penmanship requirements back into school standards, this time telling her colleagues, “I told you so.”

Earlier this week, as the Senate took up the measure, Leising heard from colleagues whose children or grandchildren cannot decipher the cursive writing in handwritten notes. One child couldn't make out his grandmother's promise of much-coveted tickets to the NCAA Men’s Final Four tournament here in April.

“He couldn’t read the note and was disappointed because his grandmother usually sends money,” Leising said.

“The reality is we now have kids exactly as we predicted," she said. "They're not able to read cursive because they’re not taught cursive or not using it at all.”

Her arguments to colleagues were persuasive enough that the Senate again voted to reverse a 2011 decision by the state Board of Education to make lessons in cursive optional while requiring schools to teach keyboarding.

ILB: Referring to earlier ILB posts on Gov. Pence's effort's to abolish the Indiana State Library's esteemed Genealogical Department, a reader wrote:
First we don't teach cursive which ensures students will not be able to do historical research from original sources and now we are ensuring they cannot find the historical sources!

Posted by Marcia Oddi on Thursday, February 26, 2015
Posted to Indiana Government

Wednesday, February 25, 2015

Ind. Decisions - Court of Appeals issues 4 opinion today (and 4 NFP memorandum decisions)

For publication opinions today (4):

In In the Matter of: E.W. (Minor Child), Child in Need of Services, J.W. (Mother) v. The Indiana Department of Child Services, a 9-page opinion, Judge Baker writes:

J.W. (Mother) appeals the juvenile court’s order terminating visits and phone contact with her child, E.W. (Child). Mother argues that there is insufficient evidence supporting the juvenile court’s order. Finding sufficient evidence, we affirm.
In Robert L. Holleman v. Ind. Dept. of Correction, Bruce Lemmon, as Commissioner of the Ind. Dept. of Correction, and Bob Bugher, as Chief Counsel for the Ind. Dept. of Correction, a 7-page opinion, Sr. Judge Darden writes:
Robert Holleman sued the Indiana Department of Correction and its officials for failing to respond to his public records request. The Department subsequently produced documents in response to his request and moved to dismiss his complaint on grounds of mootness. The trial court dismissed the case and Holleman appeals. The Department concedes that remand is necessary for further proceedings. We affirm in part, reverse in part, and remand.
In David B. Cartwright v. State of Indiana, a 21-page, 2-1 opinion, Sr. Judge Darden writes:
Cartwright raises one issue, which we restate as whether the trial court abused its discretion in admitting evidence discovered as a result of the search warrant. Concluding that there was insufficient probable cause to issue a search warrant, and that the evidence was thus inadmissible, we reverse. * * *

Cartwright argues that the probable cause affidavit failed to establish the informant’s credibility. We agree. The affidavit does not indicate that the informant gave correct information in the past. At the time of the issuance of the search warrant, the affidavit states that the informant provided “drug information” to an Illinois police officer eight years prior to the interview, but there is no explanation of whether the information was correct, accurate, or had led to any arrests and convictions. * * *

In addition, the affidavit does not include independent police investigation that adequately corroborates the informant’s statements. * * *

Mathias, J., concurs.
Baker, J., dissents. [beginning at p. 17] I respectfully dissent. I agree with the majority’s conclusion that the probable cause affidavit failed to establish the CI’s credibility and, consequently, that there was a lack of probable cause. I part ways with the majority, however, in the application of the good faith exception.

In Gordon L. Peak, Jr. v. State of Indiana, an 11-page opinion, Sr. Judge Sharpnack writes:

Here, the officers stopped Peak because he failed to display his turn signal for the required distance before making a right turn. * * * There is no dispute that Peak failed to signal for the required 200 feet before turning right. Instead, Peak argues that the statute does not apply here because he did not intend to turn right until he came to a stop at a red light and made the decision. * * *

In this case, we have already determined that the officers’ seizure of Peak did not violate the Fourth Amendment. There was thus no error, let alone fundamental error, in the admission of the marijuana at trial.

NFP civil decisions today (2):

Rachel Staggs v. Corena Buxbaum (mem. dec.)

Michael C. Feldhake v. Meryle Feldhake (mem. dec.)

NFP criminal decisions today (2):

John Deckard v. State of Indiana (mem. dec.)

Clay Howard v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, February 25, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Allen County Judge Ummel retires; magistrate vacancy in Allen Superior Court announced

John McGauley, court executive of the Allen County courts, writes:

Fort Wayne, Ind. – After 27 years’ experience serving the citizens of Allen County, Allen Superior Court Magistrate Judge Jerry L. Ummel has announced his retirement.

Ummel has served as a judicial officer since 1988, when he was appointed as a Magistrate/Referee in the Allen Superior Court Misdemeanor and Traffic Court. He has served in his current position in 1991, when Ummel was appointed as Magistrate Judge in the Small Claims Court. His retirement is effective April 21, 2015.

“Replacing someone like Jerry Ummel will be a daunting task,” said Judge Craig J. Bobay, supervising Judge of the Allen Superior Court Small Claims Court. “His experience, wisdom and complete dedication have been invaluable to the Court. Judge Ummel has served our community with distinction.”

Allen Superior Court will begin the search for a new magistrate immediately. Applications for the position are available beginning today (Wednesday, Feb. 25, 2015). Applicants can obtain an application by contacting Allen Superior Court Executive John McGauley by email at john.mcgauley@allensuperiorcourt.us. Applications must be submitted electronically by 12:30 p.m. EST on Friday, March 13, 2015.

Posted by Marcia Oddi on Wednesday, February 25, 2015
Posted to Indiana Courts

Not law - More on "Why has number of women college coaches plummeted since Title IX?"

Yesterday the ILB highlighted Dana Hunsinger Benbow's story in the Indianapolis Star, "Why has number of women college coaches plummeted since Title IX?" A quote from the story:

Even women who have found success in coaching can find themselves out of a job, sometimes seemingly without cause.

The most recent example came in December when Minnesota-Duluth said it wouldn't renew the contract of women's hockey coach Shannon Miller because of "financial considerations."

"When's the last time you saw a men's collegiate coach fired after winning five NCAA championships, developing 28 current and former Olympians and running up a .713 winning percentage?" asked Bob Collins in the blog he writes for Minnesota Public Radio.

Miller was the highest-paid Division I women's hockey coach, making a base salary of $207,000. But she has repeatedly told the media she would have taken a pay cut to keep her job.

"This move was incredibly disrespectful to all women, not just to coaches and to female athletes," Miller told the Boston Globe. "It is a slap in the face to our gender. I will not tolerate it and I will continue to speak out and fight it."

Miller, an outspoken and openly gay woman, has called her firing a violation of her civil rights.

Today the Minneapolis Star-Tribune reports in a story by Paul Walsh and Patrick Condon, headed "Dayton, lawmakers want answers about ouster of UMD women's hockey coach":
Gov. Mark Dayton added his political heft Tuesday to a group of state senators demanding more information about why Shannon Miller is losing her job as head coach of the University of Minnesota Duluth women’s hockey team.

Thirteen DFL state senators sent the letter to University of Minnesota President Eric Kaler and Duluth Chancellor Lendley Black, hinting at sexism in the school’s recent decision to release Miller after this season, even though she had led the UMD Bulldogs to five national championships. “Governor Dayton has requested to add his name to the letter as a signatory,” his spokesman, Matt Swenson, said Tuesday.

“It is our understanding that [UMD] is citing financial reasons for letting Ms. Miller go,” the letter read. “However, the coach of the men’s hockey team [Scott Sandelin], who earns a salary that is $20,000 per year higher than Ms. Miller’s and has a lower winning percentage, is being retained.”

The letter was sent by Sen. Katie Sieben, of Newport, and cosigned by a dozen other DFL senators, most of them men. All but two are from the Twin Cities. None represent the Duluth area. * * *

The Bulldogs women’s team is 19-10-5 this season, and in the hunt for a berth in the national playoffs as the regular season winds down and conference playoffs follow. The Bulldogs have not made the eight-team national tournament since 2011.

Miller’s pending departure sparked a national debate about the treatment of female coaches and athletes. In December, Black, along with UMD athletic director Josh Berlo, told Miller that her contract would not be renewed in June, despite her past national titles and a record of winning more than 70 percent of games in 16 seasons. Miller herself said the decision violated Title IX, the federal law prohibiting gender-based discrimination at schools that get federal funds, and she has hired an attorney.

Posted by Marcia Oddi on Wednesday, February 25, 2015
Posted to General News

Ind. Decisions - "Elkhart 4" Supreme Court oral argument tomorrow

Tomorrow at 10:30 AM you will be able to watch live the videocast of the "Elkhart 4" oral arguument before the Supreme Court.

The Court has informed the parties that it is particularly interested in argument on issues relating to application of IC 35-42-1-1, the felony murder statute, to this case. The ILB has earlier posted the transfer petitions and responses.

Posted by Marcia Oddi on Wednesday, February 25, 2015
Posted to Upcoming Oral Arguments

Ind. Gov't. - Still much more on: Purdue's "Trimble Report" finally released. Results are surprising

Updating this ILB post from Feb. 22nd, here is a second story from the Fort Wayne Journal Gazette, this one from Rebecca S. Green, headed "Report: Wartell ouster botched; Investigator cites falsehoods by ex-Purdue president." Some quotes:

Purdue University handled the 2012 forced retirement of former IPFW Chancellor Michael Wartell pretty poorly, opening the door for years of litigation that followed, according to a report by an independent investigator.

While the investigator, attorney John Trimble, found neither the university nor then-President France Córdova discriminated against Wartell, he pointed out blatant falsehoods by Córdova and a general bungling of the situation that left Wartell bruised and spoiling for a fight with his former employer.

The Trimble Report paints a picture of the former chancellor as a somewhat controversial and prickly advocate for the Fort Wayne campus, which caused some politicking by community leaders in opposition to him in the events leading up to and following his ouster.

For more than two years, Purdue officials fought to keep the Trimble Report a secret, recently releasing it only after a settlement was announced in a federal lawsuit stemming from Wartell’s retirement and after a federal Freedom of Information Act request by The Journal Gazette. * * *

While the report sides with Purdue regarding Wartell’s claims of discrimination, neither Córdova nor the university escapes unscathed.

The report said Córdova lied to her lawyer, since that is what Purdue argued it considered Trimble, about her reaction to the same retirement policy, which required high-level administrators to exit their positions when they hit the age of 65.

Wartell believed she wanted him out, in part, because her own request to be excluded from the policy was denied. She told him, and Trimble, that she had never made such a request of Purdue’s board of trustees.

Current board of trustees chairman Tom Spurgeon, then the board’s vice-chairman, wrote a letter to the editor of The Journal Gazette in October 2011, also suggesting that Córdova made no such request to the board when she approached age 65.

Both assertions were patently false, according to the report.

“She did seek an extension of her contract, and it was declined by the board,” Trimble wrote in the report.

Trimble said Purdue handled Wartell’s retirement particularly ungraciously, and he urged Purdue to “study how decisions of this kind should be made in the future.

“Wartell is a proud and assertive man who made it well known that he wished to stay on at IPFW until he could celebrate the 50th anniversary,” Trimble wrote in his report. “For him to receive a cold call out of the blue telling him that the Board of Trustees had made a decision on this issue was understandably shocking and upsetting to him.”

Trimble faulted the board and administrators for failing to sit down with Wartell and talk to him about the policy in advance and to hear him out.

Around the time of his retirement, well-known Fort Wayne-area businessmen and philanthropists met with Córdova, asking her to decline Wartell’s request to stay on, according to the report.

There were additional negative letters about Wartell distributed to the board, according to the report.

“Matters were further complicated by the fact that outside parties were able to submit negative letters without him having the opportunity to rebut the things that were said about him,” Trimble wrote.

Trimble urged the university to state that Wartell’s complaint and allegations were not false and malicious, even though they were unsubstantiated.

“He had reasonable cause to believe that his allegations were true,” Trimble wrote.

Lafayette Journal and Courier columnist Dave Bangert writes today under the headline "What Purdue had to hide in IPFW report." Some quotes:
At least one mystery was solved when Purdue University finally gave in to court rulings and open records requests and released a report into the forced retirement of Michael Wartell, former chancellor at IPFW, a regional campus in Fort Wayne.

The juiciest tidbit in Wartell's gender and age discrimination case against the university from the start was this scene: former Purdue President France Córdova standing before a organizational chart and putting her finger on the IPFW chancellor's face, stating that by the end of her tenure, she would "replace this one with a woman."

The problem for Wartell is it didn't happen, according to Indianapolis attorney John Trimble's 2012 report into the chancellor's departure from IPFW. Or, at least, Teri Thompson, then Purdue's vice president for marketing and media, wouldn't corroborate for Trimble that she described the scene to Wartell that way.

Actually, the bigger problem for Wartell, who fought Purdue's mandatory age 65 retirement for longtime administrators, is that not much goes his way in what's come to be known as the Trimble Report.

While Trimble chides Purdue, saying the chancellor's departure "was carried out very badly," he found no age discrimination and no gender discrimination by Córdova and Purdue's trustees. * * *

That's probably the big picture Purdue had in mind when it sent testy notes to the Journal & Courier and the Fort Wayne Journal-Gazette when the 30-page Trimble Report and another 245 pages of associated documents were released Friday, three years after they were assembled.

Purdue spent more than $153,000 fighting the release of a report the university considered an internal investigation into a personnel issue that should have remained confidential. Purdue claimed attorney-client privilege. But courts disagreed, labeling Trimble an investigator rather than an attorney working on Purdue's behalf.

Even as they fought to keep the Trimble Report hidden, Purdue officials were touchy about assumptions that the report must have made the university and Córdova look bumbling, conspiring or worse.

In a letter to the J&C, Steve Schultz, Purdue's legal counsel, said that once Trimble's conclusions were released, "perhaps you will reconsider with a fresh perspective any earlier speculation about the report's content."

Fair enough.

Even though Purdue was cleared of wrongdoing, a fresh perspective doesn't wipe away all earlier speculation. It's easy to see why Purdue didn't want the dirty laundry hanging out on this one.

At its core, the Trimble Report tells a story of two top-level administrators who didn't particularly care for one another, each being forced to come to grips with the end of Purdue careers they had hoped to keep going.

There is much more in the lengthy J&C column, definitely worth reading in full.

Posted by Marcia Oddi on Wednesday, February 25, 2015
Posted to Indiana Government

Ind. Gov't. - First half of legislative session drawing to a close

Both the Senate and House convene this morning to act on the bills remaining on their 3rd reading calendars. Here is the House calendar; the Wednesday Senate calendar is not available yet, but will be here.

Here are some news reports of action this week:

Posted by Marcia Oddi on Wednesday, February 25, 2015
Posted to Indiana Government

Tuesday, February 24, 2015

Ind. Decisions - Another COA ruling today

In Meridian North Investments LP v. Anoop Sondhi DDS, MS, an 11-page opinion, involving a summary judgment motion, Judge Barnes writes:

On the morning of December 22, 2010, Dr. Sondhi was injured when he slipped and fell on a patch of ice outside the office building as he was about to enter the building. Dr. Sondhi sued Meridian North, alleging it had been negligent in failing to keep the common areas of the office building free from ice and had breached its contractual obligation to clear ice from the premises. * * *

[A]s Dr. Sondhi notes, the Lease is not between him and Meridian North; it is between Sondhi-Biggs and Meridian North. Dr. Sondhi signed the Lease in his capacity as President of the corporation. * * *

There is insufficient evidence on summary judgment to pierce the corporate veil and make Dr. Sondhi interchangeable with Sondhi-Biggs. As such, Meridian North has failed to establish that Dr. Sondhi is effectively the tenant under the Lease and is personally bound by the exculpatory clauses. Dr. Sondhi’s personal injury claim against Meridian North may proceed.

Posted by Marcia Oddi on Tuesday, February 24, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Right to farm" in the Bill of Rights? Not this year.

The ILB wrote recently about the proposed "Right to Farm" constitutional amendment on Feb. 16th, and in the Feb. 20th post.

Today SJR 12 was defeated by a vote of 22 to 28. The voting record does not appear to be available.

However, SJR 2, the "Right to Hunt and Fish," passed the Senate Feb. 16th. See this ILB entry from Feb. 12th, headed " Legislators continue efforts to limit DNR enforcement authority through legislation and constitutional amendment," as well as this list of related entries.

Posted by Marcia Oddi on Tuesday, February 24, 2015
Posted to Indiana Government

Not law - "Why has number of women college coaches plummeted since Title IX?"

Great and much needed look at the question "Why has number of women college coaches plummeted since Title IX?" today in the Indianapolis Star, reported by Dana Hunsinger Benbow!

Posted by Marcia Oddi on Tuesday, February 24, 2015
Posted to General News

Courts - Interpreting statutes, with an eye toward King v. Burwell

SCOTUSblog on Feb. 18th ran a good post by Stephen Wermiel on interpreting statutes, aimed at law students but useful to many. A sample:

In a constitutional case, the Justices may be painting on a broad canvas that is shaped by the language of the Constitution as well as a provision’s historical meaning and context. For some Justices, the meaning will also be determined by contemporary societal values, while for others the interpretation will be rooted more in the intent of the Constitution’s Framers. There may be other influences, as well: the structure of the Constitution, deference to other branches, perhaps federalism concerns where relevant, and to an extent Supreme Court precedent.

The Court’s role is somewhat narrower when it comes to statutory interpretation. Although it is by no means entirely simple or straightforward, the process of statutory interpretation requires an effort to determine the meaning of a statute, typically a federal law passed by Congress. The process first involves an examination of the text of the law. If there is uncertainty or ambiguity in the meaning of the text, the process may also involve an effort to ascertain the intent of Congress in passing the provision. Determining intent or practical goals may involve resort to other tools that guide statutory interpretation. Some Justices will turn to legislative history – committee reports, debate among lawmakers – while some others, like Justice Antonin Scalia, question the legitimacy of legislative history as a means of elucidating congressional intent.

The Affordable Care Act provides a perfect vehicle to consider these different roles for the Supreme Court.

Also useful is this post yesterday from Amy Howe of SCOTUSblog, explaining the case of King v. Burwell in Plain English. And here is the case page, with all the briefs, etc.

Also useful are several articles mentioned here.

Posted by Marcia Oddi on Tuesday, February 24, 2015
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 0 opinion today (and 3 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (0):

NFP criminal decisions today (3):

Pamela Richardson v. State of Indiana (mem. dec.)

Nathan C. Cook v. State of Indiana (mem. dec.)

Jerrick Whitley v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 24, 2015
Posted to Ind. App.Ct. Decisions

Not law - "Millennials still strongly prefer print for pleasure and learning"

In other words, it is just not we boomers and pre-boomers, according to this Feb. 22nd story in the Washington Post reported by Michael S. Rosenwald. A few quotes from the long story:

Textbook makers, bookstore owners and college student surveys all say millennials still strongly prefer print for pleasure and learning, a bias that surprises reading experts given the same group’s proclivity to consume most other content digitally. A University of Washington pilot study of digital textbooks found that a quarter of students still bought print versions of e-textbooks that they were given for free.

“These are people who aren’t supposed to remember what it’s like to even smell books,” said Naomi S. Baron, an American University linguist who studies digital communication. “It’s quite astounding.” * * *

Readers tend to skim on screens, distraction is inevitable and comprehension suffers. * * *

And it can be seen most prominently on college campuses, where students still lug backpacks stuffed with books, even as they increasingly take notes (or check Facebook) on laptops during class. At American, Cooper Nordquist, a junior studying political science, is even willing to schlep around Alexis de Tocqueville’s 900-plus-page “Democracy in America.”

“I can’t imagine reading Tocqueville or understanding him electronically,” Nordquist said in between classes while checking his e-mail. “That would just be awful.” * * *

The most important one to him is “building a physical map in my mind of where things are.” Researchers say readers remember the location of information simply by page and text layout — that, say, the key piece of dialogue was on that page early in the book with that one long paragraph and a smudge on the corner. Researchers think this plays a key role in comprehension.

Posted by Marcia Oddi on Tuesday, February 24, 2015
Posted to General News

Monday, February 23, 2015

Law - Rather than show the StringRay device, police offer a plea bargain

Back in early 2014 the ILB had a number of posts on "the use of stingray tracking devices by state and local police departments." Yesterday the Washington Post had a story by Ellen Nakashima, complete with diagrams on how a StringRay works, headed "Secrecy around police surveillance equipment proves a case’s undoing." The story raises some of the same concerns expressed by legislators here last year.

Some quotes from the Feb. 22nd WAPO story:

TALLAHASSEE — The case against Tadrae McKenzie looked like an easy win for prosecutors. He and two buddies robbed a small-time pot dealer of $130 worth of weed using BB guns. Under Florida law, that was robbery with a deadly weapon, with a sentence of at least four years in prison.

But before trial, his defense team detected investigators’ use of a secret surveillance tool, one that raises significant privacy concerns. In an unprecedented move, a state judge ordered the police to show the device — a cell-tower simulator sometimes called a StingRay — to the attorneys.

Rather than show the equipment, the state offered McKenzie a plea bargain. * * *

McKenzie’s case is emblematic of the growing, but hidden, use by local law enforcement of a sophisticated surveillance technology borrowed from the national security world. It shows how a gag order imposed by the FBI — on grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public and criminal defendants in the dark on how the tool works.

That secrecy, in turn, has hindered debate over whether the StingRay’s use respects Americans’ civil liberties.

Posted by Marcia Oddi on Monday, February 23, 2015
Posted to General Law Related

Ind. Courts - Apparently no rulings from COA today

The Court's list of opinions and decisions has not been updated today.

Posted by Marcia Oddi on Monday, February 23, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals Judge Friedlander to retire later this year

From the news release:

INDIANAPOLIS – Court of Appeals Judge Ezra H. Friedlander has submitted his resignation to Gov. Mike Pence, effective Aug. 31, 2015.

At retirement, Judge Friedlander will have served on the Court for more than 22 years and practiced law for 50 years. He will retire just shy of the mandatory retirement age for judges of 75, in December 2016. “I thought 50 years was a good time,” Judge Friedlander said. “When you’ve done something for 50 years, it’s a good milestone.”

In his letter to the governor, Judge Friedlander said, “It is my hope that I have been of valuable service to the citizens of the State of Indiana. I personally value having been able to be of service to the citizens of our State.”

Judge Friedlander said he is submitting his resignation now to give the governor and the Indiana Judicial Nominating Commission adequate time to appoint his replacement. The merit selection process to fill Judge Friedlander’s position will include an application and interview. The final selection is made by the Governor. The Judicial Nominating Commission will release details about the process on March 2.

Judge Friedlander was appointed by Gov. Evan Bayh and joined the Court of Appeals in January 1993. He was retained by election in 1996 and 2006. He

Posted by Marcia Oddi on Monday, February 23, 2015
Posted to Indiana Courts | Vacancy on COA 2015

Ind. Decisions - Transfer list for week ending February 20, 2015

Here is the Clerk's transfer list for the week ending Friday, February 20, 2015. It is one page (and 1 cases) long.

No transfers were granted last week.

With respect to the one case listed, Town of New Pekin, Indiana v. Gail Stewart and Kermit Stewart , the Court "now denies both the petition to transfer jurisdiction and the motion for appellate alternative dispute resolution. All Justices concur." It is a NFP May 23, 2014 opinion.

Posted by Marcia Oddi on Monday, February 23, 2015
Posted to Indiana Transfer Lists

Ind. Gov't. - Religion in Indiana public schools

Lauren Slagter, Kokomo Tribune Education Reporter, reported at length Sunday on how "The Christian influence at Eastern Howard School Corp. shows up in a variety of ways among administrators, staff and students."

Posted by Marcia Oddi on Monday, February 23, 2015
Posted to Indiana Government

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

From Sunday, February 22, 2015:

From Saturday, February 21, 2015:

From late Friday afternoon, February 20, 2015:

Posted by Marcia Oddi on Monday, February 23, 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 2/23/15):

Thursday, Feb. 26

Next week's oral arguments before the Supreme Court (week of 3/2/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/23/15):

Thursday, February 26

Friday, February 27

Next week's oral arguments before the Court of Appeals (week of 3/2/15):

Friday, March 5

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, February 23, 2015
Posted to Upcoming Oral Arguments

Sunday, February 22, 2015

Ind. Gov't. - Civil asset forfeiture back in the Indiana news, but it has continued to be a topic at the national level (and in the ILB) [Updated]

Although much has been reported nationally (the Washington Post has made it a major focus) and in the ILB on the topic of civil asset forfeiture (here is a long, long list of ILB posts), and the issue was raised briefly in Indianapolis a few years back (in 2011 Heather Gillers had stories in the Star on the question of why these forfeitures were not going to the Common School Fund, as mandated in the Indiana Constitution), the practice and alleged abuses have continued.

Today the Indianapolis Star has a long front-page story by Kristine Guerra compiling some instances of abuses from the process. She continues:

Attorney General Eric Holder, defense attorneys and legal experts are beginning to question the fairness of a program that allows officers to seize property first, and file charges later. In January, Holder said local agencies would no longer be able to use federal law to seize the assets of people not yet convicted of crimes.

Holder's new policy that limits the federal Equitable Sharing program would eliminate only 3 percent of forfeitures nationwide. It would not affect police departments that seize assets under state laws. But some see his decision as a call for a debate on the subject, suggesting a basic constitutional right is at stake — due process of law.

"No one should lose their property without being convicted of a crime," said Louis Rulli, a law professor from the University of Pennsylvania. "It really puts our whole justice system on its head."

How much money is at stake for local law enforcement agencies is hard to tell, although nationally billions of dollars in cash and property have been seized.

Law enforcement officials say forfeiture money is a small portion of their budgets but is an important source of revenue to train officers and purchase vehicles and equipment. One thing it's not used for, said Marion County Prosecutor Terry Curry, is "creating some sort of slush fund for luxury items."

Still, the absence of statewide data has some concerned. State Sen. Brandt Hershman, R-Buck Creek, is proposing an amendment to state law that would require local police departments and agencies to regularly report seizures and forfeitures.

Like others, Hershman says he supports the idea of asset seizures and forfeitures.

"The question is," he said, "are they working as we intended?"

ILB: Hershman returned his bill, SB 388, from 3rd reading back to 2nd on Thursday. Generally an author does this when he plans a amendment.

The story today includes a photo that could be a still from the series "Breaking Bad," of "$2.6 million in cash from inside the panels of a semi’s trailer headed for Texas" that was seized in Marion County. "As a result of the investigation, officials seized a total of $4.3 million in drug proceeds and five tons of marijuana."

The story reports that Indiana law:

... allows forfeiture funds to be used to reimburse police agencies for the costs of their investigations. Any remainder is supposed to go to the Common School Fund, which is used to build schools. State law, however, is interpreted differently by each county. Some meticulously account for the cost of each investigation and send any remaining dollars to the Common School Fund.

Many, including Marion County, do not put money into the school fund.

A previous effort to change Indiana's forfeiture law — defining how funds should be divided among law enforcement agencies and prosecutors — failed after former Gov. Mitch Daniels vetoed the bill in 2011.

But in the wake of Holder's policy change, more forfeitures are expected to be handled under state laws, heightening concern.

Sen. Hershman's bill, SB 388, would require law enforcement agencies and prosecutors to submit annual reports to a state agency that would then have to compile data for the state treasurer. The reports would include an itemized list of seized items, as well as their values, and how much is forfeited to each agency.

The ILB argued again last week that settlements awarded to the State of Indiana should go to the General Fund, to be disbursed by appropriation of the General Assembly, as other funds are publicly appropriated. Dealing with civil asset forfeitures presents similar issues.

But with civil asset forfeitures, two distinct problems need addressing. The first involves the matter of alleged abuses by local authorities of the civil forfeiture process itself - as the Star story reports "defense attorneys and legal experts are beginning to question the fairness of a program that allows officers to seize property first, and file charges later."

The second is that funds seized by local law enforcement officials should not be treated as "spoils." The Constitution directs that they go to the Common School Fund. At a minimum, their distribution should be spelled out clearly in statute, and transparency must be the rule.

[More] See this April 27, 2011 ILB post about our Supreme Court's 2011 decision in Serrano and the ILB note:

In its discussion of the origin of Indiana‘s system for civil forfeitures, the Court writes that "At the core of the financing scheme for this objective was creation of the Common School Fund, a 'perpetual' depository for 'support of Common Schools, and no other purpose.' Ind. Const. art. 8, § 3." Footnote 3 on page 4 cites IC 34-6-2-73 and notes: "Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that 'all forfeitures' be deposited in the Common School Fund is an unresolved question."

Posted by Marcia Oddi on Sunday, February 22, 2015
Posted to Indiana Government

Ind. Courts - Judicial Center's Legislative Update 7th weekly installment

The February 20th (seventh) weekly installment of the Legislative Update for the 2015 legislative session is available here. It is in blog form, you can scroll down for earlier updates. This is a good way to keep aware of bills of interest to the judiciary.

Posted by Marcia Oddi on Sunday, February 22, 2015
Posted to Courts in general

Ind. Gov't. - Utilities fighting solar in Indiana, but accomodating, and even embracing, solar in North Carolina

Updating this Jan. 28th ILB post on net metering, re HB 1320, about which the Bloomington Herald-Times editorialized "Indiana House bill casts a cloud over more use of solar energy," two items of interest.

First, the IBJ reported on Feb. 21st that "the utility issue of net metering is drawing opposition from conservative groups with a libertarian bent." More:

The bill allows investor-owned electric utilities to seek permission from regulators to pay less than the retail rate for energy to customers that use “distributed generation,” including solar. It would also allow them to levy additional fixed charges for connecting those customers to the grid.

Currently, Indiana requires utilities like Duke Energy and Indianapolis Power & Light to offer “net metering,” which gives solar users full credit for any excess energy they produce.

And there is this fascinating Feb. 18th story by Katie Fehrenbacher in Gigaom about how:
The world’s largest internet companies are turning to clean power to run their data centers like never before. This month we saw huge clean power deals from Apple, including big solar projects planned in California and Arizona, and a big wind buy from Google to provide local power for its headquarters in Silicon Valley. * * *

[I]n 2009 when Apple and Facebook were considering building data centers in North Carolina, clean power was still an early idea. It was attractive in some emerging ways, but the state and local utilities weren’t offering the type of clean power options that the internet companies wanted.

That’s why in late 2011 Apple started building its unusual and massive solar farms in the area. Built by SunPower, these solar farms now stretch across hundreds of acres and now generate more solar power than Apple needs for that facility. The company also has a fuel cell farm built beside the data center. Apple agreed to plug into the state’s grid, but it was also generating its own clean power that went back onto the grid and made up for its use of the dirty grid power.

Apple’s solar farms ended up putting pressure on local utility Duke Energy and the state to recognize that if there was ample clean power provided to these customers from the power grid, then they wouldn’t need to build their own. In late 2013, Duke Energy officially asked the state’s regulators if it could sell clean power from new sources to large energy customers that were willing to buy it — yes, thanks to restrictive regulations and an electricity industry that moves at a glacial pace, this formerly wasn’t allowed.

Now Duke Energy has a clean energy supply program in the state. And just this week, Duke Energy issued a request for proposal asking for project builders to build 50 MW worth of solar projects in the state. * * *

Solar panels are at the cheapest time in history. Wind power, too, is similarly cheap. Google’s deal to buy power from the revamped Altamont Pass shows how wind turbines have come down considerably in price and up in power.

Now, the official embrace of these internet companies and clean power is just one part of the story. There’s a whole host of smaller data center operators that can’t afford to deal at the scale of Google or Apple. But Google and Apple are still paving the way for the smaller companies by changing utilities minds that there’s a good business to be had in clean power.

Posted by Marcia Oddi on Sunday, February 22, 2015
Posted to Indiana Government

Ind. Gov't. - More on: Purdue's "Trimble Report" finally released. Results are surprising

Updating this ILB post from Friday afternoon, Sherry Slater reports today in the Fort Wayne Journal Gazette in a story headed "Local push fueled exit of Wartell: Papers show business leaders acted secretly to end his stay." The long story today begins:

While then-IPFW Chancellor Michael Wartell was battling Purdue University leaders to remain in his job through the school’s 50th anniversary, some local business leaders were secretly lobbying for a new campus leader.

The chairmen of Steel Dynamics Inc. and Rea Magnet Wire Co., the retired chairman of Lincoln National Corp. and a Fort Wayne attorney met with then-Purdue President France Córdova on June 29, 2011, via teleconference to ask her not to grant Wartell’s request for an exemption to the university’s mandatory retirement age.

The four men followed that meeting with letters to Córdova, including one clearly marked “confidential.” The correspondence was released Friday to The Journal Gazette by Purdue officials in response to a Freedom of Information Act request.

The letters described Wartell as having poor working relationships with his staff, leaders of other local colleges and the local business community. They also questioned his integrity.

Mark Ulmschneider, a local attorney who represents Wartell, takes a dim view of how Keith Busse, Jim Vann, Ian Rolland and Larry Lee expressed their opinions.

“It was underhanded,” he said. “It was done in secret, and they mischaracterized the facts.”

As a result of the secret nature of the correspondence, Wartell didn’t have the opportunity to respond to the allegations against him, Ulmschneider said.

“It’s a violation of due process, basically,” he added. “It was a group character assassination, that’s what it was.”

It’s unclear whether the letters influenced Purdue’s trustees, who made the decision to reject Wartell’s bid for an extension after 18 years as IPFW’s chancellor. He was forced to retire in July 2012.

There is much more in the story. The earlier ILB post includes the Lafayette Journal Gazette link to the now public Trimble Report.

ILB: Although the story has more than a dozen references to a "Larry Lee," the story does not otherwise identify him, other than as a donor to IPFW.

Posted by Marcia Oddi on Sunday, February 22, 2015
Posted to Indiana Government

Friday, February 20, 2015

Ind. Courts - More on: Amendment proposed to Article 7, the Judicial Article

Updating this post from Jan. 13th, SJR 15, which would have substantially changed the way appellate jurists are selected and retained, failed in the Senate Judiciary Committee this week by a vote of 4-6.

Apparently, when a proposal fails in committee, no roll call is provided...

Another problem here is that the language that was actually considered by the Committee is not available online. That is because the resolution's author submitted an amendment to the posted proposal at the time when discussion began. This not only put the members of the public who were there to testify at a disadvantage, but also appears to mean that there is no record of the language that was actually discussed and rejected.

BTW, this last minute rewrite is not that uncommon a practice in the committee hearings the ILB has watched so far this year.

In the interests of history and transparency, the ILB would be pleased to post a copy of the version of SJR 15 that was actually considered, if someone could make it available.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Indiana Courts

Ind. Gov't. - Purdue's "Trimble Report" finally released this afternoon

The most recent ILB post on this topic, from Feb. 8th, was headed "Purdue 'Trimble report' finally released? Not yet!"

But this Friday afternoon, it was. Here is the Lafayette Journal & Courier's copy.

Here is some of what Rebecca S. Green wrote in the Fort Wayne Journal Gazette on Feb. 6th:

Purdue officials this week revealed they spent more than $153,000 in legal fees over about 18 months to conceal the $19,000 report, which was compiled after an investigation into the forced retirement of former IPFW Chancellor Michael Wartell in 2011.

The Journal Gazette has requested from Purdue both the report and the terms of the settlement reached in the lawsuit, but the university has not yet provided the information.

This afternoon Joseph Paul reports in the Laf. J&C:
An internal investigation by Purdue University into complaints of harassment and discrimination found the allegations were unsubstantiated.

The terms of a recent federal court settlement made public a 2012 report by attorney John Trimble after former IPFW Chancellor Michael Wartell was forced into retirement in 2011 at the age of 65.

Purdue hired Trimble to investigate Wartell's allegations of age and gender discrimination by former Purdue President France Córdova, whom Wartell believed had a desire to fill more top administrative positions with women.

In a copy obtained Friday by the Journal & Courier, Trimble found through interviews with Wartell, Córdova, Board of Trustees members, witnesses and a review of nearly 250 pages of evidence that no discrimination took place under the university's current definition.

"The specific allegation that President Córdova engaged in sex discrimination by pointing at Chancellor's photo and stating, 'I will replace this one with a woman' has not been substantiated," the report states. "The individual who allegedly shared that information with Chancellor Wartell cannot or will not confirm it. To the contrary, that individual corroborates President Córdova's statement that there were merely conversations about the necessity of encouraging diversity within the administration of Purdue University." * * *

Over the course of the legal wranglings between Wartell and Purdue, both federal and state courts ruled the report compiled by Trimble should be considered a public document.

As reported by the Associated Press earlier this month, the university spent more than $150,000 in legal fees over the past 18 months, fighting public records requests and claiming the document was protected by attorney-client privilege.

Trimble himself, however, admitted he didn't reveal he was representing the university when he interviewed Wartell over the course of the investigation, according to a Journal & Courier report in March, shortly after the Indiana Court of Appeals upheld a lower court ruling that the document was not privileged.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Indiana Government

Courts - "Ky. Supreme Court prohibits 'clandestine communication' between lawyers, judges"

Jason Riley reports today at WDRB Louisville in a story that begins:

In what local prosecutors call a “landmark” ruling, the Kentucky Supreme Court Thursday made it clear in unusually strong language that judges are prohibited from talking with criminal defense attorneys about the release of a defendant without the input of the prosecution.

The ruling on this so-called ex parte, or one-sided, contact between judges and lawyers found there is a “culture among some members of the Jefferson District Court and some members of the bar that appears completely inconsistent with the ethical execution of judicial duties.”

The high court called the “clandestine communication between some attorneys and some sitting judges” a “recurring problem” that must be addressed.

“The practice here was so egregious and distasteful and unethical that the court had to make it clear for every court in the commonwealth what they could not do,” Jefferson County Attorney Michael O'Connell said in an interview. “It does not get any stronger than that from the Supreme Court.”

Chief District Court Judge David Holton said he believes "the Supreme Court got it right," adding, however, that he didn't believe any current judges were taking part in the practice anymore.

"We have good and trustworthy people serving on the bench in Jefferson County," he said in an interview.

Read the story for the details.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Courts in general

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

In Daniel Hall v. Carolyn Colvin, SSA (SD Ind., Magnus-Stinson), a 6-page opinion, Judge Posner writes:

This is an appeal by an applicant for social security disability benefits named Daniel Hall, who was turned down by the Social Security Administration seconded by the district court. An aviation mechanic discharged in 2001 by the military (we are not told which branch) because of pain from an ankle injury, he was deemed by the Department of Veterans Affairs to be 70 per cent disabled and, more important, to be “unemployable” in “a substantially gainful occupation” and therefore totally disabled. 38 C.F.R. § 4.16. In 2010 he applied for social security disability benefits on the ground that pain from his ankle injury, together with back and knee pain and other ailments, had steadily worsened and by 2009 had rendered him totally disabled under the standards of the Social Security Act. * * *

The administrative law judge’s most serious error, one we’ve noted in previous cases (see next paragraph), is her belief that complaints of pain, to be credible, must be confirmed by diagnostic tests. Even if that were true, she should have known of the limitations of x-rays as tools for diagnosing pain and, knowing that, should have ordered an MRI before issuing her decision, because his two earlier MRIs had, he testified, preceded the onset of his total disability.

It is understandable that administrative law judges want diagnostic confirmation of claims of pain. Without such confirmation the administrative law judge has to determine the applicant’s credibility, and it is often very difficult to determine whether a witness is telling the truth—especially when as in this case he has an incentive to exaggerate. But as numerous cases (and the Social Security Administration’s own regulation) make clear, an administrative law judge may not deny benefits on the sole ground that there is no diagnostic evidence of pain but only the applicant’s or some other witness’s say so: “an individual’s statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.” SSR 96–7p(4); see, e.g., Pierce v. Colvin, 739 F.3d 1046, 1049–50 (7th Cir. 2014); Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).

Several doctors noted that Hall had been in pain when examined, and this was some corroboration of his testimony. The administrative law judge could have resolved her doubts by ordering an MRI or directing a further examination by a medical expert. Her failure to do either leaves her determination that Hall is not disabled without a foundation in substantial evidence. Her failure to analyze and weigh the Veteran Administration’s determination that the applicant is totally disabled was a further oversight.

The denial of disability benefits cannot be sustained. The decision of the district court is reversed with directions to remand the case to the Social Security Administration for further proceedings consistent with the analysis in this opinion. REVERSED AND REMANDED.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Tax Court posts one today, filed Feb. 19

In Marineland Gardens Community Association, Inc. v. Kosciusko County Assessor, a 7-page opinion, Judge Wentworth writes:

The Indiana Board of Tax Review denied Marineland Gardens Community Association, Inc.’s 2009 and 2010 property tax exemptions because it failed to make a prima facie case that it was established for the purpose of retaining and preserving its land and water for their natural characteristics. The Court affirms the Indiana Board. * * *

This Court will find that a final determination of the Indiana Board is supported by substantial evidence if a reasonable person could view the record in its entirety and find enough relevant evidence to support the Indiana Board’s determination. See Amax Inc. v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct. 1990). Here, a reasonable person viewing the record would find enough relevant evidence to support denying the exemption because Marineland did not explain how its evidence indicates that it was established for the purpose of retaining and preserving the land and water for its natural characteristics under Indiana Code § 6-1.1-10-16(c)(3). See Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 471 (Ind. Tax Ct. 2005) (stating that in order to make a prima facie case, a taxpayer must walk the Indiana Board and this Court through every element of its analysis) review denied.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 opinion today (and 10 NFP memorandum decisions)

For publication opinions today (2):

In Angela Lundy v. State of Indiana, a 13-page opinion, Chief Judge Vaidik writes:

Angela Lundy was charged with Class D felony possession of a controlled substance. The existence of a valid prescription is a defense to this crime.

Lundy served a subpoena on non-party Indiana Board of Pharmacy (“the Board”), requesting a copy of her INSPECT report. As part of the INSPECT program, the Board compiles controlled-substance information into an online database.

The Board filed a motion to quash the subpoena, claiming that the information was confidential pursuant to statute. The trial court granted the Board’s motion because it found that Lundy had to make a threshold showing that she could not get her prescription records elsewhere before she was entitled to her INSPECT report from the Board. The trial court certified its ruling for interlocutory appeal.

There is a three-part balancing test for discoverable information in a criminal proceeding, but the only consideration at issue here is particularity, which requires a showing that the information is not readily available elsewhere. The Board argues that because Lundy knew where she could “possibly” obtain her prescription records, they were readily available. “Readily available,” however, does not equate to knowledge. That is, just because Lundy knew where she could “possibly” obtain her prescription records does not mean that they were “readily available” to her. In addition, the particularity requirement is not to be construed strictly against the defendant but should be administered so as to maximize pretrial discovery. Given that the Board does not challenge the other parts of the test, we conclude that the trial court abused its discretion in granting the Board’s motion to quash Lundy’s subpoena. We therefore reverse and remand this case to the trial court.

In Kirsten L. Phillips v. State of Indiana, a 12-page opinion, Judge Crone writes:
Five-month-old C.T. tragically died after Kirsten L. Phillips put him down for a nap inside a broken portable crib at the home daycare where she worked. Following a jury trial, Phillips was convicted of class C felony reckless homicide and class D felony involuntary manslaughter. Phillips appeals, asserting that the trial court abused its discretion in admitting certain evidence at trial. Phillips also asserts that the State presented insufficient evidence to support her convictions. We conclude that the trial court did not abuse its discretion in admitting evidence and that sufficient evidence supports Phillips’s reckless homicide conviction. We need not address the sufficiency of the evidence of her lesser conviction for involuntary manslaughter because we determine sua sponte that her dual convictions for reckless homicide and involuntary manslaughter violate double jeopardy principles. Accordingly, we affirm Phillips’s reckless homicide conviction and vacate her involuntary manslaughter conviction.
NFP civil decisions today (1):

In the Matter of: E.A., Jr., Child in need of Services, and E.A., Sr. (Father) and N.A. (Stepmother) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (9):

Kevin Watson v. State of Indiana (mem. dec.)

Larry Marshall v. State of Indiana (mem. dec.)

Danny Lewis v. State of Indiana (mem. dec.)

Keytron W. Johnson v. State of Indiana (mem. dec.)

David A. Brewster v. State of Indiana (mem. dec.)

Troy Shawn Meyers v. State of Indiana (mem. dec.)

Jesse Edward Atwood v. State of Indiana (mem. dec.)

Imari Butler v. State of Indiana (mem. dec.)

Charles M. Woolsey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "When States Win Lawsuits, Where Does the Money Go?"

In this long Feb. 4th post, the ILB asked "What will become of Indiana's $21.5 million share of the S&P settlement?"

In answer to a question directed to the AG's public information officer about how much of the S&P settlement would go to the general fund and specifically how would the balance be distributed, the ILB received a response that included this language: "Specific allocations of the remaining balance will be determined consistent with the parameters of the settlement and taking into account claims made by the securities and consumer protection divisions based on their involvement in the settlement." My conclusion:

It is [still] not clear to the ILB how and where settlements (other than the tobacco settlement - see IC 4-12-4) are reflected on the Indiana books, and who has authority to make the decisions.
I'd like to say a lot of people expressed interest in the post, and in finding out the answers, but that was not the case.

But yesterday, Feb. 19th, Pew's Stateline posted an article by Jeffrey Stinson, titled "When States Win Lawsuits, Where Does the Money Go?"

It is a long, interesting story, but with no clear answers for Indiana. And there are no details as to whether some other states have specific statutory guidelines (other than for the tobacco fund), or whether there are provisions requiring, for instance, that settlements go to the general fund, to be distributed by the general assembly of the state via the appropriation process. Here is the section of the Pew story headed "Where the Money Goes":

Attorneys general usually keep some settlement money to cover the costs of cases and to help finance future litigation. But distribution of damage recoveries or awards can be set by law, such as reimbursing Medicaid for fraud.

Half the S&P settlement, $687.5 million, will go to the federal government as a penalty. The other half was divided among the states and the District, based on their damages and costs in litigating.

Some states will pay back parties directly damaged by the ratings agency’s practices. That’s the first rule of thumb in distributing money: Try to compensate damaged parties even if you cannot make them whole.

California, for instance, will send $176 million of its $210 million share to the California Public Employees’ Retirement System (CalPERS), which had invested in some of the toxic securities. CalPERS also will get another $125 million from the settlement of its separate suit against S&P.

Washington state will use $3 million of its $21.5 million share to help victims of the mortgage crisis. The bulk, $18 million, will go to the state’s general fund. Democratic Attorney General Bob Ferguson’s office said that S&P’s actions harmed Washington’s economy and ultimately cost the state tax revenue.

Missouri will put its $21.5 million in the state general fund for legislators to decide how to spend it. The legislatures in Colorado, Delaware and Idaho, along with the District city council, will largely determine how their shares will be disbursed.

Other states will allocate their money in a variety of ways:

  • In Illinois, the majority of its $52.5 million share will go to the state’s beleaguered public pension system.
  • Iowa will send $20 million of its $21.5 million share to seven public employee retirement funds. The attorney general’s litigation fund will get $500,000, and $1 million will go to the state’s Insurance Division for future securities enforcement efforts.
  • Maine’s $21.5 million share will go to consumer protection and education efforts.
In many states, attorneys general have some say in where the money goes, though legislatures often have final word when it’s not earmarked by law or when it’s impractical to identify and reimburse damaged parties.

In Arizona, Republican Attorney General Mark Brnovich’s office said that he, Republican Gov. Doug Ducey and legislative leaders will figure out how to distribute the state’s $21.5 million share among children, family, seniors and public safety programs.

In North Carolina, Democratic Attorney General Roy Cooper’s office said most of the state’s $21.5 million share will go to schools. But he’s asking that some go to college scholarships for students who stay in the state to teach and to retain scientists at the state’s crime lab.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Indiana Government

Courts - "SCOTUS docket full of state-related cases"

That is the heading to this story by Lisa Sorenon of the National Conference of State Legislatures. Here is a 7-page summary of the cases.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Courts in general

Ind. Gov't. - More on "Is ‘right to farm’ amendment for Indiana a‘right to harm?’"

Updating this ILB post from Feb. 16th, a very long, interesting story by Ryan Sabalow of the Indianapolis Star, headed "Pot farms in Indiana? Never say never," looks at the issue of what is included if the "right to farm" became part of the Indiana Bill of Rights. Some quotes:

On Monday, Sen. Mike Crider, R-Greenfield, a former state conservation officer, said he was worried that a proposed constitutional "right to farm" amendment for Indiana, authored by Sen. Brent Steele, R-Bedford, may someday prevent the state from regulating marijuana farming if the practice ever becomes legal here.

His concerns didn't seem particularly outlandish to me, or others.

Chris Lindsey, a legislative analyst for the Marijuana Policy Project, a group that advocates for marijuana to be decriminalized — and regulated — said it very well might.

After reviewing the proposed amendment — Senate Joint Resolution 12 — for me, Lindsey said: "I suppose if you start to treat marijuana like any other agricultural product, I don't see anything in this language that would assume that you would treat marijuana differently."

In other words, Sen. Crider might be on to something, especially with national and statewide support for marijuana legalization consistently staying at 50 percent or more.

I've seen firsthand in my home state how sticky the regulatory issues surrounding commercial marijuana growing can be.

About three years ago, I moved to Indianapolis from rural Northern California. There were times during my six years as a reporter for the Record Searchlight newspaper in Redding, Calif., that it seemed like all my colleagues and I wrote about was marijuana farming. * * *

The impoverished, rural region where I lived and worked often had high unemployment rates. With cannabis permission slips so easy to get, many turned to farming marijuana to make a living.

I was told that during the beginning of the pot boom — before the market grew saturated with marijuana — a well-maintained, backyard grow might produce $50,000 or more of pot in a single season.

Lured by the promise of easy cash, mini pot farms sprouted up in neighborhoods and subdivisions all over the place. Some neighborhoods smelled stronger than a Cheech and Chong fan club meeting. Many neighbors found the ever-present smell of all that marijuana nauseating. * * *

Imagine, as Senator Crider does, if Indiana marijuana proponents ever argued in court that under Steele's amendment, pot was just another "diverse farming and ranching practice" free from new state laws "that unreasonably abridge" a farmer's rights.

Steele, meanwhile, laughed off Crider's concerns at Monday's hearing before the Senate Agricultural Committee, which overwhelmingly passed the amendment with Crider issuing the only Republican "no" vote.

The Bedford Republican told Crider that there's no way marijuana could ever be legal in Indiana.

I'm sure 10 years ago [ILB: or 2 years ago!], a great many Hoosiers would have said same-sex marriage would never be legal in Indiana either.

Look at how that turned out.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Indiana Government

Ind. Law - Still more on "Indiana Senate bill targets Gary gun lawsuit"

This Feb. 18 ILB post reported that the after the debate on 3rd reading Sen. Tomes:

... pull[ed] the bill to return it to 2nd reading.

This does not mean the bill is totally dead, there is still the opportunity to attempt to amend it on second reading.

And yesterday Sen. Tomes did call down SB 98 on second reading, where it was amended to remove SECTION 5 from the then current version of the bill, and then ordered to engrossment.

The result: Sen. Kenley's issue with the now stricken provision, that it could result in Smith & Wesson receiving attorneys' fees incurred since 1999, has been addressed.

But the main argument against the bill, that it would mean the legislature was stepping into the role of the judiciary and affecting the outcome of pending litigation, remains.

Posted by Marcia Oddi on Friday, February 20, 2015
Posted to Indiana Law

Thursday, February 19, 2015

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

In Timothy Austin v. Andrew Pazera (ND Ind., Moody), Judge Posner writes:

Plaintiff Austin, an inmate of an Indiana prison, was punished in a prison disciplinary pro-ceeding for having attempted to traffic in tobacco, meaning attempting to carry tobacco or tobacco products into or out-side the prison. His punishment consisted of losing 60 days of good-time credit (which increased his period of impris-onment by 60 days), being demoted from “credit class 1” to “credit class 2” (inmates in the first class earn one day of good time credit for each day of imprisonment, inmates in the second class earn one day of credit for every two days of imprisonment), being given 20 hours of extra work duty, and being denied access to the prison commissary for 25 days.

He petitioned for federal habeas corpus, see 28 U.S.C. § 2254, on the ground that the disciplinary proceeding had denied him due process of law, primarily by convicting him on the basis of insufficient evidence. The respondent is the prison’s superintendent. The district court denied the petition, ruling that the evidence, though scanty, had been adequate to prove Austin’s “constructive possession” of tobacco. * * *

Proximity is not possession. And to top it all, we don’t even know whether there were any tobacco prod-ucts in the crawl space on the day Austin worked there.

Convicted without evidence of guilt, Austin was denied due process of law. The judgment is therefore reversed and the case remanded with directions to order the relief sought by him. For when the imposition of prison discipline is not supported by even “some evidence,” which we think the proper characterization of the scanty record in this case, the prisoner is entitled to a writ of habeas corpus commanding that the discipline be rescinded. Grandberry v. Smith, 754 F.3d 425, 426 (7th Cir. 2014).

Posted by Marcia Oddi on Thursday, February 19, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - Feature on Bloomington's African-American heritage

The Bloomington Herald-Times has a story today by Brian Seymour on a walking tour put together by the city of Bloomington. Number 1 on the list:

1. The Gables, 114 S. Indiana Ave.

Now the site for BuffaLouie’s, the Gables was integrated in 1947, almost a decade before the Civil Rights Movement. The story goes that George Taliaferro, former Hoosier football player and College Football Hall of Famer, was staring at his picture in the Gables when he decided the restaurant needed to integrated. Working with Herman B Wells, late president of Indiana University, Taliaferro and his girlfriend planned to dine at the Gables daily. It was soon integrated.

Posted by Marcia Oddi on Thursday, February 19, 2015
Posted to Indiana Government

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

For publication opinions today (3):

In In re the Paternity of Snyder, M.S. v. D.A., an 8-page opinion, Judge May concludes:

There is no evidence in the record suggesting how M.A.’s physical health or emotional development would be impaired by telling M.A. that Father is her biological father. See Ind. Code § 31-14-14-1(a); Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003) (statute requires specific finding of physical endangerment or emotional impairment prior to imposing restriction). As such a finding is required by statute, the trial court erred when it denied Father’s request to tell M.A. he is her father, and we accordingly reverse that portion of the trial court’s decision.
In Walnut Creek Nursey, Inc., d/b/a Alsip Home & Nursey v. Barbara Banske, a 15-page opinion, Sr. Judge Sharpnack writes:
Walnut Creek Nursery, Inc., d/b/a Alsip Home & Nursery (“Alsip”), appeals from a jury’s verdict in favor of Barbara Banske, in a negligence action brought by Banske. Alsip contends that the trial court committed reversible error by allowing a naprapath, who was licensed as such in Illinois, to testify about her treatment of Banske in Illinois. Alsip claims that the testimony should have been excluded and that a new trial should be held during which that testimony is not admitted. Concluding that no error is preserved for our review, we affirm. * * *

Grice testified that naprapathy is “soft tissue manipulation, connective tissue
manipulation” with the goal of “assist[ing] the body in healing itself.” Naprapathy involves application of pressure to points on a person’s body that “releases the contracture or tightness of the soft tissue to facilitate opening up the circulation.” * * *

Because Indiana does not license naprapaths, and Grice was licensed to practice
and treated Banske in Illinois, we turn to Illinois law to help understand the
matter. * * *

Applying the rationale used in Kyowski (Ill. App. Ct. 1979), to the facts of this case, we conclude that Grice’s testimony about her treatment of Banske’s injuries was sufficiently connected to Banske’s slip and fall. Grice had treated Banske before and after her slip and fall and testified about the difference in Banske’s health from the stand point of a naprapath. The trial court did not err as a matter of law by admitting Grice’s testimony. The evidence was relevant and helpful to the jury.

We save the resolution of the limitations on the testimony of a naprapath for
another day.

In Natasha R. Hill v. State of Indiana, a 7-page opinion, Judge Robb writes:
Following a bench trial, Natasha Hill was convicted of two counts of theft and ordered to pay restitution in the amount of $2526.83. Hill appeals, raising two issues for our review: (1) whether her dual theft convictions, which were based upon acts committed minutes apart and in the same department store, are contrary to law; and (2) whether the trial court abused its discretion in ordering Hill to pay restitution. Concluding Hill’s dual convictions violate Indiana’s single larceny rule and that the trial court’s restitution order was an abuse of discretion, we reverse and remand for further proceedings consistent with this opinion.
NFP civil decisions today (0):

NFP criminal decisions today (7):

Malcom Cobb, Jr. v. State of Indiana (mem. dec.)

Eddie Long v. State of Indiana (mem. dec.)

Forrest Brown v. State of Indiana (mem. dec.)

Gregory Schweisthal v. State of Indiana (mem. dec.)

Alandus D. James v. State of Indiana (mem. dec.)

Herbert Sheese v. State of Indiana (mem. dec.)

Larry Anderson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 19, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit Tinder opinion involving attorney sanctions, out of Wisconsin

Here are some quotes from Judge Tinder's 9-page Feb. 11th opinion in In re Wendy Nora (WD Wis.):

On August 13, 2014, we ordered attorney Wendy Nora to show cause why she should not be sanctioned for pursuing a frivolous appeal, see Fed. R. App. P. 38, and why she should not be disciplined for conduct unbecoming a member of the bar, see id. 46(c). PNC Bank, N.A. v. Spencer, 763 F.3d 650, 655 (7th Cir. 2014). For the rea-sons that follow, we now impose a sanction of $2,500 but suspend the sanction until such time, if ever, that Nora submits additional frivolous or needlessly antagonistic filings. * * *

Nora also fails to alleviate our concern about her engaging in “conduct unbecoming a member of the court’s bar” under Rule 46(c). She contends that her comments during this litigation have amounted to nothing more than unsanctionable rudeness, citing In re Snyder, 472 U.S. 634 (1985). In Snyder, the Supreme Court concluded that a single ill-mannered letter did not rise to the level of “conduct inimical to the administration of justice” that is sanctionable under Rule 46(c). Id. at 645–47; see In re Lightfoot, 217 F.3d 914, 916–17 (7th Cir. 2000) (discussing this standard and collecting cases applying it). But Nora’s conduct is more egregious than that in Synder. As noted in our earlier opinion, Nora has repeatedly acted with needless antagonism toward opposing counsel and judicial officers. In her responses to our order to show cause, she has refused to back down from her accusations of libel against Judge Crabb and “actionable civil fraud and racketeering” against opposing counsel. She denies accusing the state court judge of altering transcripts, but the record belies her denial: she not only made the accusations but moved for substitution of the judge on that basis. She also now derides “this panel and many of the judges in this circuit” as being biased “against homeowners’ rights to be heard and defend their homes.” This bandying about of se-rious accusations without basis in law or fact is unacceptable and warrants sanctions. See In re Hendrix, 986 F.2d 195, 201 (7th Cir. 1993) (explaining that attorney’s filing of submissions not grounded in law or fact is sanctionable); Mays, 865 F.2d at 140 (sanctioning attorney for falsely imputing positions on opponents and the court).

(h/t to the ValpoLawBlog)

Posted by Marcia Oddi on Thursday, February 19, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Efforts to renovate the dormant Cass County Courthouse are getting off the ground" [Updated]

The old Cass County Courthouse in downtown Cassopolis, which was built in 1899 and has been empty since 2003, is scheduled for renovation. SBT Photo/ROBERT FRANKLIN

Here’s a look inside the clock tower in the old Cass County Courthouse. SBT Photo/ROBERT FRANKLIN

Jim Meenam has the story in yesterday's South Bend Tribune.

[Updated at 9:30 AM] A kind reader writes to say:

I think the article refers to Cass County, Michigan. There's no Cassopolis in Indiana, but there is one right across the border from South Bend in Michigan. Upon checking it out on Google Street View, it looks to indeed be the courthouse referenced in the SB Tribune article. Just thought you might want to know.

Posted by Marcia Oddi on Thursday, February 19, 2015
Posted to Indiana Courts

Wednesday, February 18, 2015

Courts - More on Indiana's involvement in the Texas immigration suit

Updating this ILB post from yesterday, which includes quotes from a NY Times story that begins:

A federal judge in Texas has ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing the initiatives.
This Dec. 3, 2014 ILB post explains that the Indiana Attorney General declined to participate in the suit and includes a link to a letter from AG Zoeller to Gov. Pence, stating:
Pursuant to my authority under Ind. Code 4-6-5-3, I am hereby providing consent for the Governor's Office to hire Peter Rusthoven and Joe Chapelle from Barnes & Thornburg as outside counsel to appear as counsel for the State in the Texas litigation and provide representation as appropriate in relation to the case. Consistent with other authorizations to hire outside counsel to represent the state, please note that this consent to hire outside counsel does not serve as consent for settlement or appeal of the lawsuit, which can be addressed later as necessary and appropriate through additional requests for consent.
ILB: As Indiana would be simply one of a number of states signing on to the lawsuit being brought by the State of Texas, one might anticipate that little outside legal assistance would be required. However, the Governor, through the Indiana Department of Homeland Security, entered into a contract for $100,000 with Barnes and Thornburg, based on legal fees of up to $575/hour. All of this is laid out in the contract documents, available here. From p. 3 of the 11-page PDF:
2. Scope of Legal Services. Counsel shall provide the Legal Services approved by the Attorney General, which services are to represent the State of Indiana in the lawsuit filed in the United States District Court in Texas challenging the President's executive action on immigration. The scope of this Service does not include settlement or appeal of this lawsuit. [ILB emphasis]
As the district court has now ruled and the Obama administration has indicated it will appeal, one might watch for a contract amendment. The fee schedule, BTW, is on page 11.

How Appealing has collected together a number of stories on yesterday's Texas opinion, and also provides a link to the 123-page opinion (B-14-254), which begins:

This is a case in which twenty-six states or their representatives are seeking injunctive relief against the United States and several officials of the Department of Homeland Security to prevent them from implementing a program entitled "Deferred Action for Parents of Americans and Lawful Permanent Residents." [1]
____________
[1] The Plaintiffs include: the State of Texas; State of Alabama; State of Arizona; State of Arkansas; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of South Dakota; State of Utah; State of West Virginia; State of Wisconsin; Attorney General Bill Schuette, People of Michigan; Governor Phil Bryant, State of Mississippi; Governor Paul R. LePage, State of Maine; Governor Patrick L. McCrory, State of North Carolina; and Governor C. L. "Butch" Otter, State ofIdaho. The States of Tennessee and Nevada were added in the latest Amended Complaint. All of these plaintiffs, both individuals and states, will be referred to collectively as "States" or "Plaintiffs" unless there is particular need for specificity.
Here is the docket for this case.

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Courts in general

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

In McManus v. Neal, Sup.Ind.State Prison (SD Ind., Pratt), a 51-page ruling, Judge Sykes writes:

An Indiana jury convicted Paul McManus of murdering his estranged wife and two young daughters, and the trial judge sentenced him to death in accordance with the jury’s recommendation. The Indiana Supreme Court affirmed on direct appeal, but on postconviction review the trial judge found McManus intellectually disabled and thus ineligible for the death penalty. See Atkins v. Virginia, 536 U.S. 304 (2002); see also IND. CODE § 35-36-9-6. A divided Indiana Supreme Court disagreed and reimposed the death sentence.

McManus then sought federal habeas review on several claims of constitutional error, including a challenge to the rejection of his claim of intellectual disability under Atkins. The district court denied relief but authorized an appeal on the Atkins issue. We expanded the certificate of appealability to include the following questions: (1) whether the state courts unreasonably applied federal due-process standards in finding McManus competent to stand trial, see Pate v. Robinson, 383 U.S. 375 (1966); Dusky v. United States, 362 U.S. 402 (1960); (2) whether McManus was forced to appear before the jury in a “drug-induced stupor” in violation of Riggins v. Nevada, 504 U.S. 127 (1992); and (3) whether McManus’s trial attorneys were ineffective for failing to present additional mitigating evidence about his intellectual disability during the sentencing phase of the trial.

We agree with the district court that McManus is not entitled to habeas relief on his claim of categorical ineligibility for the death penalty. The state high court applied the rule of Atkins and made a reasonable factual determination that McManus is not intellectually disabled. But the state courts unreasonably applied clearly established due-process standards for adjudicating a defendant’s competency to stand trial. The record reflects that McManus decompensated soon after the trial testimony got underway. He had several panic attacks, and his symptoms were severe enough to require two trips to the emergency room. There he was treated with a potent combination of several psychotropic drugs—including one that knocks out memory—as well as an opioid painkiller. He remained on a regimen of mind-altering medications for the duration of the trial.

The powerful effect of the medications alone created substantial doubt about McManus’s mental fitness for trial, but the judge never ordered a competency evaluation. Instead, the judge focused on getting McManus “fixed up” enough to complete the trial. By taking this approach, the judge failed to apply the legal framework established in Dusky and Pate for addressing competency questions. The Indiana Supreme Court recited the correct legal standard but in the end did not actually apply it. Although habeas review of state judgments is deferential, see 28 U.S.C. § 2254(d)(1)–(2) (2012), the record does not permit a conclusion that the state courts reasonably applied federal constitutional requirements for adjudicating a defendant’s competency to stand trial.

Accordingly, we reverse and remand to the district court with instructions to grant the writ unless Indiana gives notice of its intent to retry McManus within a reasonable time to be set by the district court. This holding makes it unnecessary for us to address McManus’s remaining claims, which rest on other allegations of constitutional error at trial. * * *

For the foregoing reasons, McManus is not entitled to habeas relief on his claim of intellectual disability under Atkins. But the state courts unreasonably applied federal due-process standards in adjudicating McManus’s competency to stand trial. Accordingly, we REVERSE the district court’s judgment and REMAND with instructions to grant the writ unless Indiana gives notice of its intent to retry McManus within a reasonable time to be fixed by the district court.

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Law - High fenced hunting bill passes House, goes to Senate

On Feb. 10th the ILB posted "House committee approves captive deer-hunt bill." Yesterday, as Niki Kelly of the Fort Wayne Journal Gazette reports here [ILB emphasis]:

Captive deer hunts could continue on a small number of properties in the state under a bill passed 55-39 by the Indiana House on Tuesday.

“These businesses deserve an opportunity to exist and operate under common-sense regulations,” said Rep. Sean Eberhart, R-Shelbyville.

House Bill 1453 originally would have legalized shooting deer bred for antlers behind high fences for anyone who wanted to start a preserve, pay an annual licensing fee and follow modest regulations.

But the practice has been opposed by many in the hunting arena as unethical. And others worry that deadly disease could spread.

So Eberhart amended the bill to allow only pre-existing facilities to be eligible for a license.

Only four are in operation under a court injunction – in Harrison, Blackford, Kosciusko and Marshall counties.

But about a dozen existed before a long legal battle when the Department of Natural Resources tried to shut them down in 2005. Those would be eligible as well.

The legislation requires a 100-acre minimum for the hunting area and implements protocols for testing deer for disease.

Aubrey Helms & Lesley Weidenbener have this story for The Statehouse File.

Here is the 3rd reading roll call in the House.

Here is the current version of HB 1423. The language on p. 5, lines 14-25 provides that the law applies to a person who "owned and operated a hunting preserve in Indiana before December 31, 2014," which presumably includes those in existence in 2005.

SECTION 7 of the bill adds a provision to IC 14-22-31 (Shooting Preserves) to distinguish it from the new IC 14-22-20.7 (Cervidae [deer] Hunting Preserves) added by HB 1423.

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Indiana Law

Ind. Gov't. - "Religious freedom" bill moves out of Senate committee

Updating this ILB post from Feb. 10th on the 5-hour committee hearing on the "religious freedom" bills, Tom Davies of the AP reports this afternoon:

Republicans on an Indiana Senate committee quickly advanced a proposed religious freedom law before any of the Democratic members arrived to vote.

The Senate Judiciary Committee approved sending the bill to the full Senate in a vote soon after Wednesday's 8:30 a.m. meeting time.

Democratic Sen. John Broden of South Bend says he would've voted against the bill, but doesn't believe any rules were broken by the committee's action.

That would be SB 101, which will now be eligible for 2nd reading tomorrow.

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Indiana Government

Ind. Decisions - Supreme Court decides one today

In Jeffrey A. Weisheit v. State of Indiana, a 26-page, 5-0 opinion, Justice David writes:

Jeffrey Weisheit was convicted of murdering eight-year-old Alyssa Lynch and five-year-old Caleb Lynch and of arson resulting in serious bodily injury. In accordance with the jury’s recommendation, the trial court sentenced him to death. On direct appeal, he claims that the trial court erred in excluding a prison administration expert from testifying that he could be safely housed in prison for the remainder of his natural life, and he raises issues related to the sufficiency of the evidence underlying his convictions, the denial of for-cause challenges during jury selection, an unauthorized communication with the jury, the suppression of statements he made to police, his death sentence, and the consideration of mitigating circumstances. After careful review, we affirm Weisheit’s convictions and sentence.

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Law - More on "Indiana Senate bill targets Gary gun lawsuit" - Bill stalls on Senate floor

Updating this ILB post from Feb. 17th, SB 98 was on third reading yesterday afternoon.

You can watch the video of the Senate consideration of the bill here, in the 2015 Senate archived video for Feb. 17, beginning at about 1:36:30. Senator Tomes calls the bill for third reading consideration. You can listen for yourself. Here, from my notes:

Tomes
: Back in the 90s there was a surge of lawsuits against gun companies, but now they are all gone except for the one in Gary Indiana. This bill would bring that lawsuit under the control of the legislation we passed in 2001. That lawsuit has laid idle for the past 6 years. "This lawsuit has lain there like a beached whale and is starting to stink." Firearms companies that have moved from their home states in the past few years to new states will not consider Indiana. There are 43 companies in 8 or 9 southern states. Beretta was looking to move from Md., but moved to Tenn., Remington moved to La. This is a jobs bill. A Russian manufacturer is looking to build in the U.S. But as long as we have that lawsuit, we are not going to be considered.

Broden to Tomes: We do have a law now saying no more lawsuits can be filed. So what is the issue with the Gary suit. Tomes: Because it makes our state toxic. Broden: But why, they can't be added to the lawsuit. Wouldn't you be upset if someone changed the rules of the game while your lawsuit was pending? Tomes: How long would you wait? Enough is enough.

Broden: I have a philosophical problem with the bill, the 2001 law didn't retroactively change the rules, but this bill would. There is something fundamentally wrong with essentially deciding the outcome of a lawsuit still pending. I question the logic of prospective employers saying they aren't going to come here because of a lawsuit filed years ago that they can't be added to.

Randolph: We are overreaching, we might as well eliminate our courts. We are interfering with the judicial process in a pending case.

Kenley to Tomes: Re SECTION 5 of the bill, the amendment would add "or maintaining" - I assume that means the City of Gary. And then it goes on to say "If a court makes a finding under this section, the court shall dismiss the claims or action and award to the defendant any reasonable attorney's fee and costs incurred in defending the claims or action." Who is the defendant? Tomes: Smith & Wesson. Kenley: So as S&W got sued they can get attorney's fees based on this legislative enactment? Tomes: I don't know. Kenley: All the attorneys fees incurred since 1999? Tomes: I don't know.

Tallien: We have a prohibition in the constitution against ex post facto laws. Sen. Kenley is absolutely right, by this bill we would be legislating the outcome of the case. This is just wrong; we do not do this. We have a tradition in this body that we do not legislate existing law suits. And there are a lot of lawsuits that have sat around for 6 years; we have a wage and hours case that sat around for 19 years.

ILB: At about 1:56:00 President Pro Tem Long asks for a brief recess and confers with Tomes. Seconds later the author Tomes pulls the bill to return it to 2nd reading.

This does not mean the bill is totally dead, there is still the opportunity to attempt to amend it on second reading.

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Indiana Law

Ind. Decisions - Court of Appeals issues 1 opinion today (and 5 NFP memorandum decisions)

For publication opinions today (1):

In Richard A. Clem v. Paul J. Watts, a 7-page opinion, Sr. Judge Sharpnack writes:

Attorney Richard Clem appeals the trial court’s denial of his summary judgment motion and the grant of attorney Paul Watts’ summary judgment motion following Watts’ complaint seeking judgment against Clem for attorney fees in a dissolution case.

We reverse and remand with instructions for the trial court to enter summary
judgment in favor of Clem.

The sole issue is one of statutory interpretation and asks us to determine whether pursuant to Indiana Code section 33-43-4-2 (2004) an attorney fee lien is valid if the intention to hold a lien is filed before judgment is rendered in the case. * * *

Pursuant to Indiana Code section 33-43-4-2, an attorney fee lien is not valid if the lien is filed before judgment is entered in the case. The trial court therefore erred in granting Watts’ summary judgment motion and denying Clem’s. We reverse and remand with instructions for the trial court to grant summary judgment in favor of Clem.

NFP civil decisions today (1):

Fuel Fitness Winfield, Inc., and Jared Tomich v. Boro Baloski, Lubinka Baloski, Goran Baloski, Fitness 1, Inc., B&B Regional Development, LLC (mem. dec.)

NFP criminal decisions today (4):

State of Indiana v. Shelby L. Pieper (mem. dec.)

Mark B. Harsley, II v. State of Indiana (mem. dec.)

Ivan Sanchez v. State of Indiana (mem. dec.)

Albert Goering v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Ind. App.Ct. Decisions

Environment - "Phase II study: No red flags for reservoir"

Ken de la Bastide had this story Feb. 17th in the Anderson Herald Bulletin. The story begins:

The Phase II study for the proposed Mounds Lake Reservoir produced no red flags that would prevent the project from moving forward, but challenges remain and a multi-government commission needs to be formed.

The Phase II feasibility study was recently released after one year of being developed by several engineering companies. The next step is creation of a commission to begin the permitting process, expected to be led by the U.S. Army Corps of Engineers.

The Phase II study looked at more details relating to the broader scope of the project including environmental impacts, some design work and cost analysis, said Rob Sparks, executive director of the Madison County Corporation for Economic Development that conducted the study.

Sparks said the next step is the initiation of the Mounds Lake Commission to determine if communities in Madison and Delaware counties want to pursue creation of the reservoir. The Mounds Lake Commission would be created by the Madison County and Delaware County commissioners and county councils, the Anderson City Council and the town councils of Chesterfield, Daleville and Yorktown — all directly affected by the proposed reservoir.

“If the communities want to go forward with the project we need community leadership,” Sparks said. “To move the project forward we have to find funding and be able to negotiate. No private group can do that.”

In addition, a reader comment to the story leads to this post, headed "Critical Letters Omitted from Mound Reservoir Phase II Study."

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Environment

Ind. Courts - "Judge: Camp Tecumseh hog lawsuit can move"

Updating a number of earlier ILB posts on the Camp Tecumseh/hog farm lawsuit, Chris Morisse Vizza reports today in the Lafayette Journal & Courier:

YMCA Camp Tecumseh can move its lawsuit against the White County Board of Commissioners to another county, according to a Tuesday ruling by White Circuit Court Judge Robert Thacker.

The ruling comes after Feb. 6 hearing in which attorneys for the camp, the commissioners and hog farmer John Erickson made their respective cases on where the lawsuit should be heard. * * *

Camp Tecumseh in August 2013 filed suit in Carroll County to overturn the White County commissioners' vote to rezone 7 acres for Erickson's proposed 9,000 hog operation about a half-mile from the 90-year-old camp in Carroll County.

The commissioners appealed to the Indiana Court of Appeals, which ruled the lawsuit first should have been filed in White County, where the zoning decisions were made.

The Indiana Supreme Court upheld the appellate court decision, and the case was sent to White County.

Now that Thacker has ruled, attorneys have three days to select a county where the case can be heard.

If no decision is reached within three days, attorneys will have two weeks to select Cass, Carroll, Tippecanoe, Benton, Jasper or Pulaski county.

Posted by Marcia Oddi on Wednesday, February 18, 2015
Posted to Indiana Courts

Tuesday, February 17, 2015

Ind. Gov't. - "Digital billboards under glare of ethics concerns in Indy"

The last post the ILB has had on this topic was two years ago, Feb. 6, 2013. It was headed "Digital billboards grow in favor among Indianapolis leaders" and briefly quoted a story from Jon Murray. You can still read the beginning, here.

This latest proposal has been a matter of great concern in my downtown neighborhood and the other neighborhood groups, once it saw the light of day.

This evening Brian Eason of the Indianapolis Star has a long story, headed "Digital billboards under glare of ethics concerns in Indy," that deserves close reading. A few quotes (great lede!):

A proposal to bring the bright lights of digital billboards to Indianapolis is flickering under a glare of scrutiny.

The controversy has put a committee of the City-County Council under fire for trying to fast-track an ordinance written by the very industry it's supposed to regulate.

In the process, council members bypassed the city's own planning staff, which had planned to review the ordinance in a few months anyway. And, even as the proposal was being ushered through, the industry's lobbyists doled out thousands of dollars to council leaders, including committee Chairman LeRoy Robinson. * * *

Neighborhood groups, though, say the public was shut out until the eleventh hour, allowing them little chance to weigh in until the proposal had already cleared the committee level.

The plan is on hold for now — and ultimately, the committee's haste may have killed the measure's chances for passage. Even some members who initially supported the concept say the route it traveled has looked so inappropriate that the legislation would be dead on arrival if it ever returned to the full council for a vote.

While a coalition of 37 neighborhood groups opposed to digital billboards appear to have beaten back the proposal, a government watchdog group said the process raises red flags about government accountability.

And some residents are still incensed at how it all went down.

"The layers of absurdity just pile on top of each other," said David Hittle, the land use chair of the Near Eastside Community Organization. "The billboard industry is writing the regulations that would regulate the billboard industry."

And that is just the start of the story.

Posted by Marcia Oddi on Tuesday, February 17, 2015
Posted to Indiana Government

Courts - "Obama Immigration Policy Halted by Federal Judge in Texas" ILB: The State of Indiana is a party

The part in quotes is the headline of this long NY Times story today by Julia Preston. Some quotes:

A federal judge in Texas has ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing the initiatives. * * *

Judge Hanen, an outspoken critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit. He said the Obama administration had failed to comply with basic administrative procedures for putting such a sweeping program into effect.

The administration said it would swiftly appeal to the United States Court of Appeals for the Fifth Circuit in New Orleans. Some legal scholars said that court was likely to stop the ruling from taking effect while it considers the case.

“Federal supremacy with respect to immigration matters makes the states a kind of interloper in disputes between the president and Congress,” said Laurence H. Tribe, a professor of constitutional law at Harvard. “They don’t have any right of their own.”

The administration argued that Mr. Obama was well within long-established federal authority for a president to decide how to enforce the immigration laws. But Texas and the other states said the executive measures were an egregious case of government by fiat that would impose huge new costs on their budgets.

The White House responded to the judge’s ruling in a statement early Tuesday, saying the president had acted within the law and with decades of legal precedent behind him.

“The Department of Justice, legal scholars, immigration experts and the district court in Washington, D.C., have determined that the president’s actions are well within his legal authority,” the White House statement said. “The district court’s decision wrongly prevents these lawful, common sense policies from taking effect.” * * *

The president’s supporters have said that Texas officials were venue shopping when they chose to file in Brownsville.

But at a hearing on Jan. 15, Judge Hanen said Brownsville, which sits on the border with Mexico, was an appropriate venue for the suit because its residents see the impact of immigration every day. “Talking to anyone in Brownsville about immigration is like talking to Noah about the flood,” Judge Hanen said.

Indiana was a party to the lawsuit. Two earlier related ILB posts were headed: Dec. 3 - "Gov. joins suit against President Barack Obama over immigration, but AG Zoeller will not participate" and Dec. 5 - ""Pence using outside counsel for immigration lawsuit"". See also this Dec. 6, 2014 ILB post.

The Indianapolis Congregation Action Network has issued a strong letter against Indiana's participation in the lawsuit, including:

“Today’s federal ruling out of Texas is disappointing,” said Indianapolis Archbishop Joseph W. Tobin. “Our nation needs to be focused on comprehensive reform legislation that will fix our immigration system. We need an orderly process for entry into our country that respects human rights and dignity and does not punish families and children. I urge Congress and the President to work together to fix our immigration system, including a reasonable path to citizenship for the undocumented.”

“Today’s ruling is a disappointing blow to immigrant families and another example of misguided efforts by anti-immigrant lawmakers trying to marginalize immigrant families from the rest of America. Immigrant families and our allies are moving forward regardless of today’s ruling and getting ready for the deferred action programs that will give millions of people the chance to live, work, and stay in America with their families,” says Rev. Linda McCrae IndyCAN Pastor of Central Christian Church.

Rev. McCrae is one of seventy Denominational Leaders including, Catholic Archbishop Joseph W. Tobin, Episcopal Bishop Cate Waynick and Indiana-Kentucky Lutheran Bishop William Gafkjen, multi-faith, multi-racial clergy from over 17 of the state’s largest religious denominations who sent an open letter to Governor Pence from the faith community urging him to withdraw Indiana from the lawsuit.

Posted by Marcia Oddi on Tuesday, February 17, 2015
Posted to Courts in general

Ind. Gov't. - Developments at this morning's Ways & Means Committee

Updating earlier ILB entries on the Governor's proposal to eliminate all funding for INSPIRE and the State Genealogy Department, proposed amendment #1 (the chairman's amendment) to HB 1001, discussed this morning in House Ways & Means, restores INSPIRE to the same level as the 2013-15 biennium, and increases the funding of the State Library from that proposed by the Governor, although it does not bring it back to even its 2013-15 level.

The ILB was not able to watch this morning's meeting of Ways & Means and is trying to catch up via the video of today's meeting.

The Committee also considered amendments to HB 1425, the Court's Automated Record Keeping Fee. (As I begin watching this morning's video, I see Justice David sitting in the front row...)

Posted by Marcia Oddi on Tuesday, February 17, 2015
Posted to Indiana Government

Ind. Law - Four women on the cover of 2015 Indiana Super Lawyers

Just got the latest issue of Super Lawyers in the mail and there on the front cover, along with three other women graduates from the decade of the 70s, is the esteemed estates & probate attorney, Aline Anderson, who I trusted recently to write my will, and who graduated from what is now Indiana University McKinney Law School in 1970, one year after me (1969). Congrats!

Posted by Marcia Oddi on Tuesday, February 17, 2015
Posted to Indiana Law

Ind. Law - "Indiana Senate bill targets Gary gun lawsuit" [Updated]

The ILB had a long post on Friday, Feb. 13, headed "New firearms bill: Job creator or lawsuit killer?" that included a long section on the Gary gun lawsuit. Yesterday Carole Carlson of the Gary Post Tribune, reported in a story headed "Indiana Senate bill targets Gary gun lawsuit." Some quotes from the long story [ILB emphasis]:

The city of Gary's legal battle with guns has ricocheted around the courts for 16 years, absorbing glancing blows and small victories along the way.

Now, it's in the cross hairs of a bill in the state Senate that could deliver a knockout punch because a southern Indiana lawmaker says it stands in the way of creating gun industry jobs.

"It's been laying there like a beached whale and it's starting to stink," said state Sen. Jim Tomes, R-Wadesville, during a Senate committee hearing last week.

His bill would prohibit lawsuits against gun dealers and manufacturers, making it retroactive to 1999 when Gary's civil lawsuit was filed.

Tomes said gun manufacturers have told him the Gary lawsuit is stopping them from locating in Indiana. "They won't consider Indiana at all because of this lawsuit. We're talking about jobs here."

Tomes said his bill is an effort to eliminate the case. "I think the practice of holding somebody else responsible for the corrupt actions of other people is horrible policy," he told the committee.

Mayor Karen Freeman-Wilson, who was Indiana attorney general when the suit was filed, said Tomes' bill smacks of legislative meddling.

"There's a practice in this country for allowing litigation to be resolved on its own merits. To have subsequent legislation directed at it is contrary to principles on which this country was founded."

Freeman-Wilson, who didn't testify during the hearing, called Tomes' claims of gun industries coming to Indiana "speculative at best."

The bill is SB 98 and it appears to be on 3rd reading.

[Updated at 1:05 PM] The full version of the story includes a timeline.

Posted by Marcia Oddi on Tuesday, February 17, 2015
Posted to Indiana Law

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

For publication opinions today (1):

In Lori Ann Barcroft v. State of Indiana , a 16-page opinion, Judge Kirsch writes:

Lori Ann Barcroft was found guilty but mentally ill of murder after a bench trial. She appeals and raises two issues, of which we find the following dispositive: whether the trial court committed fundamental error when it used Barcroft’s request for an attorney, which she asserted before she made a statement to police, in its determination of whether Barcroft established that she was insane at the time she committed the crime of murder. We reverse and remand. * * *

Crone, J., concurs.
Friedlander, J., concurs with separate opinion. [which begins, at p. 14] I concur with my colleagues’ conclusion that the trial court’s consideration of Barcroft’s post-Miranda request for counsel as evidence of her sanity amounts to fundamental error. I write separately to address an issue that I believe this conclusion compels us to address: did Barcroft prove by a preponderance of the evidence that she was insane? * * *

Based on the evidence presented, I cannot conclude that the trial court’s inferences were unreasonable or that its ultimate finding that Barcroft, although mentally ill, was able to appreciate the wrongfulness of her conduct was clearly erroneous. Subject to my view that we should address the issue concerning the preponderance of the evidence of Barcroft’s insanity, I concur with the majority that the use of her post-Miranda request for counsel was fundamental error.

NFP civil decisions today (1):

Bryan Jerman and Property Insurance Services, Inc. v. Cash-Pro, Inc. (mem. dec.)

NFP criminal decisions today (7):

Christopher R. Hall v. State of Indiana (mem. dec.)

Louis Davis v. State of Indiana (mem. dec.)

Reko Deprea Levels v. State of Indiana (mem. dec.)

Jerry Miller v. State of Indiana (mem. dec.)

Htar Kyoo v. State of Indiana (mem. dec.)

Anthony D. Evinger v. State of Indiana (mem. dec.)

Dominick Fazzini v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 17, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Tax Court posts one today, filed Feb. 16

In Alloy Custom Products, Inc. v. Indiana Department of State Revenue, a 16-page opinion, Sr. Judge Fisher writes:

Alloy Custom Products, Inc. has challenged the Indiana Department of State Revenue’s (Department) final determination denying it a refund of the Indiana sales tax it paid on utilities it consumed while “rehabilitating” cryogenic tanker trailers between September 2006 and March 2010 (the period at issue). The matter is currently before the Court on the parties’ cross-motions for summary judgment. * * *

Based on the evidence and argument before it, the Court finds that Alloy’s rehabilitation process does not produce other, or new, tangible personal property. Accordingly, the Court GRANTS summary judgment in favor of the Department and AGAINST Alloy.

Posted by Marcia Oddi on Tuesday, February 17, 2015
Posted to Ind. Tax Ct. Decisions

Monday, February 16, 2015

Ind. Decisions - No appellate opinions today?

At least, not as of now.

Posted by Marcia Oddi on Monday, February 16, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Bills live, die, get buried in complicated Statehouse process"

Nice story on the legislative process by Maribeth Vaughn of the Greenfield Daily Reporter.

Posted by Marcia Oddi on Monday, February 16, 2015
Posted to Indiana Government

Courts - Two recent national editorials on prosecutorial misconduct

From the Sunday LA Times, a lengthy editorial with this subhead: "Cheating prosecutors should be reported to their superiors and to the state bar, and weighed for prosecution." A sample:

It is tempting to see prosecutorial misconduct as a less urgent problem than the front end of the justice system — the encounters between suspects and police that have become the subject of nationwide soul searching and reexamination in the wake of high-profile police killings in Ferguson, Mo.; New York; and Los Angeles, among other places.

But lives are also at stake in the criminal courtroom. A sentence of 10 years or 20 years or even more — or of death — should not be rendered without absolute assurance that the trials were fair and that the prosecutors were honest. An argument could be made that prosecutorial misconduct is far more egregious and unforgivable than a police officer's deadly error, because police officers must react in an instant to a potentially deadly threat to themselves or the public. A prosecutor's misdeed comes with ample time to reflect. * * *

Keep in mind that criminal prosecutors have duties that defense lawyers don't. The prosecutor's goal is not, or rather should not be, merely to win, but to ensure that proceedings are fair and verdicts are just. Prosecutors must disclose any evidence that could tend to undermine their own cases. They may not — again, it should go without saying — lie, encourage others to lie, or present witnesses they know or suspect to be lying.

From today's NY Times, an editorial that begins:
When prosecutors cheat and lie repeatedly to win convictions, should their office be held accountable?

When a man spends years, or decades, in prison as a result of such prosecutorial misconduct, should he be compensated?

These are not trick questions.

And yet in a bizarre 2011 ruling, five justices of the Supreme Court managed to answer no to both, essentially closing off one of the only ways to hold prosecutors and their offices liable for wrongdoing.

In a new petition before the court, two Louisiana men who were exonerated after 27 years behind bars are asking the justices to review their case and allow them to sue the New Orleans prosecutor’s office for money damages for violating their constitutional rights. If the justices agree to hear the petition, they could undo some of the harm they did in 2011 and help cure what one federal appellate judge has called an “epidemic” of prosecutorial misconduct across the country.

[More] See also this earlier, Jan. 31st LA Times story.

Posted by Marcia Oddi on Monday, February 16, 2015
Posted to Courts in general

Ind. Gov't. - Bill to open more Indiana adoption records to adoptees

Niki Kelly reports in a long story today for the Fort Wayne Journal Gazette:

Senate Bill 352 would allow mothers who placed a child for adoption [between 1941 and 1993] to file a no-contact form that would continue to keep the records sealed. Advocates of the bill say that in states that have opened adoption records, only about 0.1 percent of mothers have done so.

If the mother doesn’t do so, the records will be open to the child.

The legislation passed the Senate 46-3 and next will be considered by the House.

Pam Kroskie, president of the Indiana Adoption Network and Hoosiers for Equal Access to Records Inc., said Indiana’s current law prohibiting access to adoptee birth records is outdated.

She estimated that the law change would open the records for about 350,000 Hoosiers who can’t access them without going to court and using a confidential intermediary between them and birth parents – often at a considerable cost with no guarantee of success.

Sen. Brent Steele, R-Bedford, said before 1941 the records were open. And in 1993, legislators set up a process of giving the mother a choice at the time of the adoption. But there is a still a gap for thousands of Hoosiers.

He said 14 states have moved away from sealing the records, and some courts have ruled there is no right to privacy for birth parents.

“You as legislators have to adopt public policy that works for the vast majority of the people,” Steele said.

Posted by Marcia Oddi on Monday, February 16, 2015
Posted to Indiana Government

Ind. Gov't. - "Is ‘right to farm’ amendment for Indiana a‘right to harm?’"

That is the headline to this story by Ryan Sabalow of the Indianapolis Star. Some quotes:

Senate Joint Resolution 12 is authored by Sen. Brent Steele, R-Bedford. It’s the latest version of a constitutional amendment that had been discussed in two previous legislative sessions but failed to advance. It’s also similar to resolutions and bills pushed by corporate and agricultural groups across the country.

Gov. Mike Pence signed a law last year co-authored by Steele that said Indiana’s legal code was to be construed to protect the rights of farmers to farm or ranch in the manner they so desired.

Such “Right to Farm” legislation is praised by national farming advocates who say it ensures future state lawmakers won’t pass laws that unnecessarily burden farming. They say such legislation provides protections from what they consider to be bogus legal challenges pushed by animal welfare groups, such as the Humane Society of the United States. * * *

Kim Ferraro, a lawyer with the Hoosier Environmental Council, questions why the bill is needed at all. She says lawmakers have already passed two right-to-farm statutes, including the one last year, so why add further protections?

Plus, she questions whether farmers are really under threat as they like to claim.

“You hear them say ag is under attack, yet two weeks ago I was invited to attend the governor’s inaugural agricultural conference, and I was sitting in a room with over 400 people from the biggest multinational corporations — Cargill, Monsanto, huge, huge companies — all boasting about how Indiana is a global leader, how the industry is making billions. I mean it’s like where is the disconnect?” * * *

Steele’s resolution is scheduled to be discussed Monday during the Senate’s Agricultural Committee hearing at 10 a.m. in Room 130 at the State Capitol, 200 W. Washington St.

Constitutional amendments need to be passed by the General Assembly for two consecutive years before going before the voters.

Here is a list of many earlier ILB posts on "right to farm" legislation.

Of interest is this November 19, 2014 commentary on the status of Indiana law by attorney Gary Baise in the trade publication, Pork Network, who writes:

[Plaintiffs are apparently unaware 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.

DeGroot was decided years before the second right-to-farm statute was added to Indiana law last year. If last year's legislation was "adding a belt to suspenders", how to categorize this year's effort?

Posted by Marcia Oddi on Monday, February 16, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending February 13, 2015

Here is the Clerk's transfer list for the week ending Friday, February 13, 2015. It is one page (and 16 cases) long.

One transfer was granted last week, with opinion, in the case of Brandon Brummett v. State of Indiana. Here is the ILB summary of the decision, from Feb. 11th, and Prof. Scumm's commentary, from Feb. 12th.

Posted by Marcia Oddi on Monday, February 16, 2015
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/16/15):

Next week's oral arguments before the Supreme Court (week of 2/23/15):

Thursday, Feb. 26

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/16/15):

Tuesday, February 17

Next week's oral arguments before the Court of Appeals (week of 2/23/15):

Thursday, February 26

Friday, February 27

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, February 16, 2015
Posted to Upcoming Oral Arguments

Friday, February 13, 2015

Ind. Courts - Judicial Center's Legislative Update 6th weekly installment

The February 13th (sixth) weekly installment of the Legislative Update for the 2015 legislative session is available here. It is in blog form, you can scroll down for earlier updates. This is a good way to keep aware of bills of interest to the judiciary.

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Indiana Courts

Ind. Gov't. - Bill would provide reimbursement from the state for reasonable attorney's fees incurred in defending against a charge of attorney misconduct

SB 507, which was passed out of the Senate Judiciary Committee Feb. 12 and reassigned to Appropriations, has the following digest:

Attorney and judicial discipline complaints. Permits a prosecuting attorney and a county public defender to seek reimbursement from the state for reasonable attorney's fees incurred in defending against a charge of attorney misconduct if: (1) the alleged misconduct relates to the person's official duties or status as a prosecuting attorney or public defender; (2) the charge of misconduct does not result in a sanction (except for a private reprimand); and (3) the attorney general approves the reimbursement.

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Indiana Government

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

In U.S.A. v. Wilbourn (ND Ind., Miller), a 5-page opinion, Judge Posner writes:

The defendant was convicted of bank robbery by force or violence, in violation of 18 U.S.C. § 2113(a), and for brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). His appeal presents a question that heretofore this court has had no occasion to consider—whether a criminal defendant who by pretending to be mentally incompetent in an effort to delay or derail his prosecution is guilty of an obstruction of justice within the meaning of section 3C1.1 of the federal sentencing guidelines. * * *

This is, as we said at the outset, the first case in which our court has confronted the issue of obstructing justice by exaggerating symptoms at a competence hearing. But the only three other federal courts of appeals that have confronted it and issued published opinions have resolved it in the same way as we do in this opinion. See United States v. Aldawsari, 740 F.3d 1015, 1021 (5th Cir. 2014); United States v. Batista, 483 F.3d 193, 197–98 (3d Cir. 2007); United States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003). AFFIRMED.

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - "Deputy prosecutor violated rules during trial"

Kristine Guerra reports today on the Supreme Court's decision Feb. 11th in Brummett v. State. Here is the ILB summary Feb. 11th of the decision, along with several links.

Prof. Joel Schumm commented on the Brummett decision in this post yesterday, headed "Crossing the Prosecutorial Misconduct Line & What a Difference a Word Can Make."

Some quotes from today's lengthy Star story:

In his appeal, Brandon Brummett cited instances of misconduct committed by the deputy prosecutor during his 2013 trial in Marion Superior Court, particularly during closing arguments and cross-examination of Brummett.

He argued that Marion County Deputy Prosecutor Gillian DePrez Keiffner made statements that demeaned the defense attorney, expressed her personal opinion regarding the credibility of witnesses and asked belligerent and hostile questions during the trial.

A three-judge Court of Appeals panel ruled in June that such actions are in violation of the Indiana Rules of Professional Conduct and that Brummett, who was accused of molesting two teenage girls, should be granted a new trial. In a brief opinion issued Wednesday, the Supreme Court upheld the appeals court's ruling. * * *

Susan D. Rayl, who represents Brummett in his appeal, said she believes instances of prosecutorial misconduct have become more common.

"The problem has been that while the court would occasionally find misconduct, they didn't reverse conviction," Rayl said. "There's not much incentive for prosecutors to change their behavior. There's no consequences, if you will, to the misconduct that was happening."

Rayl said somewhat similar accusations of misconduct were made against Keiffner in an earlier case involving another man, Bruce Ryan, who was convicted of sexual misconduct with a minor. As in Brummett's case, the Court of Appeals in 2013 reversed Ryan's convictions and ruled that he was entitled to a new trial.

The Supreme Court, however, later reversed the appeals court's ruling, reinstating Ryan's conviction. The judges [sic. - justices] agreed that although they "do not endorse the prosecutor's trial tactics," the alleged misconduct did not affect the jury's decision to convict Ryan, according to the June 2014 opinion.

More from the story:
When asked whether the accusations of misconduct against his deputy prosecutor are warranted, Marion County Prosecutor Terry Curry said, "Absolutely not."

"We do all of our continuing legal education in-house, including significant ethical training," Curry said. "So these are issues we address with our deputy prosecutors constantly."

Of the approximately 550 criminal cases that were appealed in Marion County from January 2012 to July 2014, the Court of Appeals reversed only Brummett's and Ryan's convictions because of prosecutorial misconduct, according to the prosecutor's office. And only Brummett's appeal was upheld by the Supreme Court.

In Ryan's case, Curry said, the deputy prosecutor's statements that Ryan found objectionable were in response to his defense attorney's closing arguments.

In contrast, however, this long, must read July 7, 2014 ILB commentary by Professor Joel Schumm includes this section:
Prosecutorial misconduct is far too common in Marion County. The day before the Indiana Supreme Court issued its opinion in Ryan, the court of appeals reversed a conviction for prosecutorial misconduct in a case involving the same (unnamed) Marion deputy prosecutor. [ILB - that would be Brummett] The court of appeals found that the prosecutor had improperly distinguished between the role of the defense and the prosecution, improperly vouched for the State’s witnesses, and asked argumentative and inflammatory questions.

What about other cases? The linked document ("Prosecutor Misconduct Discussed in Appeals from Marion County, January 2012-June 2014") includes 22 cases in which an Indiana appellate court has found, or assumed without deciding, one or more instances of improper conduct by prosecutors in Marion County since 2012. Sometimes the court explicitly cites a Rule of Professional Conduct; other times the court simply describes the conduct.

Marion County Prosecutor Terry Curry, who was elected in 2010, is either oblivious to or unfazed by these opinions. His June email newsletter boasts that his office is “holding criminals accountable for their actions, preserving the rights of victims and continually seeking justice, all while maintaining the highest of ethical standards.” (emphasis added) Ethics was a big part of the 2010 campaign to replace Carl Brizzi, but Mr. Curry’s self-congratulations seem unwarranted in light of the 22 cases out of a fairly small universe of only a few hundred cases appealed since 2012 involving his lawyers. Some may question whether Curry has appropriate policies in place and has been taking "reasonable efforts to ensure that his subordinates conform to the Rules of Professional Conduct” as required by Professional Conduct Rule 5.1(a) & (b).

Today's Star story also includes a quote from Prof. Schumm:
Joel Schumm, a law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis, wrote in the Indiana Law Blog that the Supreme Court's ruling in Brummett's case "sent an important signal that, among the current justices, there is a line that prosecutors cannot cross, even in the absence of any objection from defense counsel."

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 6 opinions today (and 19 NFP memorandum decisions)

For publication opinions today (6):

In Tracey M. Jaffri v. JP Morgan Chase Bank, N.A., an 11-page opinion, Judge Barnes writes:

We cannot perceive that by enacting HAMP, the federal government intended for persons rejected for HAMP assistance to have a private cause of action against the mortgage lender or servicer, unless a contract actually was entered into under HAMP. A number of cases have been decided to that effect. * * * Jaffri’s counterclaims are contrary to a wealth of authority refusing to allow mortgagees to file private rights of action against a bank that allegedly failed to comply with HAMP.
In Brian Beckerman v. Nimu Surtani, M.D., and Central Indiana Orthopedics, P.C., a 9-page opinion, Judge Najam writes:
Brian Beckerman appeals the trial court’s judgment for Nimu Surtani, M.D., and Central Indiana Orthopedics, P.C. (collectively, “Dr. Surtani”), on Beckerman’s motion for reimbursement of expert witness fees pursuant to Indiana Trial Rule 26(B)(4). Beckerman raises a single issue for our review, namely, whether the trial court abused its discretion when it denied his motion for reimbursement. We affirm.
In Karen L. Gilday, and James K. Gilday v. Jeanine L. Motsay, and Edward W. Ochoa, a 13-page opinion, Judge May concludes:
The trial court did not err in granting final judgment on the Gildays’ claims, the Gildays have not provided cogent argument the trial court should have ruled on their motion to compel, and the Gildays are not entitled to attorney’s fees. We accordingly affirm.
In Kevin A. Mathews v. State of Indiana, a 13-page opinion, Chief Judge Vaidik writes:
Mathews argues that the admission of the victim’s deposition violated his rights under Article 1, Section 13 of the Indiana Constitution because he was not present at the deposition. We find no violation. First, the victim was unavailable at the time of trial because of her declining health. Next, the victim’s deposition was obtained pursuant to procedures designed to elicit the truth. That is, the victim’s testimony was given under oath and transcribed by a court reporter.

Finally, we find that Mathews waived his right to a face-to-face confrontation by failing to attend the victim’s deposition. Mathews was free on bond, yet he did not attend the deposition. The State formally extended an offer to Mathews to attend the deposition, but defense counsel gave no reason at the deposition for his client’s absence.

Because Mathews waived his right to confront the victim face to face, we affirm the trial court.

In David Wise v. State of Indiana, a 19-page opinion, Judge Bailey concludes:
The trial court did not abuse its discretion when it admitted into evidence the re-recordings of the videos M.B. found on Wise’s cellular phone. The court also did not abuse its discretion when it did not permit Wise to obtain pretrial or trial testimony from M.B. concerning any extramarital sexual conduct.
In Julie Bickford v. State of Indiana, a 9-page opinion, Judge Bailey writes:
Julie Bickford (“Bickford”) pled guilty to three counts of Cruelty to an Animal, as Class A misdemeanors. As part of its sentencing order, the trial court required Bickford to pay restitution for costs associated with a rescue organization’s care for the three horses Bickford had mistreated. She now appeals. We affirm.
NFP civil decisions today (8):

In the Matter of the Termination of the Parent-Child Relationship of: J.M., N.H. & N.M. (Minor Children), N.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

John D. Jenkins Revocable Living Trust, John D. Jenkins, Trustee v. Peru Utility Service Board, City of Peru and Peru Common CounciL (mem. dec.)

Randall J. Herzog v. Judy K. Herzog (mem. dec.)

Jonalyn Miller (formely Beckham) v. Roger Beckham Jr. (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of B.M., T.B. v. Indiana Department of Child Services (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: I.B., B.B., and W.B. and M.T. v. The Indiana Department of Child Services (mem. dec.)

Robert Middleton v. Paula Pyatte (mem. dec.)

In the Matter of X.M. and D.M., Minor Children, Children Alledged to be in Need of Services, S.B. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (11):

Iquise Taylor v. State of Indiana (mem. dec.)

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

Robert Ledbetter, Jr. v. State of Indiana (mem. dec.)

Jamie Lykins v. State of Indiana (mem. dec.)

Kenneth S. Marshall v. State of Indiana (mem. dec.)

Jeannie M. Hess v. State of Indiana (mem. dec.)

Michael James Beasley v. State of Indiana (mem. dec.)

Ricky Duff v. State of Indiana (mem. dec.)

Dallarius T. Jackson v. State of Indiana (mem. dec.)

William L. Holt v. State of Indiana (mem. dec.)

Amanda Biggs v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Dan Carpenter on the General Assembly and the press

Dan Carpenter, in commentary for The StatehouseFile, wrote yesterday in a $$ article that begins:

I guess all we can ask at this point from the Statehouse Republican junta, and the “journalists” who carry their message, is some honesty.

Just say it:

“Religious freedom” legislation, coming on the heels of the victory for marriage equality, is meant, not to protect minorities, but to oppress them.

Tax cuts for Indiana’s wealthiest entities are not a strategy to create jobs.

Carrying water for the National Rifle Association by expanding the sale of firearms will not make our streets safer, and our suburban and rural legislators darn well know it.

Cushioning giant hog factories and the coal industry from accountability is as bad for the economy as it is for human and environmental health; but it does benefit shortsighted special interests.

Diluting teacher qualifications and draining money away from public schools will not make our children more enlightened, or more “competitive.” They will shift power from professional educators to connected entrepreneurs.

And finally (for now), reducing the duly elected head of public education to a figurehead is not a response to dysfunction involving the State Board of Education. It is a coup that will reward that board for functioning exactly according to the wishes of the men who appointed it.

Dysfunction? Miscommunication? Failed diplomacy on the part of Glenda Ritz? I don’t know what’s more infuriating – that politicians can utter these canards with a straight face or that the news media in the name of objectivity feed it to the people.

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Indiana Government

Environment - "Coal mines coming and going in Daviess County"

This is a really interesting, long article by Mike Grant of the Washington (IN) Times Herald. It begins:

The Daviess County Commissioners discussed some of the future for coal mines in the county while some mine neighbors asked the county to take action to offset some of the losses and problems they are experiencing because of mine activity. Currently, Daviess County has one active mine, one that has suspended operations, one that is closing and one that is looking to open before the year is out. Each of them is providing the county with its own set of challenges and opportunities.

"Coal mines are a valuable resource to our county," said Commissioner Nathan Gabhart. "They bring some great living wage jobs to our area."

"They bring a lot of positive things to the county," added Daviess County Highway Superintendent Phil Cornelius. "The people who are employed there, the spin-off businesses, the parts stores, restaurants everybody benefits from them being here, but there are negatives as well and you have to take the good with the bad."

The county heard from three residents with complaints about some of the mine impacts.

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Environment

Ind. Gov't. - "Kentucky bans Hoosier captive-deer imports"

Ryan Sabalow reports today for the Indianapolis Star:

Kentucky's state veterinarian this week temporarily closed the state's borders to captive-deer shipments from Indiana, citing concerns about disease-contaminated animals.

Kentucky state veterinarian Robert Stout said Thursday that Kentucky had already banned captive deer imports from Pennsylvania and Ohio due to outbreaks of chronic wasting disease, which led to dozens of quarantined farms in those two states.

He suspended shipments from Indiana after learning the state had received deer linked to outbreaks in those states.

The move comes as Indiana lawmakers debate a bill that would legalize the hunting of captive, farm-raised deer.

It also comes just a few days after officials in Ohio announced they filed two felony criminal charges against Holmes County hunting-preserve owner, Daniel Yoder.

He is accused of violating his state-issued quarantine, falsifying records and tampering with evidence during an investigation into Ohio's first case of chronic wasting disease. Officials say a farm-raised buck shot in October on Yoder's preserve tested positive for CWD. Yoder couldn't be reached for comment Thursday. * * *

"Indiana has received (deer) over the years from both Pennsylvania and Ohio herds," Stout wrote in a memo describing the import ban. "Therefore, until such time that a comprehensive epidemiologic investigation is completed by both (the U.S. Department of Agriculture) and impacted states, importation into Kentucky from Indiana herds is temporarily suspended." * * *

Meanwhile, Indiana's House could vote as early as next week on House Bill 1453 (ILB: here is the most recent as of this writing, Feb. 10th version), which would legalize high-fence hunting at any preserve that had been in operation before 2015. In 2005, state wildlife officers attempted to ban the practice due to concerns about unethical hunting and disease.

The preserves sued and recently had the ban overturned.

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Indiana Government

Ind. Gov't. - "New firearms bill: Job creator or lawsuit killer?"

Jill Disis reports today in the Indianapolis Star in a story that begins:

An Indiana lawmaker is touting his new firearms bill as a job creator that he says would make the state a haven for the $37 billion gun manufacturing industry.

Fifteen years ago, Gary stirred controversy when it sued gun makers and sellers, attempting to hold them accountable for the havoc that their products caused on that city's streets.

But critics say the bill's author, Sen. Jim Tomes, R-Wadesville, is giving special favor to the gun industry with Senate Bill 98 and claim it reveals a troubling agenda — one that targets an active lawsuit with potentially wide-ranging effects on businesses that sell or manufacture guns which wind up in the hands of criminals.

Tomes says he's not hiding his intent. The bill suggests a few changes to the Indiana code that governs lawsuits against firearms manufacturers and sellers — changes that he says were specifically written to end Gary's lawsuit.

"It's been laying there like a beached whale, and it's starting to stink," Tomes said during a Senate Judiciary Committee hearing Wednesday. "Anytime this (gun manufacturing) industry is moving from one state to another, they don't consider Indiana at all because of that lawsuit. We're talking about a jobs bill here."

The ILB has had many posts on the Gary litigation. This one from Jan. 19, 2009 quoted an excellent analysis piece by Jon Murray, then of the Indianapolis Star, headed "Move to let Gary gun-violence lawsuit proceed stirs debate: Some see landmark case; others call Gary suit unfounded." It began:
One by one, local governments have filed lawsuits that try to hold firearms manufacturers responsible for gun violence on city streets.

And, one by one, the lawsuits have either been dismissed by courts or dropped. Until last week.

In what gun control advocates quickly hailed as a landmark decision, the Indiana Supreme Court ruled last week that a lawsuit filed by the city of Gary can proceed toward trial.

That leaves Gary as the last plaintiff standing among more than 30 cities and states that have sued the gun industry over the past decade -- and at the epicenter of a contentious debate.

Gary, a city of 96,000 with one of the nation's highest homicide rates, filed its lawsuit in 1999. It argues that gun manufacturers -- including Smith & Wesson, Beretta and Colt -- and several gun dealers are liable for gun violence because they readily supply handguns they know will reach criminals, juveniles and others forbidden from buying them, and cast a "willful blindness" toward a lucrative illegal trade. * * *

Most states -- including Indiana, in 2001 -- have passed laws that protect gun manufacturers from such liability, thwarting future suits. In addition, Congress passed a law in 2005 that also shields the gun industry from liability suits. * * *

Many lawsuits backed by cities or states since New Orleans filed the first in 1998 have been dismissed by state and federal courts, often because of state laws providing immunity for the gun industry.

Still more failed after Congress' passage in 2005 of the federal shield law, the Protection of Lawful Commerce in Arms Act.

But the Indiana Court of Appeals made an important ruling in October 2007. The court, in a 3-0 decision, said that Gary's case could proceed, despite the federal shield law. The reason: Gary's public nuisance claims fell under an exception because it alleged violations of state laws applying to the sale and marketing of firearms.

The gun-makers appealed, but last week, the Indiana Supreme Court in effect rejected that appeal by declining to review the case.

Here is a long list of earlier ILB posts on the case.

More from today's story:

Gary Mayor Karen Freeman-Wilson, who served as the state's attorney general under Gov. Frank O'Bannon, said Tomes has not contacted her about the bill. Freeman-Wilson also said she was "deeply concerned" about the apparent attempt by state lawmakers to target pending litigation.

"Because of some of their practices (in the firearms industry)," Freeman-Wilson said, "it certainly makes guns more readily available, and it makes the bloodshed in our streets, it places it in some part, at the seat of the gun manufacturers."

Guy Relford, a Carmel-based lawyer known for defending Second Amendment rights, said he supports the bill and does not think the legislature would be acting beyond its authority by passing it.

"It has been the law in Indiana for a long, long time that the General Assembly can, in the context of civil litigation, make a law retroactive if it so chooses," Relford said.

The bill passed its Wednesday committee hearing 7-1, sending it on the the full Senate. But even if it becomes law, it's not clear that new jobs and economic dollars would flow into Indiana.

Tomes declined to give specific examples of firearms manufacturers who might be interested in moving to Indiana * * *

Though Tomes acknowledged that the bill doesn't come with any certainty, he said it still gives Indiana a chance for new business.

"This is not guaranteeing we're going to get anything," Tomes said, "but by golly, it will guarantee that we're not locked up in a pen unable to compete."

The Feb. 13th version of the bill, SB 98, has the digest: "Prohibits a person from bringing or maintaining certain actions against a firearms manufacturer, ammunition manufacturer, trade association, or seller, and makes the prohibition retroactive."

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Indiana Government

Ind. Courts - "Same-sex moms demand names on son’s birth record"

That is the headline of Dave Bangert's story today in the Lafayette Journal & Courier, subheaded "Tippecanoe County denied couple’s request to list them as parents on birth certificate without a court order. Now they plan to sue in federal court." Some quotes from the long story:

The Hendersons are expected to file a lawsuit Friday morning in U.S. District Court, Southern District of Indiana, challenging the state law on birth records and asking that Ashlee’s name be added to the birth certificate so she can be recognized as her son’s mother, without having to go through the adoption process. * * *

Amy Reel, spokeswoman for the Indiana Department of Health, said the department had not been informed about a possible lawsuit or its claims. She said on Thursday that she was gathering information about advice the state department was giving local health departments about birth certificates for same-sex, married couples. But the information wasn’t immediately available by end of business hours Thursday.

Randy Vonderheide, attorney for the Tippecanoe County Health Department, said the statutes are anything but easy to interpret.

“We’ll take a look at the lawsuit,” Vonderheide said. “I understand times may well be changing. And we might have to take a little different look at what the current statutes indicate. It could be something that could well land in our legislature.”

Rich, the Tippecanoe County health administrator, said a lawsuit isn’t a surprise.

“From my understanding, this was obviously going to go higher than us,” Rich said. “We need an answer, I think we can all agree with that. … There always has to be a test case. I think there are 92 counties waiting for this same thing.”

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Indiana Courts

Ind. Gov't. - Public Access Counselor opines on "health" information vs. "cause of death"

On Jan. 21st, 2015 the Public Access Counselor issued Informal Opinion 14-INF-34, re Death Certificates, in response to an inquiry from Greg Ullrich, Marion County Health & Hospital Corp. Some quotes:

This is in response to your informal inquiry regarding the Indiana Supreme Court’s ruling in Evansville Courier & Press v. Vanderburgh County Health Department, 17 N.E.3D. 922 (Ind. 2014). * * *

In October, 2014, the Indiana Supreme Court issued a ruling in Evansville Courier & Press v. Vanderburgh County Health Department, 17 N.E.3D. 922 (Ind. 2014) declaring unequivocally that cause of death on certificates of death are public record to be disclosed upon request. The Indiana State Department of Health (“ISDH”) collects information on State Form 10110 (“Form”). Created pursuant to Ind. Code § 16-37-3-3(a), the Form includes a section concerning personally identifiable health information including, but not limited to, diseases, injuries or complications which directly caused the death; significant conditions contributing to death; whether a female decedent was pregnant at or near the time of death; and the manner of death.

The Health Insurance Portability and Accountability Act (“HIPAA”) prohibits the release of individually identifiable health information of a decedent for 50 years following the death of the individual. Your inquiry seeks to obtain an answer on whether protected health information is disclosable in light of the Indiana Supreme Court’s October ruling. * * *

Local health departments in Indiana must provide public access to certificates of death. In Evansville Courier & Press v. Vanderburgh County Health Department, Justice Massa opined:

In our society, death is an intimate and personal matter. We recognize that public disclosure of the details of a decedent’s death my cause pain to his family and friends. We are also mindful of the importance of open and transparent government to the health of our body politic. Our General Assembly has considered these competing interests and, insofar as we can determine, concluded that the public interest outweighs the private.
At odds with the Supreme Court’s decision is the Federal Regulation found at 45 CFR § 164.508(a)(1) which states that personal health information of a decedent must be kept confidential no less than fifty years after death (See also 45 CFR 160.103 paragraph (2)(iv)). While the Court in Evansville considered cause of death, it did not address other health information.

State Form 10110 solicits both “Immediate Cause (Final Disease or Condition Resulting in Death)”, and “Conditions, If Any, Leading to the [Immediate] Cause… (“Disease or Injury That Initiated the Events Resulting in Death)”.

While not stated explicitly in any authority of which I am aware, it can be reasonably construed cause of death and the factors leading to death could be considered mutually exclusive. For example, if a carrier of HIV/AIDS was to die from complications from pneumonia, the pneumonia is the immediate cause of death, but not HIV/AIDS. The immune disorder would be a contributing factor but not the cause of death.

In order to comply with the HIPAA rule and also heed the ruling in Evansville, it may be prudent for local health departments to redact portions of documentation entered on State Form 10110 indicating “Disease or Injury That Initiated the Events Resulting in Death”.

The ILB has had a long list of entries on the Evansville decision, a number of them applauding the ruling as a victory for transparent government.

Posted by Marcia Oddi on Friday, February 13, 2015
Posted to Indiana Government

Thursday, February 12, 2015

Ind. Gov't. - More on: Pence rationale for abolishing State Library Genealogy Department

In an updated post this afternoon the ILB quoted the recommendation of the Office of Management and Budget re the "Genealogy Collection Program (Indiana State Library)":

This program provides services that could be provided by private organizations. As a cost savings measure, the Collection should be digitized through a private genealogy provider who will pay the State a royalty for its use. Potential annual general fund savings: $400,000.
The ILB followed this with a quote from an Oct. 23, 2014 governor's news release headed: "Governor Pence Announces State Partnership with Ancestry.com: Will Digitize 13 Million Birth, Death, and Marriage Certificates by 2016 Bicentennial."

The ILB has now been able to locate a copy of the contract - you can access the entire 18-page document between the State Commission on Public Records and Ancestry.com via the IDOA site here.

The guts of the contract starts with Attachment 1, on p. 13 of the PDF. The ILB has OCRed and uploaded this part of the agreement (the pages of which will be referenced as 1-6).

Appendix A on p. 4 lists the records covered by the agreement. Page 6 (Exhibit B) is the Royalty Calculation, with #2 explaining how any royalty the State will receive for these records is to be calculated. There is no minimum guarantee.

Ancestry agrees on p. 2 to:

Provide free access for up to twenty (20) simultaneous users to its Ancestry.com website, Institutional Edition, which will include the Licensed Materials when available, on location at the State's facilities to include the Indiana Department of Health's Vital Records Division and the Indiana Commission on Public Records' State Archives Division for authorized users, upon signature of this Agreement. * * *

Provide The State with up to two (2) copies of the Licensed Materials within thirty days of the publishing of the Licensed Materials to the Ancestry Network; provided that the State's use is subject to the restrictions stated below;

Allow the State to charge for individual copies of the records provided by Ancestry; provide free access onsite to the records; and to otherwise use the Ancestry created Licensed Materials to serve patrons and fulfill its mission; and after a three year moratorium, the State shall have the authority to provide access on-line to the records provided by Ancestry. [ILB emphasis]

BTW, the ILB has learned from a reader that her individual subscription to Ancestry.com is $189 a year.

Posted by Marcia Oddi on Thursday, February 12, 2015
Posted to Indiana Government

Ind. Gov't. - Pence rationale for abolishing State Library Genealogy Department? [Updated]

Updating this ILB post from Feb. 10th, which was headed "More on: Pence budget would eliminate the state genealogy department, a peoples' resource and a state treasure," the ILB has today discovered what seems to be the only rationale behind the Governor's summary decision to eliminate the State Library Department of Genealogy. It is contained in a news release today from the Governor titled "OMB Submits Performance-based Budgeting Report to Governor Pence" that reads:

Governor Pence today received the final Program Assessment Comprehensive Evaluation (PACE) performance-based budgeting report, as prepared by the Government Efficiency and Financial Planning (GEFP) division of the Office of Management and Budget (OMB). This report evaluates the overall performance of each instrumentality, agency, authority, board, or commission in the executive department of state government, as laid out in Executive Order 13-02.

“I asked the Office of Management and Budget to complete this report on day one of my administration because of its critical importance in maintaining and improving government efficiency and transparency,” said Governor Pence. “Continual review of our state government is essential, and I look forward to closely reviewing the Office of Management and Budget’s recommendations as we work to streamline and more effectively manage programs that are important to Hoosiers.” A copy of the PACE report can be found here.

The PACE report, however, is only 20 pages long. If there is an evaluation of "the overall performance of each instrumentality, agency, authority, board, or commission in the executive department of state government," it must exist elsewhere, as it is not in the 20-page report, which is titled "Promoting Government Efficiency, Transparency, and Superior Performance through Program Assessment Comprehensive Evaluation (PACE)." The entire 3-sentence recommendation on the Department of Genealogy is on pp. 9-10:
Genealogy Collection Program (Indiana State Library): This program provides services that could be provided by private organizations. As a cost savings measure, the Collection should be digitized through a private genealogy provider who will pay the State a royalty for its use. Potential annual general fund savings: $400,000.
Kind of like the Toll Road?

[Updated at 4:00 PM] A reader has just sent the ILB this Governor's news release from Oct. 23, 2014:

Governor Pence Announces State Partnership with Ancestry.com: Will Digitize 13 Million Birth, Death, and Marriage Certificates by 2016 Bicentennial

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

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

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

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

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

ILB: But, as detailed in this information about the state collections that generally outlines the Genealogy Department holdings, the digitization of Hoosier "birth, death, and marriage certificates over 75 years old" certainly will not replace the current State holdings in the Generalogy Dept., but can provide enhanced access to some records in the State Archives.

Posted by Marcia Oddi on Thursday, February 12, 2015
Posted to Indiana Government

Ind. Gov't. - Legislators continues efforts to limit DNR enforcement authority through legislation and constitutional amendment

Today the Fort Wayne Journal Gazette editorializes:

State Rep. Jud McMillin thinks there’s a better way for taxpayers to spend $6 million than on conservation officers. He wants to cut the Department of Natural Resources’ law enforcement force by a third and spend the money on recreation areas – in his own district.

McMillin is a Brookville defense attorney who has represented clients in 18 criminal cases involving DNR conservation officers. His House Bill 1611 would prohibit conservation officers from making traffic stops off DNR-owned properties unless they witness a felony. It also would prohibit them from issuing tickets for possession of alcohol in areas where it is banned if the boater involved is moving to an area where it is legal to possess it. Last year, he proposed legislation to limit the reasons DNR officers could stop a boater.

Jeff Wells, president of the Indiana Conservation Officer Organization, told the Indianapolis Star the most recent bill leaves the state’s conservation officers “fighting for air” and that McMillin’s bill demonstrates an “increasing disconnect” between elected officials and the officers protecting the state’s natural resources and outdoor enthusiasts. The legislation would eliminate about 75 of the state’s 214 conservation officer positions.

This reminded the ILB of a bill passed last year, SEA 52, by Senator Brent Steele, that conservation officers claim decriminalized poaching.

Steele is also the author of a proposed constitutional amendment, SJR 2, which would establish a right to hunt, fish and harvest wildlife in the Indiana Constitution. If passed this session, it would go on the 2016 ballot. Dan Carden of the NWI Times reported on the measure Feb. 10th.

Posted by Marcia Oddi on Thursday, February 12, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 opinion today (and 10 NFP memorandum decisions)

For publication opinions today (4):

In In the Matter of: S.A. (Minor Child), Child in Need of Services and M.H. (Father) v. The Indiana Department of Child Services, a 10-page, 2-1 opinion, Judge Crone writes:

The Indiana Department of Child Services (“DCS”) has filed a petition for rehearing of our opinion in Matter of S.A., 15 N.E.3d 602 (Ind. Ct. App. 2014). We grant the petition for the limited purpose of dispelling DCS’s misconceptions about our opinion and reaffirm our original decision in all respects.
In Town of Pittsboro Advisory Plan Commission and Town of Pittsboro Town Council v. Art Park, LLC, a 25-page opinion, Judge Pyle concludes:
In summary, we reverse the trial court’s order denying the Town’s motion to dismiss Ark Park’s claim for judicial review and claims for declaratory judgment and granting Ark Park’s motion for leave to file an amended complaint. We recognize that these claims are also contained in Ark Park’s Motion for Leave to File First Amended Verified Complaint for Judicial Review, Declaratory Judgment and Permanent Injunction, which the trial court granted Ark Park leave to file. The trial court granted Ark Park leave to file this complaint by issuing an order on June 18, 2013. As noted above, the Town did not seek certification of this order for interlocutory appeal; thus, this order is not before us on appeal. However, because we reverse the trial court’s order denying the Town’s motion to dismiss these claims, we direct the trial court to strike these claims from Ark Park’s complaint.
In Kevin Townsend v. State of Indiana , a 20-page opinion, Judge Brown writes:
Kevin Townsend appeals his convictions for vicarious sexual gratification as a class B felony and possession of child pornography as a class D felony. Townsend raises two issues, which we revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction of vicarious sexual gratification; and
II. Whether his right to compulsory process was violated when the trial court excluded a witness from testifying. We affirm.
In Jeremy Fitzgerald v. State of Indiana , a 10-page opinion, Judge Bradford writes:
On April 19, 2014, Melanie Jones and her friend Appellant-Defendant Jeremy Fitzgerald staged a fake robbery in an apparent attempt to conceal Jones’s theft of money from her employer. According to the scheme concocted by Jones, Fitzgerald would run from Jones’s vehicle and Jones would act as if she had been robbed. Jones would then claim to be unable to identify the perpetrator. The scheme, however, did not go as planned because a Good Samaritan, Matthew Bingham, intervened in an attempt to thwart the apparent robbery. Bingham chased after and ultimately detained Fitzgerald until police caught up with the men and placed Fitzgerald under arrest. Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Fitzgerald with Class C felony intimidation for actions committed by Fitzgerald against Bingham once Bingham had detained him.

On appeal, Fitzgerald challenges his conviction claiming that the detainment of him by Bingham did not amount to a lawful “citizen’s arrest” and, as such, he was entitled to employ reasonable force to defend himself against the unlawful detention. Fitzgerald further challenges his conviction claiming that the State failed to disprove his self-defense claim. Upon review, we conclude that the detainment of Fitzgerald by Bingham did not amount to a lawful “citizen’s arrest.” However, we further conclude that the State presented sufficient evidence to disprove Fitzgerald’s self-defense claim. As such, we affirm Fitzgerald’s conviction for Class C felony intimidation.

NFP civil decisions today (1):

In the Matter of the Guardianship of K.E.H., S.A.K. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (9):

Fatima Mays v. State of Indiana (mem. dec.)

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

Ronald Rodgers v. State of Indiana (mem. dec.)

Derrick Demarco Armstead v. State of Indiana (mem. dec.)

Donald W. Riddle v. State of Indiana (mem. dec.)

Roland Mobley v. State of Indiana (mem. dec.)

Majra Russell v. State of Indiana (mem. dec.)

Michael A. Beitler v. State of Indiana (mem. dec.)

Jeffrey W. Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 12, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Crossing the Prosecutorial Misconduct Line & What a Difference a Word Can Make

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

In a brief opinion yesterday afternoon, the Indiana Supreme Court made at least two things clear. First, even a word or phrase (or footnote, as in a case decided a few months ago) in a Court of Appeals’ opinion can be grounds for transfer. And, second, there is a misconduct line that prosecutors cannot cross.

In Brummett, the Court of Appeals cited numerous examples of misconduct, including that the deputy prosecutor “improperly distinguished the roles of the prosecution and defense, vouched for the credibility of the witnesses and the justness of the cause, and asked argumentative and inflammatory questions.”

Defense counsel did not object to any of these, but the Court of Appeals nevertheless reversed based on fundamental error. The panel later issued a short opinion on rehearing, concluding the misconduct was “much more egregious than in Ryan” (a recent Indiana Supreme Court opinion that found the prosecutor’s misconduct was not fundamental error) and “the prosecutor’s misconduct did amount to fundamental error under the standard now to be used” (suggesting the Indiana Supreme Court, in Ryan, had changed the standard).

As yesterday’s Supreme Court opinion correctly noted, Ryan broke no new ground; it “simply applied the longstanding standard” (for fundamental error). Indeed, every sentence setting forth the legal standard near the beginning of the Ryan opinion includes citations to precedent.

Thus, transfer likely would have been denied if the Court of Appeals had simply omitted the word “now” or, better yet, the phrase “under the standard now to be used.” Instead, yesterday’s short opinion summarily affirms the Court of Appeals’ opinion and reaches the same result with only a slight modification of its language.

Yesterday’s opinion sent an important signal that, among the current justices, there is a line that prosecutors cannot cross, even in the absence of any objection from defense counsel. Although last week’s powerful dissent from the denial of transfer by Justices David and Rucker in another case suggests their tolerance may be lower than some of their colleagues, prosecutors will surely take notice of yesterday’s unanimous opinion. Hopefully that includes Marion County Prosecutor Terry Curry, who told a reporter during his reelection campaign, “there’s not going to be a single case in which a judgement [sic] or conviction was reversed because of improper conduct by our office.” Yesterday's opinion, reversing convictions for child molesting and sexual misconduct of a minor in a case tried by a prosecutor in Curry's office, proves him wrong.

Nevertheless, yesterday’s opinion still leaves unanswered some of the questions raised in this July post. Will the Disciplinary Commission take any action in any of these documented misconduct cases? Will the Supreme Court refer offending prosecutors—privately or publically—to the Commission, as the Court of Appeals recently did in Antonio Smith v. State. Transfer is pending in that case, and its resolution will shed further light on how seriously the Indiana Supreme Court is going to take prosecutorial misconduct.

Posted by Marcia Oddi on Thursday, February 12, 2015
Posted to Ind. Sup.Ct. Decisions | Schumm - Commentary

Wednesday, February 11, 2015

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

In Robert Lodholtz v. York Risk Services Group (ND Ind., Lozano), a 21-page opinion, Judge Ripple writes:

Robert Lodholtz sustained injuries in the factory of Pulliam Enterprises, Inc. (“Pulliam”). He then brought an action in the Superior Court of St. Joseph County, Indiana, against Pulliam, seeking compensation for those injuries. Pulliam in turn filed an insurance claim with its insurer, Granite State Insurance Company (“Granite”). Granite retained a claims adjuster, York Risk Services Group, Inc. (“York”). Pulliam assumed, erroneously, that Granite would provide a defense under the insurance policy and defaulted on the state court claim. Neither Granite nor York ever had communicated to Pulliam whether they believed Granite had a duty to defend Pulliam under the terms of the policy. * * *

The district court correctly granted the motion to dismiss. As the district court noted, the Court of Appeals of Indiana has held that an insurance adjuster owes no legal duty to the insured, and Mr. Lodholtz has failed to establish that the Indiana Supreme Court would disagree with that decision. * * *

We conclude that the district court appropriately dis-missed the claim against York. The judgment of the district court is affirmed.

In Howard Piltch v. Ford Motor Company (ND Ind., Moody), an 11-page opinion, Judge Bauer writes:

Howard Piltch and Barbara Nelson- Piltch (the “Piltches”) were traveling in their 2003 Mercury Mountaineer in February 2007 when they hit a patch of black ice, causing the car to slide off the road and into a wall. Upon impact, none of the car’s air bags deployed and both Piltches were injured. The Piltches filed the present action in Indiana state court against Ford Motor Company (“Ford”) in 2010, alleging the vehicle was defective under Indiana law. Ford removed the action to federal court, and shortly thereafter moved for summary judgment. On March 28, 2014, the district court granted Ford’s summary judgment motion holding that, without expert testimony, the Piltches could not create an issue of fact as to proximate cause. On appeal, the Piltches contend that (1) they state a claim for relief under the Indiana Products Liability Act (“IPLA”); (2) there is sufficient circumstantial evidence of a defective product that expert testimony is not required; (3) they are not required to produce expert testimony to establish proximate cause; and (4) the doctrine of res ipsa loquitur applies, raising an inference of negligence on the part of Ford. We affirm.

Posted by Marcia Oddi on Wednesday, February 11, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Supreme Court issues ruling in Brummett prosecutorial misconduct case

In Brandon Brummett v. State of Indiana, a brief, 5-0 opinion issued today, Justice Dickson writes:

We grant transfer in this case to prevent a potential misunderstanding of Indiana's fundamental error doctrine. * * *

Ryan did not alter the doctrine of fundamental error. It simply restated and applied the longstanding standard. Except for the rehearing opinion's implication to the contrary, Brummett likewise applied the existing doctrine of fundamental error. With the exception of the rehearing opinion's potentially misleading reference to "the standard now to be used," id. (emphasis added), we summarily affirm. Ind. Appellate Rule 58(A)(2).

Here is the Aug. 20, 2014 opinion on rehearing in Brummett, and the original June 2, 2014 COA opinion.

In short, the Supreme Court leaves in place the Court of Appeals ruling finding proscutorial misconduct that constituted fundamental error.

Here is the Supreme Court's June 3, 2014 opinion in Ryan.

Posted by Marcia Oddi on Wednesday, February 11, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion today (and 3 NFP memorandum decisions)

For publication opinions today (3):

In In the Matter of the Guardianship of N.R., N.R. v. Eva Willis and Charles Reagins, Peoples Bank, SB, a 15-page opinion, Judge Robb writes:

N.R. was the subject of guardianship proceedings in 2012, as part of which the trial court approved requests for guardian fees, attorney fees, and costs from former temporary guardians Eva Willis, Charles Reagins (“Charles”), and Peoples Bank, SB (the “Bank”). The trial court denied N.R.’s objection to its orders that the fees and costs of the former temporary guardians be paid out of his estate. N.R. now raises several issues for our review, which we consolidate and restate as: whether the trial court abused its discretion in awarding fees and costs to the former temporary guardians by excluding evidence N.R. wished to offer to show that Willis and Charles engaged in misconduct and that the temporary guardianship was improper.

Concluding the excluded evidence, if credited, would make the award of fees and costs unreasonable, we reverse and remand with instructions that the trial court hear N.R.’s evidence and reconsider the fee petitions.

In Jeffrey M. Miller and Cynthia S. Miller v. Kristine C. Danz , a 29-page opinion, including 2 concurring opinions, Judge Friedlander writes:
Jeffrey M. Miller and Cynthia S. Miller (the Millers) appeal the grant of summary judgment in favor of Kristine C. Danz on their complaint for damages resulting from defamation per se, defamation per quod, invasion of privacy – false light, tortious interference with a business relationship, intentional infliction of emotional distress, and loss of consortium. The Millers present several issues for our review, which we consolidate and restate as: Did the trial court properly grant summary judgment in favor of Danz? We affirm. * * *

Vaidik, Chief Judge, concurring in result. [beginning on p. 19] In this case, the lead opinion concludes that Jeffrey and Cynthia Miller’s fifth
amended complaint—in which they sought to name Kristine Danz as John Doe
#8—does not relate back to the filing of the Millers’ original complaint. I
agree, but I reach that conclusion because the facts show that the Millers knew
that Danz was John Doe #8 as early as March 2010—before they commenced
this action and nearly three years before they sought the amendment at issue.
See slip op. at 4-5. The lead opinion’s conclusion, however, is based on an
interpretation of Indiana Trial Rules 15(C) and 17(F). This interpretation
creates a serious problem for a plaintiff who—for any number of reasons—does
not know a defendant’s identity when filing a complaint. Under Judge
Friedlander’s reasoning, a plaintiff who diligently pursues such information may have no legal recourse when he obtains it. Because I cannot endorse such
a result, I respectfully concur in result.

As the lead opinion points out, this case turns on the interaction between Trial
Rules 15(C) and 17(F). Rules pertaining to the amendments of pleadings
should be read in conjunction with one another, and here, Rule 15(C) operates
as a check on Rule 17(F). * * *

May, Judge, concurring in result. [beginning on p. 26] Both the lead opinion and Chief Judge Vaidik’s concurrence proceed on the
premise “we must consider the interplay between T.R. 17(F) and T.R. 15(C),” (Slip op. at 9), and “this case turns on the interaction between Trial Rules 15(C) and 17(F). (Slip op. at 2) (Vaidik, C.J., concurring). As the relation back provision of T.R. 15(C) does not apply to the situation before us, there is no such “interplay” or “interaction.” The trial court’s judgment may be affirmed by the proper application of T.R. 17(F) alone, and I accordingly concur in the result. * * *

While I believe the relation back provisions in T.R. 15(C) have no application
to the case before us because there was no “mistake,” I agree with the lead
opinion and the concurrence that the summary judgment for Danz was not
error, and I accordingly concur in the result.

In Michael O. Hall v. Susan M. Hall, an 11-page opinion, Judge Crone writes:
Michael O. Hall (“Husband”) appeals the trial court’s division of property upon the dissolution of his marriage to Susan M. Hall (“Wife”). Specifically, Husband challenges the trial court’s conclusion that a written agreement between the parties providing for certain property rights in the event of the dissolution of the marriage constitutes a valid and enforceable reconciliation agreement. Finding no clear error, we affirm.
NFP civil decisions today (0):

NFP criminal decisions today (3):

Jason C. Burkett v. State of Indiana (mem. dec.)

Terry Sowell v. State of Indiana (mem. dec.)

Daniel Cummings v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, February 11, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion County Small Claims bill being heard this morning

SB 523, which had been scheduled to be heard by the Judiciary Committee on Feb. 18th, is now being heard this morning. Room 130.

Posted by Marcia Oddi on Wednesday, February 11, 2015
Posted to Indiana Courts

Tuesday, February 10, 2015

Ind. Courts - Supreme Court selects Tyler Technologies of Texas to provide e-filing to Indiana courts

Tyler Technologies also is responsible for the Court's Odyssey system. Here is the most recent Court update.

Posted by Marcia Oddi on Tuesday, February 10, 2015
Posted to E-filing | Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court disciplinary action re DIANNA L. BENNINGTON, JUDGE OF THE MUNCIE CITY COURT

In a one-page Jan. 23, 2015 Order, the Supreme Court wrote: "Dianna L. Bennington is hereby PERMANENTLY BANNED from serving in any judicial capacity of any kind."

Today the Court has released an 8-page Judicial Disciplinary Action, In the Matter of the Honorable Dianna L. Bennington, Judge of the Muncie City Court, which expands upon the earlier order.

Posted by Marcia Oddi on Tuesday, February 10, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - More on: Pence budget would eliminate the state genealogy department, a peoples' resource and a state treasure

Updating this ILB post from Feb. 6th, the ILB has found some further information on the proposal in Governor Pence's budget to eliminate the state genealogical department.

Here is the state library budget appropriation from the last biennium's budget act (p. 94 of HEA 1001-2013):

Here is the state library budget appropriation from the Governor's biennium budget proposal for 2015-17 (p. 89 of Gov. 2015-17 budget proposal):

[The above reductions do not include the reductions to INSPIRE, mentioned on p. 16 of the 2013 as-passed budget, and mentioned not at all in the Governor's current proposal budget.]

This document, found on the website of the Indiana Library Federation, contains a breakdown of the proposed annual reductions in funding to the State Library programs. Page 4 describes the current Indiana genealogy department, whose entire annual budget of $400,000 would be eliminated by the cuts. Some quotes:

Specific statutory authority for the program is found at IC 4-23-7.1
Sec. 3. The state library shall maintain, develop, and service a collection of books, periodicals, newspapers, maps, manuscripts, audiovisual materials, and other library materials for the purpose of:
(1) meeting the informational, educational, and research needs of state government;
(2) preserving and making available for use, materials bearing on the history of the state;
(3) meeting the specialized library needs and interests of citizens of Indiana; and
(4) supplementing the reference and materials resources of the libraries of the state.
The Indiana State Library (ISL) is home to one of the largest Genealogy collections in the Midwest. This collection (over 100,000 items) is focused on Indiana, states from which Indiana was settled as well as some foreign countries. The collection is rich with unique family histories and genealogy materials that cannot be found in other locations. In comparison, the Indiana Historical Society (IHS) only collects materials on Indiana and the Old Northwest – genealogy research can never be restricted to one state only. Family trees branch outside of a single state and spread throughout the country and across oceans. Genealogy collections (including ours) contain materials for neighboring states as well as items covering the east and southern coasts (where most immigrants landed) and genealogical resources for other countries (mainly in Europe where most immigrants came from). These types of resources are not collected by IHS or the Indiana State Archives or the Historical Bureau.
The ILB has learned that the $400,000 per year funds the staffing of the genealogy department. Under the Governor's proposed budget, the invaluable Indiana history resources collected over the years for the use of the citizens of Indiana, and not available elsewhere, would be transferred to the private organization, the Indiana Historical Society.

There has been no public hearing on the state budget, and little publicity about the proposed major changes to this peoples' resource. The ILB has learned that the House Ways & Means Committee may be finalizing HB 1001 tomorrow (Wed.), Feb. 11th. The meeting starts at 1:30 PM. Here is the agenda. HB 1001 is first on the agenda. Rep. Timothy Brown is Chair of the House Ways and Means Committee and is author of the bill.

Posted by Marcia Oddi on Tuesday, February 10, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 0 opinion today (and 11 NFP memorandum decisions)

For publication opinions today (0):

NFP civil decisions today (3):

In Re the Paternity of V.A., A Minor Child Robert Anderson (Father), v. Billy Jo Youngblood (Mother) (mem. dec.)

In Re: the Matter of the Commitment of T.S., T.S. v. Logansport State Hospital (mem. dec.)

Richard R. Hogshire v. Ursula Hoover (mem. dec.)

NFP criminal decisions today (8):

John D. May v. State of Indiana (mem. dec.)

Thomas Drnek v. State of Indiana (mem. dec.)

Randall E. Reynolds, II v. State of Indiana (mem. dec.)

Jose Eduardo Vazquez-Paz v. State of Indiana (mem. dec.)

Joseph D. Haskins, III v. State of Indiana (mem. dec.)

Danny Ramsey v. State of Indiana (mem. dec.)

James Lee v. State of Indiana (mem. dec.)

Danny Ramsey v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 10, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "House committee approves captive deer-hunt bill" [Updated]

Updating this ILB post from Feb. 5th, Ryan Sabalow reports in today's Indianapolis Star:

An Indiana House committee on Monday approved a watered-down version of a bill that would legalize high-fence hunting in Indiana.

In an 8-4 vote, the House Natural Resources Committee approved new language for a bill that would grandfather in high-fence hunting ranches that were in business before 2015. But the revised bill wouldn’t allow new ones to open.

Under House Bill 1453, operators of high-fence hunting ranches would have to pay the state an annual $2,000 fee, split between the state’s wildlife and agricultural agencies. Each facility also would be required to have a minimum of 100 acres. The revised bill says the Department of Natural Resources cannot issue rules so restrictive that it prevents the facilities from doing business.

Four high-fence preserves are in operation in Indiana. * * *

The three-judge appeals panel ruled that the DNR went “beyond the express powers” that state lawmakers granted the agency when wildlife officers ordered all the state’s hunting preserves to shut down. [See ILB post here]

The judges also declared that Indiana’s law “does not prohibit high-fence hunting of deer.”

DNR spokesman Phil Bloom and Indiana Attorney General Greg Zoeller said they were reviewing the ruling, so it’s unclear whether they’ll appeal to the Indiana Supreme Court.

Another bill, Senate Bill 442 authored by Sen. Pete Miller, R-Avon, would ban high-fence hunting outright. Miller said he drafted the legislation in part because of concerns raised in a four-part investigative series published last spring by The Indianapolis Star. His bill is unlikely to receive a hearing.

[Updated] Here is Niki Kelly's story from the FWJG.

Posted by Marcia Oddi on Tuesday, February 10, 2015
Posted to Indiana Government

Ind. Gov't. - "Religious liberty bills get hearing in Indiana Senate"

Tony Cook reports in this morning's Indianapolis Star on yesterday's lengthy Senate Judiciary Committee hearing on two proposed "religious liberty" bills.

These bills are SB 101 and SB 568. Although it is not yet available, the video of the Feb. 9th hearing should be available here at some point.

Cook's story yesterday referred to a letter from 16 law professors supporting the bills, but provided no link. Now there is a link, you can read the 9-page letter here. Three Indiana law professors signed the letter, from Notre Dame, Valparaiso, and Mauer. The remaining 13 signers are from out-of-state. The Mauer professor, Daniel Conkle, testified at length in support of the bills at the hearing, and appeared to be serving as an expert for the bill's authors.

Some quotes from today's story:

During a nearly five-hour hearing before the Senate Judiciary Committee, supporters testified that such a law is needed to protect the rights of people with strong religious beliefs, including business owners who don't want to provide services for gay weddings or abortion providers.

"Religious people are scared," said Tim Overton, a Baptist pastor, citing concerns that he might be required to perform a same-sex marriage.

"I would ask that you protect us from that," he said.

Critics, however, called the legislation a license to discriminate that will harm Indiana's reputation.

Jane Henegar, executive director of the American Civil Liberties Union of Indiana, said concerns such as Overton's are overblown. Current law already gives pastors discretion regarding the people they choose to marry.

"These bills are a solution in search of a problem," she said. [ILB: Henegar's testimony is available here]

Recent defeats for gay marriage opponents are the real motivation for the legislation, she said.

"The timing of this legislation suggests that it will be used to discriminate against members of the LGBT community," she said.

Business groups, including the Indiana Chamber of Commerce and engine maker Cummins, also testified against the bills, Senate Bill 101 and Senate Bill 568. They said such a law would complicate the application of workplace rules and send an unwelcoming message that would hurt business recruitment.

"We don't think these bills would weigh in favor of locating here," said Byron Myers, representing the Indiana Chamber.

Sen. Scott Schneider, one of the legislation's authors, said the measures are intended to protect the exercise of religion, not discriminate.

"This legislation acts as a shield, not a sword," he said.

Indiana University law Professor Daniel Conkle, speaking in support of the bills, said discrimination against same-sex couples would be unlikely because the courts typically have held that anti-discrimination laws such as Indianapolis' human rights ordinance serve a compelling government interest.

But in circumstances involving a religious ceremony such as a wedding, a business owner who refuses to provide services for religious reasons might have a valid defense under the law if sued for discrimination. * * *

Earlier Monday, Gov. Mike Pence made a surprise appearance at a rally in favor of the controversial legislation.

He thanked a crowd of more than 100 supporters "for taking a stand to protect religious freedom in Indiana."

Posted by Marcia Oddi on Tuesday, February 10, 2015
Posted to Indiana Government

Monday, February 09, 2015

Ind. Gov't. - Still more on: Purdue "Trimble report" finally released? Not yet!

Updating this ILB post from Feb. 6th, Rebecca S. Green reported yesterday in the Fort Wayne Journal Gazette:

Just like that, with a one-sentence order from a federal judge, the case of Michael Wartell vs. Purdue University is over.

The federal lawsuit was dismissed officially Friday afternoon, with no disclosure of who paid what to whom beyond both sides handling their own costs.

And for the moment, Purdue University has kept the Trimble Report under wraps and out of the prying eyes of the public.

Purdue officials this week revealed they spent more than $153,000 in legal fees over about 18 months to conceal the $19,000 report, which was compiled after an investigation into the forced retirement of former IPFW Chancellor Michael Wartell in 2011.

The Journal Gazette has requested from Purdue both the report and the terms of the settlement reached in the lawsuit, but the university has not yet provided the information.

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Indiana Government

Ind. Decisions - Prison prayer lawsuit decided here 2 years ago under federal Religious Freedom and Restoration Act

Probably the most well-known application of the federal Religious Freedom and Restoration Act in Indiana involved "'American Taliban' fighter John Walker Lindh’s challenge to a federal prison in Terre Haute on its restrictions on group prayer", as reported in a Jan. 11, 2013 Indianapolis Star story.

SD Ind.Judge Jane Magnus-Stinson's opinion in the case of John Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana concluded:

In passing the Religious Freedom and Restoration Act, the United States Congress restricted the ability of federal prison wardens to substantially burden the sincerely held religious beliefs of inmates. Such burdens can only be imposed to further a compelling governmental interest, and by use of the least restrictive means. Throughout this action, the Warden has argued for deference to his decisions, yet he has not given appropriate deference to the standard imposed by Congress. Accordingly, the Court finds that the Warden’s policy prohibiting daily group prayer by Muslim inmates violates RFRA. The Warden will have 60 days in which to employ a new policy with respect to daily group prayer for Muslims. The Court is issuing today a permanent injunction to take effect in 60 days.

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Ind Fed D.Ct. Decisions

Environment - "Soil testing reveals high arsenic levels in Pines"

Amy Lavalley reported Feb. 5th in the Gary Post-Tribune that begins:

Stan and Renee Kozlowski have owned Joe's Bar and Grill on U.S. 12 for 19 years. They own rental property next door, too, a home where their daughter and her children lived for eight years.

While the couple live in New Buffalo, Mich., they are well familiar with the tiny town's environmental trials and tribulations. Their business and rental property received municipal water from Michigan City more than 10 years ago, after a nearby coal ash landfill, Yard 520, contaminated the water supply.

Now NIPSCO and the Environmental Protection Agency say seven locations, including the town hall, have soil with elevated levels of arsenic, from coal ash that was used as fill in the 1970s and 1980s. Arsenic is a carcinogen, and officials said the levels were well beyond what would normally be found in the soil [ILB emphasis].

The ILB has had stories on coal ash contamination impacting the Town of Pines dating back to 2004 - here is a list of some of them.

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Environment

Ind. Decisions - Transfer list for week ending February 6, 2015

Here is the Clerk's transfer list for the week ending Friday, February 6, 2015. It is two pages (and 23 cases) long.

Three transfers were granted last week:

The transfer list also includes Selective Insurance v. Erie, where, as the ILB reported earlier today, an earlier grant of transfer was vacated and the COA opinion reinstated, by a 3-2 vote.

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Indiana Transfer Lists

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

For publication opinions today (3):

In In Re: The Marriage of: Meleeka Clary-Ghosh v. Michael Ghosh, a 16-page opinion, Judge Barnes writes:

Meleeka Clary-Ghosh appeals the trial court’s modification of parenting time and child support, the award of attorney fees to her ex-husband, Michael Ghosh, as a sanction for contempt, and the denial of her request for the appointment of a parenting time coordinator. * * *

Meleeka has not established that the trial court abused its discretion by modifying her parenting time, by imputing income to her, by finding her in contempt and requiring her to pay a portion of Michael’s attorney fees, or by denying her request to appoint a parenting time coordinator. We affirm.

In Jamie Thomson v. Saint Joseph Regional Medical Center and Michael Borkowski, M.D., a 14-page opinion, Judge Baker writes:
Jamie Thomson appeals the entry of summary judgment in favor of defendants St. Joseph Regional Medical Center and Michael Borkowski. Thomson claims to have suffered an injury to the nerves in her shoulder and arm when a board supporting her arm became detached during surgery, leaving her arm dangling towards the floor for an unknown period of time. A medical review panel determined that neither defendant failed to meet the applicable standard of care and that neither defendants’ actions were the proximate cause of Thomson’s injury. We find that, given the nature of this case, Thomson was not required to present expert testimony to rebut the panel’s conclusion as to either defendant’s failure to meet the standard of care. We also find that the expert testimony Thomson presented was sufficient to rebut the panel’s conclusion as to causation. Accordingly, we reverse and remand for further proceedings.
In Shane L. Keller v. State of Indiana, a 26-page opinion, Judge Kirsch writes:
Shane L. Keller was convicted following a jury trial of two counts of Class B felony burglary, one count of Class C felony burglary, three counts of Class D felony theft, and two counts of Class D felony receiving stolen property. The trial court sentenced Keller to maximum sentences on each of the eight convictions to run concurrently with one another, for an aggregate of twenty years executed. After Keller admitted to being a habitual offender, the trial court imposed a thirty-year enhancement to Count I, a Class B felony burglary conviction, for a total executed sentence of fifty years. Keller appeals his convictions and his sentence raising the following reordered and restated issues:
I. Whether the trial court abused its discretion when it admitted and excluded certain evidence;
II. Whether the trial court abused its discretion in instructing the jury regarding the definition of “dwelling” for the purpose of convicting Keller of Class B felony burglary; and
III. Whether Keller’s convictions and sentences for theft and receiving stolen property violate the prohibition against double jeopardy.
We affirm in part, reverse in part, and remand for resentencing.
NFP civil decisions today (2):

In the Matter of: S.E. (Minor Child), a Child in Need of Services, and L.E. (Father) v. Indiana Department of Child Services (mem. dec.)

Michael L. Turner v. Jennifer D. Pence (mem. dec.)

NFP criminal decisions today (5):

Paul D. Stucker v. State of Indiana (mem. dec.)

Stephen Perry v. State of Indiana (mem. dec.)

Neil A. Clements v. State of Indiana (mem. dec.)

Shaun Terrell Balkcom v. State of Indiana (mem. dec.)

Justin Mullins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court reinstates July 30th COA ruling in insurance coverage case

On Thursday, Feb. 5th the Supreme Court heard oral argument in the case of Selective Insurance Company of South Carolina and 500 Rangeline Road, LLC v. Erie Insurance Exchange. In an order dated Feb. 6th and released this morning, the Court orders, by a 3-2 vote:

By order dated December 18, 2014, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including consideration of the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Selective Insurance Co. of South Carolina v. Erie Insurance Exchange, 14 N.E.3d 105 (Ind. Ct. App. 2014), should be reinstated as Court of Appeals precedent.

Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

The vote:
Dickson, Rucker, and Massa, JJ., concur.
Rush, C.J., and David, J., dissent from the denial of transfer.
The vote in the now reinstated July 30, 2014 COA opinion was 2-1.

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Religious freedom restoration" now set for hearing

Updating this ILB post from Feb. 2nd, the hearing is set for today after the Senate adjourns in the Senate Chamber. You will be able to watch it at the Senate Chamber video link.

A story by Tony Cook in today's Indianapolis Star. The story oddly mentions, and selectively quotes from, but does not provide access to, a letter:

In a letter to Senate Judiciary Chairman Brent Steele, a group of 16 legal scholars from across the country — including law professors from Indiana and Notre Dame universities — write that "it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption."

In fact, only one such case has arisen in states that already have a religious freedom law. In that case, a Christian wedding photographer was sued after refusing to photograph a same-sex commitment ceremony in New Mexico. Although that state has a religious freedom law, the photographer lost.

"Courts generally believe that anti-discrimination laws serve compelling governmental interests, and nothing in the proposed legislation would change that," they wrote.

The letter also is not a part of the Judiciary Committee packet for today's hearing.

More from the story:

"The thought of potentially being exempt from all laws or ordinances is extreme," said David Sklar, director of government affairs for the Indianapolis Jewish Community Relations Council. "If someone is going to operate in the public square, they have a certain obligation to do so equitably."

Ken Falk, legal director for the American Civil Liberties Union of Indiana, summed up the feelings of many opponents this way: "You never want to have a bill that licenses discrimination, which is what this does."

But legal experts take issue with those claims, too.

"Opponents of the legislation may make unsupported claims about the extreme results that it would produce, but they have no examples of judicial decisions actually reaching such results," the group of 16 law professors wrote.

Daniel Conkle, a law professor at Indiana University who specializes in religion, was one of the letter's authors.

"There's been exaggeration on both sides about what this law would do in particular settings," he said.

Richard Garnett, a law professor at the University of Notre Dame and also an author of the letter, said it is "unfortunate that the facts about how religious-accommodations laws actually work, and what they actually do, are too often buried by inaccurate criticisms, implausible predictions, and name-calling."

Both professors say the role that judges play in religious freedom laws is being overlooked. Such laws don't say that religious objectors always win.

"Instead," Conkle said, "they tell the courts to apply what amounts to a balancing test, asking whether a law is sufficiently justified by compelling interest."

The LSA's Fiscal Impact report on the bills deals mostly with their impact upon the Office of the Attorney General, showing the amount of damages paid as a result of all tort claims submitted and tort claim lawsuits filed against the state and by plaintiffs in tort and civil rights litigation between CY 2010 and CY 2014.

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Indiana Government

Ind. Courts - Complying with the revisions to Administrative Rule 9 - a Q & A

The revised Administrative Rule 9(G) requirements became effective Jan. 1, 2015. Improperly sealing or excluding court documents may lead to sanctions or malpractice claims, so hopefully you have been doing everything right since January 1st.

Maggie L. Smith, Frost Brown Todd LLC, who serves on the Court's Committee on Rules of Practice and Procedure, has prepared this document that in 16 pages describes the rule changes and requirements; followed by the text of the the rule, and by copies of forms. The document has been recently updated to include a separate section on appeals.

The ILB attended a one-hour seminar given by Ms. Smith, followed by a number of questions from attorneys with specific issues. The event was very useful; I hope you have an opportunity to attend one of these seminars.

As recently as Oct. 28, 2014, the ILB had a post titled "Public Access Counselor opinion raises the question: Do we have 'secret dockets' in Marion County?" describing a case where a Marion County judge had summarily issued an order sealing all the documents in a case.

And in this May 13, 2010 post the question was whether the parties to a case (in this case IBM and the FSSA) could mutually agree that certain documents would be filed under seal.

In that 2010 post the ILB wrote at the end: "Here is a link to Administrative Rule 9, which many find difficult." Indeed, most everyone found it very difficult to understand. That was a big reason for the revision.

The ILB has asked Ms. Smith if she would answer some questions about Rule 9 which ILB readers might have. She has agreed. Here is a Question that came up in the latter part of January.

Question #1:

I had a "hybrid" paternity appeal (final judgment entered before 7/1/14, appellate case opened after 7/1/14). The COA told me my brief, which included the final judgment order, was tendered improperly because the order was confidential. That would also mean my entire Appellant's Appendix should have been green-sheeted.

Fine, no problem. But I wanted to make sure. So I filed a motion for clarification. Here's what they told me to do:

file one public access version of the brief
- I assume that means no order

file one plus 8 copies of a confidential version of the brief
- I assume that means green sheet the whole darn brief, right? Again, no problem.

Here's the confusing part:

file one public access version of the appendix - um, all the prior pleadings are confidential, so what would that look like? A table of contents and a verification page, right?

file one confidential version of the appendix
- green-sheet the whole thing - that is easy.

I have never filed a public access version of an appendix before: would that be correct to file just the cover page, table of contents, and verification/cert of service?

ANSWER #1:

This is correct … with the following exception: “I assume that means green sheet the whole darn brief, right?” This is only correct if everything in the Brief discusses confidential info. If that is the case, there will be nothing in the Public Access version except the cover and TOA, etc.

If the entire Brief is not confidential, then the Non-Public Access version would only have the order on green sheet paper. The rest of it would still be on white paper. (See 9(G)(5)(b)(ii)((b)(ii).

BTW … these paternity cases are so difficult right now because of the 7-1-14 statute which had the effect of taking the case out of 9(G)(1) and putting it into 9(G)(2) … but because the order was entered before 7-1-14, everything is still confidential.

Once the group of pre-7-1-14 cases work their way through, this won’t happen again.

QUESTION #1 continued:

OK, so that helps. I thought we weren't allowed to put green and white paper in the same brief, because there is no way to separate the two. And the full green-sheeting puts the clerk on notice that it is confidential (that's why we use green paper instead of white). I will ask the clerk too and see what they say...

ANSWER #1 continued:

This is a new change effective 1-1-15. AR 9(G)(5)(b)(ii)((b)(ii) spells it out.

QUESTION #1 continued:

Ah, I didn't get that far down the rule. I gave up too soon!

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Adm. Rule 9 Questions

Ind. Courts - Fremont Town Court Judge Martha C. Hagerty admonished and agrees to retire

From an Indiana Courts news release issued this morning:

The Indiana Commission on Judicial Qualifications has issued a Public Admonition to Fremont Town Court Judge Martha C. Hagerty. The Admonition is the result of Judge Hagerty assuming the role of prosecutor, permitting traffic ticket deferral payments to be sent directly to the court (rather than to the prosecutor) and engaging in ex parte communication (speaking with only one side of a case).

The Commission determined that formal disciplinary charges are warranted against Judge Hagerty and notes the 2012 Public Admonition she received for similar conduct.

However, rather than filing misconduct charges, the Commission is issuing a second Admonition. Judge Hagerty admits her actions violated the Indiana Code of Judicial Conduct; she took corrective action and agreed she would not serve as a judge after retiring later this year. The admonition states, “the Commission would have been inclined to pursue a stronger course of action” had the circumstances been different.

Here is the detailed public admonition.

Note: The above admonition is located in an interesting chronological file of earlier such admonitions.

Posted by Marcia Oddi on Monday, February 09, 2015
Posted to Indiana Courts

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

From Sunday, February 8, 2015:

From Saturday, February 7, 2015:

From Frida, February 6, 2015:

Posted by Marcia Oddi on Monday, February 09, 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 2/9/15):

Next week's oral arguments before the Supreme Court (week of 2/16/15):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/9/15):

Wednesday, February 11

Next week's oral arguments before the Court of Appeals (week of 2/16/15):

Tuesday, February 17

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, February 09, 2015
Posted to Upcoming Oral Arguments

Sunday, February 08, 2015

Court - Consumer lawsuits against Anthem over data breach begin

Bloomberg Business reported the evening of Feb. 5th that:

(Bloomberg) Anthem Inc. faces what may be the first of many consumer lawsuits a day after disclosing that hackers obtained data on tens of millions of current and former customers and employees.

A California woman on Thursday accused the health insurer of failing to properly secure and protect its customers’ personal information, including names, birth dates and social security numbers, and she seeks to represent all other customers affected by the massive data breach. * * *

The case is Morris v. Anthem Inc., 15-cv-00196, U.S. District Court, Central District of California (Santa Ana).

J.K. Wall of the IBJ reported, also on Feb. 5th:
Less than 12 hours after Anthem Inc. reported hackers had stolen data on as many as 80 million current and former customers, local attorney Irwin Levin already was preparing a class-action lawsuit against the company.

He expects there will be more as Indianapolis-based Anthem tries to control fallout from the largest data breach ever at a U.S. health care company.

“If there’s one place that we expect all of our private data to be safe, it’s with the people we turn over our health information to,” said Levin, of Indianapolis law firm Cohen & Malad. “They formed a contract with people, and people paid premiums. … We’ll be suing them for breach of contract, for negligence and some other legal theories.”

Other recent data breaches have sparked massive litigation against hacked companies. Target Corp. has been hit with more than 100 lawsuits from shoppers, credit card companies and shareholders since late 2013, when a breach exposed 40 million shoppers’ credit and debit card accounts, as well as personal information for as many as 70 million people.

Minnesota-based Target has recorded $248 million in expenses related to the breach and suffered a dip in U.S. sales to boot.

Anthem, which reported its breach late Wednesday, has said it doesn't expect the breach to affect 2015 profit. Wall Street analysts generally agreed.

“From a financial perspective, the attack's timing comes at a time when the open enrollment period for key business lines is largely completed,” UBS analyst A.J. Rice said in a note to investors. That means, unlike Target, Anthem can’t lose many customers, at least immediately, because of the breach.

Elizabeth Weise, USA Today reported yesterday:
SAN FRANCISCO — The first lawsuits in the Anthem hack, the nation's largest health care breach to date, have been filed.

At least four have been launched so far, in Indiana, California, Alabama and Georgia.

The suits allege that Anthem did not take adequate and reasonable measures to ensure its data systems were protected and that the 80 million Anthem customers whose information may have been affected could be harmed.

The breach was first announced Feb. 4. It could affect as many as 80 million current and former customers of the nation's second-largest health insurance company.

Lance Whitney reported for CNet on Feb. 6th:
Companies that follow sound security policy normally encrypt certain customer data stored on their servers. Encrypting the data makes it more difficult, but not impossible, for hackers to view or sell the information they've stolen. But Anthem didn't follow such guidelines in this regard. Why not?

Under the federal Health Insurance Portability and Accountability Act (HIPPA), health insurance companies are not required to encrypt the data stored on their servers. The HIPPA ruling recommends using encryption if the health insurer believes it's an appropriate measure to mitigate risk. But lacking a specific requirement essentially leaves it up to each company to decide how to protect its data.

Anthem spokeswoman Kristin Binns told The Wall Street Journal that the company encrypts personal data when it's moved in or out of the database but not when it's stored, a practice she said is common in the industry. * * *

In an article published on Ars Technica, Steven Bellovin, a professor in the computer science department at Columbia University, said that sensitive databases are always in use, which means they're continually being decrypted. That also means the encryption key is available in memory or elsewhere for savvy hackers to seize. The problem lies more with how access to the database is controlled, Bellovin argued.

"Protecting large databases like Anthem's is a challenge," Bellovin said. "We need better software security, and we need better structural tools to isolate the really sensitive data from average, poorly protected machines. There may even be a role for encryption, but simply encrypting the Social Security numbers isn't going to do much."

The attack against Anthem has triggered an investigation by several US states, Reuters reported on Friday. Attorneys general from Connecticut, Illinois, Massachusetts, Arkansas and North Carolina are now looking into the matter. Connecticut Attorney General George Jepsen has already requested that Anthem provide details about its security measures, the events that led to the discovery of the hack and the steps the company is taking to make sure this type of attack doesn't happen again.

The ILB has obtained from PACER a copy of the 24-page complaint in the Indiana lawsuit mentioned above, Meadows v. Anthem.

Posted by Marcia Oddi on Sunday, February 08, 2015
Posted to Courts in general

Law - More on "‘Serial’: An investigative journalism podcast becomes a cultural obsession"

That was the heading to this Dec. 3, 2014 ILB post on the podcast series delving into a 15-year-old murder case.

Today the Washington Post has a story by Abby Phillip headed "Md. court allows Adnan Syed to appeal his conviction in ‘Serial’ case." Some quotes:

A Maryland court has agreed to allow an appeal in the case of Adnan Syed, a Baltimore County man convicted of murdering his ex-girlfriend when he was a teenager.

Syed’s case was popularized by the smash hit podcast “Serial,” created by journalists from the “This American Life” public radio broadcast. Since the podcast ended in December, Syed’s case and his efforts to contest his conviction have continued on.

The decision by the Maryland Court of Special Appeals, which was filed Friday, allows Syed’s lawyers to move forward with the appeals process. It overturns a Baltimore circuit court’s decision in January to deny Syed’s motion to appeal his conviction on the grounds that his attorney at the time, Christina Gutierrez, had been ineffective.

The WAPO story links to the documents it references.

[More] Another story, this one from Matt Schiavenza of The Atlantic, headed "Serial's Second Act: Adnan Syed's successful request for an appeal means that the sensational podcast's story isn't quite over."

Posted by Marcia Oddi on Sunday, February 08, 2015
Posted to Courts in general

Ind. Courts - Judicial Center's Legislative Update 5th weekly installment

The February 6th (fifth) weekly installment of the Legislative Update for the 2015 legislative session is available here. It is in blog form, you can scroll down for earlier updates. This is a good way to keep aware of bills of interest to the judiciary.

Posted by Marcia Oddi on Sunday, February 08, 2015
Posted to Indiana Courts

Ind. Decisions - Interesting 7th Circuit decision Feb. 6th involves 1st amendment challenge

In Scott Dahlstrom v. Sun-Times Media, LLC (ND Ill.), a 33-page opinion, Judge Flaum writes:

The Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., prohibits individuals from knowingly obtaining or disclosing “personal information” from a motor vehicle record. In this interlocutory appeal, five Chicago police officers brought suit against Sun-Times Media, alleging that the publishing company violated the DPPA by obtaining each officer’s birth date, height, weight, hair color, and eye color from the Illinois Secretary of State’s motor vehicle records, and publishing that information in a newspaper article that criticized a homicide investigation lineup in which the officers participated. Sun-Times moved to dismiss the officers’ complaint, arguing that the published information does not constitute “personal information” within the meaning of the DPPA, or, in the alternative, that the statute’s prohibition on acquiring and disclosing personal information from driving records violates the First Amend-ment’s guarantees of free speech and freedom of the press.

As to the question of statutory interpretation, we con-clude that the DPPA’s definition of “personal information” extends to the details Sun-Times published here. With re-spect to the First Amendment challenge, we conclude that Sun-Times possesses no constitutional right either to obtain the officers’ personal information from government records or to subsequently publish that unlawfully obtained infor-mation. We therefore affirm the district court’s denial of Sun-Times’s motion to dismiss. * * *

For these reasons, we conclude that the DPPA’s prohibi-tion on disclosing the Officers’ personal information does not violate Sun-Times’s First Amendment rights. As this is an as-applied challenge, our holding is limited to the facts and circumstances of this case. We do not opine as to wheth-er, given a scenario involving lesser privacy concerns or in-formation of greater public significance, the delicate balance might tip in favor of disclosure. We hold only that, where members of the press unlawfully obtain sensitive information that, in context, is of marginal public value, the First Amendment does not guarantee them the right to publish that information. The district court therefore did not err in denying Sun-Times’s motion to dismiss the Officers’ claim that Sun-Times violated their rights under the DPPA.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s denial of Sun-Times’s motion to dismiss and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Sunday, February 08, 2015
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "Camp lawsuit against hog farm tangled in procedure"

The last ILB post on the YMCA Camp Tecumseh vs. hog farm controversy was on Dec. 12, 2014, reporting that the Supreme Court had, by a vote of 3-2, denied transfer in the case of White County Board of Commissioners v. Y.M.C.A. Camp Tecumseh.

On Feb. 6th, Chris Morisse Vizza posted this story to the Lafayette Journal & Courier website:

The future of YMCA Camp Tecumseh’s lawsuit to stop construction of a 9,000-hog operation is in the hands of White County Circuit Judge Robert Thacker.

Thacker on Friday listened as attorneys for the camp, the White County Board of Commissioners and farmer John Erickson argued about procedural rules concerning where the case should be heard.

Camp attorney Matt Albaugh claimed the case should be moved out of White County and that his motion for a change of venue was filed on time.

White County Attorney George Loy contended the camp missed the deadline to request the case be moved.

Loy also said the case is ready to move to trial in the county where the commissioners approved Erickson’s request to rezone 7 acres for the hog operation.

The case has slogged through the Indiana legal system, moving from Carroll Circuit Court, where it was originally filed, to the Indiana Court of Appeals and then to the Indiana Supreme Court.

The 90-year-old camp is in Carroll County, about a half-mile from Erickson’s farm. In its suit, the camp sought to stop the hog operation, which the camp said posed environmental threats to the outdoor recreational center.

At one point during the hearing, Judge Thacker said he was trying to determine the type of legal action the camp was pursuing, and that would determine which rules apply.

Robert Little, the attorney for Erickson, said the case is a procedural mishmash.

“We obtained the rezoning,” he said. “We still don’t know what court we should be in and we haven’t built the hog barn.”

Judge Thacker took the case under advisement, but said he planned to rule quickly.

Posted by Marcia Oddi on Sunday, February 08, 2015
Posted to Indiana Courts

Friday, February 06, 2015

Ind. Gov't. - More on: Purdue "Trimble report" finally released? Not yet!

Updating this ILB post from Feb. 4, here is the last part of a strongly-worded long Fort Wayne Journal Gazette editorial dated today:

Wartell and Purdue have reached a settlement in his discrimination suit, its terms sealed by a confidentiality agreement. But the Trimble report is not covered by that agreement. While Purdue has gone to extraordinary lengths to keep the results of the investigation private, both state and federal courts have repeatedly ruled the document was not protected by attorney/client privilege and must be released.

Trimble acted as an investigator in the process, not as Purdue’s attorney. There is no privilege to protect.

In the Court of Appeals decision, Judge Terry A. Crone criticized the university for its assertion that release of the report will have “a chilling effect” on attorney/client privilege and work-product doctrine.

“On the contrary, one would hope that it would have a chilling effect on the tactics used by Purdue in this case,” Crone wrote.

His sharp rebuke went unheeded, with the university continuing to stonewall. Donald Lundberg, an attorney retained by Purdue to fight the release, rolled out the same failed argument in a column published on these pages Thursday. It’s no more valid today than it was when judge after judge rejected it.

The settlement between the former IPFW chancellor and Purdue means the discrimination question won’t be answered in a court, but the report can answer other questions. The university’s dogged attempt to shield the information suggests ... well, no one knows except, perhaps, that Trimble was not kind to Purdue officials.

Purdue paid $19,203 for the Trimble report and, through August, more than $153,200 in legal fees to keep it under wraps. It’s a public document, produced for a public university at the public’s expense.

Time to hand it over.

Earlier in the editorial, the court history is recounted:This Sept. 6, 2014 ILB post links to the March 24, 2014 COA ruling.

The Lafayette Journal & Courier also has an editorial today, headed "The price of Purdue's secret report."

Posted by Marcia Oddi on Friday, February 06, 2015
Posted to Indiana Government

Ind. Gov't. - Pence budget would eliminate the state genealogy department

What is the Genealogy department? Here is the state government website, that explains:

The Genealogy Collection has developed over time to become one of the largest collections of family history information in the Midwest. The collection includes 40,000 printed items (family histories, indexes to records, how-to books, cemetery transcriptions, family history magazines, and more) as well as microfilmed federal census records, Indiana county records, passenger lists, and military pension information. The collection includes hundreds of CDs with family history information. The emphasis of the collection is on Indiana and bordering states, as well as eastern and southern states.
This AP story by Lauryn Schroeder, dated Jan. 31st, reported:
INDIANAPOLIS (AP) — An institution that documents Indiana history could face elimination under Gov. Mike Pence’s budget plan, just months before the state’s bicentennial.

Pence’s spending plan would cut the Indiana State Library’s funding by 24 percent, about $2 million, and eliminate the genealogy department that houses more than 100,000 items documenting Hoosier history. * * *

Jeff Krull, a member of the governor-appointed Indiana Library and Historical Board, said the library’s funding has been whittled down each year for the past decade, “but this was a big whack that came out of left field.”

Meanwhile, about $55 million has been allotted for the state’s bicentennial celebration.

“It just doesn’t make any sense to have a big blowout celebration and then dismantle the institutions that preserve the state’s history,” Krull said. * * *

Community officials have previously stressed the importance of a new archives building. Most of Indiana’s historical documents are being stored in a dilapidated building on the far east side of Indianapolis.

They were moved there in 2001 as a temporary measure while the state library was being remodeled, but ended up remaining at the site with no climate control.

However, the building would not serve as a replacement for the genealogy department, which Krull said has become a primary resource for immigration records, family trees and lineage, census data and other information people can use to track down their history.

A report issued by the Indiana State Librarian Jacob Speer said the budget cuts would lead to a 10 percent reduction in staff. The library would also lose its federal funding, since the state would no longer be meeting the match and maintenance requirements of the grant.

The Legal Genealogist has a very good post about this that begins: "One of Indiana’s great treasures, of immense value to genealogists, is on the political chopping block." If Indiana history is important to you, I urge you to read the entire post. Here is a snippet:
House Bill 1001, the Indiana State Budget Bill, threatens “the availability and use of a one-of-a-kind resource that includes many elements of family history and Indiana history.”3 It would cut off every penny to the Genealogy Department, even though nearly half of all reference questions that come in to the Indiana State Library ask for information from its genealogical holdings.

The bill is shortsighted, its impacts devastating, and we need to speak out — clearly and loudly — as a community that the $400,000 cut from the Library’s budget for genealogy must be restored.

And a question to readers from the ILB: I am trying to locate the testimony of the State Library before the State Budget Committee and the House Ways & Means Committee. However, I do not know the dates that this testimony took place, so I cannot track down the videos.

Posted by Marcia Oddi on Friday, February 06, 2015
Posted to Indiana Government

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

For publication opinions today (1):

In Kirk R. Jocham v. Melba Sutliff , a 12-page opinion, Judge Robb writes:

Kirk Jocham (“Jocham”) appeals the trial court’s order granting grandparent visitation to Melba Sutliff (“Sutliff”). Jocham raises several issues for our review, of which we find the following dispositive: whether Sutliff had standing to petition for grandparent visitation. Concluding that Sutliff was not a “grandparent” entitled to seek visitation rights at the time she filed her petition, we reverse. * * *

Grandparents historically had no common-law right to visitation with their grandchildren. In re Visitation of M.L.B., 983 N.E.2d 583, 585 (Ind. 2013). In 1982, the Indiana legislature passed the Grandparent Visitation Act (“GVA”), which is the exclusive basis for a grandparent to seek visitation. Id. Because the GVA was enacted in derogation of the common law, it must be strictly construed. In re Guardianship of A.J.A., 991 N.E.2d 110, 113 (Ind. 2013). To seek visitation rights, a grandparent must have standing as prescribed by the GVA; otherwise, the petition must be dismissed as a matter of law. Id. * * *

In this case ... Sutliff had no existing grandparent visitation rights at the time of the adoption, nor was she pursuing any. As noted above, at common law, a grandparent had no right to visitation. See In re M.L.B., 983 N.E.2d at 585. Therefore, the GVA does not protect an existing right, it confers a right upon a person who is statutorily entitled to ask for it. When Emily adopted K.J., she became his legal mother in Stephenie’s stead. See Ind. Code § 31-19-15-2(c) (stating that after a stepparent adoption, the adoptive parent “occup[ies] the same position toward the child that the adoptive [parent] would occupy if the adoptive [parent] [was] the biological [parent] . . . .”); see also In re Menzie, 469 N.E.2d at 1227 (noting the stepparent adoption statute “places the adoptive mother in the position of the child’s natural mother. Thus the adoptive mother becomes the natural mother of the child. All legal ties between the adopted child and her biological mother are severed.”). Following the adoption, Sutliff remained K.J.’s grandmother biologically, emotionally, and morally, but at the time she filed her petition for grandparent visitation, she was no longer legally his grandparent. * * *

We note the trial court’s concern that Sutliff did not get notice of the adoption petition, the granting of which ultimately cut off her right to seek visitation. However, she was not entitled to any notice.[2] * * *

Because Sutliff filed her petition seeking grandparent visitation after K.J. had been adopted by Emily, she was no longer legally entitled to grandparent visitation rights. The trial court erred as a matter of law in granting Sutliff’s motion to correct error, considering her petition on the merits, and ordering grandparent visitation. The judgment of the trial court is reversed.
________
[2] One way to avoid cutting off a grandparent’s opportunity to seek visitation rights by catching him or her unawares would be to amend the adoption statute to require notice of a petition for adoption be given to anyone who would be eligible under the GVA to seek grandparent visitation rights as of the time the petition is filed.

NFP civil decisions today (2):

In Re The Guardianship of Samantha R. Barton, Harriet Barton v. James P. Barton (mem. dec.)

Tamara Krebs v. Michael C. Krebs (mem. dec.)

NFP criminal decisions today (2):

Max E. Long v. State of Indiana (mem. dec.)

Shannon Robertson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 06, 2015
Posted to Ind. App.Ct. Decisions

Ind Courts - WRTV 6 looks at child support rules

"Indiana's child support guidelines under review: Parents say system is broken, unfair," is the headline to this post by reporter Kara Kenney, with links to other stories.

Posted by Marcia Oddi on Friday, February 06, 2015
Posted to Indiana Courts

Law - “Better Call Saul” gets rave review from NYT

"Meth King’s Lawyer: The Early Years: ‘Better Call Saul,’ a ‘Breaking Bad’ Spinoff on AMC" is the headline to this review today in the NYT by Alessandra Stanley that begins:

Nobody wanted it to end, so the creators of “Breaking Bad” came up with a new beginning.

“Better Call Saul,” which has a two-part premiere on AMC on Sunday and Monday nights, revolves around Saul Goodman (Bob Odenkirk), the shady lawyer of Walter White, the hero of “Breaking Bad,” and is set roughly six years before the two men meet.

It’s common to dread a spinoff; some succeed, but plenty disappoint. There is absolutely no need to worry about this prequel to the “Breaking Bad” canon. “Better Call Saul” traces in loving, if corrosive, detail how Jimmy McGill, a debt-ridden, ambulance-chasing loser, changed his name to Saul Goodman and became a drug-lord consigliere.

“Better Call Saul” is better than good: It’s delightful — in a brutal, darkly comic way, of course.

Posted by Marcia Oddi on Friday, February 06, 2015
Posted to General Law Related

Thursday, February 05, 2015

Ind. Courts - "ACLU of Indiana Files Suit for Woman Punished by DOC for Facebook Post Supporting Her Imprisoned Brother" [Updated]

From the news release:

A woman whose Facebook post supporting her imprisoned brother resulted in the Indiana Department of Correction both curtailing her contact with the brother and in segregation time for her brother has filed suit against the DOC for violating her First Amendment rights.

Today the American Civil Liberties Union of Indiana brought suit on behalf of Valerie Buford, the sister of Pendleton Correctional Facility inmate Leon Benson, whose "Free Leon Benson" social media campaign involves several Internet sites seeking to gain his release from prison. Buford had posted a video to her Facebook page of her brother thanking and rallying his supporters. Benson had sent his sister the video via J-Pay, a company that contracts with the State to provide services to prisoners and their families such as email, video messaging and money transfers. When the prison learned the video had been posted on Facebook, Benson was disciplined and the DOC has blocked Buford's ability to use J-Pay.

"Ms. Buford was advocating for her brother and the State cannot penalize private citizens for exercising constitutionally protected rights of free expression," said ACLU of Indiana Legal Director Ken Falk. "The First Amendment protects against retaliatory actions of government officials that can have a chilling effect on speech."

The case seeks to remove the block preventing J-Pay communications between the plaintiff and her brother and to prevent any such future retaliatory actions. It also seeks the client's damages.

Valerie Buford v. Commissioner, Indiana Department of Correction, No. 1:15-cv-157-SEB-TAB,was filed on Feb. 5, 2015 in the U.S. District Court, Southern District of Indiana, Indianapolis Division.

[Updated 2/6/15] Kristine Guerra has this report today, with more background, in the Indianapolis Star.

Posted by Marcia Oddi on Thursday, February 05, 2015
Posted to Indiana Courts | Indiana Government

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

For publication opinions today (1):

In Anthony J. Thornton v. State of Indiana , an 11-page opinion, Judge Baker writes:

Anthony Thornton appeals his conviction for class B felony Criminal Confinement as well as the sentence imposed by the trial court for that conviction. Thornton raises a number of arguments, one of which is dispositive. He contends that the trial court erroneously admitted evidence regarding out-of-court statements by an alleged accomplice in violation of his rights under the United States and Indiana Constitutions. We agree, and reverse. * * *

Thornton’s first argument, which we find dispositive, is that the trial court erroneously permitted certain testimony into evidence. We review a trial court’s decision to admit evidence for an abuse of discretion, and will reverse only if the court’s decision was clearly against the logic and effect of the facts and circumstances before it. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009). * * *

Although we need not address the remaining issues, we choose to address Thornton’s arguments regarding prosecutorial misconduct [ILB emphasis] as these issues may arise again should the State choose to retry Thornton. * * * [ILB: Both of Thornton’s claims of misconduct stem from closing argument.]

To blame a shortcoming in the State’s evidence on a defendant’s invocation of a fundamental constitutional right surely constitutes prosecutorial misconduct, and likely also constitutes fundamental error. See Whitlock v. State, 576 N.E.2d 640, 641 (Ind. Ct. App. 1991) (holding, in the context of the Fifth Amendment right to refrain from testifying, that “[a]ny [prosecutorial] comment which directly or even indirectly may be interpreted by the jury as comment on the accused’s exercise of his rights is reversible error” even in the absence of a contemporaneous objection). We caution the prosecutor to avoid making a similar comment in the future should the State choose to retry Thornton. * * *

A prosecutor may not request that a jury convict a defendant for any reason other than his guilt. Cooper, 854 N.E.2d at 837-38. It is improper for a prosecutor to invoke sympathy for a victim as a basis for a conviction. Woolston v. State, 453 N.E.2d 965, 970 (Ind. 1983). Similarly, a prosecutor may not urge a jury to convict a defendant to encourage other victims to come forward. Hand v. State, 863 N.E.2d 386, 396 (Ind. Ct. App. 2007). In this case, the prosecutor’s statements made during closing argument and rebuttal fell into all three of these prohibited categories of argument. Should the State decide to retry Thornton, we admonish the prosecutor to avoid making similar comments the next time around.

NFP civil decisions today (2):

State Farm Fire and Casualty Company v. Scott C. Smith (mem. dec.)

J.W. v. P.B. (mem. dec.)

NFP criminal decisions today (4):

William Temple v. New Castle Correctional Facility (mem. dec.)

Marques Love v. State of Indiana (mem. dec.)

James Stewart v. State of Indiana (mem. dec.)

William N. Perry v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, February 05, 2015
Posted to Ind. App.Ct. Decisions

Ind. Decisions - 7th Circuit posts two Indiana cases, dated Feb. 4th

In Richard Wagoner v. Indiana Department of Correction (ND Ind., Nuechterlein, MJ), a 12-page opinion, Chief Judge Wood writes:

This appeal requires us to revisit the rule imposed by the Prison Litigation Reform Act (PLRA) requiring a prisoner to exhaust any available administrative remedies before challenging her conditions of confinement in a federal court. See 42 U.S.C. § 1997e(a). Often exhaustion (or its lack) will be apparent, but when it is not, the district court must hold an evidentiary hearing to resolve the question. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). A Pavey hearing serves a limited but important role: it helps the judge decide whether the court or the prison is the proper forum for the prisoner’s grievance. A proper Pavey hearing should be conducted before an adjudication on the merits. In the present case, that did not happen, because the prisoner failed to submit his renewed motion for a Pavey hearing as directed by the district court. We must decide whether the court abused its discretion in denying that hearing and whether the Commissioner and the Indiana Department of Corrections were entitled to summary judgment. * * *

In closing, we stress that it is better practice to hold a Pavey hearing separate from and before considering a mo-tion for summary judgment. Nonetheless, although the judge did not do so here, we find no reversible error. In addition, the court correctly concluded that no material facts were disputed and that the Commissioner and IDOC were entitled to judgment as a matter of law. We therefore AFFIRM the judgment of the district court.

In USA v. Duryea Rogers (SD Ind., Barker), a 7-page opinion, Judge Manion writes:
Duryea Rogers pleaded guilty to conspiracy to commit armed bank robbery, armed bank robbery, and brandishing a firearm during a crime of violence (in this case, a bank robbery). He challenges the district court’s imposition of a two-level enhancement for carjacking under U.S.S.G. § 2B3.1(b)(5). We affirm.

Posted by Marcia Oddi on Thursday, February 05, 2015
Posted to Ind. (7th Cir.) Decisions

Environment - "Invasive Asian carp spawning in Louisville"

Very interesting article on Asian carp in Louisville Courier Journal from respected environmental reporter James Bruggers. Some quotes from the long story:

Those crazy highly invasive, flying Asian carp have effectively set up camp in Louisville, with a spawning area below the McAlpine Locks and Dam in the Ohio River, the U.S. Fish and Wildlife Service reports.

In it's first annual report to Congress on Asian carp, the agency said Bighead and Silver carp are spawning at Louisville, and have been detected as far up the Ohio River as Greenup Lock and Dam near Huntington, West Virginia, and there are reports of Bighead carp just southwest of Pittsburgh. But there were no signs of successful spawning up river from Louisville, the agency reported.

Here is the most interesting part to the ILB:
Kentucky plays a prominent role in the new report, particularly those state efforts to control the carp through commercial fishing, in part to supply markets in China:
By January 2015, Kentucky will have three major fish processing companies established with ultimate goals of removing up to 150 tons of Asian carp from the Mississippi River basin on a daily basis. Commercial fishing efforts are mostly centered in and below Kentucky and Barkley lakes due to the location of the domestic market and processing facilities. Commercial fishing efforts currently remove approximately 40 tons of Asian carp weekly. Some smaller Kentucky processors are also exploring domestic markets for Asian carp filets and patties.
Brooks said the third company actually will come online later this year. But he spoke very optimistically about the commercial market for Asian carp.
We do have two active processors and another large player coming soon (this spring): RCB is a partnership of processors and fish meal producers. One partner, Blue Shore Fisheries, will specialize in fresh and frozen boneless fish filets, fish patties and various recipes for the patties. Their products are excellent. Another will deal in surimi. Two Rivers was Kentucky's first Asian carp processor. They specialize in whole fish exports and also have some other products. Lastly, Riverine Enterprise should be mooring their ship in Hickman this late winter. They will mostly do surimi products. The surimi market is insatiable. So, given the three businesses' projections for harvest, the figures given are possible for sure.
They are working on selling to ethnic markets in the United States, and there are two fish markets in western Kentucky selling fresh Asian carp, Brooks said. * * *

If you are into the Ohio River and this fascinating story of the spreading of an invasive species, you might want to check out the report. It's 47 [ILB: actually it is 148] pages long. You can find it here.

Posted by Marcia Oddi on Thursday, February 05, 2015
Posted to Environment

Ind. Gov't. - "Competing canned-hunt bills deserve hearing"

From an editorial today in the Fort Wayne Journal Gazette:

Monday, the Indiana Court of Appeals ruled that Indiana’s current law does not prohibit “high-fence hunting of deer.” The DNR and Attorney General Greg Zoeller, who allied with the agency, have not yet decided whether to appeal.

So things are looking up for this year’s version of a standards bill, HB 1453, introduced by Rep. Sean Eberhart, R-Shelbyville. The only question, Eberhart told the Indianapolis Star, is whether the bill would grandfather in the four existing high-fenced hunting operations or allow more of the facilities to open.

Sen. Pete Miller, R-Avon, wanted to offer another choice besides legitimizing the concept of high-fence hunting with a clear set of rules. He introduced another bill, HB 442, that would simply ban canned hunting.

“I don’t think that it’s a sport,” said Miller. In addition, “we are endangering the deer population” outside the fences.

Sen. Sue Glick, R-LaGrange, chairwoman of the Senate’s Natural Resources Committee, said Wednesday she doesn’t intend to give Miller’s bill a hearing. Glick said she doesn’t want to ban the preserves because it would hurt farmers in the state who raise white-tail deer to sell to such operations.

Instead, she will focus on Eberhart’s measure, with a hearing to ensure all the issues are addressed. “I’d rather have that bill than an absolute ban at this point in time,” Glick said. No solution will please all, she observed. “There are some people who are opposed to hunting in its entirety.”

That’s true, but you don’t have to be a tree-hugger or a vegetarian to think these preserves should be denied state sanction. Honest-to-goodness hunters who take offense at the canned-hunting concept and fear for the health of Indiana’s deer population need to be heard from in this debate, too.

Miller’s bill deserves a sporting chance. Like those penned-in deer.

Posted by Marcia Oddi on Thursday, February 05, 2015
Posted to Indiana Government

Wednesday, February 04, 2015

Ind. Courts - "Court to review life sentence in teacher's slaying" [Updated]

At 9 AM tomorrow morning, the Supreme Court is scheduled to hear oral argument in Robert Lewis, III v. State of Indiana.

This evening Dan Carden of the NWI Times has a good story about the upcoming argument. This is particularly helpful because this case is a direct appeal from the trial court, and thus there was no Court of Appeals review. Some quotes from the story:

The question of whether judges have the same options as juries in sentencing the most heinous Indiana murderers could determine if a Gary man spends life in prison without the possibility of parole for raping and killing a Griffith schoolteacher. * * *

A Lake County jury convicted Lewis following a 10-day trial, but deadlocked in the separate sentencing phase.

The jurors were unable to reach a verdict on whether the prosecution proved beyond a reasonable doubt that Lewis murdered Kocsis while committing or attempting to commit sodomy, a component known as the aggravator that's required for the jury to sentence Lewis to life without parole.

Under Indiana law, if a jury agrees the aggravator is proven and recommends life without parole -- the functional equivalent of the death penalty -- the judge is required to follow the jury's recommendation.

But if a jury cannot agree to either life without parole or a term of years sentence, as in this case, the jury is discharged and the sentence decided by the judge alone.

Lake Superior Judge Diane Ross Boswell said in that situation her reading of the statute requires she impose life without parole -- and cannot consider a term-of-years sentence -- so long as the prosecution proves the aggravator and it outweighs any potential mitigators, which Boswell said it did.

Accordingly, she sentenced Lewis to spend the remainder of his life behind bars. He is incarcerated at Indiana State Prison in Michigan City.

Lewis' appellate attorney, Marce Gonzalez Jr., of Dyer, will argue Thursday to the Indiana Supreme Court that the life-without-parole sentencing process is flawed, because judges should have the same option as juries to consider a term-of-years sentence as an alternative to life without parole.

"It would be inconsistent with the intent of the statute in providing for jury discretion in such a significant decision-making process ... by removing a judge's discretion on the ultimate issue," Gonzalez said in his written arguments to the high court.

There is much more in the story which, in addition, provides links to the briefs in the case.

You will be able to watch the argument live (and archived).

[Updated 2/8/15]
Here, from Feb. 5th, is Ruth Ann Krause's story on the oral argument, as reported in the Gary Post Tribune.

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Upcoming Oral Arguments

Ind. Decisions - Supreme Court decides one one today, involving a Q of the tolling (suspending) of the running of a statute of limitations

In John O. Study v. State of Indiana, a 16-page, 5-0 opinion, Justice David writes [ILB BF emphasis]:

John Study was charged with four counts of robbery, six counts of criminal confinement, and one count each of pointing a firearm, resisting law enforcement, and auto theft. The State also charged Study as a Habitual Offender. These charges resulted from four different bank robberies, which occurred over a year and a half. Study argues that the charge for Class B felony robbery, relating to the March 21, 2006 robbery should be dismissed on the grounds that it was filed outside of the statute of limitations period because the statutory concealment-tolling provision was inapplicable in his case. Thus, the statute of limitations would bar any charges related to that robbery from being brought after March 21, 2011. The State argues that Study’s conduct did conceal evidence of the offense and was sufficient to toll the statute of limitations. * * *

Judge Mathias dissented on the issue of tolling the statute of limitations. Id. Judge Mathias argued that tolling only occurs by concealment “when there is a positive act performed by the defendant calculated to prevent discovery of the fact that a crime has been committed.” Id. The dissent expressly disagreed with the proposition that any act by the defendant to avoid apprehension would toll the statute of limitations. Id. at *16. [ILB: Here is the COA's 4/10/14 2-1 NFP opinion]

This Court granted Study’s petition to transfer, thereby vacating the Court of Appeals opinion. See Ind. Appellate Rule 58(A). We summarily affirm the Court of Appeals on all issues, except for the issue regarding the interpretation and application of Indiana Code § 35-41-4-2(h)(2), the statute of limitations concealment-tolling provision. See Ind. Appellate Rule 58(A)(2). * * *

Although this Court has applied the concealment-tolling provision since the statutory language was changed in 1976, we have not previously had the opportunity to specifically address what actions of the defendant are required for a court to find “concealment” sufficient to toll the statute of limitations. After being presented with this issue for the first time, we agree with Study. We hold that the trial court erred when it refused to grant Study’s motion to dismiss the March 21, 2006 robbery count because the charge was filed outside the statute of limitations, and further hold that the charge stemming from the March 21, 2006 robbery is dismissed. * * *

Indiana statutory law provides that prosecution for a Class B felony “is barred unless it is commenced: (1) within five (5) years after the commission of the offense.” Ind. Code § 35-41-4-2(a)(1) (2014). However, limited exceptions are recognized. At issue here is the concealment-tolling provision, which provides in pertinent part:

(h) The period within which a prosecution must be commenced does not include any period in which: . . . (2) the accused person conceals evidence of the offense, and evidence sufficient to charge the person with that offense is unknown to the prosecuting authority and could not have been discovered by that authority by exercise of due diligence…
Ind. Code § 35-41-4-2(h)(2) (2014) (emphasis added). Though other issues regarding the concealment-tolling provision have been addressed, the specific question of what conduct qualifies as concealing evidence of the offense has not been answered by this Court. However, a long line of Indiana precedent guides our analysis. * * *

The application of the concealment-tolling provision under Indiana Code § 35-41-4-2(h)(2) requires a positive act by the defendant that is calculated to conceal the fact that a crime has been committed. Study did not engage in any positive act calculated to conceal the fact that a robbery occurred on March 21, 2006. Therefore, the statute of limitations as to that offense was not tolled, and the charge should have been dismissed. We remand for the trial court to vacate the conviction and sentence for Count XI and dismiss the charge. Count XI resulted in a fifteen-year (15) sentence to be served consecutively to his other sentences and $10,000.00 fine. We affirm the convictions, sentences, and fines for Counts I-VIII, X, XII, and XIII. Because of the manner in which the trial court imposed concurring and consecutive sentences, the reversal of Count XI operates to decrease Study’s total sentence by fifteen (15) years and $10,000. We affirm the remaining aggregate sentence of fifty-three-and-one-half (53.5) years and $40,000 fine.

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion today (and 5 NFP memorandum decisions)

For publication opinions today (3):

In Community Anesthesia & Pain Treatment, L.L.C., v. St. Mary Medical Center, Inc., a 24-page opinion, Judge Brown writes:

Community Anesthesia & Pain Treatment, LLC, (“CAPT”) appeals the trial court’s order entering summary judgment in favor of St. Mary Medical Center, Inc., (“SMMC”) with respect to Count I of SMMC’s complaint and Counts II and III of CAPT’s counterclaim. CAPT raises three issues which we consolidate and restate as whether the trial court erred in entering summary judgment in favor of SMMC. We affirm. * * *

Because we conclude that the trial court did not err in entering summary judgment in favor of SMMC on the reconciliation issue and locum tenens issue, we conclude that the provision in the Termination Agreement in which CAPT agreed to release Dr. Seshadri in exchange for SMMC paying CAPT $100,000 is enforceable.5 Thus, we cannot say that the trial court erred in granting summary judgment to SMMC on this issue.

In Loren H. Fry v. State of Indiana, a 23-page opinion, Sr. Judge Sharpnack writes
A jury determined that Loren H. Fry shot and killed his neighbor David Schroder. Fry appeals his conviction of murder, a felony. Ind. Code § 35-42-1-1 (2007). He challenges the trial court’s evidentiary rulings, the prosecutor’s conduct during trial, the denial of his motions for directed verdict, and the court’s rejection of one of his proposed jury instructions. We affirm.
In Chad A. Madden v. State of Indiana, an 18-page, 2-1 opinion, Judge Mathias writes:
Chad A. Madden (“Madden”) appeals the order of the Jefferson Superior Court denying his motion to correct error which claimed that the trial court had improperly delegated to the Community Corrections program the authority to decide whether Madden should be subject to electronic monitoring. * * *

The trial court’s order modifying Madden’s sentence and imposing conditions of probation did not improperly delegate the trial court’s authority to Community Corrections, nor did the trial court’s order deprive Madden of procedural due process. Affirmed.

Crone, J., concurs.
Riley, J., dissents with opinion. [ which begins on p. 13] I disagree with the majority that the trial court did not improperly delegate its authority to Community Corrections to determine whether, and for what duration, Madden should be subject to electronic monitoring—i.e., home detention—as a condition of his probation. Therefore, I respectfully dissent.

NFP civil decisions today (0):

NFP criminal decisions today (5):

George Layton v. State of Indiana (mem. dec.)

Glenn Beard v. State of Indiana (mem. dec.)

Jason E. Morales v. State of Indiana (mem. dec.)

Elwin Hart v. State of Indiana (mem. dec.)

Jerome Sumlin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "More flubs get BMV new leader: Pence announces audit office for department"

An Oct. 20, 2014 AP story was headed "The problems at the BMV stretch back at least to 2004, when the state moved to a new system for crafting and administering fees."

Niki Kelly reported yesterday in the Fort Wayne Journal Gazette:

The Indiana Bureau of Motor Vehicles is getting a new leader and internal controls after yet another announcement Monday of newly discovered overcharges to Hoosier drivers.

That brings the total to about $57 million to be returned to BMV customers since the fall of 2013.

An internal review being handled by consultant BKD identified the latest snafus.

Gov. Mike Pence said about $13 million in undercharges were discovered too but Hoosiers will not be asked to repay the money to the BMV. Instead, the law will be changed to keep the lower fees.

“I want the back office at the BMV to run as well as the front office does,” he said. * * *

Pence also announced a new internal audit department will be set up within the BMV central office that will report to both agency superiors and the State Board of Accounts.

He said the BMV is a large, complex bureaucracy that applies a thousand fees and taxes that have evolved over several administrations. He acknowledged that sometimes the left hand doesn’t know what the right hand is doing.

“I’m very confident we can reform it,” Pence said. “This is a whole new era of fiscal responsibility.”

The ILB has highlighted the quote about "a thousand fees" for use in a later post about another agency...

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Indiana Government

Ind. Gov't. - "When You Die, Who Can Read Your Email?" Indiana among those considering new law [Update]

That is the headline to this Feb. 1 WSJ report by Rachel Emma Silverman. A few quotes:

A controversial new state law is making it easier for estate executors to access digital data—such as email, photos and social-media postings—after the account holder dies.

Many Internet companies strictly limit access to their customers’ accounts to the account holder, in accordance, they say, with federal privacy law. When an account holder dies, estate executors typically have to seek a court order to access the account, which can be expensive and time consuming—sometimes taking half a year or more—and isn’t always successful.

But under a Delaware law passed last summer, executors can now access online accounts without a court order, unless the deceased has instructed otherwise. Similar legislation is under consideration in several other states. * * *

Delaware’s law, called the Fiduciary Access to Digital Assets and Digital Accounts Act, is modeled after an act drafted by the Uniform Law Commission, a group appointed by state governments that writes up and lobbies for new state laws. So far this year, at least 13 states, including Florida, Virginia, Indiana, Kentucky, Nebraska, New Mexico, North Dakota and Washington, are considering versions of this digital data act. As legislative sessions get into gear this year, state-government watchers anticipate that other states will consider or pass new rules granting digital access to agents for the deceased. * * *

The law is designed to give legally appointed fiduciaries the same access to digital assets as they would have for more tangible assets, such as files stored in cabinets or photos stored in shoeboxes, but not without some restraints. The law requires the fiduciary to follow the deceased or incapacitated person’s instructions for how accounts should be handled—which may include denying the fiduciary access to some or even all accounts. If there are no written instructions, the fiduciary can act as he or she sees fit, according to applicable laws.

A coalition of Internet firms unsuccessfully lobbied Delaware Gov. Jack Markell to veto the legislation. Jim Halpert, general counsel of this State Privacy and Security Coalition, says that, among other concerns, a digital-account holder may not want the content of communication with a doctor, counselor or patients disclosed.

The informal nature and sheer volume of most digital correspondence makes it significantly different from old-fashioned letters, Mr. Halpert says. “Email is a much more unfiltered form of communication,” he says. “People may not show the side of themselves that they want and other family members may be hurt by those communications.”

The ILB finds that at least two such bills have been introduced in the Senate: SB 308 and SB 368. SB 308 has been assigned to the Judiciary Committee, as has SB 368. SB 308 is 2 pages shorter.

[Updated] SB 368 passed 3rd reading yesterday, 2/3/15.

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Indiana Government

Ind. Courts - What has become of the Judicial Technology Oversight Committee (JTOC)?

Although the ILB tried to follow its meetings, the last (frustrated) ILB post on it is from June 23, 2014.

Its importance is explained in this Sept. 13, 2013 post. Its authorizing statute is found at IC 33-23-17. Here are all the ILB posts mentioning the JTOC.

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Indiana Courts

Ind. Courts - Judicial Center's Legislative Update up and running

The January 30th (fourth) weekly installment of the Legislative Update for the 2015 legislative session is available here. It is in blog form, you can scroll down for earlier updates. This is a good way to keep aware of bills of interest to the judiciary.

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Indiana Courts

Ind. Gov't. - "Purdue and its former chancellor settle lawsuit" and "Trimble report" finally released? Not yet!

ILB: This post kind of buries the lede! Be sure to read the last half!

Ron Wilkins reports today in the Lafayette Journal & Courier that:

The legal wranglings between former Indiana University-Purdue University Fort Wayne Chancellor Michael Wartell and Purdue University ended this week.

A notice of status filed Monday with the U.S. District Court for the Northern District of Indiana indicated that Wartell and Purdue had resolved their differences and both sides agreed to dismiss the federal lawsuit later this month. The lawsuit filed in Tippecanoe County Circuit Court was dismissed on Dec. 23, according to court records. * * *

According to previous Journal & Courier reports, Wartell alleged in the lawsuits that he was forced out of his position as chancellor after he reached the mandatory retirement age of 65. He had led the campus of 13,000 students for 18 years before he retired in 2011, according to reports in the Associated Press. His request for a waiver to the mandatory retirement policy was denied.

In the lawsuits, Wartell alleged that then-Purdue President France Córdova and university trustees’ refusal to approve his waiver was in line with Còrdova’s goal to hire more female administrators. He was succeeded by Vicky Carwein, who was 64 when she was hired in 2012.

Asked to comment on the pending dismissal, Purdue’s legal counsel Steve Schultz said, “The matter in federal court has been resolved and will now be dismissed.

“With respect to the resolved state case, we were pleased to reach closure on a matter that to us merited standing on an important principle — that principle being the sanctity of the attorney-client privilege.”

ILB: That last paragraph refers to the "Trimble report". The most recent post the ILB has on that report is from Sept. 7, 2014.

But now it turns out the report was released to the Fort Wayne Journal Gazette yesterday afternoon. [ILB Update: Wrong, only the cost of the report was released!]

Here, from Rebebecca S. Green's FWJG story yesterday:

Somebody has cried “uncle” in the federal lawsuit stemming from the forced retirement of former IPFW Chancellor Michael Wartell.

On Monday, attorneys for Purdue University, the defendant in the lawsuit, filed paperwork announcing a settlement has been reached and that they had the permission of Wartell’s attorneys to file the notice.

The filing promised the ultimate dismissal of the suit, per whatever agreement Purdue reached with Wartell, who sued the school in both federal and Tippecanoe County court in 2013.

No details of the settlement were released, and Wartell’s attorneys declined to comment further on the matter. * * *

In both the state and federal cases, Purdue officials have fought to keep secret the report compiled by attorney John Trimble, who was hired to investigate Wartell’s removal.

Trimble completed his investigation in February 2013 and turned his report over to a group of Purdue board members, who found that no discrimination had taken place.

The university refused to make the document available to Wartell’s attorneys, however, citing attorney-client privilege and claiming that the document was not a public record.

That report, identified in multiple court documents as the Trimble Report, has been the subject of multiple motions, hearings and arguments within the past year. And in all of them, the courts have held that the document is not subject to attorney-client privilege and is a public record.

In September, Purdue’s attorneys asked for a protective order to keep the document a secret. No ruling on their request was made. Status conferences in the case were delayed over the past few months, most recently in January.

The Trimble Report has not been released, nor has documentation about how much money Purdue spent to keep the document out of the public eye.

Now today Green reports:
It cost Purdue University $19,203.27 to produce the “Trimble report” – the school’s investigation into the forced retirement of former IPFW Chancellor Michael Wartell.

It cost the school more than $153,200 to keep the document from the prying eyes of the public, the media and Wartell’s own attorneys over the course of about 18 months, according to a recent accounting from Purdue University.

Purdue University released the information to The Journal Gazette late Tuesday afternoon, nearly six months after the newspaper requested information about how much money the school spent to fight the report’s disclosure.

Purdue’s belated response to the request for information came within 24 hours of the filing of federal court documents announcing that a settlement had been reached in the case, pending since 2013. * * *

Purdue refused to disclose the Trimble report during the course of the state lawsuit. Wartell appealed, and the Indiana Court of Appeals found that the document was a public record.

Again trying to keep it secret in the federal lawsuit, Purdue’s attorneys claimed again that it was protected by attorney-client privilege. But in July, a federal magistrate judge ruled that had Trimble been working as Purdue’s attorney, Wartell would have been told that before he talked to him.

The document was subject to discovery and should be disclosed, according to court documents.

Then in September, Purdue’s attorneys asked for a protective order to keep the report a secret.

According to Purdue University, the school spent a total of $153,241.35 in legal fees incurred by fighting open records requests related to the report.

In May, the university spent $29,340 – the most of any month, according to Purdue.

Purdue officials did not respond to an email seeking comment as to why it took six months to reply to The Journal Gazette’s request for information.

The total amount released Tuesday reflects only money spent until August. The Journal Gazette filed an additional request Tuesday afternoon, seeking the total amount spent from September until January on fighting disclosure of the report.

No information on the amount of the settlement reached in the federal lawsuit has yet been made public.

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Ind Fed D.Ct. Decisions | Indiana Government

Ind. Gov't. - What will become of Indiana's $21.5 million share of the S&P settlement? [Updated]

Yesterday Attorney General Zoeller announced that Indiana is part of a multistate, $1.3 billion S&P settlement, via a news release that begins:

Indiana, the U.S. Department of Justice, 18 other states and the District of Columbia reached a settlement agreement with Standard & Poor's Financial Services LLC (S&P) resolving allegations that S&P misled investors when it rated structured finance securities in the lead-up to the 2008 financial crisis.

The settlement requires S&P to pay $1.375 billion, which will be split among the states and the Department of Justice. Indiana will receive $21.5 million in the settlement, a majority of which will go toward the state General Fund.

Recall this ILB post on the Attorney General's Jan. 22nd presentation before House Ways & Means, which includes:
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.
A "majority of $21.5 million" settlement is a pretty imprecise statement, leaving the ILB to wonder what remained, and where it went. And who decided?

Thanks to the website of the Attorney General of the State of Tennessee, the ILB quickly was able to obtain a copy of the national settlement agreement. Page 8 contains the statement of Indiana's distribution:

$21,535,714.00, and no other amount, will be paid by Defendants to the State of Indiana pursuant to this Agreement and the terms of written payment instructions from the State of Indiana, Office of the Attorney General. Payment shall be made by electronic funds transfer within thirty (30) calendar days of receiving written payment processing instructions from the State of Indiana, Office of the Attorney General.
The ILB contacted the AG's officer at 1:00 PM yesterday, asking:
I'd like to write about how a large settlement like this is handled once the funds are received in Indiana. I assume the part that goes to the General Fund remains there until it is appropriated out by the GA, but what about the balance?
While waiting for a substantive reply, the ILB has looked again at the settlement agreement to see what kind of arrangements some of the other states have made:

[Updated at 12:27 AM] This morning the ILB received a response to its question of the AG's office about how much of the settlement would go to the general fund and specifically how would the balance be distributed. The response was from Molly Johnson, Public Information Officer – Consumer Affairs:

Of the $21.5 million that Indiana is receiving in the settlement, approximately $15 million is expected to be allocated to the state General Fund where the Legislature has authority to determine its distribution. Specific allocations of the remaining balance will be determined consistent with the parameters of the settlement and taking into account claims made by the securities and consumer protection divisions based on their involvement in the settlement. The Indiana-specific settlement will be filed in state court and, consistent with the settlement agreement, the settlement deposit will be received within two weeks.
So, is that perfectly clear to everyone?

It is not clear to the ILB how and where settlements (other than the tobacco settlement - see IC 4-12-4) are reflected on the Indiana books, and who has authority to make the decisions.

On the other hand, the ILB did find an interesting section in the 2014 State of Indiana - Comprehensive Annual Financial Report put out by the Auditor of State headed "Contingencies and Commitments, Litigation" - it begins on p. 98 (118 0f the PDF) with:

The State does not establish reserves for judgments or other legal or equitable claims against the State. Judgments and other such claims must be paid from the State’s unappropriated balances and reserves, if any.
It continues with a discussion of "a summary of certain significant litigation and claims currently pending against the State involving amounts exceeding $5 million individually or in the aggregate."

Posted by Marcia Oddi on Wednesday, February 04, 2015
Posted to Indiana Government

Tuesday, February 03, 2015

Ind. Gov't. - Update on - Senate committee to consider "no more stringent" on steriods bill

After much testimony, HB 1351 passed out of House committee earlier today. It did so after a major amendment by the author, Rep. Wolkins. The amendment would limit the bill's requirements to future rules only.

Although the bill's author constantly referred to "a person in LSA" who would review the rules, the LSA fiscal note reads:

Office of Regulatory Accountability (ORA) : This bill establishes the Office of Regulatory Accountability (ORA) within the Legislative Services Agency. The estimated annual cost of the ORA could be about $475,000. The estimate includes the cost of salary and fringe benefits for five employees and rent for office space. The Legislative Services Agency is funded through General Fund appropriations. * * *

The Joint Committee on Agency Rule Review (JCARR) within the Ohio General Assembly is a similar office to the ORA proposed by this bill. JCARR reported actual expenditures of about $400,000 during FY 2014. For FY 2015, JCARR was appropriated about $460,000 for operating expenses. JCARR is staffed by five employees.

A representative of the Manufacturers Ass'n. testified in favor of the bill, pointing to a DLGF error that no one had caught, problems with a Dept. of Revenue Bulletin, and with a Form that DLGF was promulgating. Apparently these are the kinds of problems he anticipates that the "person in LSA" will be able to catch. When asked for details, he testified that "either LSA catches it or I or a legislator would bring it to them." Then, he said, the GA would pass legislation to clarify its intent. He was asked: Can't that happen now? (And I would ask, is this LSA office to become a location for special pleading, once the pubic rulemaking process has concluded?)

Justin Schneider from the Farm Bureau cited several Indiana court cases limiting an agency's rulemaking to the parameters set by its statutory authorization. Indeed, the ILB quoted one of those opinions yesterday in the footnote to this post. He cited the court opinions as a reason why this new legislation is needed, I cited it as a reason why it is not needed -- precisely because the court is there, and that is its role, to mediate disputes where an agency may be acting outside its statutory authority.

In closing, Rep. Wolkins cited the Court of Appeals opinion this week in the high-fenced hunting case as a reason why his new legislation is needed. He said that DNR acted outside its bounds, and it took years for the issue to be decided.

But the issue arose because the statutes are unclear. Although the General Assembly has had years to clarify the law relating to high-fenced hunting and the authority of DNR, they still have not acted. (See, eg, this Feb. 3rd story by Ryan Sabalow, IndyStar)

If the GA has not acted to give (or revoke) clear authority in this high profile case, is it likely they will act quickly to clarify each of the issues the LSA may bring up as it reviews each and every rule, policy document, form and bulletin that originates from a state agency in the future? Or will today's bill simply result in a gigantic pile-up of perceived problems for the General Assembly to address?

Posted by Marcia Oddi on Tuesday, February 03, 2015
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 4 opinions today (and 10 NFP memorandum decisions)

For publication opinions today (4):

In Nick Hunckler v. Air Source-1, Inc., Timothy Miller and Kelly A. Brannen, an 11-page opinion, Judge Baker writes:

Nick Hunckler appeals the trial court’s grant of summary judgment in favor of appellees Timothy Miller and Air Sorce-1, Inc., (Air Sorce-1) regarding his personal injury claim. Finding that material issues of fact exist, thereby precluding summary judgment, we reverse and remand for proceedings consistent with this opinion. * * *

Hunckler argues that the trial court erred when it granted summary judgment in favor of Miller and Air Sorce-1. He contends that the trial court erred in determining that he was a “volunteer” and maintains that the trial court erred in applying the volunteer duty of care as stated in Thompson v. Owen, 141 Ind. App. 190, 218 N.E.2d 351 (Ind. Ct. App. 1966), to his negligence claim. * * *

Hunckler argues that Thompson does not apply to him because the case at bar is not a premises liability case. Miller concedes that this is not a premises liability case, but argues that the volunteer doctrine is not limited to premises liability cases. In May 2001, the Supreme Court of Michigan addressed the continued relevance of the volunteer doctrine, and abandoned it entirely. James v. Alberts, 626 N.W.2d 158, 161-162 (Mich. 2001). It stated that it would “return this area of law to traditional agency and tort principles, comfortable that they will better resolve the matters to which the doctrine might have applied.” Id. at 162.

We now adopt the same approach. We will continue to rely on traditional tort and agency principles and, to the extent it was ever applied, abandon the volunteer doctrine. Therefore, it follows that ordinary negligence principles apply in the instant case. We find that there are genuine issues of material fact as to duty, causation, breach, and damages. * * *

Kirsch, J., concurs, and
Robb, J., concurs in result with opinion. [which begins, at p. 10] respectfully concur in result, believing, as the majority does, that there are genuine issues of material fact which preclude judgment for Miller as a matter of law.

I, however, find it unnecessary to discuss Thompson v. Owen at all, let alone “abandon” the volunteer doctrine it espoused. First, as the majority notes, Thompson may not even be binding precedent, as the majority in that case agreed only on the result, not the analysis.

In R.B. v. K.S. , a 10-page opinion, Judge Baker writes:
R.B. (Father) appeals the order of the trial court granting him legal custody of his children and ordering that parenting time be equally shared with K.S. (Mother). The order further specified that Father is to pay to Mother child support in the amount of $876 per week. Father argues that this award is clearly erroneous. Finding that the amount of child support was determined in accordance with the Indiana Child Support Guidelines and finding no other error, we affirm. * * *

Finally, Mother requests appellate attorney fees pursuant to Indiana Appellate Rule 66(E), which provides: “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorney’s fees.” While we have decided against Father, we do not believe that this appeal was frivolous or in bad faith. In particular, this Court had yet to address the relevance of Grant v. Hager subsequent to the 2010 amendments to the Guidelines. Consequently, we decline to order Father to pay Mother’s appellate attorney fees.

In Antonio Garcia v. State of Indiana , a 10-page opinion, Judge Crone writes:
Antonio Garcia appeals his conviction for class D felony possession of a schedule III controlled substance (a hydrocodone/acetaminophen pill). He argues that the pill found in a container discovered in his pants pocket during a search incident to arrest was taken in contravention of his state constitutional right against unreasonable search and seizure and was therefore inadmissible. Specifically, he contends that even though he was lawfully arrested and the search of his person incident to arrest was reasonable, it was unreasonable for the police to open the container. We conclude that the search of the container was unreasonable under the Indiana Constitution, and therefore the pill was inadmissible. Accordingly, we reverse Garcia’s conviction. * * *

In sum, Officer Robinett had no safety concerns to justify opening the container and also had no reasonable suspicion that it held any illegal substances. We conclude that given the facts of this case, it was unreasonable under the Indiana Constitution to open the container found in Garcia’s pants pocket during a search incident to arrest. Accordingly, the pill was inadmissible. Therefore, we reverse Garcia’s conviction for class D felony possession of a schedule III controlled substance. Reversed.

In Dustin McFadden v. State of Indiana , an 8-page opinion, Chief Judge Vaidik writes:
Dustin McFadden was convicted of Class B felony criminal confinement and Class B misdemeanor battery. The trial court sentenced McFadden to six months for battery and fourteen years for criminal confinement. McFadden now appeals, challenging the sufficiency of evidence underlying his criminal-confinement conviction. He also argues that his sentence for criminal confinement is inappropriate. Because there is no independent evidence to establish confinement beyond the evidence used to establish that McFadden committed battery, we conclude that the evidence is insufficient to support McFadden’s criminal-confinement conviction. We therefore reverse and remand with instructions.
NFP civil decisions today (4):

In the Matter of the Termination of the Parent-Child Relationship of: A.W. (Minor Child) and A.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In Re: the Paternity of D.Y.E., M.D. (Father) v. A.G. (Mother) (mem. dec.)

Chris Schumacher v. Theresa Martin-Schumacher (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: T.P., K.P., and D.P., minor children, and D.S., Mother, and B.P., Father v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

Andrew Wedge v. State of Indiana (mem. dec.)

Mark A. Kimmel v. State of Indiana (mem. dec.)

Fabian Gomez v. State of Indiana (mem. dec.)

Travis J. Monroe v. State of Indiana (mem. dec.)

Everett Harry Koonce, Jr. v. State of Indiana (mem. dec.)

Julie Wright v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, February 03, 2015
Posted to Ind. App.Ct. Decisions

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

Updating this ILB post from Jan. 21st, Adam Liptak of the NYT wrote about unpublished opinions in his Feb. 2nd column, headed "Courts Write Decisions That Elude Long View." A few quotes:

These days, technology has turned the term “unpublished” into a misnomer. With the availability of legal databases and websites for courts, almost every decision issued by an appeals court is instantly available. And, because of a 2006 amendment to the federal rules of appellate procedure, lawyers are free to cite unpublished opinions issued after Jan. 1, 2007.

But without the force of precedent to require courts to rule similarly the next time around, these decisions create a sort of lawlessness, Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit wrote in 2000. “We may have decided this question the opposite way yesterday,” he wrote, “but this does not bind us today.”

Posted by Marcia Oddi on Tuesday, February 03, 2015
Posted to Courts in general

Ind. Courts - Indiana Courts presentation to House Ways & Means is this morning

From the Court website:

The Indiana Supreme Court budget presentation to the House Ways & Means Committee is February 3, 2015, 9:00 - 9:45 a.m., Statehouse Room 404. The presenters on behalf of the Court are Chief Justice Loretta H. Rush, Justice Steven H. David, Judge Paul D. Mathias, and Judicial Center Executive Director Jane A. Seigel. They intend to focus on 3 areas: Court Technology, Criminal Code Reform, and Court Access Programs.
Here is the 11-page handout. Here are the 25 slides. Watch here.

Posted by Marcia Oddi on Tuesday, February 03, 2015
Posted to Indiana Courts

Monday, February 02, 2015

Ind. Decisions - "Court rules against DNR in high-fence hunting fight" [Updated]

Here is Indianapolis Star reporter Ryan Sabalow's first take on the Court of Appeals opinion today in the Whitetail Bluff case. The ILB summary of the ruling from earlier today is here.

Here is the 2-page trial court opinion, from Harrison County, issued Sept. 27, 2013. The gist:

The deer purchased by Whitetail Bluff and offspring thereof, are privately owned and are not the property of the people of the State of Indiana. Therefore the animals are not subject to regulation by DNR by virtue of the provisions of IC 14-22-1-1. DNR's actions seeking to regulate Whitetail Bluff's guided hunting activities constitute an improper exercise by an executive agency of the authority of the Indiana legislature contrary to Indiana Constitution Article 3, Section 1.
This April 2, 2014 ILB post is headed "Deer as livestock? What other farmer lets people pay to shoot his livestock for trophies?"

[Updated 2/3/15] Here is Niki Kelly's coverage in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Courts - The judicial branch budget at local and state levels

In a post earlier this month, the ILB quoted from a story by Dan Carden of the NWI Times:

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.
and then commented:
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."
For years we have seen disputes over county budgets, where the county commissioners have cut money from the local courts' funding requests. At times, the local judges have protested the cuts and brought actions in mandate, which, if they reach the Supreme Court without settlement, are nearly always successful.

The ILB wrote an article on "Separation of Powers in the County Courthouse" in 2005; it is available here.

Over the years, the Supreme Court, starting with Chief Justice Shepard, has made an effort to incrementally bring funding of local courts and court officers into the state budget. This year, for instance, Chief Justice Rush has asked to have local probation officers brought into her budget.

I've often wondered what would happen if, or when, the judicial branch and the legislative branch would conflict over the proper level of funding for the courts. As noted above, we are far from that, currently the judicial branch' request is part of the executive budget request...

This all came to mind today when I saw this post from Gavel to Gavel, headed "Montana: governor shouldn’t be able to alter judiciary’s budget request to the legislature." Bill Raftery wrrites:

A key protection for the independence of the judiciary developed over the last several decades has been the practice of direct submission of the judiciary’s budget request to the legislature or, failing that, submission to the governor with a proviso that the governor must pass the request along to the legislature unchanged. The judiciary is a branch and not an executive branch agency, the argument goes, and should have its request treated accordingly. Several states have the practice (see list here) and a new bill in Montana would put that state’s judiciary on like footing.
His linked chart showing how each state handles preparation and submission of the judicial branch budget, is certainly worth a look.

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Indiana Courts

Ind. Gov't. - Senate committee to consider "no more stringent" on steriods bill tomorrow [Updated]

The House Committee on Government and Regulatory Reform is meeting tomorrow at 10:30 and will be hearing an amazing bill, HB 1351, that if passed would create total havoc in Indiana government, before it was likely stayed by a court order.

It begins by adding a new chapter to Title 1 of the Indiana Code, outlining the construction of statutes granting regulatory power to state agencies. It appears to require that no state agency may enact a rule without specific legislative authority. Of course, that is the case right now, as I understand it -- an agency that is intended to have rulemaking authority is granted this authority by the General Assembly in its authorizing statute, which also establishes the parameters of the authority.* [Update - see footnote below]

For example, IC 13-18-3-1 sets out the powers of the Indiana Environmental Rules Board with respect to water pollution control.

And IC 28-1-13-7.1 dealing with the Dept. of Financial Institutions and state chartered banks, provides that:

(d) A state chartered bank may make, arrange, purchase, or sell loans or extensions of credit secured by liens or interests in real estate as:
(1) may be so made, arranged, purchased, or sold by a federally
chartered bank under a federal law or regulation; or
(2) prescribed by order of the department or by a rule adopted
by the department under IC 4-22-2
.
But at Sec. 4, the new chapter HB 1351 would add to Title 1 would provide:
Sec. 4. Except as specifically authorized by statute, a grant of
statutory authority to a governmental agency to regulate the duties
or other obligations of any person, participate in any federal or
other governmental program, develop a plan for any federal or
other governmental program, or adopt rules, guidelines, standards,
or other policies to implement a federal or other governmental
program shall not be construed to grant rulemaking or other
policy making authority that:
(1) is not specifically authorized by state statue; or
(2) does not implement a federal requirement.
Hmmm. And what does that mean exactly?

In addition, the same new chapter, at Sec. 5, would limit application of the long-standing, court-made administrative law concept of Chevron deference.

The bill goes on to provide that "all rules that do not comply with the new chapter are declared to be void as of July 1, 2016." And exactly how will that mandate be implemented?

By its terms "This chapter applies to any entity exercising any part of the executive powers of the state, including the administrative department and any body and corporate or other instrumentality of the state." So this includes not only financial institutions, IDEM, the lottery commission and DNR, but the AG, the SOS, the IURC, etc.

SECTION 2 of the bill sets up an office of regulatory accountability in the LSA to police the new law.
_____________
*UPDATE - Today's decision by the COA today in the Whitetail Bluff fenced hunting case includes this language on p. 19 that supports the ILB's statement above:

[T]he Indiana Administrative Code consists of rules and regulations passed by agencies pursuant to authority conferred upon them by the General Assembly. The validity of those provisions depends entirely upon whether the subject matter addressed in those provisions falls within the scope of authority granted to the relevant agency by the General Assembly. See Indiana Dep’t of State Revenue v. Best Ever Cos., Inc., 495 N.E.2d 785, 787 (Ind. Ct. App. 1986) (an administrative board “may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law”) (quoting Indiana Dep’t of State Revenue v. Colpaert Realty Corp., 231 Ind. 463, 479-80, 109 N.E.2d 415, 422-23 (1952)) (emphasis deleted).

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Indiana Government

Ind. Decisions - Tax Court posts one today, filed Jan. 30th

In Brandenburg Industrial Service Co., an Illinois Corp. v. Ind. Dept. of State Revenue, a 15-page opinion, Judge Wentworth writes:

Brandenburg Industrial Service Company has moved to compel the Indiana Department of State Revenue to disclose both its potential non-expert witnesses and two-pages of handwritten notes prepared by one of its employees. While the Court will not compel the Department to disclose its potential non-expert witnesses, it orders the Department to produce the two-pages of handwritten notes. * * *

For the above-stated reasons the Court DENIES Brandenburg’s Motion to Compel Interrogatory Response and GRANTS its Motion to Compel Production of Nonprivileged Document. Accordingly, the Court ORDERS the Department to provide Brandenburg with the two-pages of handwritten notes that are responsive to Brandenburg’s Request for Production Number 3 within seven (7) days of this order. The Court also ORDERS the parties to submit a new joint case management plan within thirty (30) days of this order. Finally, the Court will schedule a Trial Rule 37(A)(4) hearing regarding the propriety of an award of expenses by separate order.

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 0 NFP) [1 opinion(s) and 0 memorandum decision(s)] - including canned hunting ruling

For publication opinions today (1):

In Ind. Dept. of Natural Resources, and Cameron F. Clark as Dir. of the Ind. Dept. of Natural Resources v. Whitetail Bluff, Llc., Rodney Bruce et al, a 27-page, 2-1 opinion, Judge Friedlander writes:

The Indiana Department of Natural Resources (IDNR) appeals a grant of summary judgment in favor of Whitetail Bluff, LLC, Rodney Bruce, Backwoods Preserve, Inc., Midwest Woodlots, LLC, and Sean Taylor d/b/a T.C. Outdoors (Whitetail Bluff). The issue ultimately presented in this case is whether current Indiana statutory law prohibits “high fence” hunting of wild animals – in this case, deer. We affirm. * * *

May, J., concurs
Vaidik, C.J., dissents with opinion. [that begins, at p. 22] This case involves high-fence hunting of white-tailed deer. This is also known as canned hunting—the shooting within high-fence enclosures of farm-raised deer that are bred for unnaturally massive antlers. The dangers of canned hunting include infection—specifically, chronic wasting disease (CWD)—and unethical hunting practices, such as the concept of fair chase. See Ryan Sabalow, Trophy Deer Industry Linked to Disease, Costs Taxpayers Millions, Indianapolis Star, Mar. 27, 2014, http://indy.st/1mxxhiY (discussing both CWD and shooting—for a $15,000 fee inside a one-acre pen—a deer so ill that a ranch hand had to poke the deer with a sharp stick to get it to stand). * * *

Because IDNR may protect and properly manage the fish and wildlife resources of Indiana—regardless of who owns them—I believe that IDNR has the authority to regulate high-fence hunting under our current statutory scheme. Therefore, I would enter summary judgment in favor of IDNR.

[The ILB will have more on this opinion later. See this ILB post for background.]

NFP civil decisions today (0):

NFP criminal decisions today (1):

In Constantine D. Mills, Jr. v. State of Indiana (mem. dec.), a 9-page decision, Chief Judge Vaidik writes:

Constantine D. Mills, Jr. pled guilty to Class A felony child molesting and Class B felony sexual misconduct with a minor and was sentenced to fifty years in the Department of Correction. On appeal, Mills argues that the trial court abused its discretion in its treatment of aggravating and mitigating factors and his sentence is inappropriate. We do not reach these claims, however, because we conclude that Mills waived the right to appeal his sentence. We therefore dismiss this appeal. * * *

Mills waived the right to appeal his sentence. The language of the plea agreement itself is not ambiguous. Paragraph thirteen of the agreement explicitly states that Mills waived his right to challenge his sentence “under any standard of review, including but not limited to, an abuse of discretion standard and the appropriateness of the sentence under Indiana Appellate Rule 7(B) . . . .” * * *

The court did err, however, when it advised Mills at his sentencing hearing that he could appeal his sentence. But the court made this erroneous statement at the end of the sentencing hearing—well after it had accepted the plea agreement and entered Mills’ fifty-year sentence. By this time, Mills had already agreed to waive the right to appeal his sentence and had received the benefit of his bargain.

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Religious freedom restoration" now set for hearing

There have been stories about this topic for weeks, but two bills on "religious freedom" have now been set for hearing in committee.

SB 568 and SB 101 are set for hearing in the Senate Judiciary Committee next Monday, Feb. 9th, upon adjournment.

There have been many advance stories in the press about this effort, including:

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Indiana Government

Ind. Gov't. - "Fine-tune well-meaning ethics bill"

That was the heading to this Sunday editorial in the Fort Wayne Journal Gazette. Some quotes:

The legislature needs to set up a panel with some independence to make sure legislators are not crossing the line on financial involvements. Lawmakers can’t seem to see their own potential conflicts.

First, The Indianapolis Star revealed that House Education Committee Chairman Robert Behning last summer started an educational consulting business and had asked the House Ethics Committee for permission to solicit business in other states for Questar, a Minnesota company that does business in Indiana.

Last week, the potential conflicts of Rep. Eric Koch were revealed. Despite extensive energy investments, Koch wrote and introduced a bill to allow oil and gas companies to site wells without any say from local communities.

Behning withdrew his request, and Koch withdrew his bill Wednesday, saying the controversy was a “distraction” from other legislative work. If anyone needed evidence that legislators may have difficulty recognizing potential conflicts, here it was. * * *

Why not just set a dollar amount to trigger reporting? Common Cause suggests a logical threshold would be $5,000 – the same figure as the value of investments that the bill would recognize as significant.

Koch’s and Behning’s insensitivity to the appearance of conflict points to the other part of what’s needed: independent review.

The Kentucky legislature has a completely independent ethics review commission. The legislature wouldn’t even have to go that far to get better results. Just provide for some outside involvement and review when a question of ethics comes up. The bill could set up a plan to help legislators review questionable situations on a case-by-case basis.

The bipartisan bill moving through the House needs some tuning. But the legislature has the opportunity to get it right this session.

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Indiana Government

A teaching moment - More on: Trust no one!

Updating this ILB post from Jan. 27th, which reported that West erroneously had published a For Publication Court of Appeals opinion as "a not-for-publication memorandum decision" which "shall not be regarded as precedent and shall not be cited by any court," Prof. Schumm reports that West has now corrected its error...

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to A teaching moment

Ind. Gov't. - Some bills being heard in committee today

HB 1453, "Hunting Preserves", is being heard this morning at 10:30 in House Natural Resources, Room 156-A.

SJR 12, a constitutional amendment creating a "Right to farm and ranch", is scheduled at 10 in Room 130, Senate Agriculture.

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending January 30, 2015

Here is the Clerk's transfer list for the week ending Friday, January 30, 2015. It is one page (and 2 cases) long.

One transfer was granted last week, with remand:

The second case on the Jan. 30th list is Shell v. State, where the vote to deny transfer was 3-2 and the order included a rare published dissent to transfer denial. The Jan. 28th ILB post on this order is available here.

Posted by Marcia Oddi on Monday, February 02, 2015
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, Feb. 5

Next week's oral arguments before the Supreme Court (week of 2/9/15):

Webcasts of Supreme Court oral arguments are available here.


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

Next week's oral arguments before the Court of Appeals (week of 2/9/15):

Wednesday, February 11

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, February 02, 2015
Posted to Upcoming Oral Arguments